concurring specially.
I fully concur in Divisions 2, 3, and 4 and the judgment. I do not concur in Division 1 and write specially. I cannot concur in the analysis contained in Division 1 or the holding and analysis of Yellow Cab of Chatham County v. Karwoski, 226 Ga. App. 63 (486 SE2d 39) (1997). The majority opinion’s characterization of Karwoski is a distortion of the opinion and represents an attempt to refight battles previously lost. As Karwoski clearly indicates, the case law in existence at the time the malpractice in this case occurred would have provided no recourse to a defense lawyer who failed to raise the defense of independent contractor. A simple reading of Karwoski will show that its holding was that the relationship between a cab company and its drivers is controlled by the applicable local ordinance, where such addresses this relationship, directly or indirectly. Where the local ordinance does not address this matter, one then looks to the general law. The cab company cases generally arose out of automobile accident cases, where a private citizen sought damages from the cab company, and the cabdriver might seek workers’ compensation benefits. In either case, cab companies took the position that the drivers were independent contractors. Judge Johnson addressed the *51unfairness to the general public created by this problem in his special concurrence in Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746 (449 SE2d 141) (1994).
Decided November 29, 2001 Reconsideration denied December 14, 2001 David A. Webster, for appellant. Taylor W. Jones & Associates, Taylor W. Jones, Richard E. Harris, for appellee.Municipalities were given the authority to regulate taxicab companies which operated within their corporate limits by the legislature. Many municipalities adopted rules which precluded drivers of taxicabs from being independent contractors, while others did not.
Karwoski pointed out that numerous cases were decided by this court without regard to applicable local ordinances.. The majority here chooses an array of such cases to make its point. The dissent in Karwoski relied on two cases having no precedential value whatsoever. In Smith v. Yellow Cab Co. of Chatham County, 223 Ga. App. 143 (476 SE2d 887) (1996), the case which we overruled in Karwoski, the majority relied upon the single judge opinion in Loudermilk Enterprises, supra. We note that Loudermilk Enterprises, which involved a City of Atlanta taxicab company, did not address the application of the city ordinance. It may well have been that the ordinance was not raised, but we note that Worrell v. Yellow Cab Co., 146 Ga. App. 748 (247 SE2d 569) (1978), a case involving the Atlanta City Code, held that taxicabs shall not be operated by any person other than the owner or his employee. Under the Karwoski dissent the cabdriver could be an independent contractor for workers’ compensation purposes, but an employee for tort purposes. I would suggest that anyone wishing to understand Karwoski read the opinion and Judge Johnson’s special concurrence. In any event, Karwoski, as written, would provide no defense for the attorney in this case.