JOSE ROBELO, AND NUBIA ROBELO, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JAVIER ALBERTO ROBELO, DECEASED, ON BEHALF AND FOR THE BENEFIT OF JOSE ROBELO, NUBIA ROBELO AND THE ESTATE OF JAVIER ROBELO, DECEASED, APPELLANTS,
v.
UNITED CONSUMERS CLUB, INC., AND UNITED CONSUMERS CLUB FRANCHISE CORPORATION, APPELLEES

Fla. 3d DCA | 1989-11-21
No. 88-788
Before BASKIN, FERGUSON and COPE, JJ.
555 So. 2d 395 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Robelos sued United Consumers Club (UCC) for wrongful death after their son was killed in a collision with a van driven by Elizabeth Pistone, wife of ARCA Corporation's president. The court affirmed summary judgment for UCC, holding that Pistone was not acting within the scope of her agency when traveling to the office and that UCC's ownership of the van did not create vicarious liability where the vehicle was used for both business and personal purposes.


Holding

UCC is not liable because Elizabeth Pistone was not acting within the scope of her agency when traveling to the office. Although she worked irregular hours, she was not on a special errand and was not required to make herself available on demand. Additionally, UCC's mere ownership of the van does not create vicarious liability where the vehicle was used for both business and personal purposes.


Headnotes

[1] A principal is liable for the tortious actions of its agent only if the agent acts within the scope of the agency.

[2] An employer is generally not liable for torts of its employees committed while the employee is traveling to or from work, unless the employee is on a special errand for t…

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Key Quotes

“A principal becomes liable for the tortious actions of its agent only if the agent acts within the scope of the agency.”

Establishes the fundamental test for vicarious liability that governs the case.

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Facts & Procedural History

John Pistone was president of ARCA Corporation, a UCC franchise. His wife Elizabeth occasionally worked unpaid at the ARCA office on an as-needed basi…

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Opinion of the Court
BASKIN, Judge.

BASKIN, Judge.

Jose and Nubia Robelo appeal the entry of final summary judgment in favor of United Consumers Club, Incorporated, and United Consumers Franchise Corporation [collectively referred to as UCC] in their action for damages for the wrongful death of their son resulting from an automobile accident. We affirm.

John Pistone was president of ARCA Corporation, a franchise and agent of UCC. His wife, Elizabeth Pistone, occasionally helped out in the corporation office on an as needed basis, when she was available and willing to work. She was not paid for her services. As part of John Pistone’s compensation from ARCA, he was furnished a van which he utilized both as a display vehicle and as family transportation. ARCA retained title to the van.

On the day of the accident, John called Elizabeth and asked her to come to the office. Elizabeth was driving the van to ARCA’s offices when she was involved in a collision with Javier Robelo. Robelo died in the crash; his parents, Jose and Nubia Robelo, sued UCC, ARCA, and Elizabeth Pistone for damages in connection with the death of their son. UCC moved for summary judgment; the trial court granted the , motion and entered a final summary judgment.1 The Robelos filed this appeal.

A principal becomes liable for the tortious actions of its agent only if the agent acts within the scope of the agency. Life Ins. Co. of North America v. Del Aguila, 417 So. 2d 651 (Fla.1982); Jaar v. University of Miami, 474 So. 2d 239 (Fla. 3d DCA 1985), review denied, 484 So. 2d 10 (Fla.1986). Accordingly, we must determine whether Elizabeth Pistone was acting in the scope of her employment with ARCA, UCC’s agent, at the time of the incident. Only then may UCC, as ARCA’s principal, be held liable as a matter of law for her tortious acts.

The law is well-settled that an employer is not liable for torts of its employees committed while the employee is either going to work or returning home, unless the employee is on a special errand for the employer. Eady v. Medical Personnel Pool, 377 So. 2d 693 (Fla.1979); Everett Ford Co. v. Laney, 189 So. 2d 877 (Fla.1966); Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946). Irregular hours alone are insufficient to designate the employee’s coming and going a special errand for the employer.2 Eady; Everett Ford. Elizabeth Pistone kept irregular hours. She was not an employee “on call” because, although she worked only when needed, she was not required to make herself available on demand: she worked only when ARCA needed her and she wanted to work. At the time of the accident, Elizabeth Pistone was not on a special errand for her employer, but was merely traveling to the office.

Even if the employee is not on a special errand for the employer, the employer may still be liable for injuries caused by the employee in an accident occurring while the employee is in transit to the office if the employer provides transportation to and from the workplace. See Huddock v. Grant Motor Co., 228 So. 2d 898 (Fla.1969). It does not follow, however, that an employer is liable for injuries each time an employee causes injury in a car owned by the employer; the nature of the use of the vehicle is determinative. ARCA’s ownership of the van does not create vicarious liability on the part of UCC because the undisputed facts indicate that the van was used at least partially for pleasure and not for business. Cf. Foremost (employee, as record title holder of the vehicle for business and personal use, liable for accident occurring en route to office even where employer contributed to vehicle’s upkeep).

The trial court correctly ruled that summary judgment in favor of UCC was appropriate.

Affirmed.

. This lawsuit remains pending against ARCA, as owner of the vehicle, and Elizabeth Pistone, as driver of the vehicle.

. We decline to hold that Eady v. Medical Personnel Pool, 377 So. 2d 693 (Fla.1979), mandates reversal of the final summary judgment in favor of UCC. Here, unlike Eady, Elizabeth Pistone was traveling to work and not to a location which was unfamiliar or irregular. She was not on a special errand for her employer — she worked on an as needed basis only when she was available and desired to do so.


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  • …t inquiring why the closing agent was advising: “the son is going to live [sic] the property.” Furthermore, a principal is responsible for the negligence of its agent, acting within the scope of the agency. See Robelo v. United Consumers Club, Inc., 555 So. 2d 395 (Fla. 3d DCA 1989). JUA’s representative testified that Brickman was JUA’s agent, and there was at least some evidence that the insurer maintained control over the agent, i.e., required error and omissions insurance, required the agent to specifical…
  • …such dispute.4 3 In other contexts, the dangerous instrumentality doctrine may obviate the need to determine whether an employee was on the way to work where, as here, the employer provided the vehicle. See Robelo v. United Consumers Club, Inc., 555 So. 2d 395, 396–97 (Fla. 3d DCA 1989) (explaining that under the dangerous instrumentality doctrine an employer may be held “liable for injuries caused by the employee in an accident occurring while the employee is in transit to the office if the employer prov…
  • Kulzer v. WAY (Fla. 5th DCA 2024)
    …Way was not within the course and scope of her employment at the time of the wreck. An employer is vicariously liable for the tortious conduct of its employee only if committed within the scope of employment. Robelo v. United Consumers Club, Inc., 555 So. 2d 395, 396 (Fla. 3d DCA 1989). The parties, the trial court, and we agree that Greenleaf’s potential vicarious tort liability depends on whether this wreck occurred in the course and scope of Ms. Way’s employment. Whether an employee’s negligent act occu…

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