Two days before Christmas, the Louisiana Fifth Circuit Court of Appeal handed down an opinion that should be of note to Louisiana employers. In its opinion, the Court of Appeal held that as a matter of law, an employer can be vicariously liable for damages caused by an employee involved in a motor vehicle accident driving to work if the employee is eligible for a mileage reimbursement. Louisiana employers can be held responsible for their employees’ torts through the concept of “vicarious liability” (known as “respondeat superior” under common law). The concept of vicarious liability is codified in the Louisiana Civil Code at article 2320. For an employer to be held liable for an employee’s tort, (i) there must be an employee-employer relationship between the actor and the purported employer and (ii) the tort must have been committed within the course and scope of the actor’s employment with the employer.
Driving to and from work is generally not considered as being within the course and scope of employment; however, there are exceptions to that rule. In a unanimous December 23, 2024, panel opinion, the Louisiana Fifth Circuit Court of Appeal in Miller v. Shamsnia, 24-100 (La. App. 5th Cir. 12/23/24), ___ So.3d___, 2024WL5196576, held that an employer could be vicariously liable for damages caused by its employee while driving if the employer had a policy of reimbursing its employees for their mileage for travel to a work site, even if the employee did not request the reimbursement and was not paid the mileage. In its opinion, the Miller court expressly recognized that “[g]enerally, an employee going to and coming from work is not in the course and scope of employment.” Miller v. Shamsnia, 24-100 (La. App. 5th Cir. 12/23/24), p. 7, ___So.3d___, ___, 2024WL5196576, *4 (citation omitted). However, the court noted that the general rule is “subject to various exceptions, including situations where an employer has involved himself in the transportation of the employee as an incident to the employment agreement, either through furnishing a vehicle or payment of expenses, or where wages are paid for time spent in traveling.” Id. at p. 8, ___So.3d___, ___, 2024WL5196576, *4 (citations omitted).
In the case before the court, the employee involved in the motor vehicle accident was a neurologist who was driving from the New Orleans area to the Northshore on the Causeway Bridge en route to a hospital visit as part of a weeklong rotation. Deposition testimony reflected the fact that the physicians “were compensated through reimbursement of mileage for use of their personal vehicles [at the Internal Revenue Service’s rate for mileage].” Id. at p. 9, ___So.3d___, ___, 2024WL5196576, *4. Although the employee neither requested the travel reimbursement, nor was he paid any travel reimbursement for the night in question, the court noted that he was “eligible” for the reimbursement. Id. ___So.3d___, ___, 2024WL5196576, *4 (emphasis in original). The court held, “[t]herefore, we find that, under the particular circumstances of this case, the exception to the going and coming rule applies because Tulane offered payment of Dr. Shamsnai’s expenses through travel reimbursement. We further find that Dr. Shamsnai was acting within the course and scope of his employment while traveling to Lakeview Hospital on the night of the accident because Tulane had a policy for providing travel reimbursement to physicians commuting to Lakeview Hospital, and his trip to the hospital was employment related.” Id., ___So.3d___, ___, 2024WL5196576, *4 (emphasis added).
A copy of the Fifth Circuit’s opinion is available at the Fifth Circuit’s website: https://www.fifthcircuit.org/dmzdocs/OI/PO/2024/F8301AAE-4FF9-412B-9F2E-CF3C3714EB91.pdf. Because the parties may seek rehearing before the Fifth Circuit or may seek relief from the Louisiana Supreme Court, the story may not have concluded. Kean Miller will monitor subsequent filings and provide any necessary updates.
