Monarrez v. Auto. Club of S. Cal.
| Decision Date | 20 November 2012 |
| Docket Number | No. B233512.,B233512. |
| Citation | 211 Cal.App.4th 177,149 Cal.Rptr.3d 457 |
| Parties | Ruben MONARREZ, an Incompetent Person, etc., Plaintiff and Appellant, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Thon Beck Vanni Callahan & Powell, Kevin K. Callahan ; Esner, Chang & Boyer, Pasadena, Stuart B. Esner, Los Angeles, Holly N. Boyer for Plaintiff and Appellant.
Knapp, Petersen & Clarke, Stephen C. Pasarow, Maria A. Grover, Glendale, for Defendant and Respondent.
Ruben Monarrez suffered catastrophic injuries when he was struck by a hit-and-run driver while receiving roadside assistance for a flat tire. The issue presented by this appeal is whether the Automobile Club of Southern California (Auto Club) may be held liable for Monarrez's injuries. Following de novo review, we conclude that there are triable issues of material fact as to whether the tow truck company assisting Monarrez is the actual or ostensible agent of Auto Club, or whether it is an independent contractor. We reverse the summary judgment in favor of Auto Club.
On January 31, 2008, Auto Club member Ruben Monarrez requested roadside assistance for a flat tire.1 Auto Club dispatched a flat bed car carrier driven by Juan Felix. When Felix arrived at around 11:00 p.m., he found Monarrez standing near the front of his car on the right shoulder of the Long Beach freeway. Felix describes the area as "very dangerous, narrow, dark." Monarrez's car was six inches from the "fog line," the white line that separates the freeway lanes from the shoulder.
Felix decided to transport Monarrez's car to the next exit and change the tire off the freeway. He backed his truck up toward Monarrez's vehicle, got out, and obtained Monarrez's Auto Club card and identification. Felix's truck was encroaching onto the slow lane of the freeway.
Felix told Monarrez of his plan to move the car and said, "Can you go into my tow truck." Monarrez replied, "Okay." After their brief conversation, Felix dropped his clipboard in the truck and saw Monarrez near the guardrail, toward the back of the disabled car. While Felix positioned the car on his truck, he did not keep an eye on Monarrez, but was aware that Monarrez did not pass him on the way to the front of the truck. When he was done loading the car, Felix found Monarrez lying next to the tow truck in the slow lane of the freeway, in a fetal position, after being struck by a motorist.2 Felix activated an emergency button in his truck to alert Auto Club, which in turn notified the police. Monarrez suffered serious brain and orthopedic injuries, and requires 24–hour skilled nursing care for life.
Juan Felix works for Hirad, Inc., dba AM/PM Towing & Auto Repair (Hirad) in Bell Gardens and drives a truck insured under Hirad's $1 million commercial policy, but considers himself to be an Auto Club technician. Felix was certified by Auto Club in 1998. Technicians are recertified by Auto Club every four years and take a mandatory Auto Club orientation program every two years. If a technician's certification has expired or he has not taken the orientation class, he cannot log onto Auto Club's computer in his truck or receive dispatch calls. When a technician approaches a member, he communicates that he is AAA, to give the member confidence.3
According to Felix, Auto Club "basically teach[es] you how they expect you to do the job" during training classes conducted at an Auto Club office. He has viewed many Auto Club videotapes showing how to present himself and how to perform roadside service correctly and safely. He is always on his best behavior during Auto Club inspections, knowing that respondent could divert business if he and the shop are not up to snuff.
Hirad is described as an independent contractor in its "Preferred Contractor Roadside Assistance Contract" (the Contract) with Auto Club.4 This is a non- negotiable form used with all contracting tow truck companies. The Contract requires Hirad to provide roadside assistance to AAA affiliates and their members. All service calls are at the sole discretion of Auto Club.
Hirad has contracted with Auto Club for over 20 years, and 85 to 90 percent of Hirad's business comes from Auto Club. Hirad's tow trucks and uniforms bear the AAA logo. According to Felix, "the only identifying information it had on your uniform identified you as a AAA person."
Auto Club vets tow truck companies (known as "stations" in Auto Club lingo) before contracting with them. It examines a company's towing experience, its record with local police departments, its management team, and its business references. As part of its quality assurance program, Auto Club provides service guidelines and training seminars to its contractors and monitors their performance through customer satisfaction surveys, visits to contractor stations, and investigation of consumer complaints.
The Contract requires Hirad to abide by the guidelines for preferred contractors established by Auto Club. To comply,
If Hirad fails to perform services to the standard of Auto Club—or if the appearance of the shop, equipment or the technicians is substandard—Auto Club has the right to terminate the Contract or redirect calls to other stations. It is undisputed that Auto Club can recommend to Hirad that a technician be disciplined or terminated. If the recommendation is not followed, Auto Club can terminate the Contract.
Auto Club has no contract with Juan Felix, nor does it screen, hire, pay, or schedule the hours of any technicians who work for Hirad. Auto Club does not own, control, lease, or maintain Hirad's tow trucks. Hirad is compensated by Auto Club on a per-call basis. Although Auto Club declares that the Contract "is not exclusive" and Hirad "is free to do business" with others, this claim is belied by the wording of the Contract.5 Hirad's managers, supervisors, officers, shareholders and directors are barred from participating in any other towing business under the Contract, without the express written consent of Auto Club. Auto Club installs its own radio equipment and computers in Hirad's tow trucks and office.
Auto Club provides technicians with a 150–page document entitled "Orientation Training for Independent Contract Station Service Technicians" (the Training Manual). The Training Manual is comprehensive, covering physical appearance (no visible tattoos, no untucked uniform shirts, no smoking, no tennis shoes), preparations, safety equipment and attitude of the technicians. Auto Club gives technicians a card with "Things to Say" to members.6 The first sentence of the Training Manual reads, "To members, the service technician who responds to an emergency road service call is the Auto Club." It adds, "Our name, reputation and members are our most important asset." Technicians are trained by Auto Club how to communicate and build a rapport with customers, to listen, to avoid sexual harassment, to defuse angry members, to use de-stressing techniques in emergency situations, to problem solve, and to obey the Vehicle Code and federal safety regulations. Technicians are told to direct members to other Auto Club-affiliated businesses (rental car companies, repair facilities) and carry written materials for this purpose.
Much of the Training Manual is devoted to highway safety during service calls. In particular, technicians are instructed to Further, The Training Manual details how to provide towing services in dangerous areas like gore points, on curves, near accident debris, and on narrow freeway shoulders.
Felix agreed that "it was always made clear to you by AAA that member safety was the No. 1 priority." He knew he was supposed to explain the danger of remaining outside of the tow truck, because a member might not understand the hazards of standing on a freeway. He did not have this conversation with Monarrez.
According to Auto Club manager John Brower, Auto Club expects tow truck drivers to "initially make sure that the member is placed in a position of safety" and during the rendering of services "to make sure that they stay in a position of safety ... so they don't get injured." The general public does not understand the hazards of being stopped along the side of a highway, so the technician has the responsibility "to do the best that he can to protect the members from harm," according to Brower. If a technician tries to comply with the Training Manual by instructing the member to get into the cab of the truck, and the member fails to comply, Auto Club would "expect the tow truck operator to undertake further efforts to communicate with the member to explain why they absolutely have to get into the cab." It is not sufficient "in terms of member safety to simply say in passing, ‘You should get into the cab,’ and then when the member doesn't get into the cab, to just progress along and do their job without saying anything else." If a member persists in refusing to enter the cab, the driver is supposed to call dispatch and alert Auto Club. The technician "definitely...
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