Trucking: Bobtail Coverage Course & Scope of Driver on Personal Mission (like going to lunch)

You have a driver delivering a load, but he is about to use up his hours of service. He drops his load, unhitches the trailer and take the tractor on personal mission. In route on the personal mission, he gets involved in an accident.

Is he in the course and scope? What insurance applies?

Suppose he is on a lunch break? Is there coverage?

Course and scope of employment:

Factors under vicarious liability: "course and scope of employment"

Employer is statutorily liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. Black v. Johnson, App. 2 Cir. 2014, 137 So. 3d 170.

[A]n employee is acting within the course and scope of his employment when the conduct is the kind he is employed to perform, the conduct occurs substantially within the authorized limits of time and space, and it is activated at least in part by a purpose to serve the employer. Hopper v. Austin, 49,628 (La. App. 2 Cir. 3/4/15), 163 So. 3d 8, 15.

 

Factors useful in determining whether the employee’s act was employment-related include the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the act in question, motivation for performing the act, and the time, place, and purpose of the act in relation to the employment, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the employee’s motivation for performing the act, and the employer’s reasonable expectation that the employee would perform the act. Id.

Was employee being paid by employer at the time of injury?

Did employer have control over employee at time of injury?

Was employee supposed to be performing act at time of injury?

Was injury during the time of employment?

Was injury obtained while in a place of employment?

Was injury obtained while performing an employment-related activity?

Was employee acting in a way that related to employer’s business at time of injury?

Did employer benefit from employee’s act at the time of injury?

Why was employee performing activity at the time of injury?

Did employer expect employee to perform activity when injury occurred?

In Hopper, the plaintiff sued an employee, Austin, and Austin’s employer for damages incurred during a motor vehicle accident. . Austin said in an affidavit he was driving in connection with his employment and that he was texting with or in response to a message from his employer at the very moment of the accident. He had left work for a short time to "clear his head" and make plans benefitting the project at work. The Second Circuit reversed the trial court’s grant of summary judgment in favor of the employer that Austin was not in the course and scope of his employment; the appellate court said it was a factual issue triable to the jury.

In Portillo v. Progressive Paloverde Ins. Co., 13-815 (La. App. 5 Cir. 3/26/14), 138 So. 3d 696, the Fifth Circuit Court of Appeal upheld a trial court summary judgment in favor of defendant, Volkswagen, that said the defendant’s employee, Mr. Master, was not in the course and scope of his employment when he rear-ended the plaintiff. Mr. Master was a mechanic for Volkswagen. As part of his employment he test-drove vehicles he worked on. Mr. Master owned a Jetta, which he worked on at Volkswagen to get it running. The Jetta did not have insurance coverage. Mr. Master left work after working on a different vehicle and punching out of the time card for working on that vehicle. Mr. Master left work at lunch time to go to the bank to get money to purchase insurance coverage for the vehicle. He also used this errand to test-drive the Jetta. He rear-ended the plaintiff on the way back to work and before he obtained insurance.

The plaintiff argued Mr. Master was both a customer and employee of Volkswagen regarding his Jetta. The plaintiff argued there was a factual issue of whether Mr. Master was in the course and scope because he was test driving a vehicle he had worked on at Volkswagen.

The 5^th Circuit rejected that argument because he was on lunch and was not paid for his time; summary judgment was upheld for the employer.

In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the La. Supreme Court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers' business to cash her Christmas bonus check. Ms. Silman was a clerical assistant for an attorney, and as part of her job she ran errands, including the type of errand she ran on the date of the incident.

"It has been repeatedly held that when an employer either furnishes the means of transportation or pays the employee for the use of his personal vehicle, then the employee is within the course and scope of his employment while going to and from work. Prothro v. Louisiana Paving Company, Inc., 399 So.2d 1229 (La.App. 3 Cir.), writ. denied, 404 So.2d 278 (La.1981)." Hill v. W. Am. Ins. Co., 635 So. 2d 1165, 1170 (La. 3 Cir.) writ denied, 94-1630 (La. 9/30/94), 642 So. 2d 881.

 

Other Considerations:

　

Meal Breaks

Generally, going to and from lunch is not a function in which an employee is employed, for the purposes of vicarious liability. Laird v. Travelers Indem. Co., App. 4 Cir. 1970, 236 So. 2d 561.

The same can be said under 2^nd Circuit jurisprudence: "Generally, an accident which occurs while an employee is going to or coming from work does not occur in the course and scope of employment. **8 Hebert v. Jeffrey, 94-1230 (La.App. 1st Cir.4/7/95), 653 So.2d 842.

Also, as a general rule, an employee is not within the course and scope of employment while going to and from lunch. Hill v. West American Insurance Company, 93-915 (La.App. 3 Cir.3/2/94), 635 So.2d 1165, writ denied, 94-1630 (La.9/30/94), 642 So.2d 881. However, exceptions to these rules are recognized where the employer has furnished transportation as an incident to the employment agreement, either through a vehicle or payment of expenses, and where wages are paid for the time spent in traveling. Hill v. West American Insurance Company, supra; Hebert v. Jeffrey, supra. Tucker v. Ne. Louisiana Tree Serv., 27,768 (La. App. 2 Cir. 12/6/95), 665 So. 2d 672, 677 writ denied, 96-0063 (La. 3/8/96), 669 So. 2d 404 and writ not considered, 96-0100 (La. 3/8/96), 669 So. 2d 404.

Bob-Tail Insurance Coverage?

When a driver is not under dispatch or in the furtherance of transportation duties, there is coverage available, commonly referred to as "bob-tail" because usually only the tractor is being driven for a personal reason.

Yet, there is always an argument to deny coverage, right?

The driver dropped his load at approximately 4 p.m. and called his dispatcher.  The dispatcher advised the driver to take the night off and call him in the morning to see if a load was available.  After speaking with the dispatcher, the driver bobtailed to a truck stop where he ate dinner, watched television, took a shower, and played some slot machines.  In total, the driver stayed at the truck stop for between six and seven hours.  Although the driver usually slept in the cab, his mattress was wet and he decided to go to a motel for the night. On his way to the motel, the driver was involved in an accident.  Under those facts, the court held that the driver was in the business of the motor carrier at the time of the accident – having a driver on standby and available to take a load the next day furthers the commercial interests of an employer.  Mahaffey v. General Security Ins. Co., 543 F.3d 738, 742-743 (5^th Cir. 2008).

 

Driver was dispatched by lessee to pick up a load of machinery. After picking up the load, driver went to the hospital to visit his sick wife. On his return trip, the accident occurred. Based on these facts, the court held that the driver was in the business of the motor carrier at the time of the accident. Robinson v. Guillot, 2008 La. App. Unpub. LEXIS 795 at *11 (La.App. 3 Cir. Apr. 30, 2008).

The Enigma of Getting Medical Records and Depositions From the Veterans' Administration

Our firm would like to depose some of the doctors at the VA who treated a veteran. When contact was made with the VA hospital to get the dates when those doctors were available, the VA informed our firm that we would first have to seek approval for the depositions from the VA’s general counsel, and that he would likely require the plaintiff to sign a release allowing the doctors to give their depositions regarding the treatment the doctors administered.

So the nightmare began.

Imagine walking in a hospital  maze trying to find someone willing to show you how to get out. You walk down one dead-end and you're told to turn around, walk 100 feet, take the left door down to level 3A and ask for Lucifer. You do and he smugly tells you that you need a Form 113306 but his office doesn't have the forms and he sends you to the up five flights of stairs, turn right, then down a long corridor until you come to the New Wing, where you will then take the hallway to the left and then the last door on the right where you need to ask Beelzebub for Form 113306. Oh no! You were supposed to have  produced a release in order to get Form 1133606!

You wake up. Thank God, it was only a nightmare!

Then you get to work and realize that you have to make a request for medical records and schedule the deposition of healthcare employees of the Veteran's Administration.

 

Question:

Under federal law, may the VA compel our firm to first obtain and produce to the VA a release from the plaintiff/patient before being allowed to depose the doctors who treated the patient?

 

Answer:

The question presented does not have a definitive answer.

...and so the REAL nightmare maze begins.

Yes, the Veterans Administration is the epitome of worst of government bureaucracy. Getting information from them has to be one of the most exhausting and infuriating recent process of practicing law.

Combining the regulations 38 C.F.R. 14.809 with 38 C.F.R. 1.511, it could be determined that the VA Hospital has both authority and a duty to get a patient’s consent before the VA produces doctors for a deposition regarding that patient. But it is not clear that the requirements found in 38 C.F.R. 1.511, which require consent from the patient, are applicable to depositions, and there is no language found in 38 C.F.R. 14.800 et seq. that would require the VA to receive consent from the patient before producing a doctor for a deposition.

 

The answer to the question presented starts with what is referred to as Touhy regulations. (this is where you will want to move on to another blog post about a celebrity's cat if you aren't really interested in details).

Touhy regulations

“Pursuant to 5 U.S.C.A. § 301, executive branch agencies may prescribe regulations for their own internal governance, conduct of business, record keeping, and document custody. Such regulations are commonly known as “housekeeping” regulations, and do not authorize the agency to withhold information from the public. Housekeeping regulations that create agency procedures for responding to subpoenas are often termed “Touhy regulations,” in reference to the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). In Touhy the Court ruled that agency employees may not be held in contempt for refusing to answer a subpoena, if prohibited from responding by a superior.” COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 272 n. 3 (4th Cir. 1999) (describing the origin of the term “Touhy regulations”).

Touhy regulations have been enacted by many U.S. departments including the VA Hospital. “The VA has promulgated Touhy regulations governing its employees' testimony.”  CCA of Tennessee, LLC v. Dep't of Veterans Affairs, 09CV2442 WQH CAB, 2010 WL 1734953 (S.D. Cal. Apr. 27, 2010), citing 38 C.F.R. § 14.800–14.810.

8 C.F.R. 14.800 – 810 governs the testimony of department personnel and production of department records in legal proceedings.

Section 14.805 sets out the contents of the demand or request made to the VA. “The request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party’s attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in § 14.807, the responsible VA official may ask the requester to provide additional information.”

 

Nothing in section 14.805 mentions consent is necessary by the applicable patient for his medical records to be released or for doctors to provide testimony about the treatment of the patient. The only requirement shown in section 14.805 is that we, as attorneys of a party, provide a written statement summarizing the nature and relevance of the testimony requested. In simple bullet point fashion that means we need to:

• Request the deposition in writing
• Tell how the deposition is relevant and needed (summary of the relevance of the testimony)
• Provide the topics which the deposition will cover (covers the nature of the testimony).

What happens if the VA just ignores you?