In matter of first impression for Virginia state and federal courts, a federal court in Virginia held that delivery of medication to a home care agency client by an agency employee that was a “personal favor” for the client was not done in the agency’s business operations and that there is no coverage under the agency’s auto liability coverage. Russell Lloyd Potter, Alverta Davis, et al. v. American Alternative Insurance Corporation et al., No. 2:15-cv-266, 2016 WL 3766309 (E.D. Va. July 8, 2016).
The dispute arose out of an auto accident where an employee of a home care agency collided with another auto. The employee claimed that at the time of the accident she had clocked out of work and was running errands, including delivering medication to a client which she characterized as personal a personal favor for the client. The driver of the other auto filed a declaratory judgment action against the agency’s CGL insurer, whose policy included an endorsement providing coverage for bodily injury, “arising out of the use of a ‘non-owned auto’, by you or your ‘employees’ or ‘volunteer workers’ in the course of your business operations.” The court examined (1) the extent to which the vehicle at issue was used in the course and scope of the agency’s business, (2) the extent over which the agency held or exerted a right of control over the vehicle and its driver, and (3) the scope of Davis’s employment. The court noted that “[c]ourts should take an employee’s admission that he or she acted outside the scope of his or her employment seriously.” The court placed particular emphasis on the employee’s statement that she was running personal errands at the time of the accident and therefore concluded that she was acting outside the scope of her employment at the time of the accident.