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   When an employee drives a car during work, generally, the doctrine of Respondeat Superior requires the employer to be responsible for the negligence of its employees. The doctrine makes employers cover the business costs associated with their employee’s mistakes. Further, it places the burden of covering mistakes on the relatively deeper pockets of the employer to make the injured third party whole.


   One exception to the Respondeat Superior rule is employers are not required to cover the negligent acts of independent contractors who drive for the employers. For instance, if a retailer, such as target, pays and independent trucking company to transport most of its goods from its warehouses to its retail stores, Target probably will not be liable for any accidents caused by the truck drivers. On the other hand, if Target has its own trucking fleet driven by its employees, then negligent acts of the drivers will normally create liability for Target.

   A court found that a pizza delivery driver, who drove his own car, paid for gas, and provided vehicle insurance, was an employee and not an independent contractor. (Toyota Motor Sales v. Superior Court, 220 Cal.App.3d 86 4, 876.)  The driver only had a $15,000 insurance policy and the injuries he caused in a rear end collision were very severe.  In addition, the pizza store owner, who hired the delivery driver, had a $15,000 liability policy that the owner tendered for settlement. Toyota was also sued for a defective seatbelt. Toyota objected to the settlement offered by the store owner because Toyota believed that the owner had much greater potential liability since it believed that the delivery driver was an employer rather than an independent contractor. The appellate court agreed with Toyota.

   In a spate of related situations in Southern California, courts have found that shipping companies have improperly classified truck drivers as independent contractors, resulting in wage theft. The shippers deduct truck lease charges, insurance payments, maintenance costs, fuel cost, etc. Those deductions are legal if they drivers are actually independent contractors. However, in these cases, the courts found that the drivers where employees and the cost deductions were not legal. Employers must cover the costs of doing business. (Labor Code §2802.)  In these cases, the trucking companies required the drivers to lease trucks but only drive for them. Under that arrangement, the truckers are usually employees.

   Any act that falls outside the “scope of employment” is another general exception to the rule of Respondeat Superior.  For instance, intentional acts of an employee usually do not create liability for the employer.  For instance, if a driver runs over a pedestrian because the driver intends to kill that pedestrian, then the company would not be liable for any injury caused by the driver. Another example is when an employee drives a company car for purely personal use after hours. However, as a practical matter, when the employee is driving a company care, the company may still have an insurance policy that may cover the driver for after-hours use of the car. The company will not be liable for the employee’s negligent driving. In fact, that doctrine generally applies when an employee is on a duty free meal period.  (Peccolo v. City of Los Angeles, (1937) 8 Cal. 2d 532, 539.)

   However, willful and malicious acts that violate the employer’s policies, in some cases, may fall within the scope of his employment. (Mary M. v. City of Los Angeles, (1991) 54 Cal.3d 202, 209.) In that case, a police officer pulled over a female motorist for driving under the influence. The driver failed the tests but protested. The officer drove her home and then raped her as a form of payment for not arresting her.


   After several years of court battles, the Federal Ninth Ciruit Court of appeal ruled that motor carriers in California must give their employees meal and rest periods as required by California law. (Dilts v. Penske Logistics, LLC, 12-55705, 2014 WL 3291749 (9th Cir. July 9, 2014).) Before the Ninth circuit weighed in, different California Federal Courts had made opposite rulings. In other words, the Courts had decided the matter differently, some finding that meal and rest period regulations applied to motor carriers, others finding that they did not.


S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 292-0792
(858) 408-7543 (fax)


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