Engler v. Gulf Interstate Eng'g Inc.

• Decision Date: 09 August 2011
• Docket Number: No. 1 CA–CV 10–0561.,1 CA–CV 10–0561.
• Citation: 258 P.3d 304,614 Ariz. Adv. Rep. 29,227 Ariz. 486
• Parties: Aaron ENGLER, an unmarried man, Plaintiff/Appellant,v.GULF INTERSTATE ENGINEERING, INC., a corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

227 Ariz. 486

258 P.3d 304

614 Ariz. Adv. Rep. 29

Aaron ENGLER, an unmarried man, Plaintiff/Appellant,

v.GULF INTERSTATE ENGINEERING, INC., a corporation, Defendant/Appellee.

No. 1 CA–CV 10–0561.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 9, 2011.

Don B. Engler, P.C. By Don B. Engler, Yuma, and Aboud & Aboud, P.C. By Michael J. Aboud, Tucson, Attorneys for Plaintiff/Appellant.Holloway Odegard Forrest & Kelly, P.C. By Charles M. Callahan, Peter C. Kelly, II, Phoenix, Attorneys for Defendant/Appellee.

OPINION

WINTHROP, Judge.

¶ 1 Plaintiff, Aaron Engler, appeals the summary judgment entered in favor of Defendant, Gulf Interstate Engineering, Inc. (“Gulf”). Engler was injured when the motorcycle he was riding collided with a vehicle driven by Ian Gray, a Gulf employee. Engler filed suit against Gray and Gulf, alleging in part that at the time of the accident, Gray was acting within the course and scope of his employment with Gulf, and therefore Gulf was vicariously liable for Gray's alleged negligence based on the doctrine of respondeat superior. The superior court granted summary judgment in favor of Gulf and denied Engler's motions for new trial and reconsideration. Engler maintains that we must reverse the court's final judgment because the reasoning of a recent Arizona Court of Appeals opinion, McCloud v. Kimbro (“McCloud II”), 224 Ariz. 121, 228 P.3d 113 (App.2010), requires us to find that Gray was acting in the course and scope of his employment with Gulf at the time of the accident. Gulf argues that McCloud II is factually distinguishable and should be limited in its scope or, in the alternative, was wrongly decided. For the following reasons, we decline to follow the reasoning set forth in McCloud II and agree with the superior court that Gulf is entitled to summary judgment on Engler's vicarious liability claim. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 As the parties have previously recognized, the material facts related to whether Gray was acting in the course and scope of his employment with Gulf at the time of the accident are essentially undisputed. To the extent that any dispute exists, we view the facts and reasonable inferences in the light most favorable to Engler because we are reviewing a decision granting summary judgment in favor of Gulf. See Orme Sch. v. Reeves, 166 Ariz. 301, 309–10, 802 P.2d 1000, 1008–09 (1990).

¶ 3 Gulf is an energy consulting company, and its main office is located in Houston, Texas. Gray is employed by Gulf as a full-time, salaried, senior principal engineer.¹ Gray's engineering position is based in Houston, where he resides. In 2007 and 2008, however, Gray was extensively involved in the design and construction of a natural gas compressor station located in Los Algodones, Mexico. While they worked on this project, Gray and other Gulf employees stayed in hotels in Yuma, Arizona, and commuted approximately ten to fifteen miles to Mexico each day.

¶ 4 Late in 2007, Gray flew from Houston to San Diego where, using his personal credit card, he rented a car to drive to Yuma. Gray utilized the vehicle for both business and personal use while in Yuma, and he was entitled to reimbursement from Gulf for the vehicle's rental cost, as well as for the fuel expended for business purposes. Gulf also reimbursed Gray for his hotel lodging and three meals per day while working on the project. Gray would sometimes buy food and eat either at the job site in Mexico or in his hotel room rather than at a restaurant.

¶ 5 Although Gulf provided a common vehicle to transport its employees from the hotel to the work site in Mexico, Gray generally used his rental car to travel to and from work. Gray's work day would begin at approximately 7:00 a.m. each day, when he and other Gulf employees would arrive at the project's job site. The trip into Mexico from the United States took only a few minutes, but the return trip at the end of the day could take several hours due to border delays. Although Gulf did not usually pay its employees for travel to or from a job site, given the unusual circumstance of having to cross an international border to get to and from work, and given the often significant delays in returning to Yuma, Gulf generally considered Gray's work day to have concluded when he arrived back at his hotel rather than when he left the job site.

¶ 6 After Gray and the other Gulf employees returned to their hotels in Yuma, they were free to do whatever they wanted until they arrived at work the next day. During this time, Gulf did not attempt to supervise its employees or direct or control their activities in any way.

¶ 7 On December 11, 2007, Gray and another Gulf employee, a younger engineer named Jason Shing, rode together in Gray's rental car and arrived at the work site in Mexico at approximately 7:00 a.m. Gray billed 12.5 hours that day, and returned to the hotel at approximately 7:30 p.m. Gray changed from his work attire and did no further work after returning to his hotel room.

¶ 8 Later that evening, Gray and Shing went to dinner at a restaurant in Yuma. Gray drove the rental car to the restaurant. Neither Gray nor Shing conducted any work during this time. After finishing their meal, Gray and Shing left the restaurant and headed back toward the hotel in the rental vehicle. On the trip back, the vehicle driven by Gray was involved in a collision with a motorcycle driven by Engler.

¶ 9 Engler brought suit for personal injury against Gray and Gulf, alleging Gray's negligence and Gulf's vicarious liability. Gulf moved for summary judgment with regard to Engler's claim against it. Gulf argued that it could not be held liable under the doctrine of respondeat superior because Gray was not acting in the course and scope of his employment with Gulf at the time of the accident and “no reasonable juror could conclude that Gulf should be held vicariously liable for the actions of its off-duty employee (defendant Ian Gray).” Engler filed a response and cross-motion for summary judgment, arguing that Gray was acting in the course and scope of his employment with Gulf at the time of the accident because Gulf's “requirement that Mr. Gray travel to and live at the location of his employer's project was not merely a large part of Mr. Gray's employment—it was his employment.” Engler contended that determination of the course and scope of employment under the doctrine of respondeat superior should be viewed broadly, encompassing workers' compensation principles, to find that Gray's activities while in Yuma were “solely to serve the business purposes of Gulf Interstate until he returned” to Houston. Gulf replied that utilizing the “expansive standard” espoused by Engler would “ignore binding precedent and greatly expand the law of respondeat superior tort liability in Arizona.” Citing Robarge v. Bechtel Power Corp., 131 Ariz. 280, 640 P.2d 211 (App.1982), Gulf maintained that “the law is clear [that] the employer must have the right to control the activities of the employee at the time of the alleged injury in order for the plaintiff to prevail on a vicarious liability theory.”

¶ 10 The superior court granted summary judgment in favor of Gulf. Thirteen days later, however, a panel of the Arizona Court of Appeals issued its opinion in McCloud II, which held “that an employee on out-of-town travel status is within the course and scope of his employment and subjects his employer to vicarious liability while traveling to and from a restaurant for a regular meal.” 224 Ariz. at 125, ¶ 17, 228 P.3d at 117. The court reasoned that “eating is necessarily incidental to a multiple-day assignment.” Id. (citations omitted). Engler filed a motion for new trial, asserting that given the similarity in facts, the recent decision in McCloud II was “ ‘on point’ and controlling in this case.” Concluding that McCloud II was “a narrower holding” distinguishable from the instant case on the facts and law because it involved a Department of Public Safety (“DPS”) officer (“Officer Kimbro”), who was driving a state-owned vehicle and was subject to provisions of the Arizona Administrative Code (“A.A.C.”),² the superior court denied Engler's motion for new trial. The court noted that Gray “was not acting pursuant to a statute defining his course and scope of employment” and “was not driving a vehicle owned by the company for whom he was working.” ³ Engler moved for reconsideration of the order denying his motion for new trial, but the superior court denied the motion and entered final judgment in favor of Gulf.

¶ 11 The judgment included language from Rule 54(b), Ariz. R. Civ. P., and Engler filed a timely notice of appeal from that judgment. We have jurisdiction pursuant to A.R.S. § 12–2101(A)(1) (West 2011).⁴

STANDARD OF REVIEW

¶ 12 We review de novo the superior court's grant of summary judgment and application of the law. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003); State Comp. Fund v. Yellow Cab Co., 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App.1999). As we have recognized, in our review, we construe the facts and reasonable inferences in the light most favorable to the opposing party. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13, 38 P.3d 12, 20 (2002); Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 10, 36 P.3d 1200, 1203 (App.2001). Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008; Ariz. R. Civ. P. 56(c)(1); see also Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498, 501 (App.1996) (recognizing that when “the material facts relevant to scope of employment are undisputed, the question can be decided as a matter of law” (citing Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App.1991); Robarge, 131 Ariz. at...