Engler v. Gulf Interstate (CA1 8/9/10)

This opinion attempts to correct that in McCloud.

Gray, a Gulf employee, drove a car that hit Engler. Gray normally works in Houston but was living in a hotel in Yuma while commuting daily to a Gulf project in Mexico. The accident happened when Gray was driving back to the hotel from dinner, after the work day was over. The trial court granted summary judgment for Gulf, concluding that Gray was not within the course and scope. Division Two then issued McCloud, holding that meals of an employee working out of town are in the course and scope, but the trial court refused to change its mind. Engler appealed.

Division One affirms. McCloud applied a workers’ compensation rule to a respondeat superior case. This opinion rejects it, citing Robarge (1982) for the principle that the two have a different focus (relatedness to a job versus employer’s right of control) and Carnes for the idea that they have different purposes and effects (compensation versus encouraging proper supervision by creating liability to third parties).

So, since Gulf had no control over Gray’s going to dinner he wasn’t in the course and scope.

Whoever wrote this opinion, signed by Judge Winthrop, is a true believer in the classic Division One way of doing things: 24 pages, only nine footnotes but many of them quite long, a boilerplate page about the standard of review, etc. But we’ll cut this one a break since, first, this is correct and McCloud is wrong and, second, since you probably do need to explain yourself at length when disagreeing with another panel. (Yes, we said panel; although McCloud was a Division Two case this opinion doesn’t mention that, instead using the now-politically-correct “a panel of the Arizona Court of Appeals.”)

(link to opinion)