You have a driver delivering a load, but he is about to use up his hours of service. He drops his load, unhitches the trailer and take the tractor on personal mission. In route on the personal mission, he gets involved in an accident.
Is he in the course and scope? What insurance applies?
Suppose he is on a lunch break? Is there coverage?
Course and scope of employment:
Factors under vicarious liability: “course and scope of employment”
Employer is statutorily liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. Black v. Johnson, App. 2 Cir. 2014, 137 So. 3d 170.
[A]n employee is acting within the course and scope of his employment when the conduct is the kind he is employed to perform, the conduct occurs substantially within the authorized limits of time and space, and it is activated at least in part by a purpose to serve the employer. Hopper v. Austin, 49,628 (La. App. 2 Cir. 3/4/15), 163 So. 3d 8, 15.
Factors useful in determining whether the employee’s act was employment-related include the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the act in question, motivation for performing the act, and the time, place, and purpose of the act in relation to the employment, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the employee’s motivation for performing the act, and the employer’s reasonable expectation that the employee would perform the act. Id.
Was employee being paid by employer at the time of injury?
Did employer have control over employee at time of injury?
Was employee supposed to be performing act at time of injury?
Was injury during the time of employment?
Was injury obtained while in a place of employment?
Was injury obtained while performing an employment-related activity?
Was employee acting in a way that related to employer’s business at time of injury?
Did employer benefit from employee’s act at the time of injury?
Why was employee performing activity at the time of injury?
Did employer expect employee to perform activity when injury occurred?
In Hopper, the plaintiff sued an employee, Austin, and Austin’s employer for damages incurred during a motor vehicle accident. . Austin said in an affidavit he was driving in connection with his employment and that he was texting with or in response to a message from his employer at the very moment of the accident. He had left work for a short time to “clear his head” and make plans benefitting the project at work. The Second Circuit reversed the trial court’s grant of summary judgment in favor of the employer that Austin was not in the course and scope of his employment; the appellate court said it was a factual issue triable to the jury.
In Portillo v. Progressive Paloverde Ins. Co., 13-815 (La. App. 5 Cir. 3/26/14), 138 So. 3d 696, the Fifth Circuit Court of Appeal upheld a trial court summary judgment in favor of defendant, Volkswagen, that said the defendant’s employee, Mr. Master, was not in the course and scope of his employment when he rear-ended the plaintiff. Mr. Master was a mechanic for Volkswagen. As part of his employment he test-drove vehicles he worked on. Mr. Master owned a Jetta, which he worked on at Volkswagen to get it running. The Jetta did not have insurance coverage. Mr. Master left work after working on a different vehicle and punching out of the time card for working on that vehicle. Mr. Master left work at lunch time to go to the bank to get money to purchase insurance coverage for the vehicle. He also used this errand to test-drive the Jetta. He rear-ended the plaintiff on the way back to work and before he obtained insurance.
The plaintiff argued Mr. Master was both a customer and employee of Volkswagen regarding his Jetta. The plaintiff argued there was a factual issue of whether Mr. Master was in the course and scope because he was test driving a vehicle he had worked on at Volkswagen.
The 5th Circuit rejected that argument because he was on lunch and was not paid for his time; summary judgment was upheld for the employer.
In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the La. Supreme Court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers’ business to cash her Christmas bonus check. Ms. Silman was a clerical assistant for an attorney, and as part of her job she ran errands, including the type of errand she ran on the date of the incident.
“It has been repeatedly held that when an employer either furnishes the means of transportation or pays the employee for the use of his personal vehicle, then the employee is within the course and scope of his employment while going to and from work. Prothro v. Louisiana Paving Company, Inc., 399 So.2d 1229 (La.App. 3 Cir.), writ. denied, 404 So.2d 278 (La.1981).” Hill v. W. Am. Ins. Co., 635 So. 2d 1165, 1170 (La. 3 Cir.) writ denied, 94-1630 (La. 9/30/94), 642 So. 2d 881.
Generally, going to and from lunch is not a function in which an employee is employed, for the purposes of vicarious liability. Laird v. Travelers Indem. Co., App. 4 Cir. 1970, 236 So. 2d 561.
The same can be said under 2nd Circuit jurisprudence: “Generally, an accident which occurs while an employee is going to or coming from work does not occur in the course and scope of employment. **8 Hebert v. Jeffrey, 94-1230 (La.App. 1st Cir.4/7/95), 653 So.2d 842.
Also, as a general rule, an employee is not within the course and scope of employment while going to and from lunch. Hill v. West American Insurance Company, 93-915 (La.App. 3 Cir.3/2/94), 635 So.2d 1165, writ denied, 94-1630 (La.9/30/94), 642 So.2d 881. However, exceptions to these rules are recognized where the employer has furnished transportation as an incident to the employment agreement, either through a vehicle or payment of expenses, and where wages are paid for the time spent in traveling. Hill v. West American Insurance Company, supra; Hebert v. Jeffrey, supra. Tucker v. Ne. Louisiana Tree Serv., 27,768 (La. App. 2 Cir. 12/6/95), 665 So. 2d 672, 677 writ denied, 96-0063 (La. 3/8/96), 669 So. 2d 404 and writ not considered, 96-0100 (La. 3/8/96), 669 So. 2d 404.
Bob-Tail Insurance Coverage?
When a driver is not under dispatch or in the furtherance of transportation duties, there is coverage available, commonly referred to as “bob-tail” because usually only the tractor is being driven for a personal reason.
Yet, there is always an argument to deny coverage, right?
The driver dropped his load at approximately 4 p.m. and called his dispatcher. The dispatcher advised the driver to take the night off and call him in the morning to see if a load was available. After speaking with the dispatcher, the driver bobtailed to a truck stop where he ate dinner, watched television, took a shower, and played some slot machines. In total, the driver stayed at the truck stop for between six and seven hours. Although the driver usually slept in the cab, his mattress was wet and he decided to go to a motel for the night. On his way to the motel, the driver was involved in an accident. Under those facts, the court held that the driver was in the business of the motor carrier at the time of the accident – having a driver on standby and available to take a load the next day furthers the commercial interests of an employer. Mahaffey v. General Security Ins. Co., 543 F.3d 738, 742-743 (5th Cir. 2008).
Driver was dispatched by lessee to pick up a load of machinery. After picking up the load, driver went to the hospital to visit his sick wife. On his return trip, the accident occurred. Based on these facts, the court held that the driver was in the business of the motor carrier at the time of the accident. Robinson v. Guillot, 2008 La. App. Unpub. LEXIS 795 at *11 (La.App. 3 Cir. Apr. 30, 2008).
Mahaffey case was distinguished in 2011 in the case of Jurey v. Kemp 77 So. 3
rd 83 (1 Cir. 2011).
Several pertinent cases have addressed whether an independent truck owner/lessor was “in the business of” the motor carrier/lessee such that the liability insurance secured by a motor carrier/lessee, as opposed to the bobtail insurance secured by a truck owner/lessor, should apply. In LeBlanc v. Bailey, 97–0388 (La.App. 4 Cir. 10/1/97), 700 So.2d 1311, writ denied, 97–2988 (La.2/6/98), 709 So.2d 743, the fourth circuit found that an independent trucker’s drive home after completion of his deliveries for the day on behalf of the motor carrier/lessee was more of a personal nature rather than a work-related function such that bobtail insurance coverage, as opposed to the liability insurance secured by the motor carrier/lessee, was the primary policy that applied.7 In Mahaffey, 543 F.3d at 743, however, the federal court, applying Louisiana law, found that the bobtail insurance policy did not provide coverage where an independent truck driver had been asked to remain in the area of the motor carrier/lessee’s business to be available to pick up a load when one became available.8 See also Robinson v. Guillot, 07–1260 (La.App. 3 Cir. 4/30/08), 980 So.2d 906 (unpublished), writ denied, 08–1162 (La.9/19/08) 992 So.2d 943. However, we have found no Louisiana case specifically addressing the question of when having leased equipment serviced falls within the scope of the business of the carrier. Assuming, without deciding, that the trailer was included in the lease, we must determine as a matter of law whether Kemp’s trip to and from Baker **8 Metal Works to have the work performed on the *88 trailer constituted the business of D & M. The facts here are undisputed.
In this context, the proper inquiry is whether Kemp was acting within the scope of the lease agreement with D & M. See National Continental Ins. Co. v. Empire Fire & Marine Ins. Co., 157 F.3d 610, 612 (8th Cir.1998). To the extent that Kemp was executing his contractual duties, he would be acting “in the business of” D & M. Id. We must therefore examine the terms of the lease to ascertain whether Kemp was fulfilling a contractual duty in having the work performed by Baker Metal Works.
The lease agreement required Kemp to “maintain the Equipment in proper operating condition and in full compliance with applicable governmental regulations.” Kemp acknowledged that adding the welded door to his trailer was not required by Department of Transportation (“DOT”) specifications or by D& M. He further indicated that the door provided no economic benefit to D & M, but rather was something he wanted to have done for his own benefit. Kemp also indicated that he chose to have some of the decking boards replaced, although the work was not required by DOT or by D & M. Nothing in the record explains how any of the work performed on the trailer furthered D& M’s business. Moreover, Kemp acknowledged that prior to the accident, D & M was unaware that he was having any work done to the trailer. In light of the foregoing, there is no showing that the improvements were required under the terms of the lease agreement between Kemp and D & M. Rather, it appears that these improvements were merely done for the convenience of the owner. Cf. Freed v. Travelers, 300 F.2d 395 (7th Cir.1962) **9 wherein the carrier/lessee’s insurance policy applied when the independent truck driver was involved in an accident while bringing the vehicle to be serviced-when the lease agreement required the independent truck driver to maintain the tractor “in good running order and condition” and “hold (it) ready at all times for the services of the Lessee” and the carrier/lessee did not urge that the major repair to the rear of the tractor was not necessary to its continued operation) and National Continental Ins. Co., 157 F.3d 610 (wherein the carrier/lessee’s insurance policy applied when the service contract required the driver’s tractor pass periodic inspections and comply with federal standards such that driving the vehicle to a shop for a front end alignment between dispatch orders was “in the business of” the carrier/lessee because the federal regulations required “[a]ll axles … be in proper alignment”). Unlike the contrasted cases, under the terms of the lease agreement here, Kemp’s trip to Baker Metal Works was not undertaken in the business of the employer.9
Appellants also urge that the Federal Motor Carrier Safety Act–90 Endorsement applies herein. See *89 49 U.S.C.A. § 13501, et seq. However, the endorsement only applies to interstate travel and does not apply to the intrastate trip at issue herein. See 49 U.S.C.A. § 13501, 1 and Branson v. MGA Ins. Co., Inc., 673 So.2d 89 (Fla.App. 5 Dist.), review denied, 680 So.2d 421 (Fla.1996).
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