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Royal Insurance Co. v. Fisher6/22/1999
In the Court of Appeals of Georgia
BA-026
This case is a continuation of Barfield v. Royal Ins. Co. of America, 228 Ga. App. 841 (492 SE2d 688) (1997).
It is a declaratory judgment action by Royal Insurance Company of America and its insured, Single Source Roofing Corporation, to determine their liability for damages arising from an automobile collision involving Single Source's employee Fisher. Fisher and the occupants of other vehicles involved in the collision were named as defendants.
At the time of the collision, Fisher was driving a company-owned pickup truck while he was under the influence of alcohol. As a result, he was charged with and later pleaded guilty to DUI and serious injury by vehicle. Because Fisher violated a company rule against drinking and driving, Royal and Single Source argued (1) he was not a covered driver under the Royal policy, and (2) he was not acting within the scope of his employment when the collision occurred.
The prior appeal was from the trial court's grant of summary judgment to Royal and Single Source on both issues. In Division 1 of our opinion we affirmed the trial court's finding on the first. In Division 2 we reversed its ruling on the second. We held that the trial court erred when it found that Fisher was outside the scope of employment merely because he violated Single Source's rule against driving and drinking. We then had to decide whether, for any other reason, Royal was entitled to summary judgment on the scope-of-employment issue.
In answering this question in the negative, we noted that a presumption arose that Fisher was acting within the scope of his employment since he was driving Single Source's truck at the time of the collision. We recognized that the burden then shifted to the employer to rebut the presumption by clear, positive, and uncontradicted evidence showing that the servant was not in the scope of his employment. From Fisher's testimony, it was unclear whether at the time of the collision he had aborted an errand required by his employer or was continuing in its pursuit. We thus concluded that a jury could determine that Fisher was engaged in the errand and was acting within the scope of his employment.At the trial held on remand, the jury found that Fisher was acting within the scope of his employment when the collision occurred. Held:
1. Royal and Single Source contend that the court erred in charging the jury that the presumption Fisher was in the scope of his employment could only be rebutted by evidence which was clear, positive, and uncontradicted to the contrary. They argue that this is a summary-judgment burden which does not apply at the trial of the case.
When an employee is involved in a collision, Georgia law raises a presumption that he is acting within the scope of his employment. Gordy Constr. Co. v. Stewart, 216 Ga. App. 882, 882-883 (456 SE2d 245) (1995). Once this presumption arises, the burden then shifts to the employer to rebut it by evidence that is "clear, positive and uncontradicted and that shows that the servant was not in the scope of his employment." Id. If the employer shoulders this burden, then the opposite party must show some other fact, in addition to the fact which gave rise to the presumption, that the employee was acting within the scope of his employment. See id. If this other fact is direct evidence, that is sufficient for the case to go to a jury; if it is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the employer's motion for summary judgment. See id.
Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979), holds that
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