A recent decision at the Court of Appeals examines the “going and coming” rule and presents a new spin on what the courts consider a foreseeable or minor deviation from the regular commute. In this case, the employee was required to drive her personal vehicle for work and a deviation on the way home for frozen yogurt and then a yoga class was not considered a “substantial deviation” taking the employee outside of the course and scope of her employment. (Majid Moradi v. March USA, Second Appellate District Court of Appeal, B239858)

While the case arose from a civil action in which the employee’s conduct was imputed to the employer, the analysis is equally applicable to workers’ compensation claims and injuries sustained during a regular commute.

Anyone familiar with the going and coming rule is familiar with the Hinojosa v. WCAB, 8 Cal.3d 150, case decided by the California Supreme Court in 1972. In that case the Supreme Court referenced the six (6) exceptions to the general rule that an employee’s regular commute to a fixed work location is not part of one’s course and scope of work. As such injuries suffered during such a regular commute are not covered by workers compensation.

The Hinojosa case relied on the exception of an employee’s requirement to have a vehicle in order to do their job. The farm workers in Hinojosa traveled between fields to do their normal work. In order to move between fields a vehicle was necessary since the employer did not provide transportation between the various fields which were work sites. The Supreme Court held that where a vehicle is required to do one’s job the regular commute was part of the work day. Later cases held that only a significant deviation from the regular commute by such an employee would take the employee outside the course and scope of employment.

Judy Bamberger worked for Marsh USA as a salesperson. In that position she was required to drive her personal car to work. She generated sales by making presentations, providing educational seminars, meeting prospective clients typically at their location and convenience with meetings occurring before, during and after regular working hours. The Court specifically noted that she was allowed to stop and see prospective clients on the way home.

Marsh USA provided a car allowance to their salespeople which offset the cost of a lease or car payment. Additionally, Marsh USA reimburse the salespersons for business mileage.

On April 15, 2010, Bamberger used her vehicle to transport herself and some co-employees to a Marsh USA sponsored program at a middle school. After the program she returned to the office. It was the end of the workday.

Bamberger planned to stop on the way home for some frozen yogurt and thereafter to attend a 6:00 p.m. yoga class. The frozen yogurt shop, yoga studio and Bamberger’s home were all located in Woodland Hills, California.

While attempting to negotiate traffic and enter the driveway of the frozen yogurt shop, Bamberger struck an oncoming motorcyclist.

In the ensuing lawsuit, the motorcyclist named Bamberger and Marsh USA as defendants. Marsh USA moved for summary judgment on the grounds that Bamberger was not in the course and scope of employment and therefore her negligence was not imputed to her employer.

The issue in the case was whether the employee’s “deviation” from her regular commute home was sufficient to take her outside of the required vehicle exception to the going and coming rule.

The Court found that driving a required vehicle provides an “essential instrumentality” for the performance of the employer’s work. When a vehicle must be provided by an employee, the employer benefits by not having to have available an office car and yet possessing a means by which offsite visits can be performed by its employees. As such, when an employer requires an employee to use a personal vehicle it exercises meaningful control over the method of the commute by compelling the employee to foreswear the use of carpooling, walking, public transportation or just being dropped off at work. As such, the required vehicle exception to the going and coming rule applied in this case and Ms. Bamberger’s commute home was considered to be in the course and scope of employment.

That did not end the analysis. Because Bamberger was to make two stops on the way home for personal convenience, the question of whether she sufficiently deviated from the commute became the issue.

In finding that stopping for yogurt and yoga was a minor deviation, the Court noted that the personal objective of stopping for both were activities that did not constitute an unforeseeable, substantial departure from her commute. Rather, they were a foreseeable minor deviation on her drive home. The Court went on to state:

“In addition, Bamberger’s planned deviation was necessary for her comfort, convenience, health, and welfare. We can think of no conduct more predictable than an employee stopping [for something to eat or taking an exercise class] . . . on the way home. Where, as here, the trip home is made for the benefit of the employer . . . accidents occurring during such minor and foreseeable deviations become part of the ‘inevitable toll of a lawful enterprise.’”

The Court went on to state that it would have been unreasonable and inconvenient for Bamberger to drive all the way home, stop momentarily, turn around and drive back to the yogurt shop and yoga studio.

The case has applicability to workers’ compensation claims where accidents in the normal commute cause injury to an employee. The case represents a further twist on what constitutes a deviation sufficient to overcome the required vehicle exception to the going and coming rule. The case can be found at