
    Barbara Ann COKER v. PENFIELD CHAIR COMPANY, INC.
    2000806.
    Court of Civil Appeals of Alabama.
    March 8, 2002.
    Rehearing Denied May 31, 2002.
    
      Jim Pino of Jim Pino & Associates, P.C., Pelham, for appellant.
    T. Randall Lyons and Neil M.B. Rowe of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for appellee.
   PITTMAN, Judge.

On October 11, 2000, Barbara Ann Coker sued Penfield Furniture Company, Inc. (“the company”), alleging that the company was liable under the doctrine of respon-deat superior for personal injuries Coker received in a motor-vehicle accident. Coker stated that the accident occurred when the vehicle she was driving was struck from behind by a vehicle owned by the company and operated by a company employee, Gayle Penfield Kirby.

The company filed a motion for a summary judgment on January 3, 2001, stating that there were no genuine issues of material fact and that the company was entitled to a judgment as a matter of law. In the motion and supporting documents the company argued that it was entitled to a summary judgment because Kirby was not acting within the line and scope of her employment when the accident occurred. On March 7, 2001, Coker filed a response to the company’s motion. In her motion Coker argued that an employee’s use of a vehicle owned by an employer creates an administrative presumption of agency and that Kirby’s continued use of the vehicle amounted to company policy; alternatively, Coker argues that by allowing Kirby to continue using the vehicle for personal trips after the accident, the company ratified her actions.

On March 15, 2001, the trial court granted the company’s summary-judgment motion. Coker appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

In reviewing a summary judgment, this Court must apply the same standard that the trial court applied. Rule 56, Ala. R. Civ. P., establishes a two-part standard for granting a summary judgment. The trial court must determine (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). Furthermore, to defeat a properly supported motion for a summary judgment, the nonmovant must present “substantial evidence” of his claim. § 12-21-12, Ala.Code 1975. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party, See Goodwin v. City of Fultondale, 706 So.2d 766 (Ala.Civ.App.1997); Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999).

It was undisputed that the vehicle Kirby was driving at the time of the accident was leased by the company and that Kirby was an employee of the company. Alabama law is well settled:

“ ‘To recover for damages for injuries sustained in an automobile accident against the driver’s employer upon a theory of respondeat superior, it is incumbent'upon plaintiff to prove that the collision occurred while the driver was within the scope of his employment, and happened while he was in the accomplishment of objectives within the line of his duties.’ ”

Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 48 (Ala.1995), quoting Perdue v. Mitchell, 373 So.2d 650, 653 (Ala.1979).

The evidence in this case indicates that Kirby’s operation of the company vehicle was not related to her obligations or duties as an employee of the company. In fact, the record is clear that the vehicle was provided to Kirby not pursuant to her employment, but as a condition of a settlement entered into in regard to her divorce from David Penfield, the company owner. Further, Kirby stated in her affidavit that when the accident occurred she was running personal errands and that the day of the accident was not a workday for her.

Coker correctly states that Kirby’s use of a company vehicle gives rise to an administrative presumption that her use of the vehicle was in the scope of her employment. See Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766 (Ala.1988). However, “ ‘ “[t]he liability of a corporation for the torts of its employees, whether agent or servant, is grounded upon the principle of ‘respondeat superior,’ not the principles of agency.” ’ ” Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345, 347 (Ala.1985) (quoting National States Ins. Co. v. Jones, 393 So.2d 1361, 1367 (Ala.1980), quoting in turn, Old Southern Life Ins. Co. v. McConnell, 52 Ala.App. 589, 296 So.2d 183, 186 (1974)). Once agency or scope of employment are rebutted, the administrative presumption no longer makes agency or scope of employment a fact question. See Durbin, 522 So.2d at 768. The company demonstrated that the vehicle operated by Kirby was not leased for business use, but instead was leased to satisfy a divorce agreement.

Because the company rebutted the administrative presumption and established that Kirby’s use of the vehicle was not connected with her duties as an employee of the company, there was no genuine issue of material fact to be decided by a trier of fact. Thus, the trial court correctly granted the company’s motion for a summary judgment.

AFFIRMED.

THOMPSON and MURDOCK, JJ., concur.

YATES, P.J., and CRAWLEY, J., dissent.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent from the majority’s affirmance of the summary judgment for Penfield Chair Company, Inc. (the “company”). I conclude, based upon my consideration of Pryor v. Brown & Root USA Inc., 674 So.2d 45 (Ala.1995), that a question of fact existed concerning whether the company condoned Gayle Penfield Kirby’s personal use of the vehicle so that her use of the vehicle was within the scope of her employment or authority.

David Penfield and Gayle Penfield Kirby were the co-owners of the company until 1998, when they divorced. Penfield was apparently awarded sole ownership of the company in the divorce judgment. As part of the agreement incorporated in the divorce judgment, the company was to continue to employ Kirby as a salaried employee until December 31, 2008. According to Penfield, as part of Kirby’s compensation and to satisfy the divorce judgment’s requirement that he provide his wife a leased sport-utility vehicle, the company, not Penfield, leased a Jeep Grand Cherokee for Kirby’s personal use. Kirby was driving this vehicle when she collided with Coker’s vehicle.

Kirby states in her affidavit that she was not engaged in any business for the company at the time of the collision; she was on a personal errand. In fact, Kirby testified that she was seldom engaged in any business for the company. Although as a general practice company-owned vehicles like delivery trucks were returned to the company’s premises at the end of the workday, the company had no written policy regarding personal use of company-owned vehicles. Kirby was never reprimanded for her personal use of the vehicle.

In order to prevail against the company under the theory of respondeat superior, Coker must prove that the accident occurred while Kirby was within the scope of her employment. Pryor v. Brown & Root USA, Inc., 674 So.2d at 48. Generally, “[u]se of a vehicle owned[] by an employer creates an ‘administrative presumption’ of agency and a presumption that the employee was acting within the scope of his employment, as that concept is used in the law of respondeat superior liability, but this ‘administrative presumption’ is not in itself evidence.” Id. Instead, the presumption, once engaged, “ ‘ “impose[s] upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment.” ’ ” Id. at 48-49 (quoting Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766, 767 (Ala.1988), quoting in turn Tullis v. Blue, 216 Ala. 577, 578, 114 So. 185, 187 (1927)).

The facts in Pryor are similar to those in the present case. Brown & Root had provided its employee, Jeff Dealy, with a company-owned vehicle. Pryor, 674 So.2d at 46-47. Dealy drove that vehicle for both employment-related and personal transportation needs. Id. at 49. In fact, Dealy used the vehicle as his sole means of transportation. Id. at 50. He had never been reprimanded for his personal use of the vehicle. Id. at 49.

One Sunday afternoon, after he had completed his workday, Dealy drove to meet friends and to go sailing on a lake. Id. at 47. That evening he was returning home when he ran a stop sign and collided with a vehicle driven by Willie Mae Pryor, injuring Pryor. Id. Although he had been drinking, Dealy passed a sobriety test at the scene and was found not to be intoxicated. Id.

Although Pryor conceded that Dealy was on a personal errand at the time of the accident, id. at 48, she argued that there still existed a question whether Dealy was acting in the scope of his employment because, she argued', Brown & Root had condoned his use of the car as his sole means of personal transportation in violation of company policy permitting only the nominal personal use of company vehicles. Id. at 48-49. The supreme court agreed, stating that “additional evidence bearing on the issue whether Dealy was acting in the line and scope of his authority” existed. Id. at 49. In reversing the summary judgment, the court relied on “the fact that Dealy was using the Brown & Root vehicle as his sole personal vehicle, with the knowledge of ... his supervisor, [which] supports an inference that his use of the vehicle was within the line and scope of his employment.” Id. at 50. The court also compared the case with the decision in Williams v. Hughes Moving & Storage Co., 578 So.2d 1281 (Ala.1991), which also involved the question whether an employee’s personal use of a company-owned vehicle in violation of company policy would expose the company to liability for the employee’s negligence.

In Williams, Henry Birt, an employee of Hughes Moving & Storage Company, drove one of the company’s trucks in the performance of his duties. Williams, 578 So.2d at 1282. Birt, in violation of company policy requiring that the trucks be left on the company’s premises at the close of the workday, took the truck home with him on a Friday night. Id. Birt had violated that policy before by taking a truck home at the end of the workday and had not been disciplined. Id. When it was parked in Birt’s yard, the truck rolled into the street, striking an oncoming vehicle driven by Robert L. Williams. Id.

The trial court, upon the company’s motion, directed a verdict for the company, and Williams appealed. Id. at 1283. On appeal, Williams argued the trial court erred by directing a verdict for the company because he had presented evidence that, when coupled with the administrative presumption of agency, was sufficient to create a jury question on the issue whether Birt was acting in the line and scope of his employment. Id. The company argued that it had rebutted the administrative presumption of agency because Birt could not have been acting within the line and scope of his employment or within his authority when he violated company policy. Id.

According to our supreme court, the fact that Birt had violated company policy was not alone determinative of his status at the time of the accident. Id. at 1283. The court noted that the policy was specifically not enforced against Birt on the other occasions he had driven the truck home, thus indicating that the company condoned Birt’s driving the truck home. Id. at 1282, 1285. Therefore, the court reversed the judgment, concluding that the issue whether Birt was acting in the line and scope of his employment for purposes of a respon-deat superior analysis should be submitted to the jury. Id. at 1285.

The trial court in the present case entered a summary judgment for the company, apparently finding that the company had effectively rebutted the administrative presumption of agency by presenting evidence that Kirby was not acting within her authority or in the line and scope of h’er employment when the accident occurred. I agree with Coker, however, that the evidence indicating that the company not only condoned Kirby’s nearly exclusive personal use of a company-owned vehicle, but in fact leased the vehicle for her for such use, supports an inference, as was the case in Pryor, that the use of the vehicle was in the line and scope of Kirby’s employment or within her authority. The company failed to present evidence sufficient to clearly rebut the administrative presumption — that is, it failed to present evidence “eliminatfingj any question as to whether [Kirby] was acting within the scope of her employment or authority.” Williams, 578 So.2d at 1285. Therefore, I would reverse the summary judgment.

YATES, P.J., concurs. 
      
      . The company does not dispute that the company owned the leased vehicle for purposes of the application of the administrative presumption of agency.
     