Opinion
E040658
9-17-2007
KEVIN HOLSOME, et al., Plaintiffs and Appellants, v. EXEL, INC., Defendant and Respondent.
Law Offices of Mark Peacock and Mark J. Peacock for Plaintiff and Appellant Kevin Holsome. Arkin & Glovsky and Sharon J. Arkin for Plaintiffs and Appellants Kevin Holsome and Fressy Holsome. Law Offices of Christopher A. Kall and Christopher A. Kall for Plaintiff and Appellant Fressy Holsome. Haight Brown & Bonesteel, Peter Dubrawski, J. Alan Warfield and Krsto Mijanovic for Defendant and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
On June 21, 2004, Kevin and Fressy Holsome (plaintiffs) filed a complaint for damages resulting from the negligent conduct of Michael Thomas Brown (Brown). Browns conduct is not at issue on appeal; however, we note that Mr. Holsome suffered severe injuries, including the loss of his right leg, after Browns automobile collided with his motorcycle.
On August 1, 2005, plaintiffs amended their complaint to include Browns employer, Exel, Inc. (defendant), as a codefendant, claiming that under the theory of respondeat superior, Brown was in the course and scope of his employment at the time of the accident.
On December 22, 2005, plaintiffs filed a motion for summary adjudication pursuant to Code of Civil Procedure section 437c. Plaintiffs claimed that as a matter of law, Brown was in the course and scope of his employment at the time of the accident; therefore, defendant is liable for Browns actions. On March 7, 2006, the trial court denied plaintiffs motion because the court concluded a triable issue of fact existed as to whether Brown was in the course and scope of his employment at the time of the accident.
All further statutory references will be to the Code of Civil Procedure unless otherwise noted.
Defendant, on January 6, 2006, filed its own motion for summary judgment under section 437c, claiming that Brown was not in the course and scope of his employment at the time of the accident. At the hearing on March 27, 2006, the trial court granted defendants motion for summary judgment and ruled that, as a matter of law, Brown was not in the course and scope of his employment at the time of the accident. Subsequently, on April 18, 2006, the trial court dismissed the case against defendant.
Plaintiffs contend the trial court erred because there were disputed issues of fact that precluded the court from deciding as a matter of law that Brown was not in the course and scope of his employment at the time of the accident. Specifically, they argue there is a question of fact as to whether defendant required Brown to use his personally owned vehicle as a condition of employment. In the alternative, plaintiffs contend the undisputed facts show "Browns accident occurred during the course and scope of employment, thus requiring that summary adjudication be entered in plaintiffs favor."
II. STATEMENT OF FACTS
A. Browns Work on the Day of the Accident
On the morning of May 25, 2004, Brown drove his personally owned vehicle to work. On the way, he personally paid to have his personally owned vehicles brakes serviced. Brown then proceeded to work as usual. During the workday, he used both his personally owned vehicle and defendants company truck to travel to and from some business locations that he needed to visit under his job requirements. At the end of the day, he returned to the office, finished some paperwork, signed the security log, and then began to drive back home in his personally owned vehicle. Brown collided with Mr. Holsome during the drive home.
B. Browns Work Generally
Prior to the accident, Brown had worked for defendant as a maintenance and facilities manager for over five years. His job required that he visit clients to repair and maintain their facilities and "material-handling equipment."
As he was not issued a company vehicle, Brown would drive his personally owned vehicle to and from work every day, a 120-mile round trip commute. Defendant did not compensate Brown for the costs of the commute or any costs associated with maintaining his personally owned vehicle. Except in the case of rare emergencies, Brown would always drive to his central work location before heading out to see clients. Likewise, he would almost always return to his central work location to sign the security log before going home for the day.
While visiting clients, Brown would travel by means of his personally owned vehicle, carpool, or defendants company-provided truck. Brown testified that defendant did not mandate that Brown own or use a personally owned vehicle for performing his job duties; however, defendant supplied only one company truck for over 10 workers, so if the truck was in use, Brown had to either wait, carpool with another employee, or use his personally owned vehicle. As manager with the most seniority, Brown had preferential use of the company truck, but he often needed to visit clients without notice, so reserving the company truck was not always feasible.
Instead of waiting for the truck or carpooling with another employee, Brown often used his personally owned vehicle to visit clients during the workday. From February to May of 2004, defendant reimbursed Brown for driving 2384 miles in his personally owned vehicle for company business. On the day of the accident, Brown drove his personally owned vehicle 42 miles to visit four clients. Though not required to do so, Brown kept tools and supplies owned by defendant in his personally owned vehicle since he often used it for company business.
III. DISCUSSION
A. Summary Judgment Principles
A defendant moving for summary judgment need only show that the plaintiff cannot establish one element of the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar); see also § 437c, subd. (p)(2).) "[I]f a defendant moves for summary judgment . . . he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar, supra, at 851; § 437c, subd. (c).) The defendant has the initial burden of proving the nonexistence of an element of the cause of action; upon that showing, the burden shifts and the plaintiff must show that there exists a material issue of fact for a jury to determine. (Aguilar, supra, at p. 850.) We use a de novo standard of review for a ruling granting summary judgment. (Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048.)
B. Required Personally Owned Vehicle as a Condition of Employment
Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. (John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574.) However, under the "going and coming" rule, employers are generally exempt for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 807 (Huntsinger).)
"A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an incidental benefit derived by the employer. [Citation.]" (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 241.) This exception to the going-and-coming rule, carved out by this court in Huntsinger, supra, 22 Cal.App.3d 803, has been referred to as the "required-vehicle" exception. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481.)
Requiring the use of a personally owned vehicle can be either an express or implied condition of employment. (Hinojosa v. Workmens Comp. Appeals Bd. (1972) 8 Cal.3d 150, 152 (Hinojosa); Huntsinger, supra, 22 Cal.App.3d at p. 806.) If an employee simply uses his personally owned vehicle as a means of commuting to and from work, he is not required to use his personally owned vehicle as a condition of employment. (Hinojosa, supra, 8 Cal.3d at p. 157.) However, some jobs do not call for ordinary commutes to fixed locations at fixed hours. In these instances, "the job does more than call for routine transport to it; [the commute] plays a different role, bestowing a special benefit upon the employer by reason of the extraordinary circumstances. The employers special request, his imposition of an unusual condition, removes the transit from the employees choice or convenience and places it within the ambit of the employers choice or convenience, restoring the employer-employee relationship." (Ibid.) The Huntsinger court stated that "when a business enterprise requires an employee to drive to and from its office in order to have his vehicle available for company business during the day, accidents on the way to or from the office are statistically certain to occur eventually, and, the business enterprise having required the driving to and from work, the risk of such accidents are risks incident to the business enterprise." (Huntsinger, supra, 22 Cal.App.3d at p. 810, italics added.)
In Huntsinger, this court indicated that a jury could determine that the "[employees] use of his vehicle was an implied or express condition of his employment." (Huntsinger, supra, 22 Cal.App.3d at p. 807.) The employee had visited clients in his personally owned vehicle before returning to the office at the end of the workday. On the way home, he collided with another motorist, resulting in a fatality. (Id. at pp. 806-807.) The employee, a technical service representative, had a primary office location but traveled extensively to visit clients as needed. (Id. at p. 806.) "In carrying out the duties of his employment, [the employee] drove extensively a half-ton pickup truck owned by him. There were some occasions on which he would leave his home in Yorba Linda and call on customers prior to going to the company office in Whittier. From time to time, he would make customer calls on the way home from the office. Occasionally, he would carry in the truck objects connected with company business. . . . Although [the employee] generally was reimbursed for the use of his vehicle at the rate of nine cents per mile, he received no mileage allowance for traveling to and from work." (Ibid.) The employee also had occasional access to a rental automobile made available by the employer. (Ibid.) The court reversed the order granting the defendant summary judgment and ruled that a jury might have found that the employee was acting within the course and scope of his employment at the time of the accident. (Id. at pp. 810-811.)
Similarly, in cases involving the Workers Compensation Appeals Board, courts have held that an employer required the employee to use his personally owned vehicle for work when driving was an inherent part of the job and the company did not provide adequate transportation during the day. (See Smith v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 814, 816-818 [substantial evidence did not exist to uphold finding that the employee was not required to have his personally owned vehicle available for work when only a few company-owned vehicles were available to many employees]; Hinojosa, supra, 8 Cal.3d at pp. 151-153 [substantial evidence existed to uphold finding that the employee was required to have his personally owned vehicle available for work when no company-owned vehicle was available and employee had unpredictable work locations to visit each day].)
While workers compensation cases use a more liberal test for determining employer liability, the court analysis concerning the required-vehicle exception should be interchangeable in a tort setting. (See Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722; Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1482.)
Here, as in the aforementioned cases, Brown needed transportation to complete his job-required duties, and the undisputed facts show that Brown frequently used his personally owned vehicle to complete those duties. Certainly, an argument can be made that defendant, if not expressly, implicitly required Brown to use his personally owned vehicle to be efficient in performing his job. (Hinojosa, supra, 8 Cal.3d at p. 152; Huntsinger, supra, 22 Cal.App.3d at p. 806.) Although defendant allowed carpooling and had a company-provided truck, defendant could not always rely on those options, as Brown had to visit clients on demand, and in the rare case of emergency, he had to go directly from his house to visit a client. Further, one company-provided truck was inadequate transportation for all of defendants workers. (See Smith v. Workmens Comp. App. Bd., supra, 69 Cal.2d at p. 818.) Even if Brown had priority use of the truck, the spontaneity of his job made reserving the truck every day both impractical and improbable. For the company to be efficient, certainly some, if not all, of the employees needed to have personal transportation available to perform their jobs.
Defendant argues that Brown used his personally owned vehicle as a means of personal convenience, as it provided the most efficient way for Brown to get to and from work. We do not disagree with this argument. Certainly, Brown derived a substantial benefit from using his personally owned vehicle to commute to work every day; however, defendant also derived substantial benefit from Brown using his personally owned vehicle during the day. The two are not mutually exclusive. The test for determining whether Brown was required to use his personally owned vehicle does not turn on whether he derived a benefit from the use; rather, the test turns on whether defendant incurred a special benefit from Browns use. (State Farm Mut. Auto. Ins. Co. v. Haight, supra, 205 Cal.App.3d at p. 241; see also Hinojosa, supra, 8 Cal.3d at p. 157.)
Defendant also argues the deposition testimony establishes that defendant did not require Brown to furnish a personally owned vehicle for work. Brown stated that defendant did not require that he use his personally owned vehicle for employment purposes. However, there are two reasons why that testimony does not end the inquiry and justify the granting of summary judgment. First, even if defendant did not expressly require Brown to use his vehicle for work, defendant could have implicitly required such use. (Hinojosa, supra, 8 Cal.3d at p. 152, fn. 1; Huntsinger, supra, 22 Cal.App.3d at p. 806.) Second, Browns testimony is not dispositive, but instead states only an unsupported legal conclusion. (Smith v. Workmens Comp. App. Bd., supra, 69 Cal.2d at p. 817.)
Finally, we find this case distinguishable from Hinson v. Workmens Comp. Appeals Bd. (1974) 42 Cal.App.3d 246 (Hinson ), upon which defendant and the lower court relied. The employee in Hinson was a ranch worker who tended to different fields for the same employer every day. (Id. at p. 248.) As an option, the employer would drive all of the workers to the field and then back to the central work location at the end of the day. (Ibid.) However, the employees often drove themselves as a means of convenience for both them and their employer; if the employees furnished their own ride they would not have to go back to the central work location at the end of the day, and the employer did not have the inconvenience of driving them back. (Id. at pp. 248-249.) The court, in reviewing a decision of the Workers Compensation Appeals Board, affirmed a finding that the employee was not required to use his personally owned vehicle as a condition of employment. (Id. at p. 251.) First, we note that Hinson was a Fifth District decision and, as such, is not binding on this court. (See, e.g., Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.) Second, we note an important distinction between the facts in Hinson, supra, 42 Cal.App.3d 246, and the facts in the case before us. In Hinson, the employer had a truck available to drive all the employees, at the same time, to the field and back to their central work location at the end of the day; however, the employee chose to drive his personally owned vehicle to the field, on occasion, as a means of convenience but the option of getting a ride in the company-owned truck was always available. (Id. at pp. 248-249.) In our case, conversely, the employees all went to see different clients, so the use of the company-owned vehicle was not always a viable option. Third, we note that the court in Hinson affirmed a lower court ruling using a substantial evidence standard, not de novo. (Id. at pp. 248, 251.) The different standards of review become especially relevant when comparing Hinson to the case at hand, because the Hinson court seemed to acknowledge that the employer may have implicitly required the employee to use his personally owned vehicle for the job. The court stated that the situation "at best, raises a factual question as to whether the employee[] [was] required to use [his] own car[]." (Id. at p. 250.)
Using the standards for summary judgment set forth in Aguilar, supra, 25 Cal.4th 826, we conclude that plaintiffs have met their burden in showing that a material fact exists for a jury to determine. Likewise, defendant has not met its burden in showing the non-existence of one of the elements in plaintiffs action. Therefore, we cannot state as a matter of law that Brown was not required to use his personally owned vehicle as a condition of employment.
C. Plaintiffs Alternate Request for Summary Adjudication
Having held that there exists a question of fact in determining whether defendant required Brown to use his personally owned vehicle for work, we cannot hold as a matter of law that Brown was acting within the course and scope of employment at the time of the accident.
IV. DISPOSITION
The trial courts grant of summary judgment is reversed. Plaintiffs to recover their costs on appeal.
We Concur:
RICHLI, J.
GAUT, J.