The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Ames, Jr. sued taxicab driver Benjamin Alcindore for assault, battery and intentional infliction of emotional distress (Counts I, II and V) and Yellow Cab of D.C., Inc. ("Yellow Cab") for Alcindore's torts under respondeat superior, for negligent hiring and retention (Count III), and for negligent entrustment, supervision and assignment (Count IV). Yellow Cab moved for summary judgment on all claims against it. The magistrate judge prepared a report recommending that Yellow Cab's motion for summary judgment be denied with respect to all claims, to which Yellow Cab objected. Because the facts taken in the light most favorable to Ames show that a genuine issue of material fact exists regarding whether Yellow Cab was negligent in supervising Alcindore, Yellow Cab's motion for summary judgment will be denied as to that claim. Because Ames cannot show that Yellow Cab and Alcindore had an employer-employee relationship or that Yellow Cab was negligent in hiring Ames, judgment will be granted to Yellow Cab on the remaining counts.
I. YELLOW CAB'S RELATIONSHIP TO ALCINDORE
Yellow Cab is a corporation organized under the laws of the District of Columbia that licenses cab owners to use the Yellow Cab colors and logo on the owner's cab and provides an optional dispatch service. (Def.'s Summ. J. Mot., Ex 2 at 7; Compl. ¶ 13.) Yellow Cab does not own or operate taxicabs. In December 1999, Alcindore, a taxicab driver with a hacker's license issued by the D.C. Taxicab Commission, owned his own cab and used the Yellow Cab name, color scheme and emblem under a licensing agreement. (Def.'s Summ. J. Mot., Ex. 4 ¶ 1.) To be approved by the D.C. Taxicab Commission ("Commission"), an applicant must have a good driving record, pass a national criminal background check and provide a report from the D.C. Metropolitan Police Department regarding all criminal activity, arrests and convictions. The Commission may decline to issue a license based on the applicant's criminal background checks. (Def.'s Summ. J. Mot., Ex. 2 at 7-8.)
To be eligible to enter into a license agreement with Yellow Cab, a licensee-driver must have a valid driver's license, own his cab, maintain insurance on it and have a valid hacker's license from the Commission. (Id., Ex. 1 ¶ 13.) In exchange for the use of Yellow Cab's colors and emblem, Alcindore paid Yellow Cab a weekly licensing fee. (Id. ¶ 11.) Alcindore and Yellow Cab agreed that "[u]nder no circumstances shall the Licensee be deemed to be an employee or agent of the Licensor." (Id., Ex. 4 ¶ 18.) In addition, the agreement states that "the Licensor shall not have any right to exercise any control over or to direct in any respect the conduct or management of the Licensee's business or operations." (Id.) Alcindore also "agrees to expedite all dispatches accepted by him in a prompt and orderly manner, provided that Licensee, in his sole discretion, shall determine in what zone or zones he shall operate, the hours he shall work and the routes over which he shall expedite such dispatches." (Id., Ex. 4 ¶ 6(b).) Alcindore agreed to maintain and repair his vehicle, carry insurance, maintain a valid driver's license, pay the license fee each Saturday for the following week, and abide by all District of Columbia laws and regulations. (Id., Ex. 4 ¶¶ 5-7.) Yellow Cab did not receive or have a right to inspect a driver's manifests or record of trips made. (Id., Ex. 3 at 137.) The agreement also required that the painting of the cab "shall be done at the Licensor's shop or such other place as it may authorize." (Id., Ex. 4 ¶ 2.) Yellow Cab authorized "three or four different places" that would paint the cabs for competitive prices. (Pl.'s Opp'n, Ex. 4 at 72.) Finally, according to a February 8, 1992 letter, Yellow Cab made "[i]t . . . mandatory that drivers check in on all stands."*fn1
Yellow Cab did not pay Alcindore wages or withhold taxes. (Def.'s Reply, Ex. 8 at 48.) Alcindore kept all money paid to him by his passengers, regardless of how he acquired the passenger. (Def.'s Obj. to R&R, Ex. 2 at 54-55.) Alcindore could acquire passengers by picking up someone hailing a cab on the street, through the dispatch system, or through a voucher system.
Yellow Cab provided an optional dispatch service for Yellow Cab drivers that the drivers did not have to pay for if they did not want to use it. (Def.'s Reply, Ex. 8 at 48.) Additionally, a driver who used the dispatch system did not have to bid on any fare on the system. (Id.) As Alcindore stated, "If you don't want to take the job well, you don't bid." (Pl.'s Opp'n, Ex. 14 at 36.) Yellow Cab did require, however, that the drivers take any passenger that they bid on through the dispatch service. According to Alcindore, "[y]ou have to run the job if you bid on it [through the dispatch service] and it is assigned to you." (Id.) Yellow Cab never issued Alcindore any manual, rules or guidelines for use of the radio dispatch system. (Def.'s Reply, Ex. 8 at 29.)
Yellow Cab also had accounts with several firms in Washington D.C. where a passenger could ride with a voucher and Yellow Cab would bill the company at the end of the month. (Def.'s Obj. to R&R, Ex. 2 at 54.) The cab driver could take the voucher into the Yellow Cab office and receive cash for the amount of the voucher. (Pl.'s Opp'n, Ex. 10 at 98.) Vaughn Williams, Yellow Cab's president, said that Yellow Cab does not derive any revenue from those revenues that drivers collect from passengers. (Def.'s Obj. to R&R, Ex. 2 at 54.) Williams acknowledges that Yellow Cab charges a processing fee for the voucher service (id.), but said that the voucher system is not a fee-sharing arrangement and that Yellow Cab retains no fee that the driver is entitled to collect from the passenger. (Def.'s Reply, Ex. 9.)*fn2
D. Insurance, Hours, Maintenance
Alcindore paid Yellow Cab for his insurance coverage. (Id., Ex. 8 at 19.) The insurance was provided through Yellow Cab, but it is undisputed that the drivers themselves covered all the associated costs. (Pl.'s Opp'n, Ex. 5 at 19; Def.'s Obj. to R&R, Ex. 2 at 73.) In his deposition cited by Ames, Alcindore agreed that he "reimburse[d Yellow Cab] for the payments" to the insurance company. (Pl.'s Opp'n, Ex. 5 at 19.) Williams corroborated this characterization when he attested that the drivers' payments of insurance premiums to Yellow Cab are "paid to the insurance company, [and] Yellow Cab just acts as a conduit." (Def.'s Obj. to R&R, Ex. 2 at 73.) Furthermore, Yellow Cab allowed drivers to choose their insurance, indicating that a small percentage of cab drivers were insured through APCO Insurance Agency. (Def.'s Summ. J. Mot., Ex. 3 at 67.)
Yellow Cab was not involved in other aspects of the drivers' business. Drivers set their own hours, worked in the areas of their choice (Def.'s Reply, Ex. 8 at 58), maintained and repaired their own vehicles (Def.'s Summ. J. Mot., Ex. 4 ¶ 6(c)), maintained their own manifest (id., ...