Court of Appeal Narrows Vehicle Use Exception of Coming and Going Rule

By Evan McBride

In California, employers are generally liable for the actions of their employees. Known by its Latin name, respondeat superior, the rule is part of the much larger concept encompassing vicarious liability.  Under California’s respondeat superior rule, an employer may be found liable for the damage caused by an employee’s accident, even when that employee uses their personal vehicle for their employer’s business purposes. This rule applies, and therefore attaches liability to the employer, when an employee is acting within the ordinary scope of his or her employment, and as the result of the employee’s wrongful actions, someone is injured. This generally holds true whether the employee is using their own car or their employer’s vehicle.

An exception to this rule, however, is the “coming and going rule” which stands for the premise that an employer may be excluded from liability when an employee’s accident occurs when the employee is commuting to and from work. Again, the most controlling factor in determining liability in this instance the purpose of the travel.

Within the “coming and going rule”, there exists the “vehicle use exception”. Under this exception, an employer may still be liable for an employee’s accident during their commute when: the possession and use of the vehicle is required by the employer, or the possession and use of the vehicle provided a benefit to the employer. In 2018, the California Court of Appeal of the Second Appellate District narrowed the “vehicle use exception” with their ruling in Newland v. County of Los Angeles.

The Newland court examined the accident of Prigo, a Los Angeles County public defender who was involved in an automobile accident on his way home form work in his own vehicle. It was undisputed that Prigo was regularly required to use his personal vehicle to drive to various Los Angeles County courthouses, crime scenes, and meetings. As a result, the trial court ruled that the central issue in the case was whether Prigo was required (either expressly or impliedly) to use his personal vehicle to perform the duties of his job for the county, and the jury found that he did, such a requirement would attach liability to the County via the vehicle use exception to the “coming and going” rule.

The Court of Appeal, however, reversed the trial court’s decision and held that there was not enough evidence to show that Prigo was neither required to drive a vehicle by his employer, nor was he driving a vehicle for his employer’s benefit at the time of the accident.

As for the first prong, the Court found that even though Prigo used his personal vehicle to drive to various Los Angeles County courthouses, crime scenes, and meetings everyday he was not required to do so. The Court pointed to the fact that the County did not require their deputy public defenders to obtain a personal vehicle to perform their jobs and allowed them to use alternative transportation to commute to work in lieu of carrying a valid California Class C driver’s license.

As for the second prong, Prigo’s accident occurred while making a stop at the post office for his own benefit while on the commute home from work. Thus, the court found, that at the time of the accident he was not driving his car within the course and scope of his employment nor was he driving for his employer’s benefit.

As such, the Newland Court reversed the trial court’s ruling, and found that the vehicle use exception to the “coming and going” rule did not apply to Prigo, and thus the County was not liable for his accident.

By ruling as it did in Newland, the court essentially held that the vehicle use exception to the “coming and going” rule is not an on-off switch. An employer will only be liable when they either required the employee vehicle or benefited from the employee travel. This narrowed approach to the exception will likely cause employers to be liable for employee accidents in less instances, as the circumstances where the exception applies will be fewer and far between. Likewise, employers may stand a better chance at avoiding liability for employee accidents by tailoring their travel requirements to comport with the Court’s narrow view of the vehicle use exception.

Evan McBride is an associate at Powers Miller whose practice specializes in civil liability stemming from vehicle accidents and other personal injury matters.

Jim Miller Inducted into American Board of Trial Advocates (ABOTA)

James Miller headshotJim Miller, a founding partner at Powers Miller, has been inducted into the Sacramento Valley Chapter of the American Board of Trial Advocates (www.abota.org).

Membership in ABOTA is by invitation only and admittance is considered a prestigious honor among legal professionals. ABOTA members are required to have completed 10 civil jury trials to verdict or hung jury as lead counsel and been determined by their peers to exhibit high personal character and an honorable reputation.

“I am honored to be asked by my peers to join this prestigious organization and feel privileged to now be a member,” says Miller.

The purpose of ABOTA is to promote ethics, integrity and courtesy in the legal profession; provide education and training to its members; and continually improve the trial court system.

Miller, who has more than two decades in insurance and self-insured defense, specializes in defending individuals and companies in actions involving products liability, motor vehicle accidents, premises liability and commercial litigation.

Powers Miller specializes in defending individuals and companies for a wide range of commercial and insurance clients. The firm’s areas of expertise include motor vehicle and trucking accidents, premises liability, product liability (including medical devices), and general negligence actions.

In addition to Jim’s induction, Brian Powers of Powers Miller is also a member of ABOTA.

Automatic Braking Systems May Change Industry Significantly

Headshot of Robert F BennettOn September 11, 2015, the New York Times, published an article regarding an agreement among ten major automakers to make automatic braking systems standard in all vehicles.  While there was no timetable set for implementation of the systems, once they become standard they may significantly affect civil cases. Many civil cases center on auto liability and a vast majority of those cases deal in rear end auto accidents.  The automatic braking systems are envisioned to protect against all collisions, but are expected to virtually do away with rear end accidents.

Obligations And Right To Restitution of Insurer In Providing A Defense Under Commercial Liability Policy Clarified By California Supreme Court

Katherine Marlink headshotIn Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., (August 10, 2015) 2015 WL 4716917, the California Supreme Court was faced with the question that when an insurer provides an independent counsel to its insured under a reservation of rights, co-called Cumis counsel (see San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358 whether and from whom the insurer may seek reimbursement for billing that is deemed excessive, unreasonable, or unnecessary. The Court of Appeal concluded that reimbursement of such costs could not be obtained from Cumis counsel and instead were only to be sought against the insureds. The California Supreme Court reversed the judgment finding that such excessive, unreasonable, or unnecessary amounts charged could be recovered from counsel under the principles of unjust enrichment. Continue reading

California Supreme Court Clarifies Public Entity Liability Where Negligent Third Party Caused Plaintiff to Encounter Alleged Dangerous Condition

Headshot of Robert F BennettOn August 13, 2015, the California Supreme Court issued its ruling in matter of Cordova v. City of Los Angeles. At issue for the court was whether California Government Code § 835 required a plaintiff, in a tort claim against a public entity, to show that an alleged dangerous condition on a public roadway caused a third party’s negligence to continue with the claim against the public entity. Ultimately, the Court ruled such a nexus was not a requirement of the section 835. Continue reading

Ninth Circuit Finds Recalling an Empanelled Jury After Discharge Not an Abuse of Discretion

Headshot of Robert F BennettWhat trial attorney has not thought after a verdict, “man I wish we could reconvene the jury on this one issue to get it right.”  On July 24, 2015, the 9th Circuit Court of Appeals concluded such a move is possible. In Dietz v. Bouldin, the 9th Circuit held it was not abuse of discretion for the trial court to call back a jury after it had been discharged to correct an error in its verdict. Continue reading

Appellate Court Clarifies Requirements For An Adverse Possessor’s Notice of Possession

John Sciacca headshotBy John Sciacca

Recently in Carr v. Rosien (2015) 2015 DJDAR 8147, the Fourth District Court of Appeal in California ruled that an adverse possessor’s lis pendens was void because the adverse possessor failed to mail it to the address shown in the assessor’s role, regardless of the address validity. In the case, Mr. Carr filed a quiet title action for real property against Ernest Ortiz and Anna Colon. A quiet title action is typically brought to determine who the real owner of real property is or who possesses what interest in the property. Here, Mr. Carr brought a quiet title action for real property in Riverside under the claim that Mr. Carr had adverse possession of the subject property. Adverse possession is where a trespasser takes a title to property by having a hostile claim, actual possession of the property, open and notorious possession of the property, exclusive and continuous possession of the property, and payment of taxes on the property for five continuous years. Continue reading

United States Supreme Court To Hear Case On Recovery Of Disbursed Third-Party Settlement Funds under ERISA By An Insurance Company

Katherine Marlink headshotBy Katherine Marklink

The 9th Circuit Court of Appeals has held that under the Employee Retirement Income Security Act of 1974 (ERISA) a fiduciary can enforce an equitable lien against specifically identified funds that remain in the beneficiary’s possession; but that such a lien cannot extend to the beneficiary’s general assets when the specifically identified funds are no longer in the beneficiary’s possession. (Bilyeu v. Morgan Stanley Long Term Disability Plan (2012) 683 F.3d 1083, 1095.) In other words, while an Insurance Company can enforce an equitable lien on the settlement proceeds from a third-party tort recovery, if the injured party is no longer in possession of the funds recovered from the third-party then the lien cannot extend to the general assets of the injured party.

This view held by the 9th Circuit is a minority view only shared by the 8th Circuit. Six other circuit courts have now reached contrary conclusions generally  holding that an equitable lien could extend to general assets even if the funds have been disbursed.

Due to the split in the Circuit Courts of Appeal, the United States Supreme Court has granted a writ of certiori to hear the issue in regards to a case arising from the 11th Circuit, Montanile v. Board of Trustees Of The National Elevator Industry Health Benefit Plan, United States Case No. 14-723. Briefing is presently underway in the matter with the case set to be heard in the next Supreme Court term beginning October 2015.


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California Supreme Court Extends Assumption of Risk Doctrine to Cases Where an In-home Caregiver is Injured by their Patient

Headshot of Robert F BennettBy Robert Bennett

On August 4, 2014, the California Supreme Court released a decision in Carolyn Gregory v. Lorraine Cott. At issue for the court was whether an in-home caregiver was precluded from suing her Alzheimer’s patient when she was injured in the course of caring for her. In 2005 Bernard Cott contracted with a home health care agency to care for his then 85 year old wife, Lorraine Cott, who was suffering from Alzheimer’s disease. The agency assigned Gregory to work in the Cott home. Gregory was trained to care for Alzheimer’s patients and was advised by Bernard that his wife was combative often kicking, biting, scratching and flailing. In 2008, Gregory was washing dishes when Lorraine bumped into her. Gregory, who was holding a knife at the time, attempted to restrain Lorraine when she dropped the knife which struck her wrist and caused injuries. Gregory filed a workers’ compensation claim and then a separate civil claim against the Gregorys. Continue reading