Work, Employer & Commercial Vehicle Crashes in Washington
A crash involving work can open an entirely different layer of liability and insurance. The negligent driver may be personally liable, the employer may be vicariously liable for conduct within the scope of employment, commercial automobile insurance may apply, and the injured worker may simultaneously have workers' compensation and third-party rights. Vehicle ownership alone does not answer these questions.
Work activity can add an employer and an entirely different insurance program
When a driver is working at the time of a collision, the coverage search should expand immediately beyond the vehicle's ordinary insurance card.
Individual liability
The employee who negligently operates the vehicle can remain personally responsible for the crash.
Vicarious liability
The employer may also be responsible when the employee was acting within the course and scope of employment.
Commercial coverage
A business auto policy, hired-auto coverage, nonowned-auto coverage, umbrella insurance or motor-carrier coverage may apply.
Washington uses scope of employment to determine vicarious liability
Under respondeat superior, an employer can be responsible for an employee's negligent conduct committed within the course and scope of employment.
Washington states the scope-of-employment test as whether the employee was performing duties required by the employment contract or specific employer direction, or otherwise was furthering the employer's interest.
Relevant facts can include:
- where the employee was going;
- why the trip was being made;
- whether the employer directed the trip;
- whether the employee was being paid;
- whether mileage or vehicle expenses were reimbursed;
- whether customers, tools or coworkers were being transported;
- whether a delivery or work errand was involved;
- whether the employee was on call;
- whether the trip benefited the employer; and
- whether the employee materially departed from the employer's business.
A mixed personal and business trip can still fall within the scope of employment
A work trip does not necessarily cease to be employment-related merely because the employee also receives some personal benefit.
Washington recognized that where an employee combines personal business with the employer's business, the employer can remain responsible when serving the employer's interests actuates the employee to an appreciable extent.
A state employee was driving from employer-required travel in a state vehicle while also serving personal interests by allowing his wife to accompany him. The existence of the personal component did not necessarily remove the driving from the scope of employment.
An ordinary commute is generally different from employer-directed travel
As a general Washington rule, an employee merely driving a personal automobile between home and the ordinary workplace is not acting within the scope of employment.
States the general rule that an employee traveling home after completing the day's work ordinarily is not acting within the scope of employment merely by driving the employee's own automobile.
But a trip can move outside that ordinary commute rule where work creates the necessity for travel or the employee is undertaking a business mission.
Employer liability was supported where the employee was being paid, was under employer direction, used his vehicle to transport workers for the employer's business and was compensated for that use.
Employer ownership of the vehicle is important—but not automatically decisive
When an employee is driving a vehicle owned, leased or furnished by the employer, ownership is powerful evidence that should be investigated immediately.
Washington recognizes a factual presumption of agency when an employee is operating an employer's automobile. The presumption can be rebutted by sufficient evidence that the employee was not acting within the scope of employment.
Obtain:
- vehicle title or lease;
- company vehicle-use policy;
- dispatch or assignment records;
- GPS or telematics records;
- fuel-card records;
- driver logs;
- time records;
- expense reimbursements; and
- communications concerning the trip.
An employee's personal vehicle can still create employer liability
Respondeat superior does not depend entirely on who owns the automobile.
Washington distinguishes permission to operate a vehicle from the respondeat-superior inquiry. The relevant employer-liability question is whether the employee's vehicle use was at the employer's direction or for the employer's benefit.
Examples that warrant a business-coverage investigation include an employee driving a personal vehicle to:
- visit a customer;
- make a delivery;
- pick up supplies;
- travel between job sites;
- transport another employee;
- attend employer-required training;
- perform an employer-directed errand; or
- respond to a work call away from the usual workplace.
Employer liability can also arise directly from the employer's own negligence
Vicarious liability and direct employer negligence are different theories.
Employee's negligence
The employer is held responsible for tortious conduct of an employee acting within the scope of employment.
Employer's own negligence
The employer may independently be negligent in hiring, retaining, supervising or entrusting responsibilities to an unsafe employee.
Washington's Supreme Court confirmed that negligent retention and vicarious liability are analytically distinct causes of action and may be pleaded together even when the employer admits the employee acted within the scope of employment.
Explains that negligent hiring, retention and supervision are based on the employer's own duty and are analytically distinct from respondeat superior.
Direct employer negligence requires its own factual foundation
A direct-liability theory may require evidence concerning what the employer knew or reasonably should have known about the employee.
In a vehicle case, potentially relevant evidence can include:
- driver qualification records;
- driving history;
- license suspensions;
- prior crashes;
- prior safety complaints;
- drug or alcohol violations;
- commercial-driver records;
- training history;
- disciplinary files;
- employer safety policies; and
- knowledge of conduct making continued vehicle operation unsafe.
Commercial automobile insurance must be read as its own contract
A business automobile policy can differ substantially from an ordinary personal auto policy.
The named insured may be:
- a corporation;
- limited liability company;
- partnership;
- sole proprietorship;
- government entity; or
- other organization.
Coverage can depend on categories of covered automobiles and endorsements addressing:
- owned autos;
- specifically described autos;
- hired autos;
- nonowned autos;
- employees;
- executive officers;
- leased vehicles;
- trailers;
- temporary substitutes;
- UIM; and
- umbrella or excess insurance.
Hired-auto and nonowned-auto coverage can matter when the company does not own the vehicle
Vehicle obtained for business use
Commercial policies may extend liability coverage to qualifying vehicles rented, leased, hired or borrowed by the business.
Vehicle the business does not own
Coverage may address employee-owned vehicles used in the business even though the vehicle is not owned by the company.
A crash involving an employee's personal vehicle used for work therefore may require analysis of both:
- the employee's personal automobile policy; and
- the employer's business-auto or nonowned-auto insurance.
Commercial UIM coverage does not automatically protect every employee everywhere
Washington's UIM statute applies broadly to qualifying automobile liability policies, but the employee must still establish insured status.
The president and employee of a corporation sought UIM benefits under the corporation's business-auto policy after being struck while walking on personal business. The corporation—not the employee individually— was the named insured. Because he was not using a covered auto and did not otherwise qualify as a liability insured under the circumstances, he was not entitled to UIM under that policy.
Review:
- the named insured;
- who-is-an-insured provisions;
- covered-auto symbols or classifications;
- UIM endorsements;
- PIP or medical-pay endorsements;
- employee endorsements; and
- the employee's own household insurance.
A worker injured in a work-related crash may have both industrial-insurance and third-party issues
Washington's Industrial Insurance Act provides workers' compensation for qualifying injuries received in the course of employment and generally substitutes that system for ordinary tort claims against the employer.
Washington provides sure and certain relief for qualifying work injuries and generally withdraws those employer-worker injuries from ordinary private tort litigation except where Title 51 provides otherwise.
An injured worker may still have a claim against an outside third party
RCW 51.24.030 permits an injured worker to seek damages from a liable third person who is not in the worker's same employ.
A work-related crash can therefore involve:
- workers' compensation benefits;
- a tort claim against an outside negligent driver;
- UIM benefits;
- commercial auto benefits; and
- statutory reimbursement or lien rights.
Establishes Washington's statutory distribution system when an injured worker recovers damages from a third party and gives the department or self-insurer a lien for its statutory share.
Washington treats employer-owned UIM differently from the worker's personal UIM
RCW 51.24.030 contains a particularly important automobile-insurance rule.
This makes policy ownership important when a worker injured on the job has several possible UIM policies.
Workers' compensation and automobile liability insurance are separate systems
A liability policy is not automatically workers' compensation insurance.
Even RCW 46.29.490's certified motor-vehicle policy framework expressly recognizes that a motor-vehicle liability policy need not insure obligations imposed by workers' compensation law or specified employee bodily-injury liabilities.
Commercial motor carriers can have additional financial-responsibility requirements
A commercial vehicle may be subject to insurance requirements beyond the ordinary Washington 25/50/10 minimum applicable to typical private vehicles.
For example, RCW 81.80.190 requires qualifying common and contract motor carriers to maintain liability and property-damage insurance or security at levels determined by the Washington Utilities and Transportation Commission.
Washington State Patrol commercial-motor-vehicle safety rules also must address financial responsibility and other safety subjects consistently with the governing state and federal framework.
Passenger transportation companies can have still different statutory limits and regulatory requirements.
Build a work-vehicle coverage map
| Possible source | Question to investigate |
|---|---|
| Employee's personal auto policy | Does liability coverage apply despite work or business use? |
| Employer's business auto policy | Is the employee an insured and is the vehicle a covered auto? |
| Nonowned-auto coverage | Does the employer's policy cover employee-owned vehicles used in the business? |
| Hired-auto coverage | Was the vehicle rented, hired or borrowed by the employer? |
| Commercial UIM | Does the injured worker qualify as an insured under the UIM endorsement? |
| Personal / household UIM | Does first-party coverage follow the injured employee independently? |
| Umbrella / excess | Is another liability layer available above the commercial auto policy? |
| Workers' compensation | Was the injured person acting in the course of employment? |
| Motor-carrier insurance | Do state or federal commercial-carrier requirements add insurance or security? |
Citizen workflow after a Washington work-related vehicle crash
Bottom line
When a Washington crash has any connection to work, expand the investigation immediately. Determine what the driver was doing, whose interests the trip served, who owned the vehicle and whether the employer directed, paid for or benefited from the travel. An employer can be vicariously liable for an employee acting within the scope of employment even when the employee drives a personal vehicle. Separately, the employer may face direct liability for its own negligent hiring, retention or supervision when the evidence supports that theory. Commercial insurance must be obtained and read independently: business auto, hired-auto, nonowned-auto, UIM, umbrella and regulated motor-carrier coverage may all matter. If the injured person was working, add Washington workers' compensation and chapter 51.24 reimbursement rules to the coverage map rather than treating the crash as an ordinary two-driver automobile claim.