Lytle v. Kite, No. 85SC483

• Docket Nº: No. 85SC483
• Citation: 728 P.2d 305
• Case Date: November 03, 1986
• Court: Supreme Court of Colorado

Page 305

728 P.2d 305 Rachel LYTLE, formerly known as Rachel Ellerman,
individually and as next friend of Carl H. Lytle,
Jr., a Minor, Petitioners,
v.
Terrance Wayne KITE, individually and as agent for Anco
Construction Company, Ltd., a Colorado
corporation; and Yerby Banics, a/k/a
Banks Yerby, Respondents. No. 85SC483. Supreme Court of Colorado,
En Banc. Nov. 3, 1986.
Rehearing Denied Dec. 8, 1986.

Page 306

Berger & Rothstein, P.C., David Berger, Nathan M. Berger, Commerce City, for petitioners.

Downey & Gulley, P.C., Daniel W. Patterson, Denver, for respondent Terrance Wayne Kite.

Hall & Evans, Duncan W. Cameron, Brooke Wunnicke, Denver, for respondent Anco Const. Co., Ltd.

No appearance for respondent Banks Yerby.

VOLLACK, Justice.

We granted certiorari to review two issues concerning the unpublished opinion of the court of appeals in Lytle v. Kite, No. 83CA0537 (Oct. 3, 1985), which addressed the scope of an employee's employment when the pickup truck, which the employee was driving, struck a seven-year-old child who was crossing a highway. As a threshold matter, we first review the trial court's certification pursuant to C.R.C.P. 54(b) and hold that the certification was proper. With respect to the court of appeals' opinion, we reverse and remand the majority's holding that the district court erred in failing to direct a verdict for the employer. We believe the scope of employment issue contained questions of material fact and should have been submitted to the jury.

I.

On February 2, 1974, Carl H. Lytle, Jr., then seven years old, was injured by a truck driven by Terrance Wayne Kite as he attempted to run across Colorado Highway 2 in Adams County. On January 21, 1975, petitioner Rachel Lytle (known then as Rachel Ellerman) filed a personal injury action in Adams County District Court on her own behalf and as the next friend of her minor son, Carl H. Lytle, Jr., against Terrance Wayne Kite, Anco Construction Company, Ltd., and Banks Yerby. This suit was based on negligence against Kite, imputed negligence via respondeat superior against Anco, Kite's employer, and imputed negligence against Banks Yerby, the registered owner of the vehicle. Anco answered, denying that Kite was acting within the scope of employment at the time of the accident, and denying negligence by Kite. Neither Kite nor Yerby responded to the complaint. In 1978, the district court granted Anco's motion for summary judgment, ruling that Kite had not been acting within the scope of his employment with Anco when the accident occurred. The issue was certified for appeal pursuant to C.R.C.P. 54(b), and the court of appeals affirmed. Ellerman v. Kite, 626 P.2d 696 (Colo.App.1979). We granted certiorari review and reversed, holding that Anco failed to carry its burden of showing that there was no genuine issue as to any material fact bearing on whether Kite was acting within the scope of employment at the time of the accident. Ellerman v. Kite, 625 P.2d 1006 (Colo.1981).

A clerk's default was requested against Yerby and Kite on January 23, 1978. On the first day of trial, upon remand, January

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17, 1983, an oral motion for default against Kite was granted by the trial court. However, during the trial, Anco filed a motion to set aside the default entered against Kite and to answer on behalf of Kite. The court deferred ruling on the motion.

Kite testified at Anco's trial that he used the pickup exclusively for the business of Anco to perform his duties as a plumber; that he had possession of the truck twenty-four hours a day, seven days a week, during his entire term of employment with Anco. He testified that Anco was not paying him for that Saturday afternoon, February 2, 1974, and that he was on his own time. However, he testified that he regularly gassed, serviced, maintained, and repaired the truck after regular working hours and on weekends. He also testified that he was regularly reimbursed for his expenses by Anco supervisor, Banks Yerby, and he received his Anco paycheck from Banks Yerby.

On the day of the accident, Kite drove the truck from his home to where it was to be serviced. The service consisted of the renewal of an inspection sticker, a front-end alignment and rotation of tires. The services were not emergency repairs, and the sticker renewal was not required until March 1, 1974.

The truck was owned by and registered to defendant Yerby. Prior to the time that Kite was employed as a plumber by Anco, he worked as a plumber for Banks Yerby. When Kite went to work for Anco, he used the same truck that he had previously used under Banks Yerby. However, Kite testified that he only did truck maintenance after he began working for Anco. It was upon the completion of the maintenance work done on February 2, 1974, while Kite was returning to his home, without deviation, that he struck Carl Lytle. In our earlier opinion of Ellerman v. Kite, 625 P.2d 1006, 1009 (Colo.1981), we stated, "Yerby was reimbursed by Anco for actual expenses associated with the operation and maintenance of four trucks including the truck involved in the accident."

At the close of trial, the district court directed a verdict for the petitioners on the scope of employment issue, instructing the jury that at the time of the accident, Kite was acting within the scope of his employment with Anco. The jury was further instructed that, for this reason, any act or omission by Kite was the act or omission of Anco.

The jury returned a verdict finding Anco 60% negligent and finding Carl Lytle contributorily negligent to the extent of 40%. Damages were set by the jury at $500,000 for Carl Lytle and $1,800 for Rachel Lytle.

Consistent with the verdict, the trial court entered judgment against Anco on January 25, 1983, for approximately $300,000, plus interest. On February 14, the court granted Kite's motion to set aside the clerk's default entered against him and set a trial date for the claim against Kite. On March 29, 1983, the earlier default against Yerby was reduced to judgment in the amount of $600,000, plus interest.

After numerous motions, the district court certified the judgment against Anco as final pursuant to C.R.C.P. 54(b). The petitioners claimed the certification was proper. In granting certification, the court found "there [was] no just reason for delay in entering judgment against Anco Construction and in favor of plaintiffs." On July 12, 1983, Anco appealed.

In an unpublished opinion, the court of appeals reversed the trial court, addressing only the scope of employment issue. Lytle v. Kite, No. 83CA0537 (Oct. 3, 1985). The majority held that the district court erred in failing to direct a verdict for Anco on the scope of employment issue. It remanded with directions to dismiss the petitioners' complaint. The petitioners' case against Kite is being held in abeyance at the trial court level...