MO: “Special Errand” Costs Employer in Cross-Over Accident

An employee acts in the course of her employment during an accident when she commutes on a regular route on a regular work day under a "special errand" exception to the going and coming rule.

Defendant drove across a slick road in Cass County and struck the plaintiff, resulting in a 1.4 million dollar verdict. The issue in the case is whether the defendant acted in the course and scope of her employment on a special errand to make her employer vicariously liable under respondeat superior. The court of appeals concluded the court improperly denied a motion for judgment notwithstanding the verdict filed by the plaintiff when the jury found only the driver liable. The case is Tran v Dave's Electric Company, WD 71183 (Mo. App. 11-15-11).

(Lexis.com subscribers can access the Lexis enhanced version of the Tran v. Dave's Elec. Co., 2011 Mo. App. LEXIS 1521 (Mo. Ct. App. Nov. 15, 2011) decision with core terms, case law links, and Shepard's).

The court recognized "going and coming" cases are normally not compensable. In this case, defendant was the company president and frequently and regularly drove from her home to the office as part of her regular commute. She drove on slick, rainy roads in Cass County to meet with a worker's compensation auditor. The court noted the trip was routine but the purpose of the trip was not routine, and the trip was urgent because she didn't have a phone number to reschedule and felt she "had to be there." She normally worked from home during inclement weather. The special errand rule requires an employer "direct" claimant to attend, but the rule did not apply to a chief officer who decided she had to be there. The court considered whether the trip in hindsight was not a business necessity irrelevant to evaluate urgency of the trip at the time the trip commenced.

Dave's Electric Company argued JNOV was inappropriate because the facts were subject to more than one reasonable interpretation. At the time of the trial, defendant was no longer working for the company after her divorce with the new company president. The trial court denied summary judgment on the vicarious liability issue because reasonable minds could differ whether the defendant was acting in the course and scope of her employment.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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