Respondeat Superior: Actual and Ostensible Agency

Monarrez v. Automobile Club of Southern California, (Second District, December 12, 2012) 149 Cal.Rptr.3d 457, 12 Cal. Daily Op. Serv. 12, 895, 2012 Daily Journal D.A.R. 15,745

A man who suffered catastrophic injuries when he was struck by a hit and run driver while receiving roadside assistance for a flat tire, filed an action against the Automobile Club of Southern California. The complaint alleged that the tow truck driver, who was employed by a dba known as AM/PM Towing and Auto Repair, was inadequately trained and had negligently allowed the plaintiff to remain in a dangerous and vulnerable location of the freeway shoulder, contrary to industry practice.

The Automobile Club moved for summary judgment, contending that it had no duty to the plaintiff, in that the driver was an independent contractor and the contract with his employer expressly defined their relationship as such. The trial court granted summary judgment, finding that the Auto Club had no control of the manner or means by which the driver’s employer performed its emergency roadside service. However, the appellate court reversed, holding that the evidence raised triable issues of fact as to both actual and ostensible agency:

“[W]e cannot conclude that Auto Club has no right to control the manner and means by which Hirad and its technicians accomplish their work. On the contrary, Auto Club trains the technicians how to do the work, dispatches calls to them, then follows up with inspections and customer surveys to ensure that the technicians are maintaining the proper physical appearance and using Auto Club-approved methods. The work performed by the technicians is Auto Club’s regular business, not a one-off job or occasional event. This is full-time employment carrying out Auto Club’s business of providing roadside assistance, under the direction of Auto Club. . . . If Auto Club recommends the discipline or termination of a technician, failure to follow this recommendation could cause the station’s contract to be terminated or calls directed elsewhere.
. . .
A trier of fact could also find that Hirad is the ostensible agent of Auto Club. This is acknowledged by Auto Club in the first sentence of the Training Manual: “To members, the service technician who responds to an emergency road service call is the Auto Club.” The uniform of the technician bears only the logo of Auto Club. Their trucks bear the Auto Club logo. The owner of Hirad testified that when technicians respond to a call they are viewed by motorists as Auto Club, not as an independent contractor. When technicians approach motorists, they identify themselves as Auto Club to instill confidence.
. . .
Auto Club seeks to wriggle out of the case by arguing that the tow trucks and the technicians wear the logo of AAA, not Auto Club, so members could not believe that the tow trucks and technicians are agents of Auto Club. Monarrez is a member of Auto Club, and the Training Manual plainly says that to members, the technician “is” the Auto Club. When calls are made for emergency service, they go to Auto Club. If any confusion is created by using the national AAA logo, Auto Club is responsible for the confusion, as a member of AAA.”