The theory of respondeat superior makes employers vicariously liable for wrongful acts committed by employees during the course and scope of their employment.
However, the “going and coming” rule generally exempts employers from liability for wrongful acts committed by employees while on their way to and from work, because employees are considered outside the course and scope of employment during their daily commute.
A well-known exception to the going-and-coming rule arises if the use of the car gives some incidental benefit to the employer. The key issue is whether the employer derives an incidental benefit from the employee's use of the car.
This is often called the “required-vehicle” exception. It can apply if the use of a personally owned vehicle is an express or implied condition of employment, or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has reasonably come to rely on that availability.
Course-and-scope exclusions
- Transportation to and from the place of employment is excluded unless the transportation is furnished as part of the contract of employment or paid for by the employer.
- The exclusion does not apply if the means of transportation are under the control of the employer.
- The exclusion does not apply if the employee is directed in the employment to proceed from one place to another.
In insurance policies, the general definition describes coverage and travel must meet both its components to be in the course and scope of employment.
Some policy subsections function as exclusions with narrowly defined exceptions; if an exception is met, the travel is not excluded from coverage.
If you operate a repair shop or similar auto business, see Automobile Repair Workers Compensation for related considerations about employee vehicle use and coverage.
Subsection (B) exceptions
- The travel to the place of occurrence would have been made even had there been no personal affairs of the employee to be advanced by the travel.
- The travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
A recent appellate case interpreted this standard broadly in a facts-driven opinion involving an employee who left his employer's premises and was involved in a fatal collision with a deputy sheriff riding to an emergency.
The employee kept work-related equipment in his car and testified he would have used his car to visit a customer site if asked, supporting a finding that the employer required his vehicle to be available.
The court concluded the employer derived a benefit from the availability of the employee's car and that occasional use to visit customers was sufficient under the facts to apply the required-vehicle exception.
Lesson learned: allowing employees to use their personal vehicles on company business can expose you to liability. For information about coverage options and how liability can arise in auto-related work, see Employer Liability for Auto-Related Business.
Make sure employees understand the parameters for using personal vehicles, verify good driving records, and maintain adequate insurance to handle possible claims; if you're unsure how much coverage you need, talk to your agent.
Frequently Asked Questions
What is the going-and-coming rule?
It is the general principle that an employee's ordinary commute to and from work is outside the course and scope of employment and therefore typically not covered by employer liability.
When does the required-vehicle exception apply?
It applies when an employer requires or reasonably relies on an employee's personal vehicle for work tasks, or when the vehicle is made available as an accommodation and used regularly for employer business.
Does occasional use of a personal car for work always create employer liability?
Not always; courts examine the frequency, employer expectations, and whether the employer derived a benefit from the vehicle's availability in each case.
How can employers reduce exposure from employees using personal vehicles?
Employers can set clear policies, require proof of driving records and insurance, limit vehicle use for work, and maintain appropriate employer liability insurance.