Burroughs Corp. v. American Druggists' Ins. Co.
| Decision Date | 11 April 1984 |
| Docket Number | 83-310,83-1227,Nos. 83-309,s. 83-309 |
| Citation | 450 So.2d 540 |
| Court | Florida District Court of Appeals |
| Parties | BURROUGHS CORPORATION and Employers Insurance of Wausau, Appellants, v. AMERICAN DRUGGISTS' INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company, Auto-Owners Insurance Company and Marjorie L. Jackson, Appellees. BURROUGHS CORPORATION, Employers Insurance of Wausau and Marjorie L. Jackson, Appellants, v. AMERICAN DRUGGISTS' INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company and Auto-Owners Insurance Company, Appellees. BURROUGHS CORPORATION and Employers Insurance of Wausau, Appellants, v. AMERICAN DRUGGISTS' INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company, Auto-Owners Insurance Company and Marjorie L. Jackson, Appellees. |
Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants Burroughs and Employers.
Bart A. Riley of Law Offices of Riley & Proly, Port Richey, for appellant Marjorie L. Jackson.
Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee American Druggists.
Maureen Emmet-Miller and Larry D. Goldstein of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellee Iowa National.
William E. Hennen of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, P.A., Tampa, for appellee Hartford.
Richard E. Wolverton of Lyle & Skipper, P.A., St. Petersburg, for appellee Auto-Owners.
No appearance by State Farm.
No appearance by Patricia Elaine Paulette.
The principal arguments presented in this appeal revolve around the issue of whether Patricia Elaine Paulette was within the scope of her employment with appellant Burroughs Corporation at the time of Paulette's automobile accident with the decedent, Bradley Jackson. In case no. 83-309, the trial court granted a partial summary judgment in favor of Marjorie Jackson, personal representative of the estate of Bradley Jackson, holding as a matter of law that Paulette was acting within the scope and course of her employment with Burroughs, and a respondeat superior relationship existed between Burroughs and Paulette at the time of the accident. The partial summary judgment did not resolve with particularity the issue of liability in favor of a party seeking affirmative relief.
In case no. 83-310, the trial court granted a final summary judgment to various uninsured motorist (UM) carriers finding that the carriers were not liable for UM benefits pursuant to coverage on Paulette as Paulette was within the scope of her employment with Burroughs.
The appeal in case no. 83-1227 arises from an order of the trial court granting a partial summary judgment on the issue of liability in favor of Jackson and against Burroughs and Employers Insurance of Wausau. All issues of liability concerning Burroughs and Employers Insurance were resolved by this order. The order referred to the earlier summary judgment on the issue of respondeat superior (the order appealed from in no. 83-309).
Initially, we hold that the order appealed from in case no. 83-309 was technically nonappealable under Florida Rule of Appellate Procedure 9.130. On that basis, we dismiss appeal no. 83-309. All parties will note, however, that case no. 83-1227 is properly before this court as an interlocutory appeal of the partial summary judgment in favor of Jackson, and brings before this court issues which might have been raised in no. 83-309. Fla.R.App.P. 9.130(a)(3)(C)(iv). The UM insurance companies had filed a motion to dismiss no. 83-1227. This court has denied that motion and will not reconsider it a second time despite the appellee insurance company's insistence that we do so. We will note that cross-claims, findings of the trial court, and actions by the parties indicate to us the propriety of the appeal in that case. Additionally, case no. 83-310 is properly before this court as an appeal from a final summary judgment. Fla.R.App.P. 9.110(a); Fla.R.App.P. 9.030(b)(1)(A).
Focusing on the issues now before this court, we hold that the partial summary judgment in no. 83-1227 and the final summary judgment in no. 83-310 were erroneously granted by the trial court. The issue of scope of employment, under the circumstances involved herein, is an issue best left to the trier of fact; the issue was not ripe for summary judgment.
At all relevant times, Paulette was employed by Burroughs as a "field engineer." Specifically, she would examine and repair the computer equipment of Burroughs' customers. Paulette used her own automobile while in the field, and carried equipment, parts and tools in the vehicle. She would receive compensation for mileage and travel time, as well as an automobile allowance.
Burroughs had established procedures concerning travel time for its employees. The employees had "check points" with which to establish their travel time. A "check point" is a reference point, not a required stop for the employee. Paulette's check point was located in Tampa, as was her "home base" and home.
Burroughs had a rule which prohibited the use of intoxicants by employees during work hours. Paulette was aware of this rule.
There was testimony indicating that an employee should obtain prior approval from a supervisor before working overtime. Without such approval, travel time was supposed to occur during the work hours of 8:00 a.m. to 5:00 p.m. Paulette stated, however, that if an employee could finish a job within a short period after normal working hours, the employee could do so without getting special approval for overtime. Otherwise, the employee was to return home and complete the assignment on the following workday. Paulette had obtained prior overtime approval for about one-half of the occasions on which she applied for overtime compensation. One supervisor stated in deposition that if an employee finishes field work at 5:30 p.m., then stops and eats dinner before returning to Tampa, and thereafter returns to Tampa, the employee would not be on company time during dinner but would be on company time for purposes of pay and expenses during the period spent in driving to Tampa. We note that for the day of the accident, Paulette was paid for an eight-hour workday, her automobile allowance, and mileage from Brooksville to Tampa. A supervisor completed Paulette's time sheet for the day in question.
On January 28, 1981, Paulette had worked in Tampa and Dade City. In the afternoon of that day, she went to Brooksville to perform a service call for one of Burroughs' customers. The job was finished at approximately 5:00 p.m. Shortly thereafter, Paulette met a co-worker at a Brooksville lounge where she remained until approximately 9:20 p.m.
While in the lounge, Paulette consumed four or five beers. It was indicated, however, that she could not recall with certainty how many beers she had drunk.
After leaving the lounge, Paulette drove her automobile towards Tampa and home. Around 10:00 p.m., Paulette's vehicle was involved in a collision with the vehicle in which Bradley Jackson was a passenger. Jackson died from injuries suffered during the collision.
There is an indication in the record that Paulette was legally intoxicated when a blood alcohol...
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