Friday, January 24, 2014
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S.C. to Consider CHP Liability Under Towing Program
By KENNETH OFGANG, Staff Writer
The California Supreme Court has agreed to decide whether the California Highway Patrol is a “special employer” of tow truck drivers whose companies have contracted to assist disabled motorist under a program supervised by the CHP.
The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in State of California ex rel. Department of California Highway Patrol (Alvarado) (2013) 220 Cal. App. 4th 612. Attorneys for Mayra Alvarado and her infant son sought review after the Fourth District Court of Appeal, Div. Three, ruled that the CHP is not vicariously liable for the negligence of drivers participating in the Freeway Service Patrol program.
The program, authorized by statute, seeks to free the roads of traffic impediments by allowing local transportation agencies to contract with towing companies to assist stranded motorists. The CHP oversees the program, performing background checks, training the drivers, inspecting the vehicles, dispatching drivers, and investigating complaints.
Alvarado suffered catastrophic brain injuries, and her child lesser injuries, after a participating tow truck rear-ended her car on I-5. She sued the driver, his employer, the Orange County Transportation Authority, and the CHP.
The CHP moved for summary judgment, which Orange Superior Court Judge Robert Moss denied, finding that a triable issue existed as to whether the agency was liable as a special employer. Justice William Bedsworth, writing for the Court of Appeal, disagreed and said the CHP was entitled to summary judgment because it cannot be the special employer of an FSP tow truck driver.
The justice said the issue was purely one of statutory interpretation.
While the definition of “employer” in the FSP legislation is unclear, other sections of the Vehicle Code that are referenced by the legislation, beginning with §2430.1, make clear that the CHP is not a dual or joint employer of a company that contracts to participate in the program, Bedsworth said.
He wrote:
“We believe these Vehicle Code statutes…establish a legislative intent to distinguish between employers of tow truck drivers and the CHP. Accordingly, the CHP cannot as a matter of law be the special employer of a ‘tow truck driver’ as defined in Vehicle Code section 2430.1, subdivision (a), and by extension of a tow truck driver operating under the Freeway Service Patrol Act.”
In other conference action, the justices left standing the conviction of a former Ventura College men’s basketball coach for misappropriation of public funds and grand theft by embezzlement.
The court denied review of the ruling of this district’s Div. Six, in an unpublished opinion by Justice Steven Z. Perren, that Greg Loren Winslow was not entitled to an instruction on scienter. The panel said prosecutors were not required to prove the defendant’s knowledge that he was not authorized to make certain expenditures.
Winslow admitted to having written checks for unauthorized expenditures, but said he intended to reimburse the college.
Div. Six, in an unpublished opinion by Justice Steven Z. Perren, rejected defendant Greg Loren Winslow’s contention that the lower court committed reversible error by not instructing the jury on scienter. The defense argued that the prosecution was required to prove the defendant’s knowledge that he was not authorized to make certain expenditures.
Winslow admitted to having written checks for unauthorized expenditures, but said he intended to reimburse the college.
Winslow, hired in 1999 as head coach of the Ventura College Pirates’ basketball team, was appointed co-athletic director in 2004.
Prosecutors presented evidence that Winslow, former co-Athletic Director Nancy Fredrickson, and former Dean of Athletics Steven Tobias formalized a procedural policy for the procurement, holding, and disbursement of donations to the various athletic programs. All donations were to be considered property of the Ventura County Community College District.
In addition to his duties at the college, Winslow coached his son’s youth basketball team, the V-Town Pirates. In 2003, he opened a bank account at the Commerce County Bank seemingly for the benefit of the V-Town Pirates.
In November 2007, the Ventura County Star disclosed the existence of Winslow’s off-campus bank account, alerting college administrators, triggering further investigations, and ultimately leading to his being charged on seven felony counts.
After Winslow was fired from Ventura College, he turned over around $20,000 in cash to his attorney, which he alleged he had withdrawn from the Pirates bank account and kept in a fanny pack as separate savings to finance locker room renovations for the college. Winslow testified that the cash had not been touched since the closing of the account in 2008.
The prosecution, however, presented testimony that two of the bills from the fanny pack were not circulated until well after the account was closed.
Winslow denied using the Ventura College Pirates’ funds for the V-Town Pirates expenses, but he contended that he could not produce receipts for the expenses because he was not allowed to take them when he was escorted from his office.
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