United States: Can Employers Be Liable For Employees’ Car Accidents During Employee Commutes? Maybe

Last Updated: February 12 2014
Article by Amber Shubin and Tom E. Wilson

It is rare these days for a California appellate court to weigh in on whether an employer is vicariously liable for accidents involving an employee that occur during the employee's commute to and from work. The law was thought to be fairly settled. Then, in the span of a few weeks last fall, California appellate courts examined this issue not once but twice, issuing decisions that at first blush seemed to come to quite contrary conclusions.

In mid-September 2013, the Second Appellate District of the California Court of Appeal allowed a case to proceed to trial against a company whose employee injured a motorcyclist during her commute home. Moradi v. Marsh USA Inc., 219 Cal. App. 4th 886 (2013). Less than six weeks later, the Fifth Appellate District of the California Court of Appeal affirmed summary judgment in favor of an employer whose employee caused a serious highway accident while driving to work in a company truck. Halliburton Energy Services, Inc. v. Department of Transportation, 220 Cal. App. 4th 87 (2013).

The issuance of the Moradi and Halliburton decisions provides a timely opportunity to consider the law surrounding an employer's potential liability for employee accidents during work commutes. In order to do so, we need to first revisit some familiar legal constructs that provide a framework for examining this question.

Respondeat Superior, the "Going-and-Coming" Rule and Its "Required Vehicle" Exception

A starting point for this analysis is the doctrine of respondeat superior (Latin for "let the master answer"), which prescribes that an employer is vicariously liable for any wrongful actions committed by an employee within the course and scope of that employee's job duties. A long-recognized judicial exception to this doctrine, commonly known as the "going-and-coming rule," provides that an employee's travels to and from work are generally not within the employee's scope of employment. Consequently, an employer is typically not liable for employee accidents that occur during the employee's daily commute to and from work. The "going-and-coming" rule, in turn, has its own exception—variously dubbed the "incidental benefit" or the "required vehicle exception"—under which vicarious liability can be imposed upon the employer when the employee's use of his or her personal vehicle gives some incidental benefit to the employer. The rationale behind this exception to the "going-and-coming" rule is that, because the employee is required to use his or her vehicle at work, the employee is within the scope of employment while transporting that vehicle to and from work. While these rules of vicarious liability may appear fairly straightforward, applying them to specific factual scenarios of employee mishaps during a workplace commute can produce unanticipated results and unanswered questions.

The Moradi Case: Personal Errands Don't Destroy the "Required Vehicle Exception"

The accident in the Moradi case occurred after Judy Bamberger, a sales representative of insurance broker Marsh USA, had left her office and was commuting homeward. Because Ms. Bamberger was required by her employer to use her vehicle for work-related ventures such as traveling to events and meetings outside the office, the "required vehicle exception" to the "goingand- coming" rule was applicable to the question of whether her employer risked any liability for Ms. Bamberger's accident. Clouding this analysis was the fact that Ms. Bamberger was not commuting directly home when the accident happened; she was driving to a yoga class. More specifically, the accident actually happened because Ms. Bamberger decided to stop for a frozen yogurt on her way to her yoga class. While she was turning her car into the yogurt shop parking lot, her vehicle collided with a motorcycle driven by Mr. Moradi. Mr. Moradi later sued both Ms. Bamberger and her employer, Marsh USA, for the injuries he sustained. The trial court granted Marsh USA's motion for summary judgment, holding that Ms. Bamberger was running personal errands while driving home. Thus, the "required vehicle" exception did not apply and her employer could not be held liable for this accident, as she was not acting within the scope of her employment at the time her car struck Mr. Moradi.

The Court of Appeal took a different view. It reasoned that even when an employee deviates from his or her normal commute to run a personal errand, as Ms. Bamberger did, the "required vehicle" exception still applies as long as the employee's personal business "is not so unusual or startling that it would seem unfair" to hold the employer vicariously liable. Moreover, the court noted that it was "foreseeable" that an employee could stop for personal errands, which in Ms. Bamberger's case were a "minor deviation on her drive home." The court observed that the yogurt shop and the yoga studio were on Ms. Bamberger's direct route home, even sharing a zip code with her home address. The court then reversed the trial court's summary judgment for Marsh USA and directed that both Ms. Bamberger and her employer could be sued by Mr. Moradi for the injuries he suffered in the accident.

The Halliburton Case: When an Employee Makes a "Substantial" Deviation from His or Her Normal Commute

Mere weeks after the Moradi decision was issued, a different California Court of Appeal, the Fifth Appellate District, issued a seemingly contrary opinion in Halliburton Energy Services, Inc. v. Department of Transportation. There the court found that an employee was acting outside the scope of his employment at the time of an accident, even though the employee was driving to work in a company-owned vehicle. The employee, Troy Martinez, worked as a driller for Halliburton on an oil rig off of Seal Beach, Calif. Halliburton gave Mr. Martinez the option of using a company truck to commute to and from work from Mr. Martinez's home in Caliente, Calif., but did not require him to do so. On the day of the accident, Mr. Martinez did not drive home after his work shift ended. Instead, he drove 140 miles from his job site to a Bakersfield, Calif. car dealership—50 miles from his home—to possibly purchase a car for his wife. He did not tell his employer that he was making such a long journey, despite being on call 24 hours a day, 7 days a week. On his way back to work from Bakersfield, he lost control of his truck and was involved in a major accident in which a half-dozen people were injured. Several of the injured later filed suit against Martinez, his employer Halliburton, and Caltrans.

As in Moradi, the question of whether the employer was vicariously liable depended upon the "required vehicle exception" to the "going-and-coming" rule. The plaintiffs stressed that at the time of the accident, Mr. Martinez was driving an employer-provided vehicle and returning to work. Halliburton responded that Mr. Martinez's use of the company truck to travel to Bakersfield rather than home involved using the truck for purely personal purposes and in a way that provided no benefit, even an incidental one, to Halliburton. The court agreed with Halliburton. And while the Halliburton court did not explicitly compare the case to Moradi or in fact cite to Moradi at all, it seems clear that the court would have concluded that this decision was in fact not contrary to the one reached there. Unlike Ms. Bamberger's errands, Mr. Martinez's deviation from his commute was not a minor, foreseeable deviation, "like stopping on the way home to purchase an item at a nearby store." It was instead a substantial departure and one that relieved Halliburton of any vicarious liability. Moreover, Halliburton did not require Mr. Martinez to use a company truck to commute. The court affirmed the summary judgment the trial court had awarded Halliburton.

Practical Lessons

The lesson of these cases is that, to the extent possible, and consistent with business needs, employers should be careful not to create a "required vehicle exception" for employee commutes by requiring an employee to use his or her personal vehicle during the workday for work-related activities unless it is absolutely necessary. If they do so, employers expose themselves to a much greater potential for liability for their employees' traffic mishaps, even if those mishaps occur while the employee is commuting to or from work.

Companies should also avoid providing company vehicles to employees when it is not necessary to do so. Halliburton did not require Mr. Martinez to use a company truck but the fact that he did so meant that there was a potential for the "required vehicle exception" to apply. Had he been in his own vehicle at the time of the accident, the question of vicarious liability might never have come up, or if it did, it might have been deemed unworthy of pursuit by the plaintiffs' attorneys. While Halliburton ultimately prevailed, it likely invested a lot of time and money to do so. Companies can protect themselves from a similar fate by reviewing their personal vehicle usage policies, as well as which employees, if any, drive a company car.

To view prior issues of the ELC, click here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Amber Shubin
Tom E. Wilson
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions