Going And Coming Rule

At the time of the accident, Sinco carried a Commercial Auto policy issued by General Insurance with a million-dollar limit, an Umbrella and Excess policy from Fireman's Fund with a million-dollar limit, and a CGL policy issued by Fireman's with a million-dollar limit. Plaintiffs partially settled the Sinco action, with General paying its million-dollar primary limit and Fireman's Fund paying its excess million-dollar limit. However, the insurer denied coverage under the CGL policy.



The arbitrator awarded $27 million, finding that at the time of the accident, Babinz was acting within the course and scope of his employment under the "required vehicle" exception under the "going and coming rule" and that Sinco had been negligent in hiring and retaining him.



This case focused on bad faith because Fireman's Fund failed to defend the suit or indemnify against it under the CGL policy. The definition of insured under the CGL policy included employees, "but only for acts within the scope of their employment while performing duties related to the conduct of your business."



The Court of Appeal affirmed the judgment in favor of Fireman's Fund. The appellate court noted that under the so-called "going and coming rule," an employee is not deemed to be acting within the scope of his employment while going or coming from his place of work. However, the "going and coming" rule is subject to the "required vehicle" exception, which applies when an employer requires an employee to use his or her own vehicle for transportation on the job. 



The court did not buy the theoretical possibility that the actions of an employee might be within the actions of the course and scope of employment, but "not related" to the conduct of the business. It ruled that Babinz's use of his own vehicle required by Sinco was within the scope and course of the business, and that driving that vehicle to work was at least performing a duty "related" to the conduct of the business.

This material is provided as general information and is not a substitute for legal or other professional advice.

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