By: Arthur J. Chapman and David A. Weinberger
October 30, 2013
Two recent California appellate decisions have addressed the evolving issue of employer liability for torts of employees who are involved in accidents during work commutes. In the first opinion, the doctrine of respondeat superior was broadened more than we have seen in the past. In a subsequent case, the court interpreted employer liability more narrowly. Nevertheless, the courts appear to agree on a rule that an employer should be liable for its employee’s torts during commutes if the employer receives an incidental benefit from its employee’s use of the vehicle, otherwise known as the “required vehicle exception”. This rule also has an exception, however, where the employee deviates from his commute for personal interests to the extent that the activity constitutes a substantial departure from the employer’s business.
Moradi v. Marsh
In Moradi v. Marsh (Sept. 17, 2013, B239858) ––– Cal.Rptr.3d, September 17, 2013, WL 5203485, the plaintiff, a motorcyclist, was injured when she was struck by a vehicle driven by an employee of an insurance broker. The insurance broker, Marsh, employed Ms. Bamberger as a salesperson. Ms. Bamberger used her personal vehicle to visit prospective clients and make other trips to bring in new business. On the date of the accident, Bamberger left the office after work and began driving in the direction of her home. She decided she would stop for some frozen yogurt and take a yoga class. As she made a left turn at the yogurt shop, she collided with the motorcyclist.
Marsh’s motion for summary judgment argued that its employee was pursuing personal interests, namely, going to yoga class and stopping for yogurt on the way home. Further, under the “going and coming” rule, employees are considered to be outside of the course and scope of employment during their daily commute.” The trial court granted Marsh’s summary judgment.
The appellate court ultimately reversed the trial court. The court found that Marsh required its employee to use her personal vehicle for work, so she was acting within the scope of her employment when she was commuting to and from work. This ruling fit within the “required vehicle” exception to the “going and coming” rule, which was introduced previously in Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301, 105 Cal.Rptr.3d 718. The Lobo decision first expanded employer liability under the required vehicle exception. Here too, the Moradi court held that Marsh received an “incidental benefit” from Bamberger’s use of her personal vehicle for work purposes. The stops she made for frozen yogurt and a yoga class on the way home did not change that incidental benefit.
The court cited several other cases in arriving at its decision, including Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 195 Cal.Rptr. 890. In Lazar, the Court of Appeal affirmed a judgment against the employer, explaining that the modern justification for vicarious liability is a rule of policy based on deliberate allocation of a risk. The losses caused by foreseeable torts of employees, are placed upon that enterprise as a required cost of doing business.
The court distinguished between minor deviations, which are foreseeable, and substantial departures from the employer’s business. In the Lazar case, the evidence clearly showed that the employee planned a minor errand to be carried out on the way home; therefore, it was a foreseeable risk of doing business and the employer should be vicariously liable.
In Moradi, the court applied the same tests and reached a similar result, resulting in a finding of employer liability. The court found that Bamberger was pursuing, at least in part, a personal objective by stopping for frozen yogurt and planning to attend a yoga class; however, those activities did not constitute an unforeseeable, substantial departure from her commute, which was a consequence of Marsh’s required vehicle policy. Since there was only a minor deviation from the employee’s commute, respondeat superior was applicable.
Halliburton v. Dept. of Transportation
Three weeks after the Moradi opinion was published, the Fifth Appellate District addressed respondeat superior again in a case involving an employee commute. In Halliburton Energy Services, Inc. v. Dept. of Transportation, Cal.Rptr.3d ___, 2013 WL 5442206, Cal.App. 5 Dist., October 01, 2013, the court held that Halliburton’s employee was not acting within the scope of his employment.
In this case, Troy Martinez worked for Halliburton as a directional driller. He was assigned a company truck. Halliburton had a written policy that company vehicles were not to be used for personal business, but could be used to commute between home and work, “and may make a stop directly en route for personal reasons while traveling to and from work.”
Martinez was assigned by Halliburton to work on an oil rig in the ocean near Seal Beach. He lived about 45 to 50 miles from Bakersfield. He worked about half of the time in Bakersfield and half of the time in other cities in California. On the date of the accident, Martinez left the oil rig after work and traveled approximately 140 miles to Bakersfield, where he met his wife and daughter at a car dealership to purchase a vehicle for his wife. Afterwards, they went to a restaurant and had lunch. Martinez then began the return trip to Seal Beach. Approximately 20 miles south of Bakersfield, he was involved in an accident, injuring the plaintiffs.
Halliburton moved for summary judgment, arguing that Martinez was not acting within the course and scope of his employment at the time of the accident. Plaintiffs contended that respondeat superior should apply under the “required vehicle exception” since Martinez was driving a company truck and, consequently, Halliburton was deriving an incidental benefit. Despite the fact that Martinez was driving a company truck, the court ruled that there should be no respondeat superior liability if the employee substantially departs from the employer’s business or is engaged in a purely personal activity at the time of the tortious injury. Addressing the issue of foreseeability, the court drew a distinction between minor “deviations” and substantial “departures” from the employer’s business. The court cited the recent Moradi case, discussed above, as an example of a minimal and foreseeable deviation from the employee’s commute home.
The Halliburton decision also discussed two other cases involving substantial deviations from the employee’s commute. In Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 26 Cal.Rptr.2d 749, the employee was driving his own vehicle when he struck the plaintiff. He used his car for work purposes and was reimbursed for maintenance and mileage. At the time of the accident, he had driven his children from home to school and was returning home. Here, the court concluded the employee’s trip to the children’s school was such a substantial personal deviation from his employment duties that it would be unfair to hold the employer vicariously liable.
In Sunderland v. Lockheed Martin (2005) 130 Cal.App.4th 1, the court discussed an employee’s deviation from his work commute. The employer was headquartered in Georgia, but assigned its employee to work in California for several months. On the employee’s last workday, he cleared out his office, packed his belongings, visited his father-in-law, and then drove to a fast food restaurant to buy dinner. In the drive-through lane, he rear-ended the plaintiffs. The court rejected the plaintiff’s argument that the “commercial traveler rule,” , which applied in a workers’ compensation cases, should apply in a civil action. Under that rule, a commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer’s business, including while he is procuring food and shelter. The court decided that, if the main purpose of the injury-producing activity was the pursuit of the employee’s personal ends, the employer is not liable. The court concluded the employee’s trip to the fast food restaurant was personal and not related to his employment.
Taking into account these prior decisions, the Halliburton court found that Martinez was not performing his ordinary duties for Halliburton at its place of business or at his assigned worksite at the time of the accident. The accident occurred when he was between shifts, approximately 120 miles away from his assigned worksite. Thus, Martinez’s purpose in traveling to and from Bakersfield on the day of the accident was entirely personal and respondeat superior was not applicable.
Impact of Moradi and Halliburton decisions
The practical effect of these recent cases, generally, is to expand employer liability as a matter of policy, so that the employer bears the risks and costs of injuries that are foreseeable or “incidental” to the activities of that business. There is a trend toward defining occupational activities broadly and the courts have decided that one of the incidental activities extends to the commute to and from the workplace under the “required vehicle exception”. This exception comes into play when an employee uses his or her own vehicle to further the employer’s ends and is an exception to the older “coming and going” rule that used to exclude commutes from the ambit of employment activities.
The confusion begins when an employee deviates from his or her commute to run a personal errand. The courts must decide whether the personal errand was a minor deviation or substantial departure from the employer’s business. This answer to this question depends on the foreseeability of the particular errand and is often a question of fact; however, we now know that a quick trip to the gym or stop to buy food on the way home will probably be considered part of the commute home or “incidental” to job duties.
Employers should heed the recent decisions and be aware of the risks and potential liability involved with employees using their personal cars for work. Employers should first establish in-house policies and decide whether they expect employees to use personal vehicles. Second, it would be prudent to review insurance policies and ensure that employee accidents are covered. Employers could also make sure they are reimbursing employees for work-related costs and mileage, but not for general commute time or other, non-work-related driving expenses.
As a final note, in cases where respondeat superior does not apply because the plaintiff has embarked on a substantial departure from work activities, there are still other remedies that may be available. The plaintiff could proceed under theories of negligent hiring or supervision against the employer, as well as permissive user statutes where vehicles are involved.