Metropolitan News-Enterprise


Monday, January 7, 2008


Page 1


C.A.: Drunken Dune-Buggy Ride Not in Scope of Employment


By STEVEN M. ELLIS, Staff Writer


Three men seriously injured in a drunken dune buggy ride were not entitled to recover against the driver’s employer’s insurer because such a ride was not related to his job, this district’s Court of Appeal has ruled.

In an unpublished opinion released Thursday, Div. One affirmed the ruling of Los Angeles Superior Court Judge Jane L. Johnson that Rocco Cimarusti, Douglas Brown and Chester Linder could not recover from Transcontinental Insurance Company because Cimarusti was neither an officer or director of the insured, nor acting within the scope of his employment when the accident occurred.

Cimarusti was the manager of the delivery fleet in San Diego for Rocky’s Food Distributors, a wholesale meat distributor. His father was the company’s president and majority shareholder.

At the time of the accident, Rocky’s had a commercial general liability policy with Transcontinental covering bodily injury to third parties in two circumstances: injuries caused by officers and directors arising from their actions in such roles, and injuries caused by employees for acts within the scope of their employment or related to the conduct of business.

Brown and Linder were employees of Rollin Renches, a repair shop with whom Rocky’s had contracted for towing services, and Cimarusti knew the two men in his capacity as a manager. Because Rocky’s delivered perishable meat and needed to keep its fleet of delivery trucks in continuous working order, maintaining a good relationship with Rollin Renches was important.

On the weekend of the accident, Cimarusti and his father were staying at a campground in Glamis, near the Mexican border, in order to drive dune buggies that each owned off-road in the desert. Unbeknownst to them, Brown and Linder were staying at the same campground, and the two men stopped to pay Cimarusti a visit after recognizing his truck.

The three drank beer and discussed dune buggies, and then went for a ride in Cimarusti’s dune buggy. After returning, they continued to talk, drank more beer, and at 2 a.m. decided to go for another drive.

Unfortunately, Cimarusti drove the dune buggy drove off the lip of a 70-foot dune, flipping and crashing the vehicle. Cimarusti and Brown were rendered paraplegic, and Linder was seriously injured.

Brown and Linder brought personal injury actions against Cimarusti, obtaining an $8 million judgment. They did not sue Rocky’s, and Cimarusti did not ask Transcontinental to defend him in the litigation.

When Cimarusti sought coverage for the judgment from Transcontinental, the company denied his claims on the grounds, among others, that he was neither performing a duty as an officer or director, nor acting within the scope of his duties as an employee of Rocky’s when the accident occurred.

All three men then brought suit against the insurer, alleging breach of contract and breach of the implied covenant of good faith and fair dealing, but the trial court agreed with the insurer and granted its motion for summary judgment.

On appeal, Justice Frances Rothschild wrote for the court that Johnson was correct in rejecting the plaintiffs’ argument that a triable issue of fact existed as to whether the accident was covered under the company’s policy.

Rejecting as “without merit” Cimarusti’s argument that he was an officer or director, and that the accident had occurred while he was fulfilling that role, she said that Transcontinental had no duty to indemnify him.

“Neither the job of secretary or treasurer nor the position of director implicates the duty to entertain business contacts…,” she wrote. “Nor is there any evidence that Cimarusti had such a duty.”

She also noted that Cimarusti’s trip to Glamis was for purely personal, and not company, business, and that he was not acting in the scope of his employment, but rather “on a frolic of his own.”

“The risk that Cimarusti would negligently injure employees of one of Rocky’s vendors in a drunken dune-buggy accident while all three men were away on a weekend pleasure trip having nothing to do with their jobs is so improbable, ‘unusual’ and ‘startling’ that we can say as a matter of law that it would be unfair to hold…Transcontinental liable,” she concluded.

Rothschild was joined in her opinion by Justice Miriam A. Vogel and Los Angeles Superior Court Judge Frank Jackson, sitting by designation.

The case is Cimarusti v. Transcontinental Insurance Company, B194649



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