BRYSTAL McCLOUD v. THOMAS MAX KIMBRO ( 2010 )

FILED BY CLERK
IN THE COURT OF APPEALS MAR 23 2010
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
BRYSTAL McCLOUD, ) 2 CA-CV 2009-0116
) DEPARTMENT A
Plaintiff/Appellant, )
) OPINION
v. )
)
THOMAS MAX KIMBRO, an individual, )
)
Defendant/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CV200600469
Honorable James L. Conlogue, Judge
AFFIRMED
Stephen Gorey Tucson
Attorney for Plaintiff/Appellant
Terry Goddard, Arizona Attorney General
By Daniel P. Schaack Phoenix
Attorneys for Defendant/Appellee
K E L L Y, Judge.
¶1 Appellant Brystal McCloud appeals from the trial court‟s grant of summary
judgment in favor of appellee Thomas Kimbro. She argues summary judgment was
improper because a question of fact existed as to whether Kimbro had been acting within
the scope of his public employment when the vehicle he was driving struck her car.
Finding no error, we affirm.
Background
¶2 We view the facts in the light most favorable to the party opposing
summary judgment and draw all reasonable inferences arising from the evidence in favor
of that party. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.
1996). In reviewing the trial court‟s decision, we consider only the evidence presented to
the court when it addressed the motion for summary judgment. Brookover v. Roberts
Enters., Inc., 215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App. 2007).
¶3 Kimbro, a Department of Public Safety (DPS) officer, was the driver of a
state-owned vehicle that struck McCloud‟s vehicle on April 1, 2005, in Sierra Vista.
Kimbro normally worked in Phoenix, where he lived, but at the time of the accident he
was temporarily assigned to Douglas and surrounding areas, including Sierra Vista.
While there, Kimbro stayed in a local motel.1
1
Although the record is unclear, Kimbro asserts and McCloud does not dispute
that DPS provided him with a motel room.
2
¶4 On the day of the accident, Kimbro had begun his work day at 4:00 a.m.,
ended his scheduled time at noon, and worked some overtime. 2 Shortly before the
accident, he stopped at the Sierra Vista DPS station and got the name of a local
restaurant. He and other members of his unit, including his supervisor, were driving to
the restaurant at the time of the accident. Kimbro was looking for it as he drove, did not
see traffic stopped in front of him, and struck McCloud‟s vehicle. McCloud suffered
injuries, incurred medical expenses, lost earnings, and sustained damage to her vehicle.
She filed an administrative claim against the State of Arizona, DPS, and Kimbro four
days later pursuant to A.R.S. § 12-821.01, but did not file her lawsuit against them until
June 27, 2006.3 This appeal follows the trial court‟s granting of summary judgment to
Kimbro based on the one-year statute of limitations applicable to actions against state
employees, A.R.S. § 12-821.
Discussion
¶5 McCloud argues the trial court erred in granting summary judgment
because genuine issues of material fact exist concerning whether Kimbro had been acting
2
Because Kimbro‟s timesheet for the day of the accident originally listed two
hours of overtime, but was changed at some point to reflect three hours of overtime, the
parties disputed below when his scheduled work time ended. The exact time his shift
ended is not, however, material to determining whether Kimbro was within the scope of
his employment under our analysis.
3
The trial court initially granted the defendants‟ motion to dismiss all defendants
pursuant to Rule 12(b)(6), Ariz. R. Civ. P., because the action had been filed beyond the
one-year statute of limitations period applicable to claims against a public entity or
employee set forth in A.R.S. § 12-821. We affirmed as to the state and DPS, but reversed
and remanded as to Kimbro personally. McCloud v. State, 217 Ariz. 82, ¶ 21, 170 P.3d
691, 698 (App. 2007).
3
within the scope of his employment when the accident occurred. Kimbro counters, in
part, that because he was on an “out-of-town” work assignment, he was acting within the
course and scope of his employment while traveling to have a meal.
¶6 Summary judgment is proper when “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law.” Ariz.
R. Civ. P. 56(c)(1). “We review de novo whether there are any genuine issues of material
fact and whether the trial court applied the law properly.” Dube v. Desai, 218 Ariz. 362,
¶ 10, 86 P.3d 587, 590 (App. 2008). A mere scintilla of evidence or a slight doubt as to
whether a material factual dispute exists is not sufficient to overcome summary
judgment. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). When
“the material facts relevant to scope of employment are undisputed, the question can be
decided as a matter of law.” Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498,
501 (App. 1996).
Scope of Employment
¶7 Under Arizona law, “[a]n employer is vicariously liable for the negligent or
tortious acts of its employee acting within the scope and course of employment.” Baker
ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535,
¶ 17, 5 P.3d 249, 254 (App. 2000). An employee‟s conduct is within the scope and
course of employment “only if (a) it is the kind he is employed to perform; (b) it occurs
substantially within the authorized time and space limits; and (c) it is actuated, at least in
part, by a purpose to serve the [employer].” Anderson v. Gobea, 18 Ariz. App. 277, 280,
501 P.2d 453, 456 (1972). The “concept [of] „scope of employment‟ has long been tied
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to the employer‟s right to control the employee‟s activity at the time of his tortious
conduct.” Robarge v. Bechtel Power Corp., 131 Ariz. 280, 283, 640 P.2d 211, 213 (App.
1982).
¶8 “„[A]n employee is acting within the scope of . . . employment while he is
doing any reasonable thing which his employment expressly or impliedly authorizes him
to do or which may reasonably be said to have been contemplated by that employment as
necessarily or probably incidental to the employment.‟” Smith v. Am. Express Travel
Related Servs. Co., 179 Ariz. 131, 135-36, 876 P.2d 1166, 1170-71 (App. 1994), quoting
Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 207, 571 P.2d 699, 704 (App. 1977); see
also State v. Schallock, 189 Ariz. 250, 258, 941 P.2d 1275, 1283 (1997) (actions,
including those serving personal desires, deemed in scope of employment if incidental to
employee‟s legitimate work activity); Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 38, 760
P.2d 1085, 1087 (App. 1988) (conduct within scope of employment if, inter alia,
“actuated at least in part by a purpose to serve the master”).
Out-of-Town Travel
¶9 The parties have not cited any Arizona decision articulating an employer‟s
tort liability for the conduct of an off-duty employee assigned to out-of-town work.
Although we have found no case directly on point, we find several instructive.
¶10 In Anderson, 18 Ariz. App. at 281-83, 501 P.2d at 457-59, this court relied
on the “dual-purpose rule” enunciated in workers‟ compensation cases in concluding that
an employee who was involved in an accident while towing the employer‟s equipment to
work with his own truck, pursuant to his employer‟s instruction, had been acting within
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the scope of his employment, even though his commute between his home overnight and
his work site had also served his personal interests.We noted that “[a]lthough . . .
Workmen‟s Compensation cases and cases arising under similar social legislation are not
necessarily authority for principles giving rise to common law liability under the doctrine
of respondeat superior, there are instances when the principles are particularly apropos
and can be invoked.” Anderson, 18 Ariz. App. at 280, 501 P.2d at 456 (citation omitted).
Although not recited in Anderson, for workers‟ compensation purposes, the rule for
overnight traveling workers is that “such workers remain within the course of
employment continuously during their travel, even when eating and sleeping, except
when a „distinct departure on a personal errand‟ has occurred.” Bergmann Precision, Inc.
v. Indus. Comm’n, 199 Ariz. 164, ¶ 10, 15 P.3d 276, 278 (App. 2000), quoting 2 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 25.01, at 25-1 to 25-2
(2000).
¶11 In Davis v. Vumore Cable Co., 14 Ariz. App. 411, 484 P.2d 23 (1971), the
court addressed the employer‟s liability for an out-of-town employee using a company
truck for a personal errand. The defendant company provided vehicles for its crew of
men working out of town, but instructed them not to use the vehicles on Sundays except
to go to and from meals. Id. at 413, 484 P.2d at 25. One employee used a truck to go to a
meal, brought the truck back to the hotel, and then took the truck out later and had an
accident. Id. at 412-13, 484 P.2d at 24-25. Because the accident had not been in
conjunction with authorized travel to a meal, the court determined that it occurred while
the employee “was on a frolic of his own.” Id. at 413, 484 P.2d at 25.
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¶12 Courts in other jurisdictions have addressed the principles of respondeat
superior when an employee is assigned to be out of town for several days. A Colorado
court explained as follows:
Acts within the scope of employment include those
that are necessarily incidental to the employment. For
example, if an employee is required to eat and sleep away
from home in order to carry on the employer‟s business, then
the employee is within the scope of employment while doing
so. The employee is likewise within the scope of
employment while traveling to and from such necessary
lodging and meals.
Pham v. OSP Consultants, Inc., 992 P.2d 657, 659 (Colo. Ct. App. 1999) (ultimately
concluding trip to bar not within the course and scope of employment); Int’l Bus.
Machines, Inc. v. Bozardt, 275 S.E.2d 376, 377-78 (Ga. Ct. App. 1980) (eating may be
necessary incident to work of employee traveling on employer‟s business); Michaleski v.
Western Preferred Cas. Co., 472 So. 2d 18, 21 (La. 1985) (employee in course and scope
of employment when trip employment-connected, and employer paid expenses and
anticipated necessity of traveling to meals by paying per diem for food and gasoline
expenses).
¶13 Similarly, a federal district court relied on the “traveling employee” rule
and the “distinct departure” tests used in Florida workers‟ compensation cases to
determine tort liability, stating,
the “distinct departure” test should be strictly applied in tort
cases, where employer liability is not so broadly read. Thus,
while activities related to the necessities of travel, such as
eating in restaurants or sleeping in hotels, may remain within
the scope of employment under tort law, those related to mere
amusements do not.
7
Liberty Mut. Ins. Co. v. Electronics Sys., Inc., 813 F. Supp. 802, 810 (S.D. Fla. 1993).
Because the employee already had eaten dinner, the court held as a matter of law that he
had been acting outside the scope of his employment when he had driven to a bar solely
for personal enjoyment. Id.¶14 McCloud acknowledges Kimbro “was stationed in the Phoenix area and
had been temporarily assigned to a DPS undercover unit „out of town‟ before the accident
occurred and that he did not return to the Phoenix area until after the accident happened,”
but she argues he was not on “„out-of-town travel‟ as that term is normally interpreted”
because he had already reached his motel in Douglas. This interpretation conflicts with
the authority cited above. McCloud also argues that if Kimbro‟s shift had ended for the
day when the accident occurred, he was not acting within the scope of his employment.
That distinction, however, does not apply to our analysis when the employee is going to a
restaurant for a meal while on out-of-town travel. Michaleski, 472 So. 2d at 21.
¶15 Finally, both parties attach significance to Section R2-10-107 of the
Arizona Administrative Code which sets forth the circumstances under which the State of
Arizona Department of Risk Management program provides liability insurance as
established by the legislature in A.R.S. § 41-621. The regulation establishes that “[t]he
Department provides liability coverage within the limitations of A.R.S. § 41-621 for an
officer, agent, or employee while driving a state-owned or other vehicle in the course and
scope of employment.” Ariz. Admin. Code R2-10-107(A)(1). The regulation also
addresses circumstances under which an officer, agent, or employee is covered while
8
driving. Ariz. Admin. Code R2-10-107(A)(2), (3). Section 2(d) of the regulation
provides that an officer, agent, or employee is within the course and scope of
employment when driving a state-owned vehicle if driving “to and from meals while on
out-of-town travel.” Ariz. Admin. Code R2-10-107(A)(2)(d).
¶16 Nevertheless, the state‟s provision of liability coverage does not, by itself,
impose liability on the state. Section 41-621(O)(1), A.R.S., specifically states:
Neither the authority provided by this section to insure,
nor the exercise of such authority, shall:
1. Impose any liability on this state or the
departments, agencies, boards and commissions or any
officers, agents and employees of this state unless such
liability otherwise exists.
See also Schallock, 189 Ariz. at 255, 941 P.2d at 1280. Thus, even if the state agrees to
provide liability coverage under certain circumstances for an employee driving a state-
owned vehicle, that agreement does not impose liability on the state for the employee‟s
actions unless it otherwise exists.
¶17 We hold that an employee on out-of-town travel status is within the course
and scope of his employment and subjects his employer to vicarious liability while
traveling to and from a restaurant for a regular meal. The undisputed facts show Kimbro
was on out-of-town travel while on temporary assignment in Douglas and that he was
driving to a restaurant for a meal at the time of the accident. Thus, he was traveling on an
assignment of the kind he was employed to perform; was within the authorized time and
space limits of his temporary assignment in southern Arizona; and was acting, at least in
part, by a purpose to serve his employer, because eating is necessarily incidental to a
9
multiple-day assignment. See Anderson, 18 Ariz. App. at 280, 501 P.2d at 456; Smith,
179 Ariz. at 135-36, 876 P.2d at 1170-71; Liberty Mut. Ins. Co., 813 F. Supp. at 810;
Schallock, 189 Ariz. at 258, 941 P.2d at 1283 (actions deemed motivated to serve
employer if incidental to employee‟s legitimate work activity).
¶18 Kimbro, as the moving party, is entitled to judgment as a matter of law
because there is no genuine dispute as to any material fact and only one reasonable
inference to be drawn from those facts. Ancell v. Union Station Assocs., Inc., 166 Ariz.
457, 459, 803 P.2d 450, 452 (App. 1990); Smithey, 189 Ariz. at 106, 938 P.2d at 501;
Robarge, 131 Ariz. at 283, 640 P.2d at 213 (legal conclusions to be drawn from
undisputed facts are properly resolved by court). Kimbro was within the course and
scope of his employment at the time of the accident and summary judgment was
appropriate.
Disposition
¶19 The judgment of the trial court is affirmed.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Presiding Judge
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