Monday, November 26, 2012
C.A. Allows Man Struck by Driver to Sue Auto Club
By a MetNews Staff Writer
A man who suffered serious injury when he was struck by a hit-and-run driver while receiving roadside assistance for a flat tire can proceed with his suit against the Automobile Club of Southern California, this district’s Court of Appeal has ruled.
The panel Tuesday reversed L.A. Superior Court Judge Raul A. Sahagun’s grant of summary judgment in favor of the Auto Club, finding that there were triable issues of material fact as to whether the tow truck company assisting Monarrez was the actual or ostensible agent of the Auto Club or an independent contractor.
In January 2008, the plaintiff, AAA member Ruben Monarrez, called the Auto Club and requested assistance for a flat tire. The Auto Club dispatched a flatbed car carrier driven by Juan Felix.
Both the tow truck and Felix’ uniform bore the AAA logo, according to evidence presented in connection with the motion.
Hit by Car
While Felix was putting Monarrez’s car onto the truck, Monarrez was struck by a car and suffered serious brain and orthopedic injuries. He will require 24-hour skilled nursing care for life.
Felix worked for Hirad, Inc., doing business as AM/PM Towing & Auto Repair in Bell Gardens, described as an independent contractor in its “Preferred Contractor Roadside Assistance Contract” with the Auto Club. The Auto Club had no contract with Felix, did not screen, hire, pay, or schedule the hours of any technicians who worked for Hirad, and did not own its tow trucks.
Hirad was compensated by the club on a per-call basis. The club claims that Hirad “is free to do business” with others, however, the contract prohibits Hirad’s managers, supervisors, officers, shareholders and directors from participating in any other towing business under the contract, without the express written consent of the club.
Auto Club’s Equipment
In addition, the Auto Club installed its own radio equipment and computers in Hirad’s tow trucks and office and provided a training manual containing strict rules as to how Hirad’s employees are to conduct and represent themselves.
In finding that there were triable issues of material fact as to whether Hirad was acting as the Auto Club’s agent, Presiding Justice Roger Boren, writing for the panel, said:
“We discount the ‘independent contractor’ label used in the Contract and focus instead on the conduct of the parties… The evidence shows that the Training Manual…controls every detail of the technicians’ appearance and behavior from the acceptable (clean, uniformed, well groomed, courteous, prompt, ethical, safe and proficient) to the unacceptable (visible tattoos, tennis shoes, untucked uniform shirts, cigarette smoking).”
“[W]e cannot conclude that Auto Club has no right to control the manner and means by which Hirad and its technicians accomplish their work. On the contrary, Auto Club trains the technicians how to do the work, dispatches calls to them, then follows up with inspections and customer surveys to ensure that the technicians are maintaining the proper physical appearance and using Auto Club-approved methods. The work performed by the technicians is Auto Club’s regular business, not a one-off job or occasional event. This is full-time employment carrying out Auto Club’s business of providing roadside assistance, under the direction of Auto Club.”
The Auto Club argued that the tow trucks and the technicians wear the logo of AAA, not the club, so members could not believe that the tow trucks and technicians are agents of Auto Club.
Monarrez is, however, a member of the Auto Club, the jurist emphasized, noting the training manual “plainly says that to members the technician ‘is’ the Auto Club.” Any confusion was the fault of Auto Club, Boren said.
Justices Kathryn Doi Todd and Judith Ashmann-Gerst concurred in the opinion.
Attorneys on appeal were Kevin K. Callahan of Thon Beck Vanni Callahan & Powell and Stuart B. Esner and Holly N. Boyer of Esner, Chang & Boyer for the plaintiff, and Stephen C. Pasarow and Maria A. Grover of Knapp, Petersen & Clarke for the defendant.
The case is Monarrez v. Automobile Club of Southern California, 12 S.O.S. 5970.
Copyright 2012, Metropolitan News Company