$1.15 Million Settlement: How We Beat the "Going and Coming Rule" After a Construction Zone Crash

Sometimes, yes. California’s going-and-coming rule, also called the “coming and going rule,” usually protects employers when an employee crashes on a commute. But the rule has exceptions. If the employee was already doing job tasks, the company can share the blame. That one point turned this case around.

Our client is a manual laborer. A crash in a construction zone left him badly hurt. His neck needed surgery. His low back needed surgery too, by his doctors’ advice. The injuries could end his career. He could no longer do the physical work his family relied on.

His case had already sat for years with another lawyer. The only offer was $50,000, the driver’s personal auto policy limit. He had little hope left.

At its core, this was a car accident case. If you want the basics of how those claims work, see our guide to car accident claims in Orange County. What made this one harder was the driver’s employer.

The police report favored our client. The company’s defense rested on a different argument: the going and coming rule.

The rule says an employer usually is not liable when an employee crashes during an ordinary commute. California courts also allow exceptions, such as a business errand or a trip that benefits the employer beyond the commute. SHRM explains how the business errand exception works.

Respondeat superior is Latin for “let the master answer.” It means an employer is responsible for harm an employee causes while doing the job. Lawyers call this vicarious liability. The company answers for another person’s actions.

Here, if the driver was working when he hit our client, the company had to answer for the crash. That mattered for the insurance. The driver’s personal policy limit was $50,000. A policy limits settlement means the insurer pays the most its policy allows. That amount could never cover surgery and years of lost income. If the employer is responsible, the company’s own commercial insurance can come into play.

So the “on the clock” fight decided whether the case stayed small or reached the coverage it needed.

A motion for summary judgment asks the judge to end a case before a jury hears it. A judge grants it only when the key facts are not truly in dispute. If the facts are disputed, a jury decides.

The defense filed this motion to push the employer out of the case. A win for them would have left our client with a fraction of what he needed.

We took depositions, which are sworn interviews under oath. We questioned the driver and his supervisor. Under careful questioning, the driver admitted that in the hour before his shift, he was not just commuting. He was preparing equipment and organizing the site.

The hour before his shift was the key. If he was working during it, the rule could not shield his employer. That is work, and it benefited the company. The testimony created a real dispute about whether he was on the job. The judge denied the motion and agreed the “on the clock” question belonged to a jury. With the motion denied, the case moved toward settlement or trial.

For years, the defense held at $50,000. Once the motion failed, the picture changed. The ruling opened the door to the company’s much larger commercial policy.

We then made it clear we were ready for trial. We laid out the costs in detail:

• Neck surgery already needed
• Low back surgery recommended for the future
• Lost income from a physical job he could no longer do

After years of litigation, the case settled for $1,150,000. That is 23 times the original offer.

Neck and back surgery cases can carry large bills and long-term income loss, so this settlement covered past and future costs. It gave his family room to focus on recovery, not bills.

Every case is different, but this one offers four lessons: