Moradi v. Marsh United States, Inc.

• Decision Date: 17 September 2013
• Docket Number: B239858
• Citation: 162 Cal.Rptr.3d 280,219 Cal.App.4th 886
• Court: California Court of Appeals Court of Appeals
• Parties: Majid MORADI, Plaintiff and Appellant, v. MARSH USA, INC., Defendant and Respondent.

219 Cal.App.4th 886

162 Cal.Rptr.3d 280

Majid MORADI, Plaintiff and Appellant,

v.MARSH USA, INC., Defendant and Respondent.

B239858

Court of Appeal,

Second District, Division 1, California.

Filed September 17, 2013

See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 181 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank J. Johnson, Judge. Reversed. (No. LC089905)

Law Office of Wayne McClean, Wayne McClean, Woodland Hills; and Evan D. Marshall, Santa Monica, for Plaintiff and Appellant.

Acker & Whipple, Jerri L. Johnson and Kelley E. Harman, Los Angeles, for Defendant and Respondent.

MALLANO, P.J.

An employee of an insurance broker was required each workday to drive to and from the office in her personal vehicle. During the workday, the employee had to use her vehicle to visit prospective clients, make presentations, provide educational seminars, follow leads, and transport company materials and coemployees to work-related destinations.

On April 15, 2010, the employee left the office at the end of the workday and began driving in the direction of her home. She had decided that, on the way, she would stop for some frozen yogurt and take a yoga class. As the employee made a left turn at the yogurt shop, she collided with a motorcyclist.

The motorcyclist filed this action against the employee and her employer. The trial court granted the employer's motion for summary judgment on the ground that the employee was not acting within the scope of her employment when she was making a left turn to get to the frozen yogurt shop. The motorcyclist appealed.

We reverse. Because the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips during the day, the employee was acting within the scope of her employment when she was commuting to and from work. The planned stops for frozen yogurt and a yoga class on the way home did not change the incidental benefit to the employer of having the employee use her personal vehicle to travel to and from the office and other destinations. On the day of the accident, the employee had used her vehicle to transport herself and some coemployees to an employer-sponsored program, and the employee had planned to use her vehicle the next day to drive to a prospective client's place of business. Nor did the planned stops constitute an unforeseeable, substantial departure from the employee's commute. Rather, they were a foreseeable, minor deviation. Finally, the planned stops were not so unusual or startling that it would be unfair to include the resulting loss among the other costs of the employer's business. Thus, under the “required vehicle” exception to the “going and coming” rule, the employee was acting within the scope of her employment at the time of the accident, and the doctrine of respondeat superior applies. Accordingly, the trial court erred in granting the employer's summary judgment motion.

IBACKGROUND

The allegations and facts in this appeal are taken from the pleadings and the papers submitted in connection with the summary judgment motion.

Around 1997, Judy Bamberger commenced employment with Marsh USA, Inc., an insurance broker doing business as Marsh Risk & Insurance Services (Marsh). Bamberger worked at the Marsh office at 777 South Figueroa Street in downtown Los Angeles. She lived on Reforma Road in Woodland Hills.

Bamberger worked for Marsh as a salesperson. She was primarily responsible for developing new business. She generated new sales by cold-calling, forming relationships with influential people, providing educational seminars, making presentations, and becoming involved with different organizations such as the Chamber of Commerce, the Rotary Club, and insurance associations. She met with prospective clients, typically at their location and convenience; meetings could occur before, during, and after regular work hours. To reach these various destinations, Marsh required Bamberger to use her personal vehicle, a 2009 Nissan Maxima. She was allowed to stop and see prospective clients on the way home.

Two to five times a week, Bamberger used her personal vehicle to attend off-site appointments and meetings. She also used her personal vehicle to transport Marsh executives, clients, and coemployees to off-site meetings, appointments, and seminars.

There were about 10 employees, including Bamberger, in Marsh's Los Angeles office who were responsible for generating new business. Pursuant to company policy, they all had to use their personal vehicles to engage in sales and client development.

When Bamberger first began working at Marsh, the company provided vehicles to its salespersons to perform their job duties. Those cars were also available for personal use. Later, Marsh switched to a “car allowance” program under which the company made a monthly payment toward the lease or auto loan of its salespersons. Over the last five years, Bamberger and other salespersons were required to use their personal vehicles for business travel, and Marsh reimbursed them for business mileage.

On April 15, 2010, Bamberger had used her personal vehicle to transport herself and some coemployees to a company-sponsored program at a middle school in the Los Feliz area. When the program was over, she returned to the office. It was the end of the workday.

Bamberger planned to stop on the way home for some frozen yogurt and, thereafter, to attend a 6:00 p.m. yoga class. While at work, she changed clothes from business attire to active wear. Upon leaving the office, Bamberger drove north on the 110 Freeway, then west on the 101 Freeway. She took the De Soto Avenue exit and turned right onto westbound Ventura Boulevard, which had three lanes for traffic and a center lane for making left turns. At that point, Bamberger planned to drive westward, with stops at Menchie's frozen yogurt shop and the yoga studio before reaching home. Menchie's was approximately 600 feet west of the intersection of De Soto Avenue and Ventura Boulevard. The yoga studio was located a short distance—about three-tenths of a mile—to the west of Menchie's on Ventura Boulevard, between De Soto Avenue and Canoga Avenue. The distance from Menchie's to Bamberger's home, traveling west on Ventura Boulevard, was around two miles. All three destinations—Menchie's, the yoga studio, and Bamberger's home—were in Woodland Hills and had the same five-digit zip code: 91364.

To enter the parking lot for Menchie's, Bamberger moved from lane 1 of westbound Ventura Boulevard into the center lane to make a left turn. Traffic was heavy. Eastbound Ventura Boulevard had two lanes for traffic; a third lane—lane 3—was used for parking at that time of day. The eastbound traffic on Ventura Boulevard was backed up from the De Soto Avenue traffic signal, blocking the entrance to Menchie's. Eventually, the vehicles in lanes 1 and 2 of eastbound Ventura Boulevard created a “gap” so Bamberger could turn left. She commenced a left turn, not seeing that Majid Moradi was on his motorcycle, traveling between the eastbound lanes on Ventura Boulevard. Her vehicle collided with his motorcycle.

Bamberger had planned on using her personal vehicle for business travel the next day to meet a prospective client in Oxnard. Inside Bamberger's vehicle were materials to be used at the meeting, including her laptop and a Marsh file regarding the prospective client. Bamberger intended to review those materials at home before meeting the prospective client. Because her vehicle was damaged in the accident, Bamberger rented a car and, on April 16, 2010, drove to a nearby shopping center, where a coworker picked her up. They went together to see the prospective client.

On May 26, 2010, Moradi filed this action against Bamberger. On September 8, 2010, Moradi filed an amendment to the complaint, adding Marsh as a defendant.

On March 2, 2011, Marsh filed a motion for summary judgment, contending it was not liable for the accident because, at the time of the collision, Bamberger “was neither at work, nor working, nor pursuing any task on behalf of her employer” but “was pursuing personal interests, namely, going to yoga class and stopping for yogurt on the way.”

Moradi and Bamberger filed separate oppositions to the motion. Moradi argued that Marsh derived a benefit by having Bamberger travel to and from the office and other destinations in her personal vehicle: The vehicle was used before, during, and after the regular workday for Marsh's business purposes. Moradi asserted that Bamberger's commute to and from work was part of the employment relationship and was within the scope of her employment. Further, Moradi asserted that Bamberger had not “abandoned” her commute by stopping at the yogurt shop or by planning to attend a yoga class on the way home.

In her opposition, Bamberger argued: (1) the going and coming rule did not apply because Marsh derived an incidental benefit by requiring that she use her own vehicle when traveling for business, including trips to and from the office; (2) her plans to stop for frozen yogurt and a yoga class were foreseeable events; (3) she was not engaged in a “personal errand” at the time of the collision; and (4) she was acting within the scope of her employment when the accident occurred.

The trial court heard the summary judgment motion on November 10, 2011, and took the matter under submission. By minute order dated December 29, 2011, the trial court granted the motion. A signed judgment was filed on January 30, 2012. Moradi appealed. Bamberger did not.

IIDISCUSSION

“ ‘ “A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... Once the defendant's burden is met, the burden shifts to the plaintiff to show...