Maybe it hasn’t happened to your integration company yet, but the odds are at some point it will. Sooner or later, one of your technicians, salespersons or project managers is going to cause vehicle damage to a company car. It just happened to Noel Pittman of Provision Inc. in Birmingham, Ala.
One of his technicians actually totaled a company vehicle while driving distracted. So what can he do? Pittman asked legal expert Ken Kirschenbaum of Kischenbaum & Kirschenbaum and columnist for CE Pro’s sister publication Security Sales & Integration if he can institute a policy that requires employees to pay for vehicle damage to trucks and vans caused by their own negligence, specifically texting while driving.
According to Kirschenbaum, the answer is a big fat “no.”
Indeed, Kirschenbaum ponders, “Why just texting? How about driving with ham sandwich in one hand and cup of coffee in the other; steering with knees. What about adjusting the radio or the climate control or checking other vehicle settings and taking eye off the road?
“What you are really asking is: Can you make your employee pay for damaging your vehicle when the employee is negligent or violating a driving law? The answer is no, you can't require the employee to pay for the damage. But the good news is you can fire the employee for violation terms of employment.”
He notes that the general and prevailing law is that an integrator cannot sue his employee for damages such as these. An integrator is responsible and liable for the negligence of his employee (it is called vicarious liability), but it doesn't work the other way around.
Kirschenbaum says there are rare exceptions to this prevailing law, such as if an employee willfully or purposefully intends to cause damage, but otherwise the damages are deemed to be “a cost of doing business to the employer.”
Does Your Insurance Cover Employees' Personal Cars?
But what is the law when an employee is driving his or her own personal vehicle for business purposes? The answer is even more complicated. What happens if an employee crashes his own car while texting?
“I know you already answered the question with, 'No problem, who cares,'” quips Kirschenbaum.
Not so fast…
What if, besides causing vehicle damage to his own car, the technician seriously injures another driver?
“The employee, driving the employee's personal vehicle, was clearly ‘working,’ perhaps going to the bank, or after having checked in at the office is headed to a job. For the first time you wonder, how much insurance does this employee carry? You find out it's the minimum required by law, far less than the claim will be for the injuries suffered,” says Kirschenbaum.
Uh-oh. If this scenario occurs, the injured party can not only sue the employee but also the integration company because the employee was working and within the scope of employment.
“You need to find out if you have any insurance that covers you for your employees' negligence driving their personal vehicles,” advises Kirschenbaum, adding, “Yes, you can get insurance for that.”