Metropolitan News-Enterprise


Wednesday, October 2, 2013


Page 1


C.A. Rejects Claimed Exception to ‘Going-and-Coming’ Rule




A worker on an oil rig, who was involved in a serious automobile collision on the Grapevine while driving a company car and dealing with some personal business between shifts, was not acting in the course and scope of his employment at the time, the Fifth District Court of Appeal ruled yesterday.

The justices affirmed a Kern Superior Court ruling granting summary judgment to Haliburton Energy Services, Inc. in consolidated appeals arising from the events of Sept. 13, 2009.

Troy Martinez, a directional driller for Haliburton and a defendant in three lawsuits arising from the crash, testified in deposition that he was traveling in the number one lane southbound in heavy traffic when he saw pebbles or gravel in the road; the truck began to fishtail, then it was in the air.  The pickup struck a vehicle in the northbound lanes of I-5, injuring six people.

The plaintiffs sued Martinez, Haliburton, and Caltrans, which they claimed was responsible for a dangerous condition of public property.

Undisputed Facts

Haliburton moved for summary judgment, primarily on the ground that Martinez—who worked in Bakersfield about half the time and at sites around the state the other half—was not on company business when the collision occurred. It asserted as undisputed fact that Martinez had a choice of using his personal vehicle or a company car to travel between the rig and his home, that he had chosen to use a company vehicle, that company policy allowed him to use the vehicle on personal errands only while traveling between home and the rig, and that he was not traveling between home and the rig when the incident occurred.

Martinez explained in his deposition that he had come off a 12-hour shift that morning and had driven to Bakersfield—40 miles or more from his home in Caliente—to meet his family at a car dealership where he had planned to buy a vehicle for his wife. After that plan fell through, he had lunch with his family, then set off southbound.

His plan was to stop at his motel room in Seal Beach—near the rig—to pick up clean clothes, then get some food on the way back to the rig for his next shift.

Judge William Palmer granted Haliburton’s summary judgment motion, finding that the “going-and-coming” rule precluded vicarious liability. He rejected the plaintiffs’ arguments that the “incidental benefit” exception to the rule applied.

The exception permits imposition of vicarious liability in some cases where the employee was going to, or coming from, work in a vehicle provided by the employer.

Presiding Justice Brad Hill, writing for the Court of Appeal, explained the reasoning behind the exception:

“The theory is that the employer benefits from the employee driving the vehicle to and from work because the vehicle is then available for use in the employer’s business during the working day.  It is also available to the employee during off-duty hours, in case it is needed for emergency business trips or to make business stops on the way to or from the work place.”

Minor Deviation

That rationale may apply to cases where the employee makes a minor deviation from his or her route between home and work, such as going shopping or to eat at a restaurant that is slightly outside the normal route, Hill explained. But that was not what happened here, he said.

The jurist reasoned:

“The purpose of Martinez’s trip as a whole was entirely personal.  The trip to Bakersfield was such a complete and material departure from his employment duties that it could not reasonably be considered to be an activity in pursuit of the employer’s business or a minor deviation from the strict course of the employee’s duties.  It was such a marked turning aside from the employer’s business as to be inconsistent with its pursuit:  driving to a location 140 miles from his assigned worksite, a trip that would take more than six hours to complete, without asking his employer’s permission or informing his supervisor that he would be gone, when, according to plaintiffs, Martinez was on call 24 hours, seven days a week, and might be called at any time to proceed to a new location.  This activity would be entirely inconsistent with serving the employer’s purposes.”

The case is Halliburton Energy Services, Inc. v. Department of Transportation, F064888.


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