ANSWER BRIEF OF APPELLEE CISCO SYSTEMS, INC.

123857879

IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT OF FLORIDA

CASE NO. 2D20-0244

L.T. CASE NO. 17-CA-5349 INDONESIA PETERSON, Appellant, v. CISCO SYSTEMS, INC., Appellee. /

ANSWER BRIEF OF APPELLEE CISCO SYSTEMS, INC.

On Appeal from a Final Judgment of the Thirteenth Judicial Circuit, In and For Hillsborough County, Florida

CARLTON FIELDS

Attorneys for Appellee, Cisco Systems, Inc. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 By: BENJAMINE REID

Filing # 115291832 E-Filed 10/20/2020 02:48:22 PM

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................................................................ i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF THE FACTS ............................................................................... 2

SUMMARY OF THE ARGUMENT ........................................................................ 5

STANDARD OF REVIEW ....................................................................................... 6

ARGUMENT ............................................................................................................. 7

THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO CISCO. ................................................................................ 7

A. An employer is not vicariously liable for an employee’s actions when the employee is traveling to or from work............ 7

1. Nobody disputes that Ibrahim was traveling to work from his hotel when the accident happened. ......... 10

2. Plaintiff is wrong to suggest that a genuine issue of material fact precludes summary judgment, because no fact issue exists. ........................................... 11

3. Sussman offers Plaintiff no refuge. ................................ 12

B. The authorities that Plaintiff relies upon are inapposite and do not support reversing summary judgment here. ............ 13

1. The “traveling employee” rule applicable to workers’ compensation cases cannot apply to Plaintiff’s negligence claim. ........................................... 13

2. The negligence cases that Plaintiff cites are distinguishable. ............................................................... 16

TABLE OF CONTENTS (Continued)

Page

ii

C. Cisco did not “acknowledge[] ownership” of the rental vehicle. ...................................................................................... 19

D. The fact pattern in Williams v. Bentway is different and fails to acknowledge authority binding on this court. ............... 21

CONCLUSION ........................................................................................................ 22

CERTIFICATE OF SERVICE ................................................................................ 23

CERTIFICATE OF COMPLIANCE ....................................................................... 24

iii

TABLE OF AUTHORITIES

Cases Page(s)

Adams v. Mitchell G. Hancock, Inc., 74 So. 3d 1113 (Fla. 5th DCA 2011) .................................................................... 7

Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) ................................................................................. 19

Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d 914 (Fla. 4th DCA 1993) ............................................................ 17, 18

Eady v. Med. Personnel Pool, 377 So. 2d 693 (Fla. 1979) ................................................................................. 14

Fierro v. Crom Corp., 617 So. 2d 379-380 (Fla. 2d DCA 1993)......... 5, 8, 10, 11, 14, 15, 16, 17, 22, 25

Fitts v. Furst, 283 So. 3d 833 (Fla. 2d DCA 2019) ..................................................................... 6

Foremost Dairies of the South v. Godwin, 26 So. 2d 773-774 (Fla. 1946) ..................................................7, 8, 11, 16, 17, 22

Franklin v. Patterson-Franklin, 98 So. 3d 732 (Fla. 2d DCA 2012) ..................................................................... 19

Freeman v. Manpower, Inc., 453 So. 2d 208 (Fla. 1st DCA 1984) ................................................................ 5, 9

Garcia v. City of Hollywood, 966 So. 2d 5 (Fla. 4th DCA 2007) ............................................................ 9, 12, 20

Grillo v. Gorney Beauty Shops Co., 249 So. 2d 13 (Fla. 1971) ................................................................................... 14

Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839 (Fla. 1st DCA 2005) ................................................................ 7, 9

Holloway v. United States, 829 F. Supp 1327 (M.D. Fla. 1993), aff’d, 26 F.3d 1121 (11th Cir. 1994) ..................................................................................................... 8, 9, 11, 15

iv

Huddock v. Grant Motor Co., 228 So. 2d 898 (Fla. 1969) ................................................................................. 14

Jones v. Latex Constr. Co., 460 Fed. Appx. 842 (11th Cir 2012) ....................................................... 10, 12, 15

King v. Stacy, 3:07-CV-467/RV/EMT, 2009 WL 702770 (N.D. Fla. Mar. 17, 2009) ............................................................................................................. 10, 12

Leonard v. Dennis, 465 So. 2d 538 (Fla. 2d DCA 1985) ................................................................... 14

Merwin v. Kellems, 78 So. 2d 865 (Fla. 1955) ............................................................................. 16, 17

Robelo v. United Consumers Club, Inc., 555 So. 2d 395 (Fla. 3d DCA 1990) ................................................... 9, 10, 12, 20

Southern Life & Health Insurance Co. v. Smith, 218 So. 2d 784 (Fla. 1st DCA 1969) .................................................................. 17

Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74-76 (Fla. 3d DCA 1990).................................................... 12, 13, 15

Williams v. Benway, 8:11-CV-1840-T-23TGW, 2012 WL 260637 (M.D. Fla. Jan. 30, 2012) ............................................................................................................. 21, 22

Statutes

49 U.S.C. § 30106 ...................................................................................................... 2

§ 440.092(4), Fla. Stat. ............................................................................................. 14

1

STATEMENT OF THE CASE1

The Court should affirm the trial court’s final summary judgment in favor of

Appellee, Defendant, Cisco Systems, Inc. (“Cisco”). This case arises from an

automobile accident. A Cisco employee, Mohamed Ibrahim, was traveling to work

from the hotel where he was staying on a business trip, when his rental vehicle struck

a vehicle driven by Appellant, Plaintiff, Indonesia Peterson (“Plaintiff”). (R.80-84)2

The trial court concluded that Cisco was entitled to judgment as a matter of law

because Ibrahim was not within the course and scope of his employment with Cisco

when the accident occurred, and, as such, entered final judgment in favor of Cisco.

(R.306–07)

In the Initial Brief, Plaintiff argues that the trial court erred in granting

summary judgment. According to Plaintiff, a genuine issue of material fact exists,

and a jury could conclude that he was within the course and scope of his employment

when he drove from his hotel to his worksite, because Ibrahim was traveling for

work at the time of the accident.

As explained below, longstanding and binding Florida law—including an on-

1 While Plaintiff titles one section of her brief “Statement of the Case and Facts” she omits any actual statement of facts and instead provides only a brief procedural history. 2 References to the Record and the Supplemental Record will be designated as follows: (R.[Page]). Unless otherwise noted, all emphasis is supplied.

2

point decision by this Court—demand that the Court affirm the trial court’s decision.

As a matter of law, an employee is not within the course and scope of his

employment as a matter of law when traveling to work from either home or a hotel.

STATEMENT OF THE FACTS

Ibrahim lived in Virginia and was employed by Cisco as a professional

engineer. (R.145-46, 148, 151). He traveled to Tampa, Florida on Cisco’s behalf to

provide onsite support to Cisco’s customer. (R.146-49) Ibrahim was in Tampa from

August 29, 2016, through September 2, 2016. (R.145-48) During his stay, Ibrahim

stayed in a hotel and rented a vehicle from The Hertz Corporation (“Hertz”), and

Cisco paid for the hotel and the vehicle rental. (R.151; 424-25)

The accident occurred on August 30, 2016, when Plaintiff’s vehicle collided

with Ibrahim’s rental car. (R.149,153) It is undisputed that Ibrahim was driving “on

[his] way to the office when the accident occurred.” (R.148) Specifically, he was

driving from his hotel to the office of Cisco’s customer where he would be working

that day. (R.148)

Plaintiff filed suit against Ibrahim and Hertz. (R.15-19) Plaintiff alleged that

the vehicle was owned by Hertz and that Hertz was vicariously liable for the

accident. (R.16-19) Hertz immediately moved to dismiss the claim pursuant to the

“Graves Amendment,” 49 U.S.C. § 30106, which eliminates vicarious-liability

claims against vehicle lessors when there are no allegations of direct negligence or

3

criminal conduct. (R.30-35) Rather than contest the motion, Plaintiff voluntarily

dismissed Hertz with prejudice. (R.57)

Plaintiff then amended her complaint to add Cisco as a defendant. (R.80) The

only count against Cisco alleged respondeat superior liability. (R.83) Specifically,

Plaintiff alleged that Cisco “is liable for the damages proximately caused by its

employees, such as Defendant, MOHAMED IBRAHIM, committed in the course

and scope of his employment under the principle of respondeat superior.” (R.83)

The Amended Complaint never alleges that Cisco should be liable as the vehicle’s

owner. Indeed, Plaintiff admitted that Hertz owned the vehicle. (R.81 at ¶ 8)

Cisco moved for summary judgment because it was undisputed that the

accident occurred while Ibrahim was traveling from his hotel to the jobsite, and thus

under Florida law, Cisco was not liable as a matter of law. (R.133–37) Plaintiff did

not file a response. After hearing lengthy argument on the motion, the trial court

reserved ruling to read all of the authorities that the parties cited. (R.498) The trial

court also granted the parties leave to file supplemental memoranda, which both

Cisco and Plaintiff submitted. (R.251, 261, 499–500)

On December 1, 2019, the trial court granted Cisco’s motion for summary

judgment and entered final judgment in favor of Cisco. (R.305–07) The trial court

concluded that it was undisputed that when the accident occurred, Ibrahim was

traveling to the work site, so he was not within the course and scope of his

4

employment at the time of the collision. (R.306–07) The trial court also

acknowledged that Ibrahim was on a business trip on behalf of his employer, but

ruled that, except in workers’ compensation actions, Florida law does not contain a

“traveling employee” exception to the general rule that an employer is not liable for

the negligence of employees while they are traveling to and from work. (R.306)

This appeal ensued.

5

SUMMARY OF THE ARGUMENT

The Court should affirm. Plaintiff’s claim against Cisco is based solely upon

a claim that Ibrahim was negligent while he was driving to work. Florida law is

“well settled that an employee driving to or from work is not within the scope of

employment so as to impose liability on the employer.” Freeman v. Manpower, Inc.,

453 So. 2d 208, 209 (Fla. 1st DCA 1984). Accordingly, the trial court properly

granted summary judgment as a matter of law.

Plaintiff asserts that there is a fact question as to whether Ibrahim was driving

to work because he was on a business trip, and Cisco paid for the vehicle rental and

Ibrahim’s hotel. That is inaccurate. Florida courts have long held that an employee

is not within the course and scope of his employment when traveling to a work site.

See Fierro v. Crom Corp., 617 So. 2d 379 (Fla. 2d DCA 1993). They have applied

this longstanding principle in various circumstances, including cases in which the

employee was traveling for work and cases in which the employer paid for, or even

owned, the vehicle involved. Under these authorities, that Ibrahim was driving a

rental car that Cisco paid for, while on an out-of-state business trip, does not change

the outcome.

Further, Plaintiff’s authorities are distinguishable. She conflates workers’

compensation law with tort law by relying upon the “traveling employee doctrine.”

Well-established Florida law holds that the traveling employee doctrine does not

6

apply to negligence cases, and instead is limited to workers’ compensation cases.

And each of the negligence cases that Plaintiff cites is distinguishable. Those cases

address either employees who worked “in the field” without a central office, or

special public-policy concerns that this case does not trigger.

Plaintiff is also wrong to suggest that the Court should deem Cisco, not Hertz,

to be the rental car’s owner. Plaintiff failed to preserve that argument below and

fails now to support that illogical argument with either authority or evidence.

And finally, Plaintiff cannot save her claim by relying on a distinguishable,

unpublished federal district-court opinion. In that case, the employer certified that

the employee was acting in the scope of her employment. Here, Cisco has shown

the opposite.

For each of these reasons, this Court should affirm.

STANDARD OF REVIEW

The issues here all address the trial court’s order granting summary judgment.

This Court reviews de novo a trial court’s order granting summary judgment. See

Fitts v. Furst, 283 So. 3d 833, 837 (Fla. 2d DCA 2019).

Importantly, here, disputing whether an employee was acting within the scope

of his employment does not provide a free pass to a jury. That is because juries

resolve only factual disputes, and unless there is a dispute of fact, “whether an

employee is acting within the course and scope of his employment is a question of

7

law.” Adams v. Mitchell G. Hancock, Inc., 74 So. 3d 1113, 1114 (Fla. 5th DCA

2011).

ARGUMENT

THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT TO CISCO.

The trial court properly granted Cisco summary judgment. Under

longstanding Florida law, employees headed to or from work—as Ibrahim was

here—are not within the scope of their employment. Their employers are thus not

subject to respondeat superior liability for accidents that occur along the way. That

Ibrahim was on a business trip does not change this analysis. Nor do any of the inapt

cases that Peterson cites. Accordingly, the Court should affirm.

A. An employer is not vicariously liable for an employee’s actions when the employee is traveling to or from work.

Vicarious liability applies to an employee who is working, but not to an

employee on his way to work. Florida courts have long recognized this distinction.

See Foremost Dairies of the South v. Godwin, 26 So. 2d 773, 774 (Fla. 1946). Thus,

Florida courts hold that it “is well established that an employee driving to and from

work is not within the scope of employment so as to impose liability on the

employer.” Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 843 (Fla. 1st

DCA 2005); see also Foremost Dairies, 26 So. 2d at 774 (“merely going to or from

work in his own car,” is not in the course of his employment as a matter of law).

Jurists and lawyers colloquially call this the “going and coming” rule.

8

Fierro v. Crom Corp., 617 So. 2d 379 (Fla. 2d DCA 1993), illustrates the rule.

There, the plaintiff sued the employer of an allegedly negligent driver who caused

an accident. Id. at 379–80. The trial court granted summary judgment in the

employer’s favor, and this Court affirmed because the employee was driving from

the place of work to a temporary residence being utilized while the employee was

away from home. Id. That the employee drove to a temporary residence, as opposed

to his home, did not affect the conclusion. The going-and-coming rule applied and

precluded respondeat superior liability.

Unsurprisingly, Fierro is not an outlier. Courts around the State have applied

similar principles in granting judgment as a matter of law. And importantly, they

have done so in the face of factual nuances from case to case. That courts have

reached the same conclusion despite these nuances underscores the strength of the

underlying principle that employees going to or coming from work are not acting

within the scope of their employment.

For instance, courts have applied the going-and-coming rule even when the

employer paid for various aspects of the vehicle. In Foremost Dairies, although the

employer paid for repairs, licenses, tires, and fuel necessary for the employee to

operate the vehicle, the going-and-coming rule precluded respondeat superior

liability on the employer. 26 So. at 774. Similarly, Holloway v. United States, 829

F. Supp 1327 (M.D. Fla. 1993), aff’d, 26 F.3d 1121 (11th Cir. 1994), addressed an

9

accident involving an Army reservist traveling in his personal vehicle from a training

site to his home in a different state. The court did not impose respondeat superior

liability, even though the Army paid for his travel costs. Id. at 1330. See also

Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 844 (Fla. 1st DCA 2005)

(employee used personal vehicle to come to work in response to an emergency;

respondeat superior did not apply even though her employer would have paid car

fare had she requested it); Freeman v. Manpower Inc., 453 So. 2d 208, 209, (Fla. 1st

DCA 1984), internal citation omitted, (stating in dicta that respondeat superior

would not apply even if the employer had partly maintained the vehicle in question).

Indeed, courts have applied the going-and-coming rule to shield employers

from respondeat superior liability even when the employers owned the vehicle

involved in the accident. By way of example, the accident in Garcia v. City of

Hollywood, 966 So. 2d 5 (Fla. 4th DCA 2007), involved a city-owned police cruiser

that the driver, a police offer, used exclusively for work. Id. at 6. The accident

occurred while the officer was driving to work. Id. Yet the court did not impose

respondeat superior liability. Id. Robelo v. United Consumers Club, Inc., 555 So.

2d 395, 396 (Fla. 3d DCA 1990), addressed an accident involving an employer-

owned vehicle that the employee used for both business and pleasure. Again, the

court invoked the going-and-coming rule and held that the employer was not

vicariously liable for an accident that occurred while the employee was on the way

10

to work. Id. at 397.

Courts have also applied Florida’s going-and-coming rule in cases concerning

out-of-state trips. In Jones v. Latex Constr. Co., 460 Fed. Appx. 842 (11th Cir 2012),

an Alabama resident worked various jobs across Georgia and Florida and traveled

across state lines in an employer-leased vehicle. Jones, 460 Fed. Appx. At 843. The

accident occurred in Florida, and the court applied Florida’s going-and-coming rule

and granted that the employer was not liable as a matter of law. Id. at 845. See also

King v. Stacy, 3:07-CV-467/RV/EMT, 2009 WL 702770 (N.D. Fla. Mar. 17, 2009)

(Florida’s going-and-coming rule entitled employer to judgment in action addressing

employee-owned vehicle involved in accident in Florida, where employee worked,

while returning home to Alabama).

1. Nobody disputes that Ibrahim was traveling to work from his hotel when the accident happened.

The cases discussed above show that, under Florida law, the key question is

whether Ibrahim was working or merely going to work. Fortunately, that key

question has an easy answer.

Ibrahim was going to work. This fact is undisputed. Ibrahim had traveled to

Florida for work. While in Florida, Ibrahim was staying at a hotel. While driving

from his hotel to the work place, he was involved in an accident. These facts mirror

the facts in Fierro. In both cases, the relevant employee was staying at a temporary

residence. In both cases, the employee was involved in an accident while commuting

11

between the temporary residence and the jobsite. The same result that applied in

Fierro—judgment for the employer—should attach here.

2. Plaintiff is wrong to suggest that a genuine issue of material fact precludes summary judgment, because no fact issue exists.

In the Initial Brief, Plaintiff contends that issues of fact precluded summary

judgment. Not so.

Notably, Plaintiff identifies no disputed issues of fact in the record. Instead,

Plaintiff suggests that a jury might decide in her favor based on certain undisputed

facts—specifically that Mr. Ibrahim was traveling for business and that Cisco paid

for his hotel and rental car. But those undisputed facts offer no reason to disregard

decades of settled law holding that a person is not in the course and scope of his or

her employment, for respondeat superior purposes, when driving to work.

Put simply, Plaintiff cannot create a factual dispute out of undisputed facts.

And he certainly cannot do so by turning decades of settled law on its head. As

discussed above, this Court in Fierro held that a traveling employee driving from a

jobsite to a hotel was not in the course and scope of his employment, for purposes

of respondeat superior. Thus, the Fierro Court rejected the very argument Plaintiff

makes here.

That Ibrahim was on a work trip in an employer-financed rental car does not

change the outcome. As Foremost Dairies and Holloway show, it matters not that

12

the employer paid for aspects of the vehicle; the going-and-coming rule still applies.

As Garcia and Robelo show, that would be the case even if Ibrahim had been

traveling in a Cisco-owned vehicle (which he was not). And as Jones and King

show, the going-and-coming rule applies even though Ibrahim was on an out-of-

state trip. Simply put, neither the fact that Cisco paid for the rental car nor the fact

that Ibrahim traveled out of state affects the analysis. Nor do either of those facts

create a dispute that Ibrahim was traveling to work when the accident happened.

That fact remains undisputed.

3. Sussman offers Plaintiff no refuge.

Plaintiff is also wrong to suggest that a fact issue exists under a three-part test

derived from Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 75-76 (Fla.

3d DCA 1990).

First, Sussman is a workers’ compensation case, not a respondeat superior

case. Indeed, Sussman itself explains that the applicable rules in workers-

compensation cases differ from the rules determining when respondeat superior

applies. Id. at 75.

Second, Sussman merely reiterates the familiar factors for determining

respondeat superior liability: The employer may be liable “only if (1) the conduct

is of the kind the employee is hired to perform, (2) the conduct occurs substantially

within the time and space limits authorized or required by the work to be performed,

13

and (3) the conduct is activated at least in part by a purpose to serve the master.” Id.

Third, these factors do not support imposing vicarious liability on Cisco.

Instead, they support summary judgment in Cisco’s favor: (1) Cisco hired Ibrahim

to work on its customers’ computers, not to drive from point to point. So the conduct

that caused the accident is not what Cisco hired Ibrahim to do. (2) Driving to a

customer’s site is not within the time and space required for the work. Instead, the

time and space occurs when the employee begins his actual work at the site of the

customer. (3) Driving to and from work does not serve Cisco. Instead, Ibrahim

begins to serve Cisco only when he begins his actual work at the customer’s site.

And fourth, Plaintiff’s argument proves too much. If driving directly to work

was deemed within the course and scope, each of the cases discussed above would

have had a different result.

In sum, there is no genuine dispute of material fact here. Nor is there any fact

in the record suggesting—much less requiring—a different result. Accordingly, the

trial court properly entered summary judgment. This Court should affirm.

B. The authorities that Plaintiff relies upon are inapposite and do not support reversing summary judgment here.

1. The “traveling employee” rule applicable to workers’ compensation cases cannot apply to Plaintiff’s negligence claim.

Plaintiff’s brief conflates workers’ compensation cases with negligence cases

and ignores longstanding Florida law recognizing that different rules apply to

14

traveling employees in those different contexts.

Plaintiff is wrong to suggest that Mr. Ibrahim was a “traveling employee,” and

so Cisco can be vicariously liable for his negligence while driving to the worksite

from his hotel. For support, Plaintiff offers a trio of workers’ compensation cases—

Eady v. Med. Personnel Pool, 377 So. 2d 693 (Fla. 1979); Grillo v. Gorney Beauty

Shops Co., 249 So. 2d 13 (Fla. 1971); and Huddock v. Grant Motor Co., 228 So. 2d

898 (Fla. 1969). True enough, the traveling-employee exception available in

workers’ compensation cases states that “a traveling employee is deemed to be in

the continuous conduct of his employer’s business including those times when he is

not actually at work but is engaged in such normal and necessary activities as eating

and sleeping.” Leonard v. Dennis, 465 So. 2d 538, 540 (Fla. 2d DCA 1985); see also

§ 440.092(4), Fla. Stat. (“An employee who is required to travel in connection with

his or her employment who suffers an injury while in travel status shall be eligible

for benefits under this chapter only if the injury arises out of and in the course of

employment while he or she is actively engaged in the duties of employment.”). But

that workers’ compensation principle is irrelevant to this negligence case.

Florida law, however, leaves no room for doubt that the “traveling employee”

exception does not apply in negligence actions. Again, this Court’s decision in

Fierro v. Crom Corp., 617 So. 2d at 379–80, is dispositive. In Fierro, as here, the

plaintiff urged this Court to apply the traveling-employee exception to the going-

15

and-coming rule. This Court declined to do so, and affirmed summary judgment in

favor of the employer. Id. at 380. In doing so, the Fierro Court expressly adopted

the reasoning in Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74 (Fla.

3d DCA 1990), 617 So. 2d at 380. In Sussman, the Third District explained why

different rules govern respondeat superior and workers’ compensation:

Different considerations dictate the results in analyzing whether an employer is legally responsible for the conduct of an employee which results in harm to the employee or a fellow employee, and conduct of an employee which results in harm to third persons. . . . The policy goal of the workers’ compensation statute is to provide prompt and limited compensation benefits for job-related injuries and to facilitate the employee's speedy return to employment without regard for fault. . . . Those policy considerations are not at work in cases where third parties make claims against the employer under principles of respondeat superior for injuries caused by the employee. Instead, a narrower analysis is undertaken which relies strictly on tort principles.

Sussman, 557 So. 2d at 75.

Over the past 30 years, numerous courts echoed the conclusion that the

traveling-employee rule available in workers compensation cases does not apply in

negligence actions. E.g., Jones v. Latex Const. Co., 460 Fed. Appx. 842, 844 (11th

Cir. 2012) (“Jones also postulated that the ‘traveling employee’ exception to the

‘going and coming’ exclusion from work time rule might cover Cone since he

relocated to Florida for the job. This exception is inapplicable in tort cases, . . . and

where the employee did not travel away from the jobsite during work.”); Holloway

v. United States, 829 F. Supp 1327, 1329 (M.D. Fla. 1993) (declining to apply

16

“traveling employee” exception to negligence action), aff’d, 26 F.3d 1121 (11th Cir.

1994).

Accordingly, the trial court properly applied settled Florida law and rejected

Plaintiff’s argument that the “traveling employee” rule applicable to workers

compensation cases should be applied here. This Court should affirm. See Fierro,

617 So. 2d at 380.

2. The negligence cases that Plaintiff cites are distinguishable.

Appellant relies on three tort cases to support his claim that this court should

disregard Foremost Dairies and its progeny. Each is distinguishable, and none

disturbs the settled principle of Florida law that distinguishes between “going to

work” and “working.”

Merwin v. Kellems, 78 So. 2d 865, 867 (Fla. 1955), is distinguishable because

there, the employee was not traveling to a jobsite. Indeed, the employee driver in

that case did not have an office; his work involved driving around a “territory” in

the greater Miami area to make sales. Because his home was closer to his sales

territory than his employer’s place of business, he would generally make his sales

and return home without ever visiting his employer. Thus, as the Supreme Court

observed, under that particular arrangement, the driver was actively working once

he left his home to make his sales, and “[u]ntil he returned home he was just as much

on his master’s business as if he had gone to the place of business instead.” Id.

17

Consequently, that driver was still acting in the course and scope of his employment

when he struck the Plaintiff on his drive home from making sales in his territory. Id.

Here, by contrast, the employee was simply driving to the office where he was to

then perform his work for the day. Merwin thus hinged on a fact that is absent here.

Similarly, the employee in Southern Life & Health Insurance Co. v. Smith,

218 So. 2d 784 (Fla. 1st DCA 1969), “had no office and worked out of his home.”

Id. at 785. His job involved collecting money owed to his employer, and, once per

week, he was required to deliver the money he had collected that week to his

employer’s office. Id. The accident occurred while the employee was delivering

the money to his employer. Id. In its analysis, the First District discussed the

apparent tension between Foremost and Merwin, saying: “At first blush it appears

that the Supreme Court held in Foremost that an employee is not on his master’s

business in going to work but held in Merwin that he was on his employer’s business

in returning from work.” Id. at 786. But the court resolved this tension by focusing

on the dispositive question: whether the employee was working, or merely going to

work, at the time of the accident. Because the employee worked from home and was

actively delivering his collections to his employer at the time, the court held he was

actively working. Id. No such facts exist here; to the contrary, as in Fierro, Ibrahim

was simply driving to the office for the day’s work when the accident occurred.

Finally, the outcome in Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d

18

914, 915 (Fla. 4th DCA 1993), turned on public-policy concerns that do not apply

here. In that case, the accident occurred while the employee was driving home after

drinking “between eight and thirteen one-ounce drinks” at a professional conference

that he attended with his employer. After the convention dinner, the employee joined

at the hotel bar his colleagues, customers, and the president of his company, which

“encouraged its employees to entertain its customers, including the purchasing of

drinks.” Id. The employer paid for both the employee’s and the customers’ drinks.

The Carroll Air opinion emphasized policy concerns about liability when an

employer provides enough alcohol to an employee that the employee becomes

intoxicated and then injures a third party. Id. at 916–18. In those situations, the

employer creates the very circumstances that cause the negligent event. Even then,

“[c]ourts across the country are divided on the issue of whether an employer is liable

for injuries to third parties under similar circumstances.” Id. at 916.

Carroll Air is thus distinguishable twice over. The record includes no

evidence of alcohol consumption, much less alcohol that the employer encouraged

anyone to imbibe. So it is instructively distinguishable on its facts. Those facts lead

to a legal distinction: Here, the important public-policy concerns that animated the

outcome in Carroll Air simply do not exist. This is a garden-variety situation where

an employee left his hotel room in the morning and drove to work. Carroll Air

Systems simply does not apply.

19

Accordingly, none of the cases Plaintiff relies upon supports reversing the trial

court’s well-reasoned, amply supported order granting summary judgment. This

Court should affirm.

C. Cisco did not “acknowledge[] ownership” of the rental vehicle.

Notwithstanding that she did not raise the issue below, Plaintiff now asserts

that Cisco “was the contractual owner of the rental vehicle” that Mr. Ibrahim was

driving, and, therefore “cannot deny liability.” Br. at 22. This argument fails

procedurally, factually, and legally.

Procedurally, the argument fails because Plaintiff waived it by failing to

assert this argument below, it is waived. Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla.

2010) (“[T]o be preserved for appeal, the specific legal ground upon which a claim

is based must be raised at trial and a claim different than that will not be heard on

appeal. . . . Appellate review is therefore limited to the specific grounds for objection

raised at trial.”) (internal citations and quotation marks omitted); Franklin v.

Patterson-Franklin, 98 So. 3d 732, 738 (Fla. 2d DCA 2012) (“Because the Former

Husband never presented the argument he makes now to the circuit court, we decline

to consider the argument on appeal from the circuit court's order.”).

Factually, the argument fails for two reasons. First, it makes no sense that

one becomes the “owner” of anything one rents. No wonder Plaintiff cites no

authority for this novel proposition. Second, in the amended complaint, Plaintiff

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recognized and acknowledged that Hertz, not Cisco, owned the subject vehicle.

(R.81 at ¶ 8 (“At all times mentioned in this complaint, The Hertz Corporation

owned a vehicle described as a 2015 Toyota Corolla, tag number N392658, which

was registered in the state of Louisiana.”)). Not only is Plaintiff attempting to assert

a new argument on appeal, but she is taking a position that is completely antithetical

to one she that she took earlier in the case.

Legally, the argument fails under longstanding Florida law. Even if Cisco

were somehow deemed the “owner” of the Hertz rental vehicle—and to be clear, it

should not be—Plaintiff would still not be entitled to recover under the doctrine of

respondeat superior. As the Third District explained, “it does not follow . . . that an

employer is liable for injuries each time an employee causes injury in a car owned

by the employer; the nature of the use of the vehicle is determinative.” Robelo v.

United Consumers Club, Inc., 555 So. 2d 395, 397 (Fla. 3d DCA 1989). Here, it is

undisputed that Ibrahim was driving the subject vehicle from his hotel to work. The

established law discussed above shows that he was not in the course and scope of

his employment, no matter whose vehicle he was driving. Therefore, even if Cisco

were deemed the “owner” of the Hertz rental vehicle, the trial court’s decision must

stand. See Garcia v. City of Hollywood, 966 So. 2d 5, 7 (Fla. 4th DCA 2007) (police

officer driving to police station to study for exam an hour before his shift was to start

was not in course and scope of employment notwithstanding driving a police vehicle

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at time of accident).

D. The fact pattern in Williams v. Bentway is different and fails to acknowledge authority binding on this court.

Plaintiff’s fourth and final argument need not detain the Court long, as the

argument relies on a nonbinding, unpublished, distinguishable federal case.

According to Plaintiff, Williams v. Benway, 8:11-CV-1840-T-23TGW, 2012 WL

260637 (M.D. Fla. Jan. 30, 2012), “has a nearly identical fact pattern to the present

case” and, as such, “the rationale utilized in the Williams [case] should be adopted

by the Court and applied to the instan[t] case.” Br. at 24. Not so.

Williams does not have “a nearly identical fact pattern to the present case.

Materially, the defendant in Williams certified that its employee was acting in the

course and scope of her employment at the time of the accident. Id. at *1. Here,

Cisco has not so-certified; instead, Cisco maintains that Ibrahim was not acting in

the scope of his employment when the accident happened. This alone is dispositive.

Williams also is distinguishable on other grounds. There, the person who

caused the accident drove from one city to another to stay with a relative for the

weekend before driving to a third city for work. Id. at *1. Here, the record evidence

shows that the accident occurred while Ibrahim was making his daily commute from

his hotel to his temporary office. And, as Judge Merryday recognized in

summarizing the law, an employee “who negligently injures a bystander while

traveling for the employer acts within the scope of employment unless the injury

22

occurred during a distinct departure or a routine commute.” Id., at *2 (emphasis

added). Since Ibrahim was involved in a “routine commute,” Williams does not

support reversal of the trial court’s order.

Finally, Williams cannot bind this Court. For one thing, it is an unpublished

federal case. For another, to the extent that Williams could be read as supporting

imposition of liability, it would directly conflict with the binding decisions in

Foremost Dairies and Fierro. Williams does not mention—much less overrule—

either of those binding opinions.

CONCLUSION

Based on the foregoing discussion and authorities, Appellee, Cisco Systems,

Inc., respectfully requests that the Court affirm the final judgment in all respects.

Respectfully submitted, /s/Benjamine Reid Benjamine Reid, Esq. (183522) CARLTON FIELDS Miami Tower 100 SE Second Street, Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 [email protected] [email protected] [email protected] [email protected]

ATTORNEYS FOR APPELLEE CISCO SYSTEMS, INC.

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was

served by electronic mail using the Court’s ePortal system on October 20, 2020, on:

Dennis Hernandez Luis G. Figueroa Dennis Hernandez & Associates, P.A. 3339 W. Kennedy Blvd. Tampa, Florida 33609 Tel: (813) 250-0000 Fax: (813) 258-4567 [email protected] [email protected] [email protected] Attorneys for Plaintiffs/Appellants

/s/ Benjamine Reid

Benjamine Reid

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman, 14-point

font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

/s/ Benjamine Reid Benjamine Reid