The Driver Was Working—Or Were They? Three Florida Cases Draw the Line
The driver has a company badge in the car. A supervisor’s name is lighting up the phone. The crash happens on a route between a jobsite and a place where workers are staying.
Was the driver “working”?
That everyday question is too broad for a Florida injury claim. An employer can be responsible for an employee’s negligent driving under respondeat superior, but only when the driving occurred within the scope of employment. Courts look past labels such as “on duty,” “salaried,” “company car,” and “work call.” They ask what the employee was doing, when and where it happened, whether the employer had the right to control the conduct, and whose purpose the trip served.
Three Florida appellate decisions show how sharply the answer can change when only a few facts change.
The legal test asks about conduct, time and place, and purpose
Florida’s current civil jury instructions treat an employer’s responsibility for an employee as a preliminary vicarious-liability issue. Florida appellate courts apply a three-part scope-of-employment test: the conduct must be the kind the employee was hired to perform; it must occur substantially within the time and space authorized or required by the work; and it must be motivated at least partly by a purpose to serve the employer.
The doctrine can make an employer responsible for compensatory damages even when the employer did nothing independently negligent. The theory is vicarious: the employee’s negligence is attributed to the employer because it occurred within the employment relationship.
That does not mean every act performed during paid hours belongs to the employer, or that conduct after clocking out necessarily becomes personal. Whether the employee was paid, reimbursed for mileage, using a company vehicle, carrying work materials, following a dispatch, or returning to a jobsite may be evidence. None is a universal switch.
Kulzer: the hamburger did not necessarily end the business trip
In Kulzer v. Way and Greenleaf Trust, an employee temporarily assigned to Florida was inspecting and preparing a condominium for sale. During the workday, she left the condominium, bought packing supplies, made another stop, picked up a hamburger, and ate it in a McDonald’s parking lot. She then headed back to the condominium for a scheduled business meeting and caused a crash.
The trial court granted summary judgment to the employer under the coming-and-going rule. The Fifth District reversed in February 2024.
This was not a simple commute at the beginning or end of the employee’s day. She had been working at the condominium for hours, described the midday journey as related to her assignment, and was returning for a work meeting. At least one errand was unquestionably part of her job. The purpose of another stop was poorly developed, and the lunch stop took place during the same journey.
The appellate court concluded that the evidence did not entitle the employer to judgment as a matter of law. The trip was motivated at least partly by the employer’s business, and factual questions remained about its authorized time, place, and purpose.
The practical lesson is not that every lunch trip falls within employment. It is that a personal stop during a broader business journey may be a detour rather than a complete abandonment of the employer’s mission. The route before and after the stop matters.
McKee: a possible work call did not transform the commute
McKee v. Crestline Hotels & Resorts reached the other side of the line. A hotel banquet manager left an event before it ended and began driving home in his personal vehicle. The vehicle struck two pedestrians in a crosswalk, killing one and seriously injuring the other.
Phone records and testimony supported an argument that the manager was calling or attempting to call the hotel around the time of the collision and later discussed banquet instructions with a captain. For purposes of its analysis, the Fourth District assumed that a jury could find he was trying to further the employer’s interests with the call.
The court nevertheless affirmed summary judgment for the hotel in January 2024. The negligent conduct at issue was driving while using a personal phone during a personal commute. Driving was not an integral part of the manager’s banquet job, the employer had not hired him to use his car as a mobile office, and it did not control how he used his phone in his vehicle. A work-related purpose behind the call did not make the driving itself a risk incident to operating the hotel.
This distinction is easy to miss. An employee can discuss work without every simultaneous act becoming conduct within the scope of employment. The question is not merely whether work appeared somewhere in the timeline. It is whether the negligent conduct satisfied the full scope-of-employment test.
Wood: employer-provided lodging did not make the ride home a work trip
In Wood v. Royal Plus, Inc., a day laborer finished work at a hurricane-recovery site, clocked out, and drove toward a warehouse where he and other workers were lodging. He caused a crash that seriously injured a passenger in another vehicle.
The Third District affirmed summary judgment for Royal Plus in May 2024. The worker was off the clock, was traveling to the place where he slept, and was not shown to be reporting there for another employment duty. The court applied the tort version of the coming-and-going rule and declined to import broader workers’ compensation exceptions into the third party’s respondeat-superior claim.
The result also shows why employer-provided lodging, transportation convenience, or an unusual work location does not automatically make every trip a business trip. The employer must still have the relationship and control required for vicarious liability, and the employee’s conduct must satisfy the purpose, time-and-place, and work-nature elements.
The coming-and-going rule is a starting point, not a description of every drive
Florida generally does not hold an employer vicariously liable for an employee’s ordinary commute. The rationale is practical: once the employee leaves the jobsite and travels home for personal purposes, the employer usually has little control over the route, vehicle, or driving.
A special errand can change the analysis. If an employee is transporting equipment, making a bank deposit, picking up supplies, traveling between assigned locations, responding to a dispatch, or taking a route required for an employer’s purpose, the drive may be more than an ordinary commute. A mixed-purpose trip can also create a factual dispute when personal and business objectives overlap.
A deviation can temporarily remove an employee from the scope of employment. A substantial personal mission may amount to an abandonment of the employer’s business. A brief stop for food or another ordinary personal need may be treated differently, especially if the employee resumes the employer’s task before the crash. Timing, distance, instructions, and the employee’s actual destination help distinguish a slight detour from a separate journey.
Workers’ compensation “course of employment” does not answer the tort claim
Cases about an employee seeking workers’ compensation benefits often discuss the coming-and-going rule, traveling employees, special errands, and employer-provided transportation. Those decisions can be informative, but they do not automatically control a third party’s negligence claim against an employer.
Wood emphasized the difference. Workers’ compensation is a statutory system designed to provide limited job-related benefits without requiring proof of fault. Respondeat superior allocates tort responsibility for harm an employee causes to someone else. Florida courts use a narrower tort analysis focused on agency, control, and the employee’s purpose at the time of the negligent act.
An insurer’s conclusion that an employee was or was not “in the course of employment” for benefits, payroll, or internal reporting is therefore not necessarily the last word on the company’s tort liability.
Company ownership can create a separate path to liability
Scope of employment is not the only potential basis for responsibility. If the business owns the vehicle and permitted the driver to use it, Florida’s dangerous-instrumentality doctrine may create owner liability independently of respondeat superior.
The Florida Supreme Court explained in Aurbach v. Gallina that the doctrine generally imposes vicarious liability on a vehicle owner who voluntarily entrusts the vehicle to a person whose negligent operation causes harm. Ownership, beneficial control, permission, leases, and statutory exceptions can complicate the rule. Federal law also treats qualifying rental and leasing companies differently, as Tucker Law’s discussion of Florida rental-car liability and the Graves Amendment explains.
As a result, an employer may defeat the allegation that its employee was acting within the scope of work yet still face a separate owner-liability question. Conversely, an employer can be vicariously liable for work-related driving even when the employee owns the car. Vehicle ownership and scope of employment should be investigated separately.
Direct negligence asks what the company itself did
A claimant may also investigate whether the company itself was negligent in hiring, retaining, supervising, maintaining, or entrusting a vehicle. Those theories are not automatic substitutes for a weak scope-of-employment claim. They require proof of a duty, a breach by the company, foreseeability or legally relevant knowledge where required, and causation.
In Wood, the Third District declined to create a general common-law duty requiring an employer to run a driving-record background check on employees who would operate a vehicle. The court also noted the lack of evidence that Royal Plus knew or should have known the driver’s license was suspended and the lack of company control over the vehicle.
Different facts can produce a different investigation. A company that hires someone specifically to drive a commercial vehicle, receives safety complaints, owns and maintains the vehicle, ignores license restrictions, or dispatches a driver under unsafe conditions presents questions not answered merely by showing that a person was an employee.
Tucker Law’s existing article on Florida delivery-driver accident claims addresses the additional relationships and insurance issues that can arise when a driver works through a contractor, delivery platform, subcontractor, or fleet operator.
The employment file is not the only evidence file
Timecards and payroll records matter, but the most revealing evidence may be created outside human resources. Dispatch messages can show why the employee was driving. GPS and telematics can establish the route and stops. Expense reports may identify fuel, meals, tolls, mileage, or supplies charged to the employer. Calendar entries and emails can connect the destination to a meeting or assignment.
Useful evidence may also include job descriptions, vehicle-use policies, driver agreements, supervisor texts, work-app data, delivery manifests, cargo records, call logs, branch video, keys and checkout records, and commercial auto policies. When the employee uses a personal vehicle, records showing a mileage allowance, required insurance, nonowned-auto coverage, or regular travel duties may help explain the business relationship without deciding it by themselves.
The evidence can disappear quickly. Apps overwrite location history, employers recycle devices, fleet vehicles are repaired, and businesses apply routine retention schedules. A preservation request should identify the driver, vehicle, date, route, jobsite, relevant accounts, and the categories of electronically stored information at issue.
Trace the trip before deciding who was working
The best analysis usually reconstructs the day as a timeline. Where did the employee begin? What assignment had been given? What was in the vehicle? Which stops served the business, which were personal, and had the employee returned to the business purpose before the collision? Who owned the vehicle, who authorized its use, and which policies insured it?
Those questions are especially important after crashes involving delivery drivers, service technicians, salespeople, construction crews, home-health workers, and employees who travel between multiple locations. Tucker Law handles Florida car-accident claims and maintains a Personal Injury Information Center for injured people and their families. Collisions involving commercial fleets and heavy vehicles may also require the corporate and regulatory evidence discussed in the firm’s truck-accident practice.
If a driver who appeared to be working caused serious injuries, contact Tucker Law before accepting the company’s description of the trip. The route, purpose, control, vehicle ownership, and insurance documents—not a logo or job title alone—determine which parties and policies belong in the claim.
This article provides general information and is not legal advice for any particular crash, employment relationship, or insurance policy.
