220_C126

DRIVER MET “REQUIRED VEHICLE” EXCEPTION TO THE “GOING AND COMING” RULE

Commercial Automobile	Required Vehicle Exception to the Going and Coming Rule
Going and Coming Rule	Express or Implied Conditions of Employment

Judy Bamberger began her employment with Marsh USA, Inc. (Marsh) in its Los Angeles office as a salesperson in 1997. When she first started, Marsh provided vehicles to salespersons to perform their job duties as well as for personal use but it later switched to a “car allowance” program. This was where Marsh made a monthly payment towards its salespersons’ lease or auto loan. Bamberger and other salespersons were required to use their personal vehicles for business travel and Marsh reimbursed them for their business mileage. This arrangement was in place for the five years before the time of the accident.

On April 15, 2010, Bamberger used her vehicle to transport herself and some co-employees to a company-sponsored program at a middle school. She returned to the office when the event ended. It was also the end of the workday. Bamberger changed from business attire to active wear and left the office to get some frozen yogurt on her way to a yoga class before she reached her home. She made a left turn in congested traffic conditions but did not see Majid Moradi on his motorcycle. Her vehicle collided with his motorcycle.

Bamberger had planned to use her vehicle for business travel the next day to meet a prospective client. Her vehicle contained her laptop, the Marsh file on the prospective client, and other materials she planned to use at the meeting. Her vehicle was damaged in the accident and she had to rent a vehicle. On April 16, 2010, she drove to a nearby shopping center where a coworker picked her up and they went to the appointment together.

Moradi sued Bamberger on May 26, 2010 and added Marsh to the complaint as a defendant on September 8, 2010. Marsh filed a motion for summary judgment on March 2, 2011. It contended that it was not liable for the accident because Bamberger “was neither at work, nor working, nor pursuing any task on behalf of her employer” but “was pursuing personal interests, namely going to yoga class and stopping for yogurt on the way” at the time of the collision. Moradi and Bamberger filed separate oppositions to the motion. Moradi stated that Marsh derived a benefit by having Bamberger travel to and from the office and other destinations in her personal vehicle.

Bamberger argued the following points in her opposition:

• The “going and coming” rule did not apply because Marsh derived an incidental benefit by requiring that she use her own vehicle when traveling on business. This included trips to and from the office.
• Her plans to stop for frozen yogurt and a yoga class were foreseeable events.
• She was not engaged in a “personal errand” at the time of the collision.
• She was acting within the scope of her employment at the time of the accident.

The trial court granted Marsh’s motion on December 29, 2011. Moradi appealed. Baumberger did not.

The appellate court determined the following:

• Under the “going and coming” rule, employers are usually exempt from liability for tortious acts that employees commit on their way to and from work. This is because employees are said to be outside of the course and scope of employment during their daily commutes.
• The “required vehicle” exception to the “going and coming” rule can apply if using a personally owned vehicle is either an express or implied condition of employment. It also applies if the employee has agreed to make the vehicle available as an accommodation to the employer and the employer has reasonably come to rely on its use and to expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.
• Under the “required vehicle” exception to the “going and coming” rule, Bamberger acted within the scope of her employment when she slightly deviated from her evening commute from her office to her home to purchase yogurt and attend a yoga class. As a result, the doctrine of “respondeat superior” applied to her collision on the way to the yogurt shop since the deviation was necessary for Marsh’s comfort, convenience, health, and welfare. In this case, Marsh required Bamberger to use her vehicle to call on prospective clients, make presentations, conduct educational seminars, follow-up on leads, and transport company materials and co-employees to work-related destinations.

Note: The doctrine of respondeat superior holds that employers are vicariously liable for tortious acts their employees commit during the course and in the scope of their employment. However, under the “going and coming” rule, employers are usually exempt from such liability when employees are on their way to and from work because they are said to be outside the course and scope of employment during their daily commutes.

As a result, the appellate court held that Bamberger was acting within the scope of her employment at the time of the accident under the “required vehicle” exception to the “going and coming” rule. Bamberger’s planned stops on the way home were minor deviations rather than substantial departures from her regular commute. As a result, the “required vehicle” exception to the “going and coming” rule applied. The appellate court determined that the trial court erred in granting Marsh’s motion for summary judgment and reversed its judgment.

Court of Appeal, Second District, Division 1, California. Majid Moradi, Plaintiff and Appellant, v. Marsh USA, Inc., Defendant and Respondent. B239858. Filed September 17, 2013. 219 Cal.App.4th 886, 162 Cal.Rptr.3d 280