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Not So Fast..... (Continued from page 11)


adverse driver should be considered. Quite often the employer will have a commercial-insurance policy providing liability coverage well in excess of the typical individual automobile policy. An employer is generally vicariously


liable for the tortious conduct of an employee when the employee is acting within the scope of the employment relationship.5


Unfortunately for auto-


mobile practitioners, this general rule has been slightly narrowed with regard to automobiles, and an employer will not be liable for an employee’s negligent automobile tort unless the employer consented to the use of the automobile, or the use of the employee’s automobile was of such vital importance to the employer’s business that control can be reasonably inferred. 6


An employer will


not be liable if the car crash occurs while the employee is on his way to or from work.7 The determination of whether em-


ployer liability will attach is fact sensitive, and it is therefore important to obtain information regarding where the driver was coming from and/or going to dur- ing the initial fact investigation (as well as during discovery). Once suit is filed against an employer, it is crucial to ob- tain detailed deposition testimony from the employee driver regarding the nature of the employment relationship, and the


5 Embrey v. Holly, 293 Md. 128 (1982). 6


to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred.” Id. (citations omitted).


Henkelmann v. Insurance Co., 180 Md. 591, 599, 26 A.2d 418 (1942). In this case the Court of Appeals explained that: “[O]n account of the extensive use of the motor vehicle with its accompany- ing dangers, the Courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice.” “It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master ex- pressly or impliedly consents to the use of the automobile, and ... had the right


Summer 2008


In Dhanraj v. Potomac Elec. Power Co. 305 Md. 623, 627-628, 506 A.2d 224, 226 (Md. 1986) the Court further explained that: The application of the doctrine of respondeat superior “rests upon the power of control and direction which the superior has over the subordinate, and ... does not arise when the servant is not actually or constructively under the direction and control of the master.” In other words, the doctrine may be prop- erly invoked if the master has, “expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.” Normally, therefore, while driving to and from his job site, an employee is not acting within the scope of his employment. See Annot., 52 A.L.R.2d 287, 303 (1957). It is essen- tially the employee’s own responsibility to get to or from work. See Restatement (Second) of Agency § 229, comment d (1958). Thus, the general rule is that absent special circumstances, an em- ployer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is travel- ing to or from work.


7


Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 627-628 (Md. 1986).


Trial Reporter


extent that the employer controlled the employee’s use of the vehicle. You can also note a corporate designee deposi- tion on this issue or submit Requests for Admissions. Defendant employers typically file motions for summary judgment on this issue, and the way to defeat such motions is with specific facts showing that the employer directed and controlled the employee in the em- ployee’s use of the vehicle, and that the employer benefitted from the employee’s use of the vehicle. It should be noted at this point that


catastrophic-injury cases can make for strange bed-fellows. Keep in mind that in a catastrophic-injury case, defense counsel for the employee driver will want the additional protection of the employer’s liability-insurance policy, and, if the facts permit, may be willing


to have his or her employee defendant provide answers that will increase the chances of vicarious liability attaching to the employer.


First Party Claims: Uninsured Motorist Coverage, PIP/Med- pay Coverage And Stacking


Most insurance policies issued in


Maryland will have at least $2,500 of Personal Injury Protection Coverage (PIP Coverage) and at least $20,000 per person/$40,000 per occurrence in Uninsured Motorist Coverage (UM Coverage).8


As a general rule, when


your client is catastrophically injured, it is important to obtain the applicable insurance policies (including the decla- rations pages) to see what coverages will be available to your client. This typically includes the insurance policy for the vehicle your client is in at the time of the accident, the insurance policy for any other vehicles your client may own, and the insurance policy for any vehicle owned by any member of your client’s household. With catastrophically- injured clients, first-party coverages typically will not be sufficient to provide full and adequate compensation. Nev- ertheless, all avenues of recovery need to be explored and first-party benefits should be obtained whenever possible. It is important to keep in mind that the Maryland Courts construe the Personal Injury Protection Statute and the Unin- sured Motorist statute liberally because


(Continued on page 15) 8


§19-505 of the Insurance Article of the Maryland Code requires at least $2,500 in Personal Injury Protection Coverage (PIP) in motor vehicle liability insurance policies issued in Maryland unless the PIP cover- age is waived. § 19-509 of the Insurance Article requires that Uninsured Motorist Coverage be provided in all policies is- sued in Maryland in the same amount as liability coverage unless waived. Since the minimum limits of liability coverage in Maryland is $20,000 per person/$40,000 per occurrence, most Maryland insurance polices have will provide at least $20,000 of uninsured motorist benefits.


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