                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 1, 2002 Session

              CHERYL NICHOLS v. TRANSCOR AMERICA, INC.

                      Appeal from the Circuit Court for Davidson County
                        No. 98C-2177     Marietta M. Shipley, Judge



                     No. M2001-01889-COA-R9-CV - Filed June 25, 2002


A female prisoner who was allegedly raped by an employee of TransCor America, Inc., an inmate
transportation company, brought suit against the company for negligence and breach of contract.
The trial court granted partial summary judgment to the defendant company on the negligence claim,
ruling among other things that it is not a common carrier under Tennessee law. The court also
denied the company’s motion for summary judgment on the plaintiff’s contract claim. Both parties
filed applications for an interlocutory appeal, which we granted. We affirm the trial court as to both
issues.

          Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court
                                 Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and PATRICIA J. COTTRELL, JJ., joined.

Sidney Gilreath and Elizabeth Murphy, Knoxville, Tennessee; Steve Gibbins, Austin, Texas, for the
appellant, Cheryl Nichols.

Robert J. Walker, J. Mark Tipps, and W. Scott Sims, Nashville, Tennessee, for the appellee
TransCor America, Inc.

                                             OPINION

                             I. AN ALLEGED RAPE AND A CIVIL SUIT

       On October 25, 1997, Cheryl Nichols was being moved from a Florida jail to a Texas prison.
Van transportation was provided by TransCor America, Inc., a Tennessee corporation that is a
wholly-owned subsidiary of Corrections Corporation of America. Angel Rivera was one of two
TransCor employees who accompanied Ms. Nichols and other inmates during this journey. Ms.
Nichols alleged that while on route, Mr. Rivera raped her in a gas station bathroom in Natchitoches,
Louisiana. Mr. Rivera apparently admitted to sexual contact with Ms. Nichols, but claimed that it
was consensual. TransCor subsequently terminated Mr. Rivera’s employment for violation of
company policy against any sexual contact between prisoners and employees.

        On August 6, 1998, Ms. Nichols filed a complaint against TransCor and Rivera in the
Davidson County Circuit Court, asking for $5,000,000 in compensatory damages. Mr. Rivera could
not be found, and was not served with process. The plaintiff’s claims against TransCor were
premised upon negligent hiring, retention, training, and supervision of its employee, as well as
breach of contract. She also claimed that TransCor had violated her constitutional rights while
acting under color of state law. See 42 U.S.C. § 1983. The action was subsequently removed to the
U.S. District Court because of the federal claim.

        On March 20, 2000, the Federal District Court ruled against Ms. Nichols on her
constitutional claim. The court noted that the parties did not dispute that TransCor was acting under
color of state law, but it found there to be no evidence of any conduct on the part of the company to
support the theory that it had willfully deprived the plaintiff of her constitutionally protected rights.
The court also declared that Section 1983 claims can only be asserted against defendants who cause
constitutional violations by their own actions, and that a private corporation, like a state agency,
cannot be held vicariously liable under Section 1983 for its employee’s actions. The court
accordingly dismissed Ms. Nichols’ federal claim on summary judgment, but it declined to exercise
jurisdiction over the plaintiff’s state law claims, and remanded the case to state court for adjudication
of those claims.

        Defendant TransCor subsequently filed a motion in circuit court to dismiss the remaining
claims against it for failure to state a claim under Tenn. R. Civ. P. 12.02(6), or in the alternative, for
summary judgment. Following arguments on the motion, the trial court granted summary judgment
to the defendant on all the plaintiff’s claims, except for breach of contract. The basis for the court’s
Memorandum and Order, dated September 8, 2000, was the lack of evidence that TransCor had
negligently hired, trained or retained Mr. Rivera as an employee, or that it had been otherwise
negligent with regard to Ms. Nichols’ safety during the transport. The court also found that the
alleged acts of Mr. Rivera were committed outside the course and scope of his employment, and thus
that TransCor could not be held vicariously liable for those acts.

       The plaintiff had argued as another basis of liability that as a common carrier, TransCor had
a non-delegable duty to adhere to “the highest standard of care for the safety of its passengers.” See
Henshaw v. Continental Crescent Lines, Inc., 499 S.W.2d 81 (Tenn. Ct. App. 1973); Jenkins v.
General Cab Co. of Nashville, 135 S.W.2d 448 (Tenn. 1940). The court ruled, however, that
TransCor did not meet the definition of a common carrier, because it did not offer its services “to
the public generally.” See Brown v. Allright Auto Parks, Inc., 456 S.W.2d 660, 665 (Tenn. Ct. App.
1973).

       The plaintiff subsequently filed a Motion to Alter or Amend the Summary Judgment, based
on newly discovered evidence, and furnished the court with a document whose existence the
defendant’s representatives had chosen not to reveal during discovery. The first sentence of


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TransCor’s Interstate Commerce Commission Certificate reads, “This certificate is evidence of the
carrier’s authority to engage in transportation as a common carrier by motor vehicle.” The defendant
also filed a motion, asking for summary judgment on the plaintiff’s breach of contract claim.

         Another hearing followed, and on December 8, 2000, the trial court ruled on the two pending
motions. In light of the new evidence presented by Ms. Nichols, the court ruled that the plaintiff had
created a genuine issue of material fact as to whether TransCor should be considered a common
carrier for purposes of tort liability. The court accordingly reversed its summary judgment on that
issue alone.

        The court also found there were questions of material fact as to the terms of the implied
contract between TransCor and the Florida authorities, and as to whether Ms. Nichols should be
considered a third-party beneficiary of that contract. The court accordingly denied the defendant’s
motion for summary judgment on the question of breach of contract, and ruled that the resolution
of that question was a matter to be entrusted to the trier of fact.

        The defendant subsequently filed another motion to reconsider, and after a further hearing,
the court visited the common carrier question once more, in light of relevant case law, including
Hawkins County v. Mary Davis, 391 S.W.2d 658 (Tenn. 1965). In that case, our Supreme Court held
that by transporting pupils to and from school, Hawkins County did not thereby become a common
carrier of passengers, but acted as a private carrier, “charged with the duty to exercise reasonable and
ordinary care under the circumstances for the safety of the children in its school system thus being
transported.”

        The court reversed itself again, declaring that despite the existence of the I.C.C. certificate,
TransCor was not a common carrier, because like the Hawkins County School District, the defendant
did not offer its services to the general public, but only to a specific class of passengers. The court
further stated that it would grant any party’s request for an interlocutory appeal, without a further
motion. Both parties availed themselves of the court’s offer, and on August 22, 2001, this court
agreed to hear their appeals.

                                   II. IS TRANSCOR A COMMON CARRIER ?

        A common carrier of passengers has been defined as “one who undertakes for hire to carry
all passengers indifferently who may apply for passage.” Roberts v. Knoxville Transit Lines, 259
S.W.2d 883 (Tenn. Ct. App. 1952).1 While common carriers may include operators of many
different types of transportation, the distinguishing characteristic of a common carrier is not the
mode of transportation employed, but the nature of its relationship to the general public. See N.C.
Railroad v. Messino, 33 Tenn. (1 Sneed ) 220 (1853) (railroads); Sanders v. Young and McFerrin,
38 Tenn. 219 (1858) (ferries); Marshall v. Nashville Ry. & Light Co., 101 S.W. 419 (Tenn. 1907)


         1
           The category of com mo n carriers includ es not on ly carriers of pa ssengers, but also certain carriers of goo ds.
For the p urpo se of this discussion , we w ill only consider the law as it applies to carriers of passenge rs.

                                                             -3-
(trolleys); Union Transfer Co. v. Finch, 64 S.W.2d 222 (Tenn. Ct. App. 1932) (buses); Wishone v.
Yellow Cab Co., 97 S.W.2d 452 (Tenn. Ct. App. 1936) (taxis); Capital Airlines, Inc. v. Barger 341
S.W.2d 579 (Tenn. Ct. App. 1960) (airlines).

        A common carrier is bound to transport anyone who requests its services. It does not have
the right to refuse passengers who offer the proper fare, so long as it possesses the capacity to carry
them. Hogan v. Nashville Interurban R.R., 174 S.W. 1118 (1915). Organizations designated as
private carriers or contract carriers may also carry passengers, but only pursuant to individual
contracts, entered into separately and voluntarily with each customer. Kieronski v. Wyandotte
Terminal R.R., 806 F.2d 107, 109 (6th Circuit 1986); Warmath v. North Am. Acc. Ins. Co., 241
S.W.2d 938 (Tenn. Ct. App. 1951).

       The significance of the designation of a transportation provider as a common carrier for the
purposes of this discussion lies in the heightened duty of care towards its paying passengers that such
a designation imposes upon the operator. White v. Metropolitan Government of Nashville and
Davidson County, 860 S.W.2d 49 (Tenn. Ct. App. 1993). While a common carrier is not an insurer
of passenger safety, it is held “to the exercise of the highest degree of care and foresight” in its
operations, and may even be held liable for the tortious acts of its employees. Jenkins v. General
Cab Co. of Nashville, 135 S.W.2d 448 (Tenn. 1940); McClellan v. Tennessee Electric Power Co.,
123 S.W.2d 822 (Tenn. 1938).

        A private carrier to the contrary is only held to the duty of reasonable and ordinary care. This
does not mean indifferent care or merely token efforts. The degree of care deemed to be reasonable
may vary, depending on the situation. In Hawkins County v. Mary Davis, 391 S.W.2d 658 (Tenn.
1965), for example, the court said that the duty of the school bus driver is to “exercise special care
proportionate to the age of the child and its ability, or lack of ability, to care for itself.”

        In some situations, reasonable care may imply a duty that proves to be as great, or even
greater than the duty of a common carrier. For example, it has been held that a common carrier only
owes the duty of ordinary care to its passengers before they have boarded and after they have alighted
from the carrier’s vehicle. Nashville, Chattanooga & St. Louis Railway v. Newsome, 206 S.W. 33
(Tenn. 1918); Southern Railway v. Crutcher, 1 Tenn. Civ. App. 231 (1910). But the heightened duty
of a school bus driver towards underage passengers may continue after the child has alighted, and
until he has safely crossed the road. Cartwright v. Graves, 184 S.W.2d 373 (Tenn. 1944).

        The plaintiff argues that her introduction into the record of certain documents and materials
have created a material issue of fact as to whether TransCor is a common carrier, and that the issue
should therefore be decided by a jury. The record contains TransCor’s Interstate Commerce
Commission Certificate, as well as certificates issued by the states of Tennessee and Texas. It
appears to us, however, that those certificates were issued for purposes of regulation and/or taxation,
and that they do not supercede the analysis under tort law by which common carriers are
distinguished from private or contract carriers. Further, the fact that the I.C.C. may have authorized



                                                  -4-
TransCor to operate as a common carrier does not mean that the company has actually operated as
one.

        Appellant also directs our attention to promotional materials prepared by TransCor’s
marketing department, which tout the company’s size, its facilities, and its expertise. The record
indicates that TransCor operates in all 50 states, and that it transports between 40,000 and 70,000
prisoners each year. One brochure boasts that it transports all types of prisoners, “including male,
female, high risk, those with medical conditions, juveniles, and short notices/deadlines” and shows
its phone number in bold type with the slogan “One call does it all.” In one document submitted to
the Missouri Department of Correction, TransCor stated, “The contractor represents himself or
herself to be an independent contractor offering such services to the general public.”

         Notwithstanding this document, there is no evidence in the record that TransCor has actually
offered to transport any passengers other than prisoners. Further, there is no evidence sufficient to
overcome the proof of TransCor’s actual mode of operation, both in general and in the specific
incident that gave rise to the present case. TransCor does not provide transportation to the general
public, nor is it obligated to carry anyone, except by specific contract. It does contract with a variety
of parties, including federal and state agencies, and with both public and private incarceration
facilities, but not with individual members of the public. While it boasts about the size of its
operations, we do not believe that size is determinative of common carrier status. A company that
operates a few taxis in a small city can be a common carrier, while a large charter bus company may
not be.

                               III. RESTATEM ENT OF TORTS § 314A

        The Restatement of Torts (Second) discusses the duties of common carriers to their
passengers in § 314A(1), and names other parties who are subject to a similar duty. These include
innkeepers, § 314A(2), and landowners who hold their property open to the public, § 314A(3). Also,
“[o]ne who is required by law to take or who voluntarily takes custody of another under
circumstances such as to deprive the other of his normal opportunities for protection is under a
similar duty to the other.” § 314A(4).

       The appellant argues that Tennessee has expressly recognized the application of Restatement
§ 314A(4) to prisoners, and cites three unpublished cases of this court, and a United States Supreme
Court case, as authority for that proposition. All of those cases do mention § 314(A)(4), but none
of them is on point, as they all involve negligence by correctional employees rather than intentional
acts. More importantly, however, they do not stand for the proposition that the appellant is
advocating, but rather for its opposite.

       Kane v. State, No. 89-75-II (Tenn. Ct. App. at Nashville, filed Nov. 15, 1989), was a suit
brought by the mother of a mentally disturbed young man who committed suicide in his jail cell.
The trial court granted summary judgment to the state, on the ground that the suicide was an
independent, intervening cause of the decedent’s injury, which relieved the state of any liability. We


                                                  -5-
rejected this proposition, and reversed the trial court’s judgment, holding that once the jailer
becomes aware that a prisoner in his charge is likely to hurt himself, he assumes a heightened duty
to protect that prisoner from the danger of self-inflicted injury. As the appellant points out, we did
use the term “heightened duty” several times in this opinion, but we held this heightened duty only
arose “when the custodian knew or should have known that the prisoner might harm himself.”

         In Gilliam v. Williamson County, No. 01A01-9407-CV-00341 (Tenn. Ct. App. at Nashville,
filed Dec.30, 1994), a prisoner who suffered a broken leg while cutting a tree branch on work detail
claimed that the defendant should never have entrusted him with the use of a chain saw. We stated
in that opinion, that “[p]ersons having custody of prisoners are not insurers of the prisoners' safety.
They are simply required to exercise ordinary and reasonable care for the protection of the life and
health of the persons in their custody.”

        The same language about persons having custody of prisoners not being insurers of the
prisoners' safety is found in Langley v. Metropolitan Government, No. 87-323-II (Tenn. Ct. App.
at Nashville, filed Nov. 18, 1988). Mr. Langley was seriously injured when he leaped out of an open
sixth story courtroom window, after being convicted of second-degree murder. He argued that the
officers escorting him "knew, or in the exercise of reasonable care, should have known of [his]
depression and unstable mind following his conviction . . . ." The defendant argued that it breached
no legal duty to Mr. Langley, and that his own actions were the only cause of his injuries. In
reversing the trial court’s grant of summary judgment to the defendant, we noted that jailers “are
not expected to be fortune tellers, psychologists, or psychiatrists,” but that “they cannot be
deliberately indifferent to a prisoner's physical or psychological needs. Thus, they are required to
exercise ordinary and reasonable care for the protection of the life and health of the persons in their
custody.”

        Daniels v. Williams, 474 U.S. 327 (1986) was a landmark case in which the Supreme Court
held that the deprivation of constitutional rights under the due process clause is not implicated when
injuries are suffered by prisoners as a result of simple negligence by correctional employees.
Appellant relies solely on a parenthetical statement in the opinion that “[j]ailers may owe a special
duty of care to those in their custody under state tort law . . . .” There is no reference to Tennessee
in the opinion, and no discussion of the nature or extent of the “special duty” owed.

       One thing that the above cases have in common is a rejection of the theory that jailers can
absolve themselves of their duty of ordinary and reasonable care towards the prisoners in their
custody. They also demonstrate that the extent of that duty varies with the circumstances. But none
of them indicates that a jailer can be held to the same standard of care as a common carrier.

        In the present case, it appears to us that the requirements of reasonable and ordinary care
obligated the defendant to diligently and thoroughly screen, select, and train its agents, and to take
reasonable steps to protect the prisoners in the custody of those agents. To survive summary
judgment, the plaintiff had to allege facts sufficient to create a genuine issue of material fact as to
whether the defendant has failed to use such care in regard to the employment of Mr. Rivera. While


                                                 -6-
the plaintiff made many allegations in regard to the practices and policies of TransCor, the trial court
found that none of them related sufficiently to its various theories of negligence to meet this
minimum threshold.

                                IV. “THE HUNT-FUGATE TRILOGY”

       As an alternate theory of liability, the plaintiff’s attorney cites language in three obscure
Tennessee cases that he calls “the Hunt-Fugate Trilogy.” In each of those cases, Hunt-Berlin Coal
Co. v. Paton, 139 Tenn. 611, 202 S.W. 935 (1918), Life & Casualty Insurance Company of
Tennessee v. Russell, 51 S.W.2d 491 (Tenn. 1932), and Fugate v. Cincinnati, New Orleans and
Texas Pacific Railway, 183 S.W.2d 867 (Tenn. 1944), a party injured by the intentional act of a
corporate employee attempted to hold the company liable.

         Our Supreme Court stated the general rule that “the master is liable only for the authorized
acts of the servant, and the root of his liability for the servants’ acts is his consent, express or implied
thereto . . .” but observed that there were some exceptions, using almost identical language in all
three cases:

        (a) Where the master is under contract, expressed or implied, with the person
        wronged, or under a law-imposed duty, requiring the master to refrain from
        mistreatment of him. Into this class fall, for example, assaults upon passengers by
        railway employees. Knoxville Traction Co. v. Lane 103 Tenn. 379, 53 S.W. 557, 46
        L.R.A., 549, and cases in accord.

        (b) Where the nature of the employment or the duty imposed on the servant is such
        that the master must contemplate the use of force by the servant in performance, as
        a natural or legitimate sequence. Illustrating this class are cases involving assault and
        homicide by special officers in the master’s employ; assaults by guards employed to
        protect the master’s property; trainmen protecting their trains from trespassers;
        servants sent to repossess or take property. It is generally held in such circumstances
        that the master will be liable though the wrong be done by means of a deadly weapon
        in the hand of the servant.

        (c) Where a dangerous instrumentality is intrusted by the master to the servant, which
        has a capability of harm to the public . . . .

139 Tenn. at 619, 202 S.W. at 937 (citations omitted from sections (b) and (c)). After analyzing the
various situations in these three cases, our Supreme Court found that the exceptions did not apply,
and declined to hold the company liable.

       The plaintiff argues that section (a) is applicable to her situation, because TransCor’s contract
with the State of Florida provides that “[a]ll inmates transported by the contractor shall be treated
in accordance with Department of Correction’s rules, regulations, policy and procedure directives,


                                                    -7-
and relevant Florida statutes to insure the safety and security of inmates . . . .” It also states that
“[p]roper security shall be provided inmates when using toilet facilities on or off the transport
vehicle.”

         It appears to us, however, that the duty of ordinary and reasonable care encompasses the duty
not to mistreat others, and that this duty can be said to apply to virtually all individuals and
institutions in our society. Further, the example of Knoxville Traction Co. v. Lane, supra, cited in
section (a) of Hunt, supra, involves the duties of a common carrier towards its passengers. The
plaintiff has cited no case to us that has extended the exception of section (a) to defendants that are
not common carriers, nor are we aware of any such case.

                     V. IS MS. NICHOLS A THIRD-PARTY CONTRACT BENEFICIARY?

      The parties agree that Ms. Nichols was transported pursuant to an oral contract that was
formed during phone calls between TransCor’s offices in Nashville and the sheriff’s office in
Seminole County, Florida, and confirmed by fax, but they agree as to little else.2

        Ms. Nichols contends that the oral contract “piggy-backed” off a more general contract
between TransCor and the Florida Department of Corrections, which contained provisions that
TransCor would transport prisoners safely. She argues that as an intentional third-party beneficiary
of that contract, she was entitled to sue for its breach. TransCor argued that even assuming that the
contract incorporated a term concerning the plaintiff’s safety, she still could not be considered an
intentional beneficiary.

         Ms. Nichols relies heavily upon the case of Owens v. Haas, 601 F.2d 1242 (2nd Cir. 1979),
for the proposition that a prisoner can be deemed to be a third-party beneficiary of a contract between
correctional institutions. In that case, Mr. Owens, a federal prisoner who was cooperating with the
United States Government, was transferred from a federal prison to a county jail for his own safety.
At the jail, he became the unfortunate victim of a severe beating by correctional officers. He sued
for civil rights violations and breach of contract. The Second Circuit found that it could not preclude
the possibility that he could be considered a third-party beneficiary of the contract between the
Federal government and the county, and it remanded the case to the lower court for further
proceedings.

        The plaintiff has found only one Tennessee case which has cited Owens v. Haas, supra, but
that case did not involve a third-party beneficiary issue. See Timberlake by Timberlake v. Benton,

          2
           The plaintiff con tends that w e sho uld n ot even ad dress the co ntract issues, since the trial cou rt did n ot directly
deal with those issues in its order of May 4, 2001. She notes that TransCor did not file a timely application for
interlocutory appeal of the trial court’s order of December 8, 2000, which contained the court’s ruling on the contract
issues. See Rule 9, Tenn.R.App.P. However, in our order granting interlocutory appeal, we stated that having reviewed
the applications of both parties, we concurred with the trial court’s conclusion “that an interlocu tory app eal on these
issues may prev ent needless, expen sive an d protracted litigation.” We are still of that opinion, and it appears to us that
we are entitled to review the contract issues pursuant to our authority under Rule 2, Tenn.R.App.P.

                                                                -8-
786 F. Supp. 676, 695 (M.D. Tenn 1992). Other than Timberlake, there are apparently no Tennessee
cases in State or Federal Court that have mentioned Owens v. Haas. We note also that Owens v.
Haas can be distinguished from the present case, because Mr. Owens’ transfer was initiated for his
own protection, whereas Ms. Nichols was being transported to Texas so she could be incarcerated
for crimes she committed in that state.

        The leading case in Tennessee on the requirements for third-party beneficiary status is
Owner-Operators v. Concord EFS, 59 S.W.3d 63 (Tenn. 2001). In that case, a group of independent
truckers claimed that they were third party beneficiaries of contracts between a bank that processed
credit card transactions and two truck stop operators. The contracts at issue prohibited the truck stop
operators from adding a surcharge to purchases of fuel made with credit cards. The truckers claimed
that they were charged more than customers who paid for their fuel with cash. This court ruled that
the truckers were indeed third party beneficiaries, and thus were entitled to enforce the contracts (see
Independent Operators v. EFS, No. M1999-02560-COA-R3-CV (Tenn. Ct. App. at Nashville, filed
Feb. 29, 2000)). The Supreme Court reversed us, and set out the following framework for evaluating
third-party beneficiary cases:

        A third party is an intended third-party beneficiary of a contract, and thus is entitled
        to enforce the contract's terms, if

                (1) The parties to the contract have not otherwise agreed;
                (2) Recognition of a right to performance in the beneficiary is appropriate to
                effectuate the intention of the parties; and
                (3) The terms of the contract or the circumstances surrounding performance
                indicate that either:
                        (a) the performance of the promise will satisfy an obligation or
                        discharge a duty owed by the promisee to the beneficiary; or
                        (b) the promisee intends to give the beneficiary the benefit of the
                        promised performance.

               In so holding, we reiterate that our primary focus is upon the intent of the
        contracting parties.

        Applying the above test, we can clearly distinguish this case from the decision in Concord.
We note that neither the bank nor the truck stop operators owed an independent duty to customers
to charge a particular price for fuel, whereas TransCor is clearly obligated to at least make reasonable
efforts to protect prisoners entrusted to them.

        Summary judgment is only available when there is no genuine dispute as to material facts,
and the moving party is entitled to judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208
(Tenn. 1993); Taylor v. Nashville Banner Publishing Co., 573 S.W.2d 476 (Tenn. Ct. App. 1978).
If a contract is plain and unambiguous, its meaning is a question of law, and it is the Court's function
to interpret the contract as written according to its plain terms. Petty v. Sloan, 277 S.W.2d 355


                                                  -9-
(Tenn. 1955). If a contract is not plain and unambiguous, parole evidence may be used to interpret
its meaning. Carter County v. Street, 252 S.W.2d 803 (Tenn. Ct. App. 1953). Where the parole
evidence is conflicting, or admits of more than one conclusion, the disputed portions of the contract
may be submitted to the jury with proper instructions. Jackson v. Miller, 776 S.W.2d 115 (Tenn. Ct.
App. 1989); Forde v. Fisk University, 661 S.W.2d 883 (Tenn. Ct. App.1983).

        As we indicated above, the contract between TransCor and Seminole County, Florida was
entered into through an exchange of telephone calls and at least one fax between the parties. A fax
in the record states that the customer is the Seminole County Sheriff’s Department, that Sergeant
Mike Almodovar is the assignor, and that the transportation charge is in accordance with the
“formulated rate.” That rate includes a basic mileage rate and a female surcharge per mile that are
identical with the rates included in a contract between TransCor and the Florida Department of
Corrections.

         A critical fact in dispute is whether the terms of the contract with the Department of
Correction are incorporated into the contract with the county. Sergeant Almodovar’s affidavit states
that based upon his experience, the county’s contract was based upon an understanding that its
“rates, terms, and conditions” would be identical to “specific rates, terms and conditions contained
in the then existing contract between TransCor America, Inc., and the State of Florida Department
of Corrections and any amendments thereto.”

        We note that if Sergeant Almodovar is correct, then a further exploration of Florida law is
necessary in order to determine the terms under which Ms. Nichols was transported. Section XII.9.
of the contract with the Department of Corrections reads, “All inmates transported by the contractor
shall be treated in accordance with the Department of Corrections’ rules, regulations, policy and
procedure directives, and relevant Florida Statutes to insure the safety and security of inmates,
assigned staff and the public, while providing humane treatment to the inmate.” We also note that
Section XII.13.6 of the state contract reads, “[a]t all times, there must be a minimum of two (2)
officers, of which at least one officer must be the same sex as that of the inmate present during the
transporting of inmates.”3

         We agree with the trial court that the plaintiff raised a genuine question of material fact as
to the terms of the contract under which Ms. Nichols was transported from Florida to Texas. Until
those terms are established, the question of whether or not she may be entitled to sue as an intended
third-party beneficiary under the contract cannot be answered. We accordingly affirm the trial
court’s order declining to grant TransCor summary judgment on the plaintiff’s contract issue.

         3
           As an alternate contract theory, the plaintiff notes that TransCor followed a course o f dea ling w hereby it
wo uld forward an exemplar “boilerplate” contract to a prospective client-facility as a starting point for negotiations. That
contract provides that in assuming custody of prisoners, TransCor will follow the facility’s “written policies and
procedures... The record co ntains an unexecuted “b oilerplate” contract, and docu men ts setting out Sem inole County’s
policies and p rocedures. A section titled “Inm ate Rights” states that “[i]nmates should be protected from personnel
abuse, corp oral p unish me nt, personal injury, disease, pro perty da mage and harassm ent,” and “[h]arrasm ent or ab use
of inm ates is strictly prohibited .”

                                                           -10-
                                                V.

        We affirm both the order of the trial court granting the defendant summary judgment on the
plaintiff’s negligence claim, and its order declining to grant the defendant summary judgment on the
plaintiff’s contract claim. Remand this cause to the Circuit Court of Davidson County for further
proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Cheryl Nichols.




                                              _________________________________________
                                              BEN H. CANTRELL, PRESIDING JUDGE, M.S.




                                               -11-
