Texas Law to Make Whole Again
By Garreth A. DeVoe
Equally a consultant for Druid Drilling Solutions, Daniel Delos often travels hundreds of miles away from his home in Houston to operators' oil and gas well sites in Due west Texas. During ane of these multi-day assignments, while driving from his hotel to the operator's site, Delos' vehicle collides with another vehicle, instantly killing the other driver. Later on the deceased driver's spouse files a negligence claim confronting Delos and a vicarious liability negligence claim against Druid Drilling, his employer's counsel begins reviewing the company'due south employment policy manual and its contract with the operator customer.
"Respondeat superior," translated as "let the superior brand respond[,]" is a legal doctrine holding an employer liable for an employee'south wrongful acts committed within the scope of employment.one Generally, a person has no duty to control the conduct of another.ii Farther, Texas courts generally absolve an entity of negligence when its employee embarks on a frolic of his or her own.3 However, under respondeat superior, an employer may exist vicariously liable for the negligent acts of its employee if the employee'due south actions are within the course and telescopic of employment.iv
One of the earliest applications of this doctrine by a Texas court occurred in McNeal 5. Habitation Ins. Co. In that instance, an insurance company'south agent used his company vehicle to drive his friend to a liquor shop, followed by four divide bars.five After leaving the fourth bar, the agent's friend began driving the agent dorsum to his hotel when their vehicle collided head-on with some other vehicle being driven by the plaintiff'southward hubby, resulting in the deaths of the insurance agent and the plaintiff's married man.6 In absolving the insurer of liability, the court establish that "at the time of the accident, [the insurance agent and his friend] were on a pleasure trip and frolic purely personal to themselves[.]"7 In finding that the insurance agent lacked authority to use the vehicle "in jaunts and frolics of his own[,]" the courtroom held that the insurance amanuensis was non acting in furtherance of the employer'southward concern at the time the tort arose, and was thus not acting within the course and scope of employment.8
Texas courts have held that the less extreme cases of running personal errands and eating dejeuner constitute instances of frolicking not within the course and telescopic of employment. For case, in Molina v. Urban center of Pasadena, the 14th Courtroom of Appeals in Houston held that a city engineering inspector who was involved in a vehicle accident while driving his city-owned vehicle from lunch at a restaurant to his adjacent inspection site was not interim within the course and scope of his employment considering he was returning from the personal errand of lunch and had not yet reached his adjacent zone of employment.nine Significantly, the court establish that he had not all the same resumed his chore duties and was not acting in furtherance of the city'due south interests at the time of the accident.ten
The Texas Supreme Court recently issued a seminal opinion on this issue in Painter five. American Drilling I, Ltd. wherein information technology held that an employer'southward bonus payment to its employee to drive several co-workers between the employer's work site and employer-provided housing constituted bear witness that the employee was acting inside the course and scope of his employment when he was involved in a motor vehicle blow while driving to the housing.11 In that case, an oil and gas exploration and product company hired a drilling company to drill wells in the Permian Bowl in West Texas.12 The drilling company provided a bunkhouse for its crew approximately 30 miles from the well site.13 Although the drilling company paid its driller employee $50 per twenty-four hours to drive other crew members from the bunkhouse to the well site, as required by the contract between the exploration company and drilling company, the drilling company did not crave whatsoever of its employees to stay at the bunkhouse or to ride with the driller.14 Farther, the drilling company did not dictate the specific road the driller had to take when transporting the other members of the crew.15
In order to prevail on a respondeat superior claim against an employer, an injured plaintiff must evidence that, at the time of the negligent behave, the employer's worker (i) falls inside the legal definition of "employee" and (2) was interim in the form and scope of his or her employment.sixteen A worker is an employee when his or her employer has "the overall correct to command the progress, details, and methods of operations of the work."17 An employee acts within the form and scope of his or her employment when performing tasks generally assigned to him or her in furtherance of the employer'southward business (a) with the employer'southward potency and (b) for the employer' benefit.xviii Notwithstanding, under the coming-and-going rule, an employer is not vicariously liable for torts committed by its employee while the employee is traveling to or from work, unless the travel involves the performance of specifically assigned duties for the do good of the employer.nineteen
The court held that the driller'southward human action of transporting the coiffure to and from the well site, for which he was paid a specific corporeality of coin over his regular salary, and evidence that he did so every bit part of his assigned chore duties constituted evidence that the driller was acting in furtherance of the employer's concern, within the employer's potency, and for the employer's benefit at the time of the incident.twenty Such evidence created a genuine issue of material fact as to whether the plaintiff was acting within the course and scope of his employment, thus defeating the employer's motion for summary judgment.21
Texas courts accept distinguished between an employee who is paid a specific amount of money to transport co-workers every bit a duty in add-on to the employee'southward primary job and an employee who is provided mileage reimbursement. For example, in Silvas v. Harrie, the U.S. District Court for the Western Commune of Texas held that, based on the coming-and-going rule, a traveling consultant, whose employer reimbursed his travel and mileage expenses merely did not otherwise control or direct his work-related travel arrangements, was non within the class and scope of his employment when he was involved in a motor vehicle accident while driving betwixt his hotel and temporary piece of work site.22
Finally, Texas courts have also shielded pocket-size businesses from respondeat superior claims based on financial commingling theories. For example, in Grogan 5. Aristocracy Metal Fabricators, Inc., the 2nd Courtroom of Appeals in Fort Worth held that an employee who owned the majority of his employer and who was involved in a motorbike accident while on an out-of-state holiday was not within the course and scope of his employment at the time of the blow.23 In that case, the employee used his employer-sponsored cellphone and was on call during his vacation and used his employer-sponsored credit card, including advantage points, to pay for a portion of his holiday.24 Notwithstanding, the courtroom held that the employee was not acting with his employer'south authority because at that place was no evidence that he was performing work for his employer at the time of the blow.25
Luckily for Druid Drilling, its employment policy manual contains certain provisions likely to absolve it of liability from the respondeat superior claim. Offset, the manual provides that Druid Drilling will not provide any visitor-owned vehicles or credit cards for its traveling consultants. Second, the transmission provides that Druid Drilling will reimburse its consultants for travel expenses and mileage in accordance with the Internal Revenue Service'south standard mileage rates but volition not reimburse its consultants a specific total amount of coin for any required travel. Third, the manual provides that the consultants are required to brand their ain travel plans in connection with all work assignments. Further, the contract between Druid Drilling and its operator client neither requires Delos to ship other co-workers nor dictates specific travel arrangements.
In the recent opinions of Molina, Painter, Silvas, and Grogan, Texas appellate courts have profoundly antiseptic the analysis used to determine the vicarious liability of a Texas employer with traveling employees. By ensuring their companies take employment and contractual policies mirroring those of Druid Drilling above, corporate counsel and business organisation leaders will reduce their companies' liability exposure with respect to the acts of their traveling employees. Farther, plaintiffs' counsel and defence force counsel must remain vigilant of the issues raised in this article because the resolution of a multitude of vicarious liability cases will likely hinge on the holdings of these recent opinions.TBJ
Notes
ane. Black's Law Dictionary (10th ed.).
2. Goodyear Tire & Prophylactic Co. 5. Mayes, 236 Southward.W.3d 754, 757 (Tex. 2007).
3. Grogan 5. Elite Metallic Fabricators, Inc., 2018 Tex. App. LEXIS 10089, xv (Tex. App—Fort Worth 2018).
4. Painter v. Amerimex Drilling I, Ltd., 561 S.Westward.3d 125, 128-29, 139 (Tex. 2018).
5. McNeal v. Home Ins. Co., 112 S.W.2nd 339, 340-41 (Tex. Civ. App.—Galveston 1937).
vi. Id. at 339, 341.
7. Id. at 341.
8. Id. at 341-42.
9. Molina v. City of Pasadena, No. fourteen-xiii-00436-CR, 2018 Tex. App. LEXIS 6579, 12013 (Tex. App.—Houston [14th Dist.] 2018).
10. Id. at 12-14.
11. Painter, 561 S.W.3d at 128-29, 139.
12. Id. at 128.
13. Id.
14. Id.
15. Id. at 128-29.
16. Id. at 131.
17. Id. at 138.
xviii. Id. at 131, 138-39.
19. Id. at 136, 139.
20. Id. at 136.
21. Id. at 128-29, 137, 139.
22. Silvas v. Harrie, 2018 U.Southward. Dist. LEXIS 203479, i, seven-9 (W.D.TX 2018).
23. Grogan, 2018 Tex. App. LEXIS 10089 at ane, xiii-14.
24. Id. at 1, 10, 13-14, 25.
25. Id. at 15-xvi.
is an acquaintance in the Houston part of Seyfarth Shaw. He represents energy companies and health care institutions in complex commercial litigation and advises clients regarding their contractual rights and obligations. DeVoe is an editorial board member of multiple American Bar Clan practice sections, as well every bit a member of the Institute for Energy Law, Houston Young Lawyers Association, Houston Symphony Young Associates Council, and the Houston Museum of Fine Arts' American Art and Wine patron group. He obtained his B.A., M.B.A., and J.D. from Tulane University.
Source: https://www.texasbar.com/AM/Template.cfm?Section=articles&Template=/CM/HTMLDisplay.cfm&ContentID=47853
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