Tuesday, September 18, 2018
No Special Employer Status for CHP in Tow Truck Accident Case—C.A.
By a MetNews Staff Writer
The Fourth District Court of Appeal has affirmed a summary judgment award for the California Highway Patrol, ruling that a mother and son injured by a tow truck did not present evidence showing that the agency was the tow truck company’s special employer under the common law.
The unpublished opinion by Acting Presiding Justice William W. Bedsworth of Div. Three is the latest turn in litigation stemming from an accident that occurred in 2008, when Mayra A. Alvarado and her son, Dylan Harbord-Moore, were injured by a tow truck operating under the statutory Freeway Service Patrol (“FSP”) program.
Under the program, the California Highway Patrol (“CHP”) works with local agencies to contract with private tow truck companies who patrol designated stretches of freeway in order to identify and remove disabled vehicles. The tow trucks are also dispatched to specific accidents as needed.
In this case, the Orange County Transportation Authority (“OCTA”) had a contract with California Coach Orange, Inc., the tow truck company employing the driver who hit the plaintiffs. The CHP had an agreement with OCTA, but no direct relationship with California Coach Orange.
The opinion affirming Orange Superior Court Judge Frederick P. Aguirre’s order in the CHP’s favor comes after remand by the state Supreme Court for Aguirre’s consideration of facts showing special employer status under common law.
Supreme Court Opinion
In the high court’s 2015 opinion, Justice Carol A. Corrigan noted that under the program, the CHP is statutorily responsible for running background checks on tow truck companies, establishing training standards, conducting training, and dispatching tow trucks, and has an inferred duty to direct tow truck drivers at the scene of an accident.
While these duties are simply part of the CHP’s police powers and do not create a special employer relationship under statute, Corrigan listed the common law factors which courts must consider for such a relationship:
“(a) [W]hether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe 9 they are creating the relationship of employer-employee.”
“Although it is not entirely clear how all these factors play into the present case, we can draw some conclusions about a few of them. Certainly an FSP tow truck driver is engaged in an occupation distinct from that of the CHP. The CHP does not supply the driver with instrumentalities, tools, or place of work. The CHP does not pay the driver, and helping motorists with disabled cars to get them moving again is not part of the CHP’s regular business….We have no evidence of the parties’ belief, so we cannot address that consideration, but appellants present nothing on the point.”
“Appellants presented no evidence of any supervision of tow truck drivers not derived from the statutory basis of the FSP program or from the CHP’s overall mission to promote highway safety.… There was no evidence of a triable issue of fact that the CHP agreed to a role beyond those outlined in the relevant statutes that would bring it within the scope of the special employment doctrine.”
Doubts on Finality
Though his opinion puts a possible end to the plaintiffs’ bid to establish liability on the part of the CHP, Bedsworth prefaced his analysis with an expression of doubt that it would do so. He said:
“Hamlet included ‘the law’s delay’ on his list of life’s burdens. The freeway accident underlying this lawsuit occurred over 10 years ago, and the parties to this appeal, Mayra Alvarado, her son, and the California Highway Patrol, are still disputing whether the CHP bears some responsibility for it. Nor is it likely that this is the end. This case may well be put once more before the California Supreme Court, as it was in 2013.”
The case is Alvarado v. People ex rel. Dept. of the California Highway Patrol, G054531.
Michael Maroko and John S. West of Allred, Maroko & Goldberg in Los Angeles were counsel for the plaintiffs. The CHP was represented by Deputy Attorney General Joel A. Davis of Los Angeles.
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