The difference between a just resolution in a case and a disappointing settlement often depends on the available policy limits. This difference is perhaps most often recognized in the context of automobile collision cases.  An innocent victim sustaining just moderate spraining or straining injuries will not, in most cases, be adequately compensated when hit by a driver with the statutory minimum coverage of $15,000. On the other hand, if the driver was on the job at the time of the collision, it is likely that the policy limits of his employer’s insurance will be more than adequate in even moderate injury cases. Consequently, the issue as to whether a tortfeasor is within the course and scope of employment can assume a vital role in automobile litigation.

While the question of course and scope is most often deemed to be a triable issue of fact, the court in Miller v. American Greetings Corporation (2008) 161 Cal.App.4th 1055, recently found as a matter of law that a driver was not in the course and scope of employment at the time of an auto collision. This article will examine the reasoning behind the Miller decision and provide some practice pointers on the course and scope evidence necessary to overcome summary judgment.

Course and Scope Defined

In order for an individual to be deemed to be within the course and scope of employment, he or she must somehow be engaged in the work of the employer. The issue becomes complicated when the employee is technically “on the clock,” but is completing a personal errand. The court in Felix v. Asai (1987) 192 Cal.App.3d 926 provided the following guidance on the issue: 

In determining whether an employee has completely abandoned pursuit of a business errand for pursuit of a personal objective, a variety of relevant circumstances should be considered and weighed. Such factors may include the intent of the employee, the nature, time and place of the employee's conduct, the work the employee was hired to do, the incidental acts the employer should reasonably have expected the employee to do, the amount of freedom allowed the employee in performing his duties, and the amount of time consumed in the personal activity. [Citations.] While the question of whether an employee has departed from his special errand is normally one of fact for the jury, where the evidence clearly shows a complete abandonment, the court may make the determination that the employee is outside the scope of his employment as a matter of law.

Id. at 932 - 933.

The Facts in Miller

Holly Miller was standing next to her car when she was struck by a distracted driver.  After initial discovery revealed that the driver was employed as a field supervisor for the American Greetings Corporation, Miller amended her complaint to include the employer.  Although the driver claimed to have taken the day off from work, he was unable to explain exactly where he was going at the time of the collision and could offer few details about his intended trip.  In addition, the driver’s e-mails and appointment schedule for the day were “accidentally” erased from the company computer.  This dubious testimony left plaintiff in a factual void;  absent an admission by the driver or the employer, it was difficult to prove course and scope. 

American Greetings then moved for summary judgment, claiming that plaintiff could not raise a triable issue of fact on the issue of course and scope. Plaintiff submitted the driver’s phone records which showed 16 work-related calls during the day of the collision as evidence that the driver was working. These calls included a call to the driver’s supervisor about 10 minutes before the time of the collision. However, in a rather fateful evidentiary ruling, the trial court excluded this evidence because it was not accompanied by a declaration from the cell phone company’s custodian of records.  Summary judgment for the employer was granted.

In sustaining the trial court’s grant of summary judgment in favor of American Greetings, the Court of Appeal, Second District, found that plaintiff did not raise a triable issue of fact as to whether the driver was within the course and scope.  Although the court did not reverse the trial court’s decision to exclude the phone records, it suggested that even the excluded evidence did not raise a triable issue of fact. 

The appellate court concluded that the link between respondeat superior and the purported work-related cell phone call to the supervisor fell outside of any grey zone that might raise a triable issue of fact. The court explained:

...sometimes, as here, the link is de minimis - one call of less than one minute 8 or 9 minutes before an accident while traveling on a personal errand of several miles’ duration heading neither to nor from a worksite.  When that happens, we find no respondeat superior as a matter of law.
 
Miller v. American Greetings, supra, 161 Cal.App.4th at 1063.

Analysis of the Ruling

We all know that the burden of the party opposing a motion for summary judgment is relatively low: raise a triable issue of material fact and you can present your case to a jury.  So what happened here?  Unfortunately, plaintiff had no evidence that placed the driver on the job. The court had excluded the phone call records which plaintiff submitted. Some may find it easy to criticize the Court of Appeal for denying plaintiff the opportunity to let a jury decide whether the driver and his employer were lying; however, the appellate court was not in a position to weigh the credibility (or incredibility) of American Greeting’s evidence.

The Miller case is probably not representative of most course and scope cases. As the Miller court recognized, there are many cases that fall into a “grey area” in which personal and company errands are intermixed, calling into question whether the employer should be held responsible for the tort of the employee. Such cases are not prone to summary judgment.

Based on the record discussed on appeal, it appears as thought the plaintiff made at least two significant mistakes.  First, the failure to submit a declaration by the custodian of records for the cell phone company represents a common misunderstanding of evidentiary rules. Code of Civil Procedure (“C.C.P.”) §437c(d) states that “[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” This requires authentication of the records by a person with personal knowledge.  Had the records been appropriately authenticated so that the court would consider them, the ruling on the motion for summary judgment might have been denied.

One approach to avoid this dilemma when submitting evidence in motion practice is to consider how you would get the document or statement into evidence at trial and follow that procedure. If you couldn’t get the document into evidence at trial by just presenting it to the trial judge and explaining what it is (and, honestly, when can you do that?), you need to make sure the document is properly authenticated.

The second error committed in Miller was the plaintiff’s reliance on criticizing the veracity of the defendants’ evidence without actually submitting contradictory evidence.  Plaintiff “urged the court to disbelieve” the driver’s testimony about where he was going at the time of the collision (Id. at 1062)  and “seemed to imply something nefarious” about the erasure of American Greetings’ computer data containing the driver’s emails and appointment schedule. Id. at 1065.

Plaintiff’s nearly sole reliance on challenging the dubious nature of the defendant’s evidence left the court with little basis to deny the motion for summary judgment.   A court considering a summary judgment motion cannot weigh evidence. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.  The Miller court further explained that “It is not enough to produce just some evidence.  The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”  Miller v. American Greetings, supra,161 Cal.App.4that 1061 (quoting McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098). In other words, the opposing party must raise a triable issue of material fact in order to prevail on summary judgment.

How to Avoid Similar Results

The plaintiff in Miller  “suffered severe injuries, requiring surgery and two weeks’ hospitalization.” These damages appear to be significant enough to justify expansive discovery. In light of the pending motion for summary judgment, plaintiff should have left no stone unturned in her quest to raise a triable issue of fact. If the time to conduct the discovery before the opposition was due was insufficient, then C.C.P. §437c(j) could have been utilized to obtain additional time to complete discovery. Plaintiff should have completed depositions of anyone familiar with the driver’s own personal work habits, perhaps showing that he occasionally made personal stops while on job. Plaintiff should have also completed depositions of other field supervisors, hopefully establishing (or at least raising a triable issue) as to whether they were deemed to be “on-the-job” during the entirety of the work day, regardless of whether they were running a personal errand. Finally, plaintiff could have considered retaining an expert in the custom and practice of field supervisors to explain that field supervisors were within the course and scope of their employment throughout the work day. 

Plaintiff must present evidence of a triable issue of material fact. Take a look at the list of factors in Felix v. Asai, supra, to see what discovery you need to do.

CONCLUSION

If there is a lesson to be learned from the Miller case, it is to make sure that you don’t hold back anything when opposing a summary judgment motion. Present evidence to show there is an issue of material fact. Make every argument you can support and make sure your evidence is admissible. That way, you have the best shot at prevailing and, win or lose,  you will know you’ve done everything you could to represent your client.