Injured While Using own Vehicle for Employer's Benefit

If an employee is required to bring a vehicle to work for use in employment duties, injuries sustained by the employee during travel to and from work may be compensable.

In such a case, the obligations of the employment reach out beyond the employer’s premises, make the vehicle a mandatory part of the employment and compel the employee to submit to the hazards associated with private motor travel, which otherwise the employee would have the option of avoiding. Since this is the theory, it is immaterial whether the employee is compensated for the expense of the trip. Hinojosa v. W.C.A.B. (1972) 37 Cal.Comp.Cases 34, 8 Cal.3d 150.

To find an employer liable for injuries to an employee resulting from an accident where the employee is using his or her personal vehicle for the employer's benefit, there is no need to establish that the required-use doctrine depends upon a finding that the employee "regularly" used his or her vehicle for work purposes. Commenting on this in a third-party civil action, the Court of Appeal, Fourth District, in Lobo, et al., v. Tamco (2010) 75 Cal.Comp.Cases 286, 182 Cal.App.4th 297 (Published), stated, in part:

A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an incidental benefit derived by the employer. [Citation.]'' (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 241 [252 Cal. Rptr. 162].) This exception to the going and coming rule, carved out by this court in Huntsinger, supra, 22 Cal.App.3d 803, has been referred to as the ''required-vehicle'' exception. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 [12 Cal. Rptr. 2d 114].) The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 152 [501 P.2d 1176, 104 Cal. Rptr. 456, 37 Cal. Comp. Cases 734]), or if the employee has agreed, expressly or implicitly, to make the vehicle [**8]  available as an accommodation to the employer and the employer has ''reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.'' (County of Tulare v. Workers' Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247, 1253 [216 Cal. Rptr. 885, 50 Cal. Comp. Cases 435].) n3....


Footnote 3: Because benefit to the employer is one of the principal considerations under both the tort rule of respondeat superior and workers' compensation law, the application of the going and coming rule is similar for both purposes. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, fn. 3 [471 P.2d 988, 88 Cal. Rptr. 188, 35 Cal. Comp. Cases 756]; Huntsinger, supra, 22 Cal.App.3d at pp. 807-809.)

This case Lobo et al., v. Tamco (2014) 79 Cal.Comp.Cases 1401 (Published), having been previously remanded to the trial Court and in affirming the Court decision, stated, in part:

In Lobo v. Tamco (2010) 182 Cal.App.4th 297 [105 Cal. Rptr. 3d 718] (Lobo I), we reversed a summary judgment in favor of the defendant, Tamco, and remanded the matter for further proceedings in the trial court. Trial was held solely on the issue of Tamco's vicarious liability for the negligence of its employee, Luis Del Rosario. The jury found in favor of Tamco. Plaintiffs,1 the survivors of a deputy sheriff killed in a vehicular collision with Del Rosario's car as he left Tamco's premises (see Lobo I, at p. 299), contend that based on the legal principles we enunciated in Lobo I, the evidence adduced at trial compels a finding that Del Rosario was acting within the scope of his employment when the accident occurred. They also argue that the trial court erred in refusing a requested jury instruction.


(Footnote Omitted)

We conclude that substantial evidence supports the verdict and that the court properly rejected the requested instruction. Accordingly, we will affirm the judgment.

When such an employee normally brings a vehicle to the place of employment in response to the employer’s direct or implied request, and as a result of the vehicle breaking down at work the employee rides in a co-employee’s vehicle, the employee is still in the course of employment while riding in the co-employee’s vehicle to and from work. Rhodes v. W.C.A.B. (1978) 43 Cal.Comp.Cases 1001, 84 Cal.App.3d 471,148 Cal.Rptr. 713 (Published).

Even though an employee may voluntarily use his or her automobile in a manner that benefits the employer, such as picking up the mail while en route to work, that accommodation will not constitute an exception to the “going and coming” rule unless the employer expressly or impliedly requires the employee to perform the mission. Burrow v. W.C.A.B. (1988) 53 Cal.Comp.Cases 285 (Writ Denied).

If the employer requires the employee to use the employee’s own car or truck to transport work tools to and from work or to travel to different job sites during the work day, injuries sustained by the employee during such travel may be compensable. Cullen v. W.C.A.B. (1974) 39 Cal.Comp.Cases 786 (Unpublished); Wilson v. W.C.A.B. (1975) 40 Cal.Comp.Cases 206, 46 Cal.App.3d 356, 120 Cal.Rptr. 113 (Published); Tenneco West, Inc. v. W.C.A.B. (1979) 44 Cal.Comp.Cases 838 (Writ Denied).

If the tools and other items carried to and from work in an employee’s private vehicle do not require a special route or require a special mode of transportation or increase the risk of injury, the “going and coming” rule bars recovery for any injury while the employee is in transit to and from work. Barham v. W.C.A.B. (1986) 51 Cal.Comp.Cases 77 (Writ Denied).

In Permanente Medical Group v. W.C.A.B. (Talbot) (1991) 56 Cal.Comp.Cases 157 (Unpublished), the Board found that injuries sustained by a carpenter while driving in his own pickup truck to a job site did not arise out of or occur in the course of his employment. The injury occurred while Mark Talbot was driving his truck on January 7, 1988, from his home in Isleton to a construction job site in San Ramon. Talbot (hereinafter, the applicant), was employed by CRW Construction, Inc., as a journeyman carpenter. The employer did not require the applicant to use his pickup truck at the worksite. Applicant was required to furnish his own hand tools, such as handsaws, levels, a nailpunch, and wrench. The employer furnished power tools, such as saws and drills. The employer’s tools were stored in a gang box at the San Ramon worksite. Applicant used his truck only to transport himself and his tools to the worksite. During his one year of employment before the injury, applicant worked about a week at a second CRW construction jobsite at Discovery Bay. He transported himself and his tools directly to that jobsite from his home. A couple of times he may have been directed to the second jobsite after arrival at the first jobsite. At no time, however, was he asked to use his pickup truck for the benefit of the employer at either jobsite.

The Court of Appeal, First District, in upholding the Board’s denial of benefits, stated, in part:

The facts in this case are materially different from the facts in Hinojosa where the workers had to furnish their own transportation from one ranch to another ranch each day. Here, the applicant worked primarily at one jobsite. When directed to work at the second jobsite at Discovery Bay, he drove directly to that jobsite from his home. On only two occasions in one year was he directed to work at the Discovery Bay jobsite after he had driven to the San Ramon jobsite. There was no evidence that he worked at both jobsites the same day. Under these circumstances, the Board properly concluded that the case does not come within an exception to the going and coming rule.

As for petitioner’s second contention, the applicant’s transportation of his personal tools to the worksite was merely incidental to the commute and not a significant reason why applicant drove his pickup truck to work. The transportation of his tools, by itself, was not sufficient to constitute an exception to the going and coming rule. (Cf. Wilson v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 185 [41 Cal. Comp. Cases 76, 127 Cal.Rptr. 313, 545 P.2d 225]; Hinson v. Workmen’s Comp. Appeals Bd. (1974) 42 Cal.App.3d 246, 251 [39 Cal. Comp. Cases 700, 116 Cal.Rptr. 792].)….See also Citadel Broadcasting, et al.,. v. W.C.A.B. (Nelson) (2006) 71 Cal.Comp.Cases 517 (Writ Denied), where the Board found that applicant’s injury, sustained while driving from his home to a mandatory weekly company sales meeting, was not barred under the “going and coming” rule, when applicant established that he could not have performed his sales job without his own vehicle, no company vehicle was available for his use, his employer expected him to provide a vehicle for its benefit, and defendant provided no evidence that applicant could perform his duties without a vehicle.

In denying benefits to a construction worker involved in a vehicular accident on his way to work (who had to travel 130 miles each way to his work), the trial Judge in Hernandez v. W.C.A.B. (2007) 72 Cal.Comp.Cases 1399 (Writ Denied), in a decision upheld by the Board, noted that simply because a worker has to travel great distances to a fixed job site, this does not create a special exception to the "going and coming" rule.

Even if the employer does not require employees to use their private vehicles in traveling to different job sites, authorizations may be implied to use a private vehicle where the employer has work available at two noncontiguous work sites, such as ranches, and does not provide transportation between the two places of employment. Samuel Vener Company v. W.C.A.B. (Adame) (1976) 41 Cal.Comp.Cases 220 (Writ Denied).

In Hinojosa, supra, the California Supreme Court ruled that where an employee’s duties called for work in a number of noncontiguous job sites during the working day, the use of an automobile was an implied condition of the employment, and an employee’s injuries, sustained while riding in another employee’s car on the way home from the last job site of the day, therefore occurred in the course of the employee’s employment. The high Court stated, in part:

In conclusion, we hold that the instant case clearly differs from the normal routine commute; it is, instead the extraordinary situation in which the job is structured, and dependent upon, transportation from one place of work to another so that the use of an instrument of such transportation is a requisite of employment. The employer could have provided, at his own expense, company vehicles to transport the workers between his various farms during their workday. His failure to do so made it necessary for the workers to supply their own on-the-job transportation. Thus petitioner made use of the car from his residence to the first ranch, and thereafter from ranch to ranch and finally from ranch to his residence because the car was an essential requirement of the job; the presence of the car was requisite to performance of the job; the worker was impliedly required to bring the car to the job and to take it from the job. Thus the injury suffered in the car was covered by the Workmen’s Compensation Act.

The decision of the Workmen’s Compensation Appeals Board is annulled. The cause is remanded to that Board for proceedings consistent with the views herein expressed...See also Ayala Corp. et al., v. W.C.A.B. (Gonzalez) (2002) 67 Cal.Comp.Cases 305 (Writ Denied), where the Judge ruled upon Hinojosa, supra, in finding that farm laborers injured on the way home from work in a vehicle driven by the foreman were in the course of employment and the injury arose out of the employment, and they were not barred by the going and coming rule where their employer required them to move between fields during the workday but did not provide transportation, and although there was no explicit requirement they provide their own transportation, the employer encouraged that they provide their own transportation. The Judge in his decision stated, in part:

I found the instant case directly on point with Hinojosa. The workers were required to move from field to field to perform their work. The defendant employer did not provide transportation to the workers. The defendant employer did not explicitly require the workers to provide transportation, but they did not provide any means for movement by the workers. In Hinojosa, the workers were paid during their transit, while here the workers were paid on a piece work basis. However, this does not appear to be the controlling principal. The requirement to move from field to field, and the lack of employer transport would appear to be the governing principals....

In Torrance Unified School District et al., v. W.C.A.B. (Sutter) (1982) 47 Cal.Comp.Cases 1322 (Writ Denied), a school teacher taught at two different schools for her employer. Classes at one school were from 9:00 a.m. to 4:30 p.m. and at the other school from 6:30 p.m. to 10:00 p.m. Her employer did not provide transportation between the two schools. She did not go home between assignments as it was too far. She was injured in an automobile accident while traveling from one school to another in her own automobile.

The Board held that at the time of the accident, the employee was in the course of her employment because the contract of employment implied necessity to use an automobile to travel from one teaching assignment to another.

An injury occurring during a particular transit from the home to the job is compensable where the transportation is accomplished by means imposed either as a condition of employment, such as the requirement that the employee use his or her own vehicle during working hours, or that he or she use the vehicle at the special request of or as an accommodation to the employer. A practice adopted for the mutual convenience of the employer and the employee and left to the discretion of the employee (if he did not want to take his own car to the field, he would be taken in the company pick-up), does not rise to the status of a requirement of employment nor does it establish such a “special” advantage to the employer as to extend the employer-employee relationship to the regular commute from the home to the place of employment. Hinson v. W.C.A.B. (1974) 39 Cal.Comp.Cases 700 (Published). See also Steward v. Board of Trustees of the California State University (2013) 78 Cal.Comp.Cases 282 (Unpublished).

A common thread running through these compensable cases is the regularity with which the employees were called upon to furnish their own transportation on the job for the benefit of the employer. The supplying of transportation by the employee on the job was, in each case, such a common and frequent occurrence as to become an expectation of the parties as a matter of general practice.

In Hetrick v. W.C.A.B. (1990) 55 Cal.Comp.Cases 268 (Unpublished), Gregory Hetrick was employed by the Richmond Unified School District (District) at De Anza High School as a science teacher, chairman of the science department, athletic director, and gymnastic coach. A fellow-teacher and a principal at De Anza High School testified without contradiction that applicant was required, as part of his duties, to use his car for various purposes, including taking athletic teams to sporting events; attending meetings; picking up, moving, and delivering sporting and educational equipment and supplies; going to gymnastics meets between other schools to act as a judge; going to other types of athletic events; and participating in various fundraising activities.

On April 17, 1985, applicant drove to work. The record does not indicate whether he used the car for any job-related duties that day. In the afternoon and early evening, he went with the gymnastics team to a meet in San Mateo. As had been arranged a few days previously, applicant and the team traveled by bus.

The meet ended around 7 p.m. Applicant left in the car of Harold Frey, who had judged the meet. Frey was a fellow gymnastics coach whom applicant had known for years. He and applicant had planned a few days earlier to meet that evening at Frey’s house to prepare for a test that would qualify them to judge international gymnastics meets. At about 8:10, Frey dropped applicant off at De Anza High, where applicant fed a snake that was apparently kept in connection with his biology class. At about 9:50, applicant left the school and drove his car to Frey’s house, about one mile from the school. Over dinner, the two men discussed applicant’s team’s performance and the judging rules. Applicant left shortly after midnight. En route to his home in Benicia, he collided head-on with another car whose driver had fallen asleep. As a result, applicant is a quadriplegic, unable to communicate or understand, and unable to participate in presenting his claim for compensation benefits.

The Workers’ Compensation Judge determined that applicant’s injuries were sustained in the course of and arose from his employment. He concluded that the case came within the “transportation exception” to the "going and coming" rule, i.e., that the employer impliedly required applicant to use his private automobile in the performance of his duties, and thereby assumed workers’ compensation liability for injuries applicant sustained while driving the car to and from work.

The Board granted reconsideration and reversed the Judge’s decision. It agreed with the Judge that “it was an implied condition of applicant’s employment that he use his own vehicle from time to time on school business.” It found, however, that the use of applicant’s car on the day of the injury “was entirely for his own convenience” and that he “was aware that he was not required to have his personal automobile available for use at work” that day. Therefore, the Board concluded, his commute did not come within the required transportation doctrine. Finding no other ground of exception, the Board concluded that the "going and coming" rule barred compensation.

The Court of Appeal, First District, in reversing the Board, stated, in part:

We conclude that applicant carried his burden of showing facts sufficient to bring his commute on April 17, 1985, within the required transportation exception to the going and coming rule.

The Board rejected the WCJ’s finding of industrial causation because, it found, applicant knew he would not need his car when he left for work on the date of injury. This finding is not supported by substantial evidence. The only supporting evidence is the fact that applicant had arranged to go to the gymnastics meet by bus. This is not substantial evidence that applicant did not need his car, let alone that he knew he did not need it. There were six job-related functions for which applicant was required to furnish his own car. The most the evidence shows is that one of these might be ruled out on the day in question. The record is otherwise silent. For all the record shows, applicant planned to and did use the car for any or all of the other five duties. To the extent the Board purported to find otherwise, its findings are not supported by substantial evidence. No other basis is suggested for the Board’s rejection of the WCJ’s finding that applicant was required to drive to work. Accordingly, that rejection was error.…

In Johnson v. W.C.A.B. (1995) 60 Cal.Comp.Cases 690 (Unpublished), the Court of Appeal, Fifth District, in reversing the Appeals Board, found that the applicant sustained a compensable injury while in transit to work, where the evidence indicated that the applicant (an accounts manager for a bank) made his personal automobile available on a regular basis while performing his work. The Court stated, in part:

Here, as in County of Tulare, the employee used his own vehicle as an accommodation to his employer. Such a classification implied the employer, Union Bank, benefitted from such usage. Once petitioner impliedly agreed to accommodate his employer and use his own vehicle, the employer, Union Bank, could reasonably come to rely upon its use and expect petitioner to have the vehicle available on a regular basis while still not requiring it as a condition of employment. Contrary to the order and decision after reconsideration, nothing in County of Tulare conditions compensability upon an employer’s express requirement that an employee use a personal vehicle every business day. Further, as in County of Tulare, the employer in the instant case reimbursed the employee for mileage on the job. Under all of these facts and circumstances, applicant was performing services growing out of and incidental to his employment when he brought his car to work and made it available for use on a regular basis. Accordingly, the petitioner sustained compensable injuries while in transit to work on January 21, 1985, and W.C.A.B. erred by granting reconsideration and reversing the award….

However, unusual and infrequent requests to use an employee’s own transportation on the job generally do not give rise to such a relationship or understanding. State Compensation Insurance Fund. v. W.C.A.B. (De Rufino) (1986) 51 Cal.Comp.Cases 247 (Unpublished).

See also California Compensation Insurance Co. v. W.C.A.B. (McCarty) (1992) 57 Cal.Comp.Cases 374 (Writ Denied), where the Board found that the employee’s use of his personal car for various jobs at work was an expectation of his employment. Therefore, injuries sustained while traveling to a job site were compensable.