McCloud v. Kimbro (CA2 3/23/10)

Here, for a change, is a plaintiff trying to argue that the defendant was not within the course and scope of employment and a court trying to find that he was. But this intro may spoil the court’s surprise; it drops a couple of early hints but waits until page 8 of 10 to make this clear.

Kimbro was a Phoenix DPS officer on temporary duty in Cochise County, where he rear-ended McCloud’s car while driving to lunch. McCloud promptly gave notice of her claim against the state, DPS, and Kimbro but then blew the one-year statute of limitations. So everybody but Kimbro got out and she was reduced to arguing that he wasn’t working for the state after all.

The rule elsewhere is that travelling employees are in the course and scope even when eating and sleeping, unless on distinctly personal business, but the Arizona precedent for that was in workers comp cases. This opinion adopts the rule for civil cases. Kimbro was working for the state, the claim against him was barred, summary judgment for him affirmed.

McCloud argued that Kimbro was covered by state insurance at the time of the accident. The court counters that under the Administrative Code having state insurance doesn’t create liability. The response is correct but unfortunate. It is an endlessly tempting idea that the scope of insurance shapes the scope of liability rather than the other way around. The courts should squash it definitively rather than by citing a line or two in the Risk Management regulations – but they won’t, since it is occasionally useful to them.

Our own endless temptation is to charge the windmills, so let’s try to improve opinion-drafting:

“Kimbro, as the moving party, is entitled to judgment as a matter of law.” That’s an unfortunate way to phrase it, no doubt an inadvertence, since summary judgment can also be granted against the moving party.

“Under Arizona law, “[a]n employer is vicariously liable for the negligent or tortious acts of its employee acting within the scope and course of employment,” the court explains, and cites a case for it. Please next time remember also to explain what “employer” and “employee” mean. Lawyers who benefit from that sort of thing will also appreciate a review of the the order of the alphabet and a primer on the tying of shoes. And cite cases.

Is it really necessary to include footnotes to discuss the things the court has decided that it doesn’t need to discuss?

Finally, please do remember, honestly, that the insertion of headings and sub-headings is not a substitute for organization, its a crutch for the organizationally-challenged.

(link to opinion)