Davis v. Frederick's Inc., 13354

• Decision Date: 24 December 1973
• Docket Number: No. 13354,13354
• Parties: d 321 Buelah DAVIS, Plaintiff, v. FREDERICK'S, INC., dba Fred's Burger Chalet, a corporation, Defendant and Appellant, v. Dan BALDERAS and Security Insurance Company of Hartford, Cross-Defendants and Respondents.
• Court: Utah Supreme Court

Page 1014

517 P.2d 1014

30 Utah 2d 321

Buelah DAVIS, Plaintiff, v. FREDERICK'S, INC., dba Fred's Burger Chalet, a corporation, Defendant and Appellant, v. Dan BALDERAS and Security Insurance Company of Hartford,

Cross-Defendants and Respondents.

No. 13354.

Supreme Court of Utah.

Dec. 24, 1973.

David E. West of Armstrong, Rawlins, West & Schaerrer, Salt Lake City, for appellant.

H. James Clegg of Worsley, Snow & Christensen, Salt Lake City, for respondent.

CROCKETT, Justice:

The controversy now remaining in this case is whether the action of an employee, defendant Dan Balderas, opening a door into an alley which struck and injured the plaintiff, was part of the operation of the business of his employer, defendant Frederick's Inc. (Fred's Burger Chalet). As will appear below, the interests of the plaintiff Buelah Davis are not here involved. Her claim against defendants has been compromised and settled. Solution to the problem stated above is essential because the employer, defendant Frederick's (and/or its insurer) contends that Security Insurance Company of Hartford, under a home owner's policy which covers nonbusiness activities of Dan Balderas, should also be held responsible. Upon the basis of stipulated facts the trial court rejected that contention and determined that the Balderas policy does not cover the above described incident. That ruling is attacked on this appeal.

Dan Balderas, age 26, worked as assistant cook and performed general duties at Fred's Burger Chalet at 41 East First South in Salt Lake City. His shifts varied to accommodate his class schedule at the University of Utah and the needs of the business. He would generally go to work just before noon and remain until around 9:00 p.m. His immediate superior, Mr. Roger Robinson, would tell him when he was to come to work.

On the day of the incident of concern here, june 3, 1970, he left work earlier, about 3:00 p.m. Immediately after leaving, he returned to ask Mr. Robinson when he should report back for his next shift. He then left through the rear door, which opened onto an alley leading to a parking lot. As he did so, he swung open the screen door just as the plaintiff, a woman 58 years old, was walking by. The door knocked her to the ground causing her substantial bruises and injuries, including a broken wrist. For all of the resulting damages, including medical, loss of wages, pain and suffering, her claim was compromised and settle for the sum of $5,000.

Frederick's argument that Security of Hartford should also be held responsible and/or participate in the settlement involves consideration of this provision of the Balderas policy:

This policy does not apply to bodily injury or property damage arising out of business pursuits of any insured, except activities therein which are ordinarily incident to non-business pursuits. (Emphasis added.)

Frederick's argues that when Balderas had finished his shift and left the...