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The full case caption appears at the end of this opinion. The writ before us concerns whether an employee’s deviation from anemployment related errand is so substantial as to render her deviation outside thecourse and scope of employment. During the deviation, a multi-vehicle accidentoccurred between Stacie Michelle Silman (Silman), Michael Timmons, and BobbyHamilton (Hamilton) [FOOTNOTE 1] in the intersection of 18th Street and Stubbs Avenue in Monroe,Louisiana. In addition to filing suit against Silman and her motor vehicle insurer forinjuries arising out of the accident, Michael Timmons and his wife, Wanda, (theTimmonses) filed suit against the insurer of Silman’s employer, State Farm Fire andCasualty Insurance Company (State Farm), alleging that Silman’s employer wasvicariously liable for the damages arising out of Silman’s fault. The trial court andcourt of appeal held that Silman’s deviation was not in the course and scope of heremployment, concluding that at the time of the accident she was on a personal errandunrelated to her employment. After a careful review of the record and applicable law,we conclude that the lower courts were correct in finding that Silman was not withinthe course and scope of her employment due to her substantial deviation from heremployment duties. Accordingly, we affirm the lower courts. Facts Silman had been employed by attorney Catherine Stagg (Stagg) as a clericalassistant in Monroe, Louisiana for six months. As part of her duties as a clericalassistant, Silman ran errands, including traveling to the downtown post office to pickup the firm’s mail and get postage for the firm’s postage meter and also to the CentralBank located on the corner of North 18th Street and Stubbs Avenue to make firm deposits. During an office Christmas luncheon on the day of the accident, Silman receivedher Christmas bonus check from Stagg. Shortly after returning to the office fromlunch, Stagg instructed Silman to go to the post office and refill the firm’s postagemeter, and expected her to return with the filled meter. This task would require Silmanto either walk or drive her car southwest four blocks to Monroe’s downtown branchof the United States Post Office. Silman, using her personal vehicle to go to the postoffice, refilled the firm’s postage meter and put it in her car. Rather than return to thefirm, she then decided to embark on a personal errand and proceeded to the bank tocash her Christmas bonus check. On her way to the bank, she passed within one ortwo blocks of the firm without stopping to return the postage meter, and travelednortheast eighteen blocks beyond her place of employment. There was a branch ofCentral Bank located between the post office and her place of employment, but Silmanwas unaware of its location and did not use this branch bank. Before she reached thebank, Silman made a left turn in the path of an oncoming car in the intersection ofNorth 18th Street and Stubbs Avenue and was thrust into Michael Timmons’s car as he sat at the traffic light on Stubbs Avenue. Procedural History The Timmonses filed suit against Silman, her automobile liability insurer, andStagg’s insurer, State Farm. [FOOTNOTE 2] The Timmonses claimed that Silman was in the courseand scope of her employment with Stagg at the time of the accident, and, therefore,Stagg was vicariously liable. State Farm filed a motion for summary judgment on theissue of Stagg’s vicarious liability, alleging Silman’s deviation to the bank was notwithin the course and scope of her employment with Stagg. The trial court grantedState Farm’s motion for summary judgment, dismissing it from the litigation, and thecourt of appeal affirmed. Timmons v. Silman, 28,139 (La. App. 2 Cir. 5/10/96), 675So. 2d 287. On a writ of certiorari to this Court, we granted the Timmonses’application, vacated and set aside the lower courts’ judgments, and remanded thematter for a trial stating that genuine issues of material fact remained precludingsummary judgment. Timmons v. Silman, 96-1724 (La. 10/11/96), 680 So. 2d 661. After the case was remanded and transferred to another division of the districtcourt, the Timmonses moved for summary judgment on the same issue regardingwhether Silman was in the course and scope of her employment with Stagg at the timeof the accident. The trial court granted the Timmonses’ motion and it was State Farmwho then applied to the Second Circuit for relief. The appellate court granted StateFarm the relief it requested, that is, a denial of the Timmonses’ summary judgment 4motion, and remanded the case to the trial court for a trial on the merits. After a bench trial, the court dismissed State Farm finding that Stagg was notvicariously liable as Silman was not in the course and scope of her employment at thetime of the accident due to her personal deviation. The court of appeal affirmed.Timmons v. State Farm Fire & Cas. Ins. Co., No. 30,036 (La. App. 2 Cir. 5/29/97)(unpublished opinion). We granted certiorari to determine the correctness of the lowercourts’ judgments. Timmons v. Silman, 99-3264 (La. 2/4/00), So. 2d , 2000La. LEXIS 380. Law and Discussion Under Louisiana law, an employer is answerable for the damage occasioned byits servants in the exercise of the functions in which the servant is employed. La. Civ.Code art. 2320. Specifically, an employer is liable for its employee’s torts committedif, at the time, the employee was acting within the course and scope of hisemployment. Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So. 2d 994, 996. Anemployee is acting within the course and scope of his employment when theemployee’s action is “of the kind that he is employed to perform, occurs substantiallywithin the authorized limits of time and space, and is activated at least in part by apurpose to serve the employer.” Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 226-27. An employee may be within the course and scope of his employmentyet step out of that realm while engaging in a personal mission. See Denis Paul Juge,Louisiana Workers’ Compensation � 8:8, at 8-59 (2 ed. 1999). ndThe mere fact that an employee is performing a personal errand while on anemployment related errand does not automatically compel the conclusion that thedeviation removes the employee from the course and scope of employment. Generally, “[a]n identifiable deviation from a business trip for personal reasons takesthe employee out of the course of employment until the employee returns to the routeof the business trip, unless the deviation is so small as to be disregarded asinsubstantial.” 1 Larson’s Workers’ Compensation Law � 17-1 (emphasis added); seealso Malone & Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation �174, at 405 & n.1. Silman was clearly within the course and scope of her employment when shetraveled to the post office to refill the firm’s postage meter. This is not disputed.After the business errand was completed, Silman deviated from the business route togo to the bank, and, on her way to the bank, the accident in question occurred. Indetermining whether Silman’s deviation to the bank was substantial or insubstantial,we will look at all the facts and circumstances of the deviation, including suchillustrative factors as when and where, in relation to the business errand, the employeedeviates from the employment related errand and commences with his personal errand,the temporal and spacial boundaries of the deviation, the nature of the employee’swork, the additional risks created by the deviation, and the surrounding circumstances.See 1 Larson’s Workers’ Compensation Law � 17.06. This list of considerations isnon-exhaustive, and a court should carefully consider all the facts unique to the casebefore it. When considering the foregoing factors, the trial court’s findings of fact areentitled to great deference and should not be disturbed unless those findings aremanifestly erroneous or clearly wrong. Baumeister, 673 So. 2d at 998. In examining the when and where of a deviation, it is generally held that “[w]henan employee deviates from the business route by taking a side-trip that is clearlyidentifiable as such, the employee is unquestionably beyond the course of employmentwhile going away from the business route and toward the personal objective.” 1Larson’s Workers’ Compensation Law � 17.03[1], at 17-14 (emphasis added). In thiscase, Silman was on her way to the bank at the time of the accident, i.e., she was”going away from the business route and toward the personal objective.” TheTimmonses argue that because Silman retained the postage meter in her possessionwhen she went to Central Bank, Silman had not completed her employment errand. Although we find this aspect of the deviation not controlling, it can be a persuasivefactor if there is evidence of a linking relationship between the postage meter and thedeviation. If not, then the mere presence of the postage meter in Silman’s car couldjustify almost any deviation and in turn would untenably lead to the exposure of theemployer to untold, unrelated risks of employment. To accept the Timmonses’argument would make an employer the insurer of all accidents arising out of anemployee’s personal errands absent a linking relationship. Here, Silman hadcompleted her employment errand with the exception of returning to the office with thepostage meter. Her deviation was only incidental to, and not as a result of or relatedto, the employment errand. The fact that Silman had completed her errand for heremployer and passed up the place of employment to deviate for a personal errandweighs heavily against finding the deviation within the course and scope ofemployment. In turning to the temporal aspect of the deviation, there is no evidence in therecord as to the duration of the deviation. However, since we know that Silman wasgoing out of her way for eighteen blocks in her automobile and there is nothing in therecord to suggest any intervening occurrences, we assume that the time it took her todeviate to the bank would not have been an overly extended amount of time. Thisaspect would weigh in favor of Silman’s deviation being within the course and scopeof employment since the deviation was of relatively minor duration. However, morethan a short duration for the personal errand is needed to justify a deviation fallingwithin the course and scope of employment, i.e., weighing all of the factors thatincrease the risks of exposing the employer to vicarious liability. Regarding the spacial element, Silman’s deviation took her out of downtownMonroe and to an area approximately eighteen blocks away from her employment.These eighteen blocks were on the other side of her employment and in the oppositedirection from the post office. She passed within a block or two of her employmenton her way to Central Bank, and, instead of terminating her employment errand asexpected by Stagg, she kept driving past the law office and on to her personaldestination. The Timmonses argue, however, with some persuasion, that eighteenblocks is not a great distance. While we recognize that eighteen blocks is not a greatdistance, it is significantly farther than the post office, which was only four blocksaway from the office. Having come so close to her place of employment, yet travelingeighteen blocks in the other direction, weighs against Silman’s deviation being deemedinsubstantial. Had Silman visited the branch of Central Bank located between heroffice and the post office, we would be presented with a closer set of facts favoringan insubstantial deviation regarding the temporal and spacial elements. There is nobright-line rule in determining what is a substantial or insubstantial deviation. SeeMalone & Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation � 174,at 406. This determination is a fact driven inquiry made on a case-by-case basis. Focusing on the nature of the employee’s work, part of Silman’s employmentduties included going to the post office and the bank for Stagg. However, on thisparticular occasion Silman was not instructed, or expected, to go to the bank forStagg. Silman’s motivation for going to the bank that day was purely personal, in thatshe unilaterally decided to cash her Christmas bonus check while on an errand to thepost office for Stagg. The Timmonses argue that Silman’s employment led her to the18th Street branch of Central Bank as that was the bank where she took care of the firm’s financial needs. Specifically, Silman had no checking account and knew of noother bank in the Monroe area where she could cash her check, save this one, and herknowledge of it arose from her employment. When she went to this bank on firmbusiness, she would cash her payroll check at this time or, if she had no businessbanking that day, she would go to that branch after she got off work and cash hercheck. This was the first time she had made a special trip solely to cash her check. However, contrary to the Timmonses’ assertions, the fact that she went to this branchof Central Bank to attend to firm business on a number of occasions is irrelevant. Atthe time of her deviation, Silman had no firm business to attend to at the bank.Instead, she traveled to the bank during her working hours for purely personal reasonswithout Stagg’s permission, instruction, or knowledge, and beyond Stagg’sexpectations. Essentially, the Timmonses argue that since Silman was accustomed tousing this bank because of her employment, this somehow makes her deviationemployment related. We fail to see how familiarity with this particular bank throughemployment related errands, with nothing more, would cause this deviation for apersonal reason to fall within the course and scope of employment. “If the incidents of the deviation itself are operative to producing the accident,this in itself will weigh heavily on the side of non-compensability.” 1 Larson’sWorkers’ Compensation Law �17.06[1], at 17-33. At oral arguments the parties spokeabout the elevated risks inherent in the intersection at 18th Street and Stubbs Avenue, an intersection that Silman would not have traveled through had she returned to theoffice after filling the postage meter. However, since the parties failed to put onevidence regarding the additional risks created by the deviation, we are unable toconsider this aspect of the deviation. Nonetheless, the record makes clear that at thetime of this accident Silman had completed her employment related mission of refillingthe meter and, instead of terminating the mission as her employer expected, sheunilaterally decided to deviate on to a personal errand wholly unrelated to the businesstask. While the business errand required that Silman travel only four blocks, herpersonal errand required that she travel an additional eighteen blocks in the oppositedirection. The accident occurred while she was attempting to cash her check.Clearly, her personal deviation dwarfed the business portion of the trip, such that it nolonger can be said that it was a circumstance of her employment. Thus, the recordsupports the finding that it was the incidents of her personal deviation itself that wereoperative to producing this accident. As such, this factor weighs heavily againstfinding the deviation within the course and scope of the employment. This case does not present this Court with a question of the reasonableness ofSilman’s unilateral decision to deviate to the bank. Stagg implied in her depositionthat, although she ordinarily would not have minded, she “probably” would not haveallowed Silman to cash her check on this day because the office was busy preparingto close for the Christmas holidays. However, that an employee would not have beenfired, or even reprimanded, for their deviation is not the determinative factor. Thefocus of the Court is the determination of whether the deviation is substantial orinsubstantial rather than whether it is reasonable. While the reasonableness of adeviation can have some bearing on this determination, it is not the controlling factor.A reasonable determination would militate against Silman’s deviation beingemployment related, since it would have been more reasonable for her to have stoppedat the bank branch that was located just off the route to the post office rather than tohave traveled eighteen blocks past her place of employment. In essence, Silman decided to deviate from her assigned errand of four blocksand unilaterally extended her trip eighteen blocks by going to the bank to cash herbonus check and thereby substantially increased the risk of exposing her employer tovicarious liability with no corresponding benefits received by her employer. We haveexamined numerous factors that demonstrate how this deviation was substantial innature in relation to the employment related errand, and thereby elevated the risk ofexposing Stagg to vicarious liability. The very nature of these factors being positivelyanswered and showing a substantial deviation demonstrates that Silman exposed heremployer to risks which were not inherent in her employment. Because Silmanexposed her employer to the risk of liability as she unilaterally decided to perform apersonal errand after she essentially completed her employment errand and came withina block or two of her place of employment, we find that Silman was not within thecourse and scope of her employment. Thus, we find no manifest error in the lowercourts’ finding of no vicarious liability on the part of Stagg. Accordingly, State Farm,as Stagg’s insurer, has no responsibility to the Timmonses for their injuries arising outof the accident. Decree For the foregoing reasons, the judgments of the lower courts, finding State FarmFire and Casualty Insurance not liable to Michael and Wanda Timmons for the injuriesarising out of a motor vehicle accident between Michael Timmons and Stacie Silman,are affirmed. AFFIRMED :::FOOTNOTES::: FN1 Hamilton was not made a party to this litigation. FN2 Silman and her automobile liability insurer have been dismissed from this suit after a settlement between them and the Timmonses.
Timmons v. Stacey Silman Supreme Court of Louisiana Michael Timmons and Wanda Timmons v. Stacie Michelle Silman and State Farm Fire and Casualty Company and State Farm Mutual Auto Insurance No. 99-C-3264 On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Ouachita Filed: May 16, 2000 Before: KNOLL, Justice
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