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123857879
IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT OF FLORIDA
CASE NO. 2D20-0244
L.T. CASE NO. 17-CA-5349 INDONESIA PETERSON, Appellant, v. CISCO SYSTEMS, INC., Appellee. /
ANSWER BRIEF OF APPELLEE CISCO SYSTEMS, INC.
On Appeal from a Final Judgment of the Thirteenth Judicial Circuit, In and For Hillsborough County, Florida
CARLTON FIELDS
Attorneys for Appellee, Cisco Systems, Inc. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 By: BENJAMINE REID
Filing # 115291832 E-Filed 10/20/2020 02:48:22 PM
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................ i
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE FACTS ............................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................ 5
STANDARD OF REVIEW ....................................................................................... 6
ARGUMENT ............................................................................................................. 7
THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO CISCO. ................................................................................ 7
A. An employer is not vicariously liable for an employee’s actions when the employee is traveling to or from work............ 7
1. Nobody disputes that Ibrahim was traveling to work from his hotel when the accident happened. ......... 10
2. Plaintiff is wrong to suggest that a genuine issue of material fact precludes summary judgment, because no fact issue exists. ........................................... 11
3. Sussman offers Plaintiff no refuge. ................................ 12
B. The authorities that Plaintiff relies upon are inapposite and do not support reversing summary judgment here. ............ 13
1. The “traveling employee” rule applicable to workers’ compensation cases cannot apply to Plaintiff’s negligence claim. ........................................... 13
2. The negligence cases that Plaintiff cites are distinguishable. ............................................................... 16
TABLE OF CONTENTS (Continued)
Page
ii
C. Cisco did not “acknowledge[] ownership” of the rental vehicle. ...................................................................................... 19
D. The fact pattern in Williams v. Bentway is different and fails to acknowledge authority binding on this court. ............... 21
CONCLUSION ........................................................................................................ 22
CERTIFICATE OF SERVICE ................................................................................ 23
CERTIFICATE OF COMPLIANCE ....................................................................... 24
iii
TABLE OF AUTHORITIES
Cases Page(s)
Adams v. Mitchell G. Hancock, Inc., 74 So. 3d 1113 (Fla. 5th DCA 2011) .................................................................... 7
Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) ................................................................................. 19
Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d 914 (Fla. 4th DCA 1993) ............................................................ 17, 18
Eady v. Med. Personnel Pool, 377 So. 2d 693 (Fla. 1979) ................................................................................. 14
Fierro v. Crom Corp., 617 So. 2d 379-380 (Fla. 2d DCA 1993)......... 5, 8, 10, 11, 14, 15, 16, 17, 22, 25
Fitts v. Furst, 283 So. 3d 833 (Fla. 2d DCA 2019) ..................................................................... 6
Foremost Dairies of the South v. Godwin, 26 So. 2d 773-774 (Fla. 1946) ..................................................7, 8, 11, 16, 17, 22
Franklin v. Patterson-Franklin, 98 So. 3d 732 (Fla. 2d DCA 2012) ..................................................................... 19
Freeman v. Manpower, Inc., 453 So. 2d 208 (Fla. 1st DCA 1984) ................................................................ 5, 9
Garcia v. City of Hollywood, 966 So. 2d 5 (Fla. 4th DCA 2007) ............................................................ 9, 12, 20
Grillo v. Gorney Beauty Shops Co., 249 So. 2d 13 (Fla. 1971) ................................................................................... 14
Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839 (Fla. 1st DCA 2005) ................................................................ 7, 9
Holloway v. United States, 829 F. Supp 1327 (M.D. Fla. 1993), aff’d, 26 F.3d 1121 (11th Cir. 1994) ..................................................................................................... 8, 9, 11, 15
iv
Huddock v. Grant Motor Co., 228 So. 2d 898 (Fla. 1969) ................................................................................. 14
Jones v. Latex Constr. Co., 460 Fed. Appx. 842 (11th Cir 2012) ....................................................... 10, 12, 15
King v. Stacy, 3:07-CV-467/RV/EMT, 2009 WL 702770 (N.D. Fla. Mar. 17, 2009) ............................................................................................................. 10, 12
Leonard v. Dennis, 465 So. 2d 538 (Fla. 2d DCA 1985) ................................................................... 14
Merwin v. Kellems, 78 So. 2d 865 (Fla. 1955) ............................................................................. 16, 17
Robelo v. United Consumers Club, Inc., 555 So. 2d 395 (Fla. 3d DCA 1990) ................................................... 9, 10, 12, 20
Southern Life & Health Insurance Co. v. Smith, 218 So. 2d 784 (Fla. 1st DCA 1969) .................................................................. 17
Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74-76 (Fla. 3d DCA 1990).................................................... 12, 13, 15
Williams v. Benway, 8:11-CV-1840-T-23TGW, 2012 WL 260637 (M.D. Fla. Jan. 30, 2012) ............................................................................................................. 21, 22
Statutes
49 U.S.C. § 30106 ...................................................................................................... 2
§ 440.092(4), Fla. Stat. ............................................................................................. 14
1
STATEMENT OF THE CASE1
The Court should affirm the trial court’s final summary judgment in favor of
Appellee, Defendant, Cisco Systems, Inc. (“Cisco”). This case arises from an
automobile accident. A Cisco employee, Mohamed Ibrahim, was traveling to work
from the hotel where he was staying on a business trip, when his rental vehicle struck
a vehicle driven by Appellant, Plaintiff, Indonesia Peterson (“Plaintiff”). (R.80-84)2
The trial court concluded that Cisco was entitled to judgment as a matter of law
because Ibrahim was not within the course and scope of his employment with Cisco
when the accident occurred, and, as such, entered final judgment in favor of Cisco.
(R.306–07)
In the Initial Brief, Plaintiff argues that the trial court erred in granting
summary judgment. According to Plaintiff, a genuine issue of material fact exists,
and a jury could conclude that he was within the course and scope of his employment
when he drove from his hotel to his worksite, because Ibrahim was traveling for
work at the time of the accident.
As explained below, longstanding and binding Florida law—including an on-
1 While Plaintiff titles one section of her brief “Statement of the Case and Facts” she omits any actual statement of facts and instead provides only a brief procedural history. 2 References to the Record and the Supplemental Record will be designated as follows: (R.[Page]). Unless otherwise noted, all emphasis is supplied.
2
point decision by this Court—demand that the Court affirm the trial court’s decision.
As a matter of law, an employee is not within the course and scope of his
employment as a matter of law when traveling to work from either home or a hotel.
STATEMENT OF THE FACTS
Ibrahim lived in Virginia and was employed by Cisco as a professional
engineer. (R.145-46, 148, 151). He traveled to Tampa, Florida on Cisco’s behalf to
provide onsite support to Cisco’s customer. (R.146-49) Ibrahim was in Tampa from
August 29, 2016, through September 2, 2016. (R.145-48) During his stay, Ibrahim
stayed in a hotel and rented a vehicle from The Hertz Corporation (“Hertz”), and
Cisco paid for the hotel and the vehicle rental. (R.151; 424-25)
The accident occurred on August 30, 2016, when Plaintiff’s vehicle collided
with Ibrahim’s rental car. (R.149,153) It is undisputed that Ibrahim was driving “on
[his] way to the office when the accident occurred.” (R.148) Specifically, he was
driving from his hotel to the office of Cisco’s customer where he would be working
that day. (R.148)
Plaintiff filed suit against Ibrahim and Hertz. (R.15-19) Plaintiff alleged that
the vehicle was owned by Hertz and that Hertz was vicariously liable for the
accident. (R.16-19) Hertz immediately moved to dismiss the claim pursuant to the
“Graves Amendment,” 49 U.S.C. § 30106, which eliminates vicarious-liability
claims against vehicle lessors when there are no allegations of direct negligence or
3
criminal conduct. (R.30-35) Rather than contest the motion, Plaintiff voluntarily
dismissed Hertz with prejudice. (R.57)
Plaintiff then amended her complaint to add Cisco as a defendant. (R.80) The
only count against Cisco alleged respondeat superior liability. (R.83) Specifically,
Plaintiff alleged that Cisco “is liable for the damages proximately caused by its
employees, such as Defendant, MOHAMED IBRAHIM, committed in the course
and scope of his employment under the principle of respondeat superior.” (R.83)
The Amended Complaint never alleges that Cisco should be liable as the vehicle’s
owner. Indeed, Plaintiff admitted that Hertz owned the vehicle. (R.81 at ¶ 8)
Cisco moved for summary judgment because it was undisputed that the
accident occurred while Ibrahim was traveling from his hotel to the jobsite, and thus
under Florida law, Cisco was not liable as a matter of law. (R.133–37) Plaintiff did
not file a response. After hearing lengthy argument on the motion, the trial court
reserved ruling to read all of the authorities that the parties cited. (R.498) The trial
court also granted the parties leave to file supplemental memoranda, which both
Cisco and Plaintiff submitted. (R.251, 261, 499–500)
On December 1, 2019, the trial court granted Cisco’s motion for summary
judgment and entered final judgment in favor of Cisco. (R.305–07) The trial court
concluded that it was undisputed that when the accident occurred, Ibrahim was
traveling to the work site, so he was not within the course and scope of his
4
employment at the time of the collision. (R.306–07) The trial court also
acknowledged that Ibrahim was on a business trip on behalf of his employer, but
ruled that, except in workers’ compensation actions, Florida law does not contain a
“traveling employee” exception to the general rule that an employer is not liable for
the negligence of employees while they are traveling to and from work. (R.306)
This appeal ensued.
5
SUMMARY OF THE ARGUMENT
The Court should affirm. Plaintiff’s claim against Cisco is based solely upon
a claim that Ibrahim was negligent while he was driving to work. Florida law is
“well settled that an employee driving to or from work is not within the scope of
employment so as to impose liability on the employer.” Freeman v. Manpower, Inc.,
453 So. 2d 208, 209 (Fla. 1st DCA 1984). Accordingly, the trial court properly
granted summary judgment as a matter of law.
Plaintiff asserts that there is a fact question as to whether Ibrahim was driving
to work because he was on a business trip, and Cisco paid for the vehicle rental and
Ibrahim’s hotel. That is inaccurate. Florida courts have long held that an employee
is not within the course and scope of his employment when traveling to a work site.
See Fierro v. Crom Corp., 617 So. 2d 379 (Fla. 2d DCA 1993). They have applied
this longstanding principle in various circumstances, including cases in which the
employee was traveling for work and cases in which the employer paid for, or even
owned, the vehicle involved. Under these authorities, that Ibrahim was driving a
rental car that Cisco paid for, while on an out-of-state business trip, does not change
the outcome.
Further, Plaintiff’s authorities are distinguishable. She conflates workers’
compensation law with tort law by relying upon the “traveling employee doctrine.”
Well-established Florida law holds that the traveling employee doctrine does not
6
apply to negligence cases, and instead is limited to workers’ compensation cases.
And each of the negligence cases that Plaintiff cites is distinguishable. Those cases
address either employees who worked “in the field” without a central office, or
special public-policy concerns that this case does not trigger.
Plaintiff is also wrong to suggest that the Court should deem Cisco, not Hertz,
to be the rental car’s owner. Plaintiff failed to preserve that argument below and
fails now to support that illogical argument with either authority or evidence.
And finally, Plaintiff cannot save her claim by relying on a distinguishable,
unpublished federal district-court opinion. In that case, the employer certified that
the employee was acting in the scope of her employment. Here, Cisco has shown
the opposite.
For each of these reasons, this Court should affirm.
STANDARD OF REVIEW
The issues here all address the trial court’s order granting summary judgment.
This Court reviews de novo a trial court’s order granting summary judgment. See
Fitts v. Furst, 283 So. 3d 833, 837 (Fla. 2d DCA 2019).
Importantly, here, disputing whether an employee was acting within the scope
of his employment does not provide a free pass to a jury. That is because juries
resolve only factual disputes, and unless there is a dispute of fact, “whether an
employee is acting within the course and scope of his employment is a question of
7
law.” Adams v. Mitchell G. Hancock, Inc., 74 So. 3d 1113, 1114 (Fla. 5th DCA
2011).
ARGUMENT
THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO CISCO.
The trial court properly granted Cisco summary judgment. Under
longstanding Florida law, employees headed to or from work—as Ibrahim was
here—are not within the scope of their employment. Their employers are thus not
subject to respondeat superior liability for accidents that occur along the way. That
Ibrahim was on a business trip does not change this analysis. Nor do any of the inapt
cases that Peterson cites. Accordingly, the Court should affirm.
A. An employer is not vicariously liable for an employee’s actions when the employee is traveling to or from work.
Vicarious liability applies to an employee who is working, but not to an
employee on his way to work. Florida courts have long recognized this distinction.
See Foremost Dairies of the South v. Godwin, 26 So. 2d 773, 774 (Fla. 1946). Thus,
Florida courts hold that it “is well established that an employee driving to and from
work is not within the scope of employment so as to impose liability on the
employer.” Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 843 (Fla. 1st
DCA 2005); see also Foremost Dairies, 26 So. 2d at 774 (“merely going to or from
work in his own car,” is not in the course of his employment as a matter of law).
Jurists and lawyers colloquially call this the “going and coming” rule.
8
Fierro v. Crom Corp., 617 So. 2d 379 (Fla. 2d DCA 1993), illustrates the rule.
There, the plaintiff sued the employer of an allegedly negligent driver who caused
an accident. Id. at 379–80. The trial court granted summary judgment in the
employer’s favor, and this Court affirmed because the employee was driving from
the place of work to a temporary residence being utilized while the employee was
away from home. Id. That the employee drove to a temporary residence, as opposed
to his home, did not affect the conclusion. The going-and-coming rule applied and
precluded respondeat superior liability.
Unsurprisingly, Fierro is not an outlier. Courts around the State have applied
similar principles in granting judgment as a matter of law. And importantly, they
have done so in the face of factual nuances from case to case. That courts have
reached the same conclusion despite these nuances underscores the strength of the
underlying principle that employees going to or coming from work are not acting
within the scope of their employment.
For instance, courts have applied the going-and-coming rule even when the
employer paid for various aspects of the vehicle. In Foremost Dairies, although the
employer paid for repairs, licenses, tires, and fuel necessary for the employee to
operate the vehicle, the going-and-coming rule precluded respondeat superior
liability on the employer. 26 So. at 774. Similarly, Holloway v. United States, 829
F. Supp 1327 (M.D. Fla. 1993), aff’d, 26 F.3d 1121 (11th Cir. 1994), addressed an
9
accident involving an Army reservist traveling in his personal vehicle from a training
site to his home in a different state. The court did not impose respondeat superior
liability, even though the Army paid for his travel costs. Id. at 1330. See also
Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 844 (Fla. 1st DCA 2005)
(employee used personal vehicle to come to work in response to an emergency;
respondeat superior did not apply even though her employer would have paid car
fare had she requested it); Freeman v. Manpower Inc., 453 So. 2d 208, 209, (Fla. 1st
DCA 1984), internal citation omitted, (stating in dicta that respondeat superior
would not apply even if the employer had partly maintained the vehicle in question).
Indeed, courts have applied the going-and-coming rule to shield employers
from respondeat superior liability even when the employers owned the vehicle
involved in the accident. By way of example, the accident in Garcia v. City of
Hollywood, 966 So. 2d 5 (Fla. 4th DCA 2007), involved a city-owned police cruiser
that the driver, a police offer, used exclusively for work. Id. at 6. The accident
occurred while the officer was driving to work. Id. Yet the court did not impose
respondeat superior liability. Id. Robelo v. United Consumers Club, Inc., 555 So.
2d 395, 396 (Fla. 3d DCA 1990), addressed an accident involving an employer-
owned vehicle that the employee used for both business and pleasure. Again, the
court invoked the going-and-coming rule and held that the employer was not
vicariously liable for an accident that occurred while the employee was on the way
10
to work. Id. at 397.
Courts have also applied Florida’s going-and-coming rule in cases concerning
out-of-state trips. In Jones v. Latex Constr. Co., 460 Fed. Appx. 842 (11th Cir 2012),
an Alabama resident worked various jobs across Georgia and Florida and traveled
across state lines in an employer-leased vehicle. Jones, 460 Fed. Appx. At 843. The
accident occurred in Florida, and the court applied Florida’s going-and-coming rule
and granted that the employer was not liable as a matter of law. Id. at 845. See also
King v. Stacy, 3:07-CV-467/RV/EMT, 2009 WL 702770 (N.D. Fla. Mar. 17, 2009)
(Florida’s going-and-coming rule entitled employer to judgment in action addressing
employee-owned vehicle involved in accident in Florida, where employee worked,
while returning home to Alabama).
1. Nobody disputes that Ibrahim was traveling to work from his hotel when the accident happened.
The cases discussed above show that, under Florida law, the key question is
whether Ibrahim was working or merely going to work. Fortunately, that key
question has an easy answer.
Ibrahim was going to work. This fact is undisputed. Ibrahim had traveled to
Florida for work. While in Florida, Ibrahim was staying at a hotel. While driving
from his hotel to the work place, he was involved in an accident. These facts mirror
the facts in Fierro. In both cases, the relevant employee was staying at a temporary
residence. In both cases, the employee was involved in an accident while commuting
11
between the temporary residence and the jobsite. The same result that applied in
Fierro—judgment for the employer—should attach here.
2. Plaintiff is wrong to suggest that a genuine issue of material fact precludes summary judgment, because no fact issue exists.
In the Initial Brief, Plaintiff contends that issues of fact precluded summary
judgment. Not so.
Notably, Plaintiff identifies no disputed issues of fact in the record. Instead,
Plaintiff suggests that a jury might decide in her favor based on certain undisputed
facts—specifically that Mr. Ibrahim was traveling for business and that Cisco paid
for his hotel and rental car. But those undisputed facts offer no reason to disregard
decades of settled law holding that a person is not in the course and scope of his or
her employment, for respondeat superior purposes, when driving to work.
Put simply, Plaintiff cannot create a factual dispute out of undisputed facts.
And he certainly cannot do so by turning decades of settled law on its head. As
discussed above, this Court in Fierro held that a traveling employee driving from a
jobsite to a hotel was not in the course and scope of his employment, for purposes
of respondeat superior. Thus, the Fierro Court rejected the very argument Plaintiff
makes here.
That Ibrahim was on a work trip in an employer-financed rental car does not
change the outcome. As Foremost Dairies and Holloway show, it matters not that
12
the employer paid for aspects of the vehicle; the going-and-coming rule still applies.
As Garcia and Robelo show, that would be the case even if Ibrahim had been
traveling in a Cisco-owned vehicle (which he was not). And as Jones and King
show, the going-and-coming rule applies even though Ibrahim was on an out-of-
state trip. Simply put, neither the fact that Cisco paid for the rental car nor the fact
that Ibrahim traveled out of state affects the analysis. Nor do either of those facts
create a dispute that Ibrahim was traveling to work when the accident happened.
That fact remains undisputed.
3. Sussman offers Plaintiff no refuge.
Plaintiff is also wrong to suggest that a fact issue exists under a three-part test
derived from Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 75-76 (Fla.
3d DCA 1990).
First, Sussman is a workers’ compensation case, not a respondeat superior
case. Indeed, Sussman itself explains that the applicable rules in workers-
compensation cases differ from the rules determining when respondeat superior
applies. Id. at 75.
Second, Sussman merely reiterates the familiar factors for determining
respondeat superior liability: The employer may be liable “only if (1) the conduct
is of the kind the employee is hired to perform, (2) the conduct occurs substantially
within the time and space limits authorized or required by the work to be performed,
13
and (3) the conduct is activated at least in part by a purpose to serve the master.” Id.
Third, these factors do not support imposing vicarious liability on Cisco.
Instead, they support summary judgment in Cisco’s favor: (1) Cisco hired Ibrahim
to work on its customers’ computers, not to drive from point to point. So the conduct
that caused the accident is not what Cisco hired Ibrahim to do. (2) Driving to a
customer’s site is not within the time and space required for the work. Instead, the
time and space occurs when the employee begins his actual work at the site of the
customer. (3) Driving to and from work does not serve Cisco. Instead, Ibrahim
begins to serve Cisco only when he begins his actual work at the customer’s site.
And fourth, Plaintiff’s argument proves too much. If driving directly to work
was deemed within the course and scope, each of the cases discussed above would
have had a different result.
In sum, there is no genuine dispute of material fact here. Nor is there any fact
in the record suggesting—much less requiring—a different result. Accordingly, the
trial court properly entered summary judgment. This Court should affirm.
B. The authorities that Plaintiff relies upon are inapposite and do not support reversing summary judgment here.
1. The “traveling employee” rule applicable to workers’ compensation cases cannot apply to Plaintiff’s negligence claim.
Plaintiff’s brief conflates workers’ compensation cases with negligence cases
and ignores longstanding Florida law recognizing that different rules apply to
14
traveling employees in those different contexts.
Plaintiff is wrong to suggest that Mr. Ibrahim was a “traveling employee,” and
so Cisco can be vicariously liable for his negligence while driving to the worksite
from his hotel. For support, Plaintiff offers a trio of workers’ compensation cases—
Eady v. Med. Personnel Pool, 377 So. 2d 693 (Fla. 1979); Grillo v. Gorney Beauty
Shops Co., 249 So. 2d 13 (Fla. 1971); and Huddock v. Grant Motor Co., 228 So. 2d
898 (Fla. 1969). True enough, the traveling-employee exception available in
workers’ compensation cases states that “a traveling employee is deemed to be in
the continuous conduct of his employer’s business including those times when he is
not actually at work but is engaged in such normal and necessary activities as eating
and sleeping.” Leonard v. Dennis, 465 So. 2d 538, 540 (Fla. 2d DCA 1985); see also
§ 440.092(4), Fla. Stat. (“An employee who is required to travel in connection with
his or her employment who suffers an injury while in travel status shall be eligible
for benefits under this chapter only if the injury arises out of and in the course of
employment while he or she is actively engaged in the duties of employment.”). But
that workers’ compensation principle is irrelevant to this negligence case.
Florida law, however, leaves no room for doubt that the “traveling employee”
exception does not apply in negligence actions. Again, this Court’s decision in
Fierro v. Crom Corp., 617 So. 2d at 379–80, is dispositive. In Fierro, as here, the
plaintiff urged this Court to apply the traveling-employee exception to the going-
15
and-coming rule. This Court declined to do so, and affirmed summary judgment in
favor of the employer. Id. at 380. In doing so, the Fierro Court expressly adopted
the reasoning in Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74 (Fla.
3d DCA 1990), 617 So. 2d at 380. In Sussman, the Third District explained why
different rules govern respondeat superior and workers’ compensation:
Different considerations dictate the results in analyzing whether an employer is legally responsible for the conduct of an employee which results in harm to the employee or a fellow employee, and conduct of an employee which results in harm to third persons. . . . The policy goal of the workers’ compensation statute is to provide prompt and limited compensation benefits for job-related injuries and to facilitate the employee's speedy return to employment without regard for fault. . . . Those policy considerations are not at work in cases where third parties make claims against the employer under principles of respondeat superior for injuries caused by the employee. Instead, a narrower analysis is undertaken which relies strictly on tort principles.
Sussman, 557 So. 2d at 75.
Over the past 30 years, numerous courts echoed the conclusion that the
traveling-employee rule available in workers compensation cases does not apply in
negligence actions. E.g., Jones v. Latex Const. Co., 460 Fed. Appx. 842, 844 (11th
Cir. 2012) (“Jones also postulated that the ‘traveling employee’ exception to the
‘going and coming’ exclusion from work time rule might cover Cone since he
relocated to Florida for the job. This exception is inapplicable in tort cases, . . . and
where the employee did not travel away from the jobsite during work.”); Holloway
v. United States, 829 F. Supp 1327, 1329 (M.D. Fla. 1993) (declining to apply
16
“traveling employee” exception to negligence action), aff’d, 26 F.3d 1121 (11th Cir.
1994).
Accordingly, the trial court properly applied settled Florida law and rejected
Plaintiff’s argument that the “traveling employee” rule applicable to workers
compensation cases should be applied here. This Court should affirm. See Fierro,
617 So. 2d at 380.
2. The negligence cases that Plaintiff cites are distinguishable.
Appellant relies on three tort cases to support his claim that this court should
disregard Foremost Dairies and its progeny. Each is distinguishable, and none
disturbs the settled principle of Florida law that distinguishes between “going to
work” and “working.”
Merwin v. Kellems, 78 So. 2d 865, 867 (Fla. 1955), is distinguishable because
there, the employee was not traveling to a jobsite. Indeed, the employee driver in
that case did not have an office; his work involved driving around a “territory” in
the greater Miami area to make sales. Because his home was closer to his sales
territory than his employer’s place of business, he would generally make his sales
and return home without ever visiting his employer. Thus, as the Supreme Court
observed, under that particular arrangement, the driver was actively working once
he left his home to make his sales, and “[u]ntil he returned home he was just as much
on his master’s business as if he had gone to the place of business instead.” Id.
17
Consequently, that driver was still acting in the course and scope of his employment
when he struck the Plaintiff on his drive home from making sales in his territory. Id.
Here, by contrast, the employee was simply driving to the office where he was to
then perform his work for the day. Merwin thus hinged on a fact that is absent here.
Similarly, the employee in Southern Life & Health Insurance Co. v. Smith,
218 So. 2d 784 (Fla. 1st DCA 1969), “had no office and worked out of his home.”
Id. at 785. His job involved collecting money owed to his employer, and, once per
week, he was required to deliver the money he had collected that week to his
employer’s office. Id. The accident occurred while the employee was delivering
the money to his employer. Id. In its analysis, the First District discussed the
apparent tension between Foremost and Merwin, saying: “At first blush it appears
that the Supreme Court held in Foremost that an employee is not on his master’s
business in going to work but held in Merwin that he was on his employer’s business
in returning from work.” Id. at 786. But the court resolved this tension by focusing
on the dispositive question: whether the employee was working, or merely going to
work, at the time of the accident. Because the employee worked from home and was
actively delivering his collections to his employer at the time, the court held he was
actively working. Id. No such facts exist here; to the contrary, as in Fierro, Ibrahim
was simply driving to the office for the day’s work when the accident occurred.
Finally, the outcome in Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d
18
914, 915 (Fla. 4th DCA 1993), turned on public-policy concerns that do not apply
here. In that case, the accident occurred while the employee was driving home after
drinking “between eight and thirteen one-ounce drinks” at a professional conference
that he attended with his employer. After the convention dinner, the employee joined
at the hotel bar his colleagues, customers, and the president of his company, which
“encouraged its employees to entertain its customers, including the purchasing of
drinks.” Id. The employer paid for both the employee’s and the customers’ drinks.
The Carroll Air opinion emphasized policy concerns about liability when an
employer provides enough alcohol to an employee that the employee becomes
intoxicated and then injures a third party. Id. at 916–18. In those situations, the
employer creates the very circumstances that cause the negligent event. Even then,
“[c]ourts across the country are divided on the issue of whether an employer is liable
for injuries to third parties under similar circumstances.” Id. at 916.
Carroll Air is thus distinguishable twice over. The record includes no
evidence of alcohol consumption, much less alcohol that the employer encouraged
anyone to imbibe. So it is instructively distinguishable on its facts. Those facts lead
to a legal distinction: Here, the important public-policy concerns that animated the
outcome in Carroll Air simply do not exist. This is a garden-variety situation where
an employee left his hotel room in the morning and drove to work. Carroll Air
Systems simply does not apply.
19
Accordingly, none of the cases Plaintiff relies upon supports reversing the trial
court’s well-reasoned, amply supported order granting summary judgment. This
Court should affirm.
C. Cisco did not “acknowledge[] ownership” of the rental vehicle.
Notwithstanding that she did not raise the issue below, Plaintiff now asserts
that Cisco “was the contractual owner of the rental vehicle” that Mr. Ibrahim was
driving, and, therefore “cannot deny liability.” Br. at 22. This argument fails
procedurally, factually, and legally.
Procedurally, the argument fails because Plaintiff waived it by failing to
assert this argument below, it is waived. Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla.
2010) (“[T]o be preserved for appeal, the specific legal ground upon which a claim
is based must be raised at trial and a claim different than that will not be heard on
appeal. . . . Appellate review is therefore limited to the specific grounds for objection
raised at trial.”) (internal citations and quotation marks omitted); Franklin v.
Patterson-Franklin, 98 So. 3d 732, 738 (Fla. 2d DCA 2012) (“Because the Former
Husband never presented the argument he makes now to the circuit court, we decline
to consider the argument on appeal from the circuit court's order.”).
Factually, the argument fails for two reasons. First, it makes no sense that
one becomes the “owner” of anything one rents. No wonder Plaintiff cites no
authority for this novel proposition. Second, in the amended complaint, Plaintiff
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recognized and acknowledged that Hertz, not Cisco, owned the subject vehicle.
(R.81 at ¶ 8 (“At all times mentioned in this complaint, The Hertz Corporation
owned a vehicle described as a 2015 Toyota Corolla, tag number N392658, which
was registered in the state of Louisiana.”)). Not only is Plaintiff attempting to assert
a new argument on appeal, but she is taking a position that is completely antithetical
to one she that she took earlier in the case.
Legally, the argument fails under longstanding Florida law. Even if Cisco
were somehow deemed the “owner” of the Hertz rental vehicle—and to be clear, it
should not be—Plaintiff would still not be entitled to recover under the doctrine of
respondeat superior. As the Third District explained, “it does not follow . . . 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.” Robelo v.
United Consumers Club, Inc., 555 So. 2d 395, 397 (Fla. 3d DCA 1989). Here, it is
undisputed that Ibrahim was driving the subject vehicle from his hotel to work. The
established law discussed above shows that he was not in the course and scope of
his employment, no matter whose vehicle he was driving. Therefore, even if Cisco
were deemed the “owner” of the Hertz rental vehicle, the trial court’s decision must
stand. See Garcia v. City of Hollywood, 966 So. 2d 5, 7 (Fla. 4th DCA 2007) (police
officer driving to police station to study for exam an hour before his shift was to start
was not in course and scope of employment notwithstanding driving a police vehicle
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at time of accident).
D. The fact pattern in Williams v. Bentway is different and fails to acknowledge authority binding on this court.
Plaintiff’s fourth and final argument need not detain the Court long, as the
argument relies on a nonbinding, unpublished, distinguishable federal case.
According to Plaintiff, Williams v. Benway, 8:11-CV-1840-T-23TGW, 2012 WL
260637 (M.D. Fla. Jan. 30, 2012), “has a nearly identical fact pattern to the present
case” and, as such, “the rationale utilized in the Williams [case] should be adopted
by the Court and applied to the instan[t] case.” Br. at 24. Not so.
Williams does not have “a nearly identical fact pattern to the present case.
Materially, the defendant in Williams certified that its employee was acting in the
course and scope of her employment at the time of the accident. Id. at *1. Here,
Cisco has not so-certified; instead, Cisco maintains that Ibrahim was not acting in
the scope of his employment when the accident happened. This alone is dispositive.
Williams also is distinguishable on other grounds. There, the person who
caused the accident drove from one city to another to stay with a relative for the
weekend before driving to a third city for work. Id. at *1. Here, the record evidence
shows that the accident occurred while Ibrahim was making his daily commute from
his hotel to his temporary office. And, as Judge Merryday recognized in
summarizing the law, an employee “who negligently injures a bystander while
traveling for the employer acts within the scope of employment unless the injury
22
occurred during a distinct departure or a routine commute.” Id., at *2 (emphasis
added). Since Ibrahim was involved in a “routine commute,” Williams does not
support reversal of the trial court’s order.
Finally, Williams cannot bind this Court. For one thing, it is an unpublished
federal case. For another, to the extent that Williams could be read as supporting
imposition of liability, it would directly conflict with the binding decisions in
Foremost Dairies and Fierro. Williams does not mention—much less overrule—
either of those binding opinions.
CONCLUSION
Based on the foregoing discussion and authorities, Appellee, Cisco Systems,
Inc., respectfully requests that the Court affirm the final judgment in all respects.
Respectfully submitted, /s/Benjamine Reid Benjamine Reid, Esq. (183522) CARLTON FIELDS Miami Tower 100 SE Second Street, Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 [email protected] [email protected] [email protected] [email protected]
ATTORNEYS FOR APPELLEE CISCO SYSTEMS, INC.
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CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
served by electronic mail using the Court’s ePortal system on October 20, 2020, on:
Dennis Hernandez Luis G. Figueroa Dennis Hernandez & Associates, P.A. 3339 W. Kennedy Blvd. Tampa, Florida 33609 Tel: (813) 250-0000 Fax: (813) 258-4567 [email protected] [email protected] [email protected] Attorneys for Plaintiffs/Appellants
/s/ Benjamine Reid
Benjamine Reid