Metropolitan News-Enterprise


Wednesday, October 26, 2016


Page 1


Driving Co-Workers to Employer-Paid Hotel Held Not to Create ‘Going-and-Coming’ Exception


By a MetNews Staff Writer


A worker who was involved in an auto collision while driving co-workers to their employer-paid hotel at the end of the workday was not acting within the scope of employment, the Fifth District Court of Appeal has ruled.

The court yesterday certified for publication its Oct. 6 opinion, affirming a judgment in favor of Oklahoma-based Helmerich & Payne International Drilling Co.

The suit grew out of a major accident that occurred in December 2011. At the time, the company was operating drilling rigs 24 hours per day at an Occidental Petroleum Co. leasehold in southern Kern County.

Each rig had two crews working 12 hours per day for a “hitch” of 14 days, followed by 14 days off. Workers living more than two hours from the jobsite had the option of sharing rooms at a local hotel, at company expense, during their hitches.

The company paid the hotel bills directly, but did not provide or arrange transportation, either between the employee’s home and the hotel, or between the jobsite and the hotel.

The Dec. 12, 2011 accident occurred while Luis Mooney, an H&P floorhand who lived in Bakersfield, was driving coworker Mark Stewart and Ruben Ibarra, who was Mooney and Stewart’s supervisor, to the hotel after all three had finished their shift.

Mooney, driving his pickup trick, collided with a vehicle driven by Brent Pierson in an unincorporated area of Kern County. Both drivers were pinned in their vehicles and had to be extracted by firefighters.

Workers’ Compensation

Pierson sued Mooney and H&P. Travelers Property Casualty Company of America, the workers’ compensation carrier for Pierson’s employer, intervened, alleging that Mooney was acting within the scope of his employment and that H&P was therefore liable for everything that Travelers had to pay Pierson and his doctors.

Kern Superior Court Judge Sidney Chapin granted the employer summary judgment against Pierson and Travelers. He ruled that the going-and-coming rule provided a complete defense.

Justice Donald Franson Jr., writing for the Court of Appeal, agreed, saying:

“We conclude that the undisputed facts establish that the going and coming rule applies in this case,” he wrote. “It cannot be reasonably inferred from the undisputed facts that the employer impliedly required or requested the driver to provide transportation to his supervisor between the hotel and the jobsite. The supervisor’s requests for such rides were personal in nature and are not reasonably imputed to the employer.”

Franson acknowledged that carpooling by employees raises special issues with regard to the going-and-coming rule. The Legislature has not addressed the question specifically, he noted, so common law principles remain applicable.

An exception to the rule could be found, and the employer thus held liable, the justice said, if the employer were significantly involved in the pooling arrangement, if paid employees for participating in carpooling, if it exercised control over the commute, if the arrangement required a significant deviation from the driver’s usual route home, or if the employer enjoyed an incidental benefit.

In this case, Franson said, the undisputed evidence was that the employee/driver was driving his own vehicle and was not compensated for driving his coworkers, and that the employer “was not involved in the logistics of how its employees got to the workplace.”

No Inference

The fact that Ibarra was Mooney’s supervisor did not support an inference that Mooney was required to drive his personal vehicle or to provide Ibarra with transportation, the justice said.

He also rejected the argument that having employees drop coworkers off at the hotel provided the company with a special benefit.

The argument, as framed in Pierson’s brief, was that:

“Allowing its supervisors to use their subordinates to provide free transportation allowed H&P to compete more effectively [for supervisors in the labor market], and at a lower cost.”

The contention fails, Franson said, because this is not “the type of benefit that justifies imposing liability under the doctrine of respondeat superior. “

The employer, he noted, “took no actions to make it more competitive in the labor market” such as compensating employees for travel time and costs, nor was there any evidence that might have caused a reasonable trier of fact to conclude that the company actually achieved a competitive advantage.

“Had Pierson shown that many, or even some, drilling companies prohibit drillers or other supervisors from carpooling with crew members, there might have been evidence that would support a jury finding the type of benefit that distinguished H&P from other drilling companies and provided an actual (as opposed to theoretical) advantage,” the justice wrote. “Without such evidence, we conclude there is no triable issue of fact relating to the benefit Pierson’s argument claims exists.”

Counsel on appeal in Pierson v. Helmerich & Payne International Drilling Co., 16 S.O.S. 5280, were Scott D. Howry of Young Wooldridge; Michael J. Bidart, Ricardo Echeverria, and Danica Dougherty of Shernoff Bidart Echeverria Bentley, and Jeffrey I. Ehrlich of The Ehrlich Law Firm for the plaintiff and Forrest R. Cogswell and Dena S. Aghabeg of Cogswell Nakazawa & Chang for the defendant.


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