Recent court decisions have questioned under what circumstances state employees are acting within their “scope of employment” when they are driving state-owned vehicles. The UWM Department of University Safety & Assurances would like to alert all UWM employees who use state-owned vehicles while traveling on university business, that they may not have liability protection if they are in an accident.
Without getting bogged down in too many facts, the issue in these recent decisions was whether employees were acting within the “scope of their employment” when they, for example, leave a conference site to drive to a restaurant to eat a meal, or arrive home from a business trip too late to return a fleet vehicle to the garage and return it the next day, or are traveling from home to work to pick up new work assignments. In the last case, a circuit court determined that the employee, who was involved in an accident on her way to work in a state vehicle, was not acting within the scope of her employment. The employee was caught in a classic “Catch-22,” when her own auto insurance company invoked its “business use” exclusion because they believed her activities werework-related. In short, she had no liability protection through either her own insurance or the state when the other party in the accident sued her.
Acknowledging that the above scenario is poor public policy, the Wisconsin Department of Justice (DOJ) has recommended that the language of section 895.46(3), Wis. Stat., be amended to afford liability protection to any state officer, employee or agent whenever s/he is authorized to drive a state vehicle, unless criminal action is involved. However, this change has not been approved by the state legislature as of yet.
In the meantime, DOJ has recommended that while not a 100% guarantee, generic language defining an agency’s expectations with respect to “scope of employment” would go a long way toward protecting UW System personnel. To that end, a statement from David Olien, Interim Senior Vice President for the UW System, has this to offer as the UW System’s explanation and expectation in determining the boundaries of “scope of employment” for UW System employees:
At any point in time, University of Wisconsin System employees may be required to drive State-owned vehicles while conducting University business.
It is expected that upon occasion, for reasons of efficiency and security, public officers, employees or agents, will begin and or conclude their official business from locations other than their designated headquarters and/or permanent work site. Furthermore, while carrying out their official duties, it is expected that public officers, employees or agents will engage in acts reasonably necessary for or incidental to living. Such acts will typically involve travel not to exceed a 50 mile radius of the temporary work site where the official business is being conducted.
All University personnel are directed to comply with these expectations. Any deviations from the above mentioned expectations shall be discussed and approved in advance by appropriate management staff.
We encourage all deans, department heads, directors and unit business representatives to share this information with their employees. It is not necessary that UWM employees themselves take any further action on this issue at this moment in time.
As a side note, employees should know that an attempt to circumvent the current court ruling by driving their own vehicle on University business may also prove problematic. Whenever employees drive their own vehicles on business, their own personal auto insurance is considered primary coverage. In many cases, auto insurance policies contain “business use” exclusion clauses and do not provide coverage if you are driving your own personal vehicle on work related business. Employees may wish to check their policy language or consult their insurance agent before driving their own vehicles for business purposes.
University Safety & Assurances will continue to monitor this situation, and if departments or employees have any additional questions, they are encouraged to contact the Risk Management Office.