Appeal from the Superior Court of the District of Columbia; (Hon. Ellen S. Huvelle, Trial Judge)
The Publication Status of the Document has been changed by the Court from Unpublished to Published.*
Before Terry and Steadman, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant sued Barwood Cab Company and the driver of a Barwood cab, Willie McKnight, for injuries suffered in a collision between McKnight's cab and another cab in which appellant was riding. The trial court granted Barwood's unopposed motion for summary judgment and, in a separate order, granted McKnight's motion to dismiss based on appellant's failure to comply with the statute of limitations. We affirm both rulings.
On November 30, 1987, two taxicabs collided on a Washington street. Appellant Wood was a passenger in one of the cabs, which was owned and operated by Leah B. Cole. Appellee McKnight owned and operated the other taxicab, which bore the color scheme and insignia of appellee Barwood Cab Company.
Almost three years later, on September 6, 1990, Ms. Wood filed her complaint against Barwood and the Independent Taxi Owners' Association, of which Ms. Cole was a member. She alleged negligence on the part of both cab drivers and sought damages in the amount of $300,000. On November 27, 1990, she moved for leave to amend her complaint by adding Ms. Cole as a defendant and dismissing the Independent Taxi Owners' Association; that motion was granted by Judge Wolf in January 1991. *fn1 More than a year later, on February 4, 1992, Ms. Wood moved to amend her complaint a second time by adding Mr. McKnight as a defendant. This motion was granted on June 6, 1992, by Judge Long, who ordered the amended complaint to be filed as of that date.
After the completion of discovery, Barwood moved for summary judgment. Ms. Wood filed no opposition, *fn2 and the motion was granted by Judge Huvelle. At about the same time, Mr. McKnight moved to dismiss the complaint against him on the ground that it had been filed after the three-year statute of limitations *fn3 had expired. He asserted that because he had not had notice of the original filing of the complaint, as required by Super. Ct. Civ. R. 15 (c)(3), *fn4 the amended complaint did not relate back to the time of the original filing. Judge Huvelle agreed and dismissed the case against McKnight.
Wood's claim against Barwood was based on the doctrine of respondeat superior. In its summary judgment motion, Barwood asserted that McKnight was not its employee but an independent contractor, and that respondeat superior would therefore not apply. McKnight's deposition, as well as an affidavit from Thomas Smith, Barwood's manager, supported Barwood's assertion, and Wood offered no evidence to the contrary. *fn5 Having examined the record under well-established standards of review, *fn6 we agree with the trial court that the undisputed evidence shows that McKnight was an independent contractor and that no employer/employee or master/servant relationship existed between him and Barwood. See Giles v. Shell Oil Co., 487 A.2d 610, 611-612 (D.C. 1985); Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860-861 (D.C. 1982).
There are special rules applicable to taxicabs and taxicab companies. Wood invokes one of those rules, which is that a taxicab company is estopped from denying liability for a driver's negligence on the ground that it did not own the vehicle - but only if the injured person was a passenger in the taxi driven by the allegedly negligent driver. Rhone v. Try Me Cab Co., 62 App. D.C. 201, 202-203, 65 F.2d 834, 835-836 (1933). That is not the situation in this case; Ms. Wood was not a passenger in McKnight's taxi, but in the other taxi driven by Ms. Cole. Thus this case is governed not by Rhone but by Harlem Taxicab Ass'n v. Nemesh, 89 U.S. App. D.C. 123, 124, 191 F.2d 459, 461 (1951), which limits any estoppel under Rhone to a situation in which "an injured passenger has been induced by the [company's] representations to ride in a cab that bears its name." In a situation such as that presented here, Barwood's name on the taxicab raises a presumption that it owns or operates the cab, "but this is decisive only in the absence of contrary evidence." Id. (citations omitted). Once Barwood offered evidence contrary to the presumption, "the presumption out of the case." Del Vecchio v. Bowers, 296 U.S. 280, 286, 80 L. Ed. 229, 56 S. Ct. 190 (1935) (quoted in Nemesh). The general rule is that, absent a Rhone -type estoppel, an association or company "which neither owns nor operates cabs and has no control over their operation is not responsible for the negligence of a in operating his cab." Nemesh, supra, 89 U.S. App. D.C. at 124, 191 F.2d at 461. Since Barwood's evidence to that effect was uncontroverted, the trial court committed no error in ruling that Barwood was not vicariously liable for McKnight's actions.
As for the claim against McKnight, we are in general agreement with the reasoning of the trial court when it granted McKnight's motion to dismiss. Appellant Wood had the burden of showing that McKnight in fact had notice of the suit against Barwood before the statute of limitations expired, but she did not meet that burden. McKnight was not served with process until January 11, 1993, more than five years after the accident. He testified in his deposition that he had no knowledge of appellant's case against Barwood until April 1992, almost a year and a half after the statute expired, and appellant offered no proof to the contrary. We find no error. *fn7
The judgment of the trial court is in ...