Stokes v. Denver Newspaper Agency, Llp, 05CA0485.

Docket NºNo. 05CA0485.
Citation159 P.3d 691
Case DateSeptember 07, 2006
CourtCourt of Appeals of Colorado

S. Drantch, Michael R. O'Connell, Denver, Colorado, for Plaintiff-Appellant.

Overturf & McGath, P.C., Mark C. Overturf, Robert I. Lapidow, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge BERNARD.

In this case involving the scope of respondeat superior liability, plaintiff, Vicki Stokes, appeals the trial court's summary judgment in favor of defendant, Denver Newspaper Agency, LLP, including an award of attorney fees. We affirm the judgment in part, vacate it in part, and remand for further findings on the issue of attorney fees.

Plaintiff's suit against defendant arose out of a car accident between plaintiff and defendant's employee. After settling her claims against the employee, plaintiff sued defendant under a respondeat superior theory.

Defendant moved for summary judgment arguing the employee was not acting within the scope of his employment at the time of the accident. In support of the summary judgment motion, defendant filed an affidavit from the employee indicating he had finished work and was driving home outside of his service district when the accident occurred. Plaintiff's response included an assertion that the employee used his personal automobile while conducting defendant's business and an affidavit containing information about the employee's working hours. However, all the information in plaintiff's affidavit was hearsay.

Plaintiff also moved to compel discovery of parts of the employee's personnel file, which plaintiff claimed might have information about whether the employee was acting within the scope of his employment at the time of the accident.

The trial court granted defendant's motion for summary judgment and dismissed the case one day after granting plaintiff's motion to compel. The trial court awarded defendant attorney fees without explaining the basis for the award. This appeal followed.

I. Respondeat Superior

Plaintiff asserts the trial court erred in dismissing her respondeat superior claim because an issue of material fact existed as to whether the employee was acting within the scope of his employment. We disagree.

An appellate court reviews a trial court's grant of summary judgment de novo. A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862 (Colo.2005); Vigil v. Franklin, 103 P.3d 322 (Colo.2004). Summary judgment is appropriate when the pleadings and supporting documents clearly demonstrate no issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Thompson v. Maryland Cas. Co., 84 P.3d 496 (Colo. 2004); Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294 (Colo.2003). The moving party bears the initial burden of providing the basis for the motion and identifying those portions of the record and affidavits that demonstrate there is not a genuine issue of material fact. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987); Roberts v. Holland & Hart, 857 P.2d 492 (Colo.App. 1993).

Under the respondeat superior doctrine, an employer is liable for torts of an employee acting within the scope of employment. The employer is liable if the employee's conduct was motivated by an intent to serve the employer's interests and connected to acts the employee was authorized to perform. Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468 (Colo.1995). Thus, if the tort is committed during the service of an employer's business, it is within the scope of employment. Pham v. OSP Consultants, Inc., 992 P.2d 657 (Colo.App.1999).

One common law principle defining the scope of employment is the going-and-coming rule, which indicates employees traveling to work from home or from home to work are not within the service of their employers. There are exceptions to this rule. Beeson v. Kelran Constructors, Inc., 43 Colo. App. 505, 608 P.2d 369 (1979).

Plaintiff argues her case is covered by such an exception because, as part of the employee's job, he used his own car at his employer's request. We disagree.

Plaintiff cites a series of workers' compensation cases analyzing similar circumstances. See, e.g., Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo.1999) (setting forth factors to determine whether an employee traveling to or from work is acting within the course of employment); Whale Commc'ns v. Death of Osborn, 759 P.2d 848, 848 (Colo.App.1988)("travel becomes a part of the job since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer's purpose," thus making the vehicle "part of the work environment"); Varsity Contractors & Home Ins. Co. v. Baca, 709 P.2d 55 (Colo.App.1985)(employer's requirement that employee bring car to work in order to do the job "conferred an added benefit" to the employer).

Plaintiff has not cited, nor have we found, a Colorado case setting forth a list of factors, like those listed in Madden, to be considered in a respondeat superior case. Our task, therefore, is to determine whether the analysis set forth in the workers' compensation cases should be applied in the respondeat superior context. We conclude it should not.

Workers' compensation and respondeat superior liability are different theories of liability. A division of this court described this distinction:

[W]hile perhaps ninety percent of the decisions on the course of employment in routine cases are interchangeable between the two fields [of workers' compensation and respondeat superior liability], the analogy breaks down in certain close cases because of a fundamental difference between the two types of liability. In the law of respondeat superior, the harmful force is always an act of the servant, or at least the omission which is the equivalent of an act. The inquiry is whether performance of the act was in furtherance of the master's business. But in many workers' compensation situations, the harmful force is not the employee's act, but something acting upon the employee.

Pham v. OSP Consultants, Inc., supra, 992 P.2d at 660 (quoting 1 Larson's Workers' Compensation Law § 14.00, at 4-1 (1998)).

The fundamental difference between these two theories of liability led the Pham division to conclude, for the purposes of the respondeat superior doctrine, that an employee was outside the scope of his employment when, on an out-of-town work assignment, the employee finished work, drove his car to a bar, and then collided with another car on the way back to his lodging. The division determined this was not a situation in which it would be proper to hold the employer responsible for the employee's act causing injury to another, even though it might have been appropriate to hold the employer responsible for injuries suffered by the employee.

The workers' compensation statutory scheme is a product of legislative policies. It compensates workers for injuries suffered on the job without regard to their negligence or assumption of risk. In exchange, the employer is given immunity from workers' claims that their injuries were caused by their employers' negligence. Frank M. Hall & Co. v. Newsom, 125 P.3d 444 (Colo.2005). The Workers' Compensation Act also limits the amount an employee may recover. Sections 8-42-107, 8-42-107.5, 8-42-114, 8-42-115, C.R.S.2005.

The primary purpose behind the common law doctrine of respondeat superior is to make employers liable to third parties for the negligence of employees serving their employers' business. Grease Monkey Int'l, Inc. v. Montoya, supra. Unlike in workers' compensation cases, employers' liability is not statutorily limited, and proof of negligence is required. As the division in Pham recognized, this distinction is enough to justify different results in respondeat superior cases and workers' compensation cases. This is such a situation.

In workers' compensation cases, employers' responsibility is to a limited and known universe: their employees. Extending employer responsibility to situations where an employer has made an employee's car "part of the work environment," Whale Commc'ns v. Osborn, supra, 759 P.2d at 848, protects employees from a "harmful force ... acting upon the employee." Pham v. OSP Consultants, Inc., supra, 992 P.2d at 660.

In a respondeat superior case, the employer's universe of responsibility is not as limited. By definition, respondeat superior protects third parties whose existence may be unknown to the employer. The doctrine also focuses upon the employee, as "the harmful force is always an act of the [employee], or at least the omission which is the equivalent of an act," Pham v. OSP Consultants, Inc., supra, 992 P.2d at 660, and the potential liability of the employer extends to all third-party damages.

Courts in other jurisdictions have similarly recognized the distinction between workers' compensation cases and the respondeat superior doctrine for purposes of analyzing exceptions to the going-and-coming rule. Luth v. Rogers & Babler Constr. Co., 507 P.2d 761 (Alaska 1973); Robarge v. Bechtel Power Corp., 131 Ariz. 280, 640 P.2d 211 (Ct.App. 1982); Wills v. Correge, 148 So.2d 822 (La. Ct.App.1963); Taylor v. Pate, 859 P.2d 1124 (Okla.App.1993). But see Huntsinger v. Glass Containers Corp., 22 Cal.App.3d 803, 99 Cal.Rptr. 666 (1972).

Applying cases furthering the policies of Colorado's workers' compensation law to respondeat superior claims would expand employers' liability to third parties significantly, creating a form of portal-to-portal responsibility. This result is inconsistent with the basic concept of enterprise liability, which limits respondeat superior liability to negligent acts committed in the furtherance of the employer's...

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