In Lobo v. Tamco a Tamco employee was involved in a collision between the employee and a motorcycle deputy resulting in the deputy’s death. The employee was on his way home and rarely used his car for company business. The family of the deputy filed a lawsuit against Tamco, under a theory of respondeat superior. Tamco argued that it should not be liable for the driver’s negligence because the employee was outside the course and scope of employment and was “going-and-coming” from work. The lower court agreed. The Plaintiffs appealed the decision and the Fourth District Court of Appeal reversed the lower court’s decision.
The Fourth District, Appellate Judges McKinster, Gaut, and Miller, based on their decision on the “required vehicle” exception to the “going-and-coming” stating:
A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer…The exception to the going and coming rule…has been referred to as the “required vehicle” exception. The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment…or if the employee has agreed, expressly or implicity, to make the vehicle available as an accommodation to the employer and the employer has “reasonably come to rely upon 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 (p. 4-5, 2010)
The Fourth District concluded that there was sufficient evidence that Tamco required the employee to make his car accessible whenever it was necessary for him to visit a customer site. Further, that Tamco benefited from the employee making his car available and that a jury could conclude that the “required vehicle” exception applied making Tamco liable for the negligence of the employee. The petition to the Supreme Court to reverse this decision was denied.
So how can you protect your entity? Below are some suggestions:
1. Avoid making use of a worker’s personal vehicle an implied or expressed condition of employment (CAL/OSHA, 2010). Set clear expectations through job descriptions and employment policies.
2. If the entity has fleet or pool vehicles, consider making it a policy that employees must use a fleet or pool vehicle for business use (CAL/OSHA, 2010).
3. Implement a fleet safety program that includes training and oversight. This will help identify workers with unsafe driving habits. Addressing any identified unsafe habits could reduce the chance of an accident and potential liability when an accident occurs (CAL/OSHA, 2010). Contact our Loss Prevention Department for fleet safety training.
4. Ensure that the employee is only being reimbursed for work-related costs and mileage, not for general commute time or other, non-work-related, driving expenses (Cooley LLP, 2010).
5. Many, or most, personal auto policies will provide coverage to other parties, including an employer, arising out of vicarious liability resulting from the insured’s actions. If you become involved in litigation, make sure to verify whether your entity is insured through your employee’s policy.
6. Ensure that the personal auto policy is primary and the entity’s policy is excess.
CAL/OSHA. (September 2010, Vol. 7, No. 9). Fleet Safety: Employer Can Be Liable for Employee’s Accident While Commuting; Don’t Get Blindsided. CAL/OSHA Compliance Advisor. Retrieved from: http://www.ca-safety.com
Cooley LLP. (April 2010). Commuting Employees – Potential Employer Liabilities. Client Alerts. Cooley Godward Kronish LLP. Retrieved from: http://www.cooley.com/commuting-employees-potential-employer-liability
McKinster; Gaut; and Miller. (2010). Lobo v. Tamco Opinion (E047593) (p. 4-5). Court of Appeal of the State of California Fourth District Division Two. Retrieved from: http://caselaw.lp.findlaw.com/data2/californiastatecases/e047593