A California Court of Appeal held on September 17, 2013, that an employer's requirement that its employee use her personal vehicle for work-related travel rendered the employer responsible for injuries suffered by a third party when the employee was driving home after work. Moradi v. Marsh USA, Inc., 2013 Cal. App. LEXIS 736.
Normally, an employee's time spent traveling to and from work is not considered to be hours worked, and it is usually not considered to be "acting within the course and scope of employment."
The employee in question was required to use her personal vehicle in the course and scope of her job to visit prospective clients, make presentations, speak at educational seminars, follow up with "leads" and transport company materials and coworkers to work-related events. On the day in question, the employee had used her vehicle to transport herself and coworkers to an off-site company event, returning to the office afterward. At the end of this day, the employee left for home, but planned to stop for frozen yogurt and to take a yoga class on her way to her home. All three destinations were in the same ZIP code. En route to the yogurt shop, the employee collided with a motorcyclist.
The motorcyclist sued the company, and the trial court granted summary judgment to the employer. Reversing, the Court of Appeal relied upon the "well known exception to the going-and-coming rule" when the employee's use of his or her own vehicle provides an incidental benefit to the employer. This exception can apply either where the employer expressly or implicitly requires the use of an employee's own vehicle for work purposes, or where the employee has agreed to use his or her vehicle as an accommodation to the employer and the employer has come to rely upon this accommodation and to expect the employee to make the vehicle available for business purposes.
Engaging in a multi-factor analysis, the Court of Appeal concluded that the employer was responsible for the employee’s accident under the "required vehicle" exception to the going-and-coming rule. It found that the employee's planned detours (yogurt and yoga) were minor deviations in her commute home. These detours were not "so unusual or startling" as to render imposing responsibility on the employer unfair, and the detours were not unforeseeable. The court also noted that the employee's use of her own vehicle to benefit the company was regular—on average, the employee used her own car two to five times per week for the employer's benefit. It further concluded that the detour visits were necessary for the employee's "comfort, convenience, health and welfare." The court noted that it was not making its decision based on the "special errand exception" to the going-and-coming rule, which applies where the employee is coming from or returning home, not as part of his regular commute, but instead as a part of a special errand at the request of his employer.
What This Means for Employers
Employers may be held liable for accidents of employees occurring after work, and with the employee's own car, when the employer has benefited from the use of the employee's own vehicle for business purposes. Employers should consider carefully evaluating those jobs in which employees routinely use their personal vehicles for business purposes, either as a job requirement, or simply by habit. Consideration should be paid to jobs in which an employee routinely uses his or her vehicle before or after working hours to perform some task that benefits the employer, such as picking up coffee or making end-of-day bank deposits. Employers may wish to consider obtaining (with appropriate authorization from employees) driving records of employees who will use their personal vehicles to benefit the employer and may wish to require proof that such employees maintain required liability insurance.