Carroll Air Systems, Inc. v. Greenbaum, 91-3240

Decision Date01 December 1993
Docket NumberNo. 91-3240,91-3240
Citation629 So.2d 914
Parties, 18 Fla. L. Weekly D2525 CARROLL AIR SYSTEMS, INC., a Florida corporation, Appellant/Cross-Appellee, v. Brenda GREENBAUM, as Personal Representative of the Estate of Raymond Tyrone Fields, deceased, Appellee/Cross-Appellant.
CourtFlorida District Court of Appeals

John Beranek of Aurell, Radey, Hinkle, Thomas & Beranek, Tallahassee, and Mark R. Boyd of Heinrich, Gordon, Batchelder, Hargrove, Weihe & Gent, Fort Lauderdale, for appellant/cross-appellee.

Jeffrey D. Fisher, West Palm Beach, and Scott Trell, Miami, for appellee/cross-appellant.

WARNER, Judge.

Appellant Carroll Air Systems, Inc., asks us to reverse a judgment in favor of Appellee Brenda Greenbaum for $85,000 compensatory damages and $800,000 punitive damages for the wrongful death of her son caused by the drunken driving of a Carroll Air employee. It claims that the employee was not in the course and scope of his employment at the time of the fatal accident and that, in any event, the employer cannot be liable for the furnishing of liquor to its employee, citing section 768.125, Florida Statutes (1989). In addition, because the jury did not find that the employee should be liable for punitive damages, it contends that it cannot be found to be responsible for these damages. We affirm as to all issues, including those raised on cross-appeal.

Brenda Greenbaum's son was killed in a collision with John Mills' automobile shortly after midnight on September 21, 1985. At the time of the accident, Mills was returning from a dinner dance held in connection with a regional meeting of the American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc. (ASHRAE). The meeting was a three day affair where members met to discuss technical issues and vote on society officers. Several Carroll Air employees were in attendance. The other employees and officers were all staying at the hotel for each of the nights. Mills, however, elected to drive between his home in Plantation and the hotel in Fort Lauderdale during the convention. While the president of the company and his son stated that they did not know that Mills was not spending the nights at the hotel, there was evidence in the record which supported the conclusion that they knew or should have known that he was not staying at the hotel. All of Mills' expenses to attend the meeting were paid for by the company.

On the night of the accident, Mills had drinks at the dinner and then joined Mr. Carroll and others from the company as well as some customers and competitors of the company in the hotel bar where they remained until 11:30 or 12:00. Mr. Carroll picked up one bar tab for the group, and Mr. Carroll's son, also an officer with the company, picked up another. These bar tabs were deducted as business expenses by Carroll Air, as was its custom. The company encouraged its employees to entertain its customers, including the purchasing of drinks.

While Carroll and his son testified that they did not know how many drinks Mills consumed and that they did not observe that he was impaired, other persons contradicted this, indicating that Mills was slurring his words. Mr. Carroll left the group earlier than Mr. Mills who later on knocked on Mr. Carroll's room door to find out the number of Mr. Carroll's son's room.

On Mills' way home that evening, while travelling at a speed between 86 and 97 miles per hour in a 45 mile per hour zone, he ran a stop sign and crashed into the car in which the decedent was riding. According to expert testimony, Mills' blood alcohol level was consistent with having consumed between eight and thirteen one-ounce drinks. As a result of the accident, Mills pled no contest to criminal charges and served a prison sentence.

Greenbaum filed suit against Carroll Air alleging that it was vicariously liable for compensatory and punitive damages in connection with the accident. The claim for liability for punitive damages was based on three allegations: (1) that Carroll Air knew or should have known that Mills was drunk and should not have driven from the business meeting that night; (2) that Carroll Air encouraged its travelling salesmen to drink with customers and reimbursed them for their expenses in this regard; and (3) that Mills was a supervisor in the company and Carroll Air would be directly liable for punitive damages. As to the last ground, the trial court directed a verdict against the plaintiff, finding that there was no evidence showing that Mills was in a managerial capacity with the company. Thus, the case went to the jury on vicarious liability for punitive damages, and the jury found in favor of the plaintiff on the issue of both compensatory and punitive damages.

While the appellant argues extensively that Mills was not in the course and scope of his employment when he was returning home after the ASHRAE meeting, there was competent substantial evidence to support the jury's conclusion that he was. Carroll Air told its employees to attend ASHRAE functions because of their business benefits, and several company employees were at this particular regional meeting, including Mr. Carroll, the president. Mills' expenses at the meeting were paid for by the company. Mills travelled a substantial amount on company business, and his car expenses were reimbursed, including mileage. Because he called on many customers, he did not report to the Carroll Air office every morning but frequently travelled straight from his home to his appointments. Similarly, at the end of the day he frequently returned home without reporting to the office. His mileage expenses for the month of the meeting were paid by the company. Thus, an inference can be made that the expenses of travelling to and from his home during the ASHRAE meeting were paid by the company. Social entertainment at these meetings as well as in other settings was an established business practice of Carroll Air as a means of securing and keeping customers. Cocktails purchased at such gatherings were deducted as business expenses. Based upon these facts, there was evidence upon which a reasonable jury could have rejected appellant's argument that the evening in question was purely social and not in furtherance of the employer's interest, and we find no error in its determination. Furthermore, given the evidence supporting the position that the meeting and activities thereafter were within the business interests of the employer, case law supports the position that Mills was within the course and scope of his employment when travelling to and from the meeting. See Merwin v. Kellems, 78 So.2d 865 (Fla.1955); Whetzel v. Metropolitan Life Ins. Company, 266 So.2d 89 (Fla. 4th DCA 1972); see also Advanced Diagnostics v. Walsh, 437 So.2d 778 (Fla. 1st DCA 1983) (discussing worker's compensation "going and coming" rule).

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