Key Decisions

October 2013 – An Employer Was Liable For An Employee’s Torts

(filed under: Key Decisions Archive | October 20, 2013)

An Employer Was Liable For An Employee’s Torts

Moradi v. Marsh USA, Inc.
(Cal. Ct. of App., 2d Dist.), filed September 17, 2013, published September 17, 2013


Judy Bamberger was an employee of Marsh USA, an insurance brokerage. Bamberger was required each workday to drive to and from the office in her personal vehicle. During the workday, she had to use her vehicle to visit prospective clients, make presentations, provide educational seminars, follow leads, and transport company materials and co-employees to work-related destinations.

On April 15, 2010, Bamberger left the office at the end of the workday and began driving in the direction of her home. She had decided that, on the way, she would stop for some frozen yogurt and take a yoga class. As she made a left turn at the yogurt shop, she collided with a motorcycle being driven by Majid Moradi.

Moradi sued Bamberger and Marsh for his injuries. The trial court granted Marsh’s motion for summary judgment on the ground that Bamberger was not acting within the scope of her employment when she was making a left turn to get to the frozen yogurt shop.

Moradi appealed.


The Court of Appeal reversed.

The court reasoned that because Bamberger was required to use her personal vehicle to travel to and from the office and make other work-related trips during the day, she was acting within the scope of her employment when she was commuting to and from work. The planned stops for frozen yogurt and a yoga class on the way home did not change the incidental benefit to her employer of having her use her personal vehicle to travel to and from the office and other destinations.

On the day of the accident, Bamberger had used her car to transport herself and some co-employees to an employer-sponsored program, and she had planned to use her car the next day to drive to a prospective client’s place of business. The planned stops did not constitute an unforeseeable, substantial departure from Bamberger’s commute. Rather, they were a foreseeable, minor deviation. Finally, the planned stops were not so unusual or startling that it would be unfair to include the resulting loss among the other costs of the employer’s business.

Under the “required vehicle” exception to the “going and coming” rule, Bamberger was acting within the scope of her employment at the time of the accident, and the doctrine of respondeat superior applied. Accordingly, the trial court erred in granting Marsh’s summary judgment motion.


Arguably, this “required vehicle” exception is narrow, applying only when the employer requires the employee to drive a vehicle to work so that it can be used for business purposes during the employee’s shift. In practice, however, it is not hard to imagine auto accident victims trying to make this exception swallow the rule. In view of the court’s ruling here, employers may want to look at whether their employees maintain adequate automobile liability insurance with coverage for any person or organization who may be liable as a result of the employee’s ownership, maintenance or use of a motor vehicle and to require that such policies include business use.