Robelo v. United Consumers Club, Inc., 88-788

• Decision Date: 21 November 1989
• Docket Number: No. 88-788,88-788
• Citation: 14 Fla. L. Weekly 2706,555 So.2d 395
• Parties: 14 Fla. L. Weekly 2706 Jose ROBELO, and Nubia Robelo, as Co-Personal Representatives of the Estate of Javier Alberto Robelo, deceased, on behalf and for the benefit of Jose Robelo, Nubia Robelo and the Estate of Javier Robelo, deceased, Appellants, v. UNITED CONSUMERS CLUB, INC., and United Consumers Club Franchise Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 395

555 So.2d 395

14 Fla. L. Weekly 2706

Jose ROBELO, and Nubia Robelo, as Co-Personal Representatives of the Estate of Javier Alberto Robelo, deceased, on behalf and for the benefit of Jose Robelo, Nubia Robelo and the Estate of Javier Robelo, deceased, Appellants, v. UNITED CONSUMERS CLUB, INC., and United Consumers Club Franchise Corporation, Appellees.

No. 88-788.

District Court of Appeal of Florida Third District.

Nov. 21, 1989.

Rehearing Denied Feb. 13, 1990.

Magill & Lewis and R. Fred Lewis, Miami, for appellants.

Corlett, Killian, Ober, Hardeman, McIntosh & Levi and Love Phipps and Andrew Grigsby, Miami, for appellees.

Before BASKIN, FERGUSON and COPE, JJ.

BASKIN, Judge.

Jose and Nubia Robelo appeal the entry of final summary judgment in favor of United Consumers Club, Incorporated, and United Consumers Franchise Corporation [collectively referred to as UCC] in their action for damages for the wrongful death of their son resulting from an automobile accident. We affirm.

John Pistone was president of ARCA Corporation, a franchise and agent of UCC. His wife, Elizabeth Pistone, occasionally helped out in the corporation office on an as needed basis, when she was available and willing to work. She was not paid for her services. As part of John Pistone's compensation from ARCA, he was furnished a van which he utilized both as a display vehicle and as family transportation. ARCA retained title to the van.

On the day of the accident, John called Elizabeth and asked her to come to the office. Elizabeth was driving the van to ARCA's offices when she was involved in a collision with Javier Robelo. Robelo died in the crash; his parents, Jose and Nubia Robelo, sued UCC, ARCA, and Elizabeth Pistone for damages in connection with the death of their son. UCC moved for summary judgment; the trial court granted the motion and entered a final summary judgment. ¹ The Robelos filed this appeal.

A principal becomes liable for the tortious actions of its agent only if the agent acts within the scope of the agency. Life Ins. Co. of North America v. Del Aguila, 417 So.2d 651 (Fla.1982); Jaar v. University of Miami, 474 So.2d 239 (Fla. 3d DCA 1985), review denied, 484 So.2d 10 (Fla.1986). Accordingly, we must determine whether Elizabeth Pistone was acting in the scope of her employment with ARCA, UCC's agent, at the time of the incident. Only then may UCC, as ARCA's principal, be held liable as a matter of law for her tortious acts.

The law is well-settled that an employer is not liable for torts of its employees committed while the employee is either going to work or returning home, unless the employee is on a special errand for the employer. Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979); Everett Ford Co. v. Laney, 189 So.2d 877 (Fla.1966); Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946). Irregular hours alone are insufficient to designate the employee's coming and going a special errand for the employer. ² Eady; Everett Ford. Elizabeth Pistone kept irregular hours. She was not an employee "on call" because, although she worked only when needed, she was not required to make herself available on demand: she worked only when ARCA needed her and she wanted to work. At the time of the...