Zalma on Insurance
Education • Business
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
April 03, 2023
No Respondeat Superior for Impaired Driver

Intoxicated Driving Not in the Course and Scope of Employment
Barry Zalma

Read the full article at https://lnkd.in/gnZ2xstU and see the full video at https://lnkd.in/gVb-M9AD and at https://lnkd.in/gn3FZgdf and at https://zalma.com/blog plus more than 4450 posts.

In Gerard Loftus, et al. v. Three Palms Crocker Park, LLC, et al., Appeal by Robert Sotka, 2023-Ohio-927, No. 111639, Court of Appeals of Ohio, Eighth District, Cuyahoga (March 23, 2023) an intoxicated person injures a passenger when he lost control of a vehicle at 120 miles per hour and crashed.

Robert Sotka appealed the trial court’s grant of summary judgment in favor of his employer, Three Palms Crocker Park, LLC (“Three Palms”) and its insurer, State Auto Mutual Insurance Company (“State Auto”).

FACTUAL OVERVIEW

Plaintiff Gerard Loftus was severely injured as a passenger in a single-car accident in which Sotka was the driver. Sotka was the manager at the Three Palms pizzeria restaurant. Sotka had discussions with Loftus about potentially purchasing a restaurant with him.

Sotka left the restaurant at 5:15 p.m. and traveled over 60 miles to the Canoe Club to meet Loftus and a group of Loftus’s friends. At around 10:15 p.m., Sotka was driving exceeding a speed of 120 m.p.h. The car left the road and hit a guardrail, causing extensive damage. Sotka’s passenger, Loftus, suffered extensive and permanent injuries. Sotka was later convicted of the crimes of Operating Vehicle Under the Influence of Alcohol or Drugs – OVI, a misdemeanor of the first degree, and Vehicular Assault, a felony of the fourth degree in the Ottawa County Court of Common Pleas.

Loftus sued Sotka and Three Palms, Sotka’s employer. State Auto, who had issued Three Palms a business insurance policy, intervened in the lawsuit and sought a declaratory judgment action that it need not provide a defense or coverage because the accident that resulted in Loftus’ injuries was not covered by the insurance policy because Sotka was not conducting or furthering its business when he crashed his car injuring Loftus.

The trial court granted summary judgment to both Three Palms and State Auto.

LAW AND ARGUMENT

An employer may be subject to respondeat superior liability for an employee’s accident when that employee is acting within the scope of employment. Conduct is within the scope of a servant’s employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the employer.

State Auto’s insurance policy provides liability coverage to Three Palms pursuant to the Commercial General Liability Coverage (“CGL policy”). The parties agreed that the CGL policy specifically excludes damages from motor vehicle accidents pursuant to exclusion. The Auto Endorsement provides CGL coverage for damages arising out of the use of any “non-owned auto” in the business by any person.

There was no dispute that Sotka was driving a non-owned auto as defined by the Auto Endorsement. However, the Auto Endorsement only provides coverage while the non-owned auto is being used in Three Palms’ business.

The trial court determined that neither condition was present upon the record and specifically found that there are no genuine issues of material fact that defendant Sotka was not within the course and scope of his employment with defendant Three Palms Crocker Park, LLC at the time of the subject accident.

The court noted that Sotka left the restaurant at 5:15 p.m., traveled a distance of over 60 miles, and admitted the purpose of his trip was to meet with his friend and soon to be new business partner, Loftus. There was no evidence Sotka went to Catawba for any business purpose to benefit Three Palms. Traveling 60 miles and socializing to pursue personal business unrelated to his employer cannot be deemed to be in the service of Three Palms.

Considering Sotka’s conduct in total, assuming he contacted employees and spoke with others about the general aspects of the operation of a restaurant, those actions are merely incidental to the purpose of his evening: socializing with Loftus and furthering a personal business venture. Moreover, the restaurant employees present on the evening of the accident closed the restaurant without Sotka’s direction or input.

The record reflects that Sotka’s purpose in going to Catawba that evening was to socialize and further his own personal business opportunities. Arguing that the accident occurred while Sotka was acting within the scope of his employment or in furtherance of Three Palms’ business, was unbelievable.

Sotka committed the offenses of operating a vehicle under impairment, and vehicular assault, a felony. This conduct cannot fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the service to be rendered, or a natural, direct, and logical result of the pizzeria.

ZALMA OPINION

After spending an evening drinking and reviewing potential opportunities to obtain a new, and personal business with an acquaintance, and then (while intoxicated) starting a return ride at more than 120 miles per hour to take his acquaintance home or to the restaurant owned by Sotka’s employer, Sotka was convicted of a felony as a result of his driving and the injuries of the plaintiff. The conduct was obviously not part of Sotka’s employment as the manager of a Pizzeria and, therefore, no coverage from the employer or the employer’s insurer.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.

Consider subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]

Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library.

Subscribe and receive videos limited to subscribers of Excellence in https://lnkd.in/gfFKUaTf. Go to the Insurance Claims Library – https://lnkd.in/gWVSBde.

00:09:33
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
May 26, 2026
He Who Acts as His Own Lawyer Has an Idiot for a Client

Arsonist Tried To Represent Himself, Failed, and Sought Habeas Relief

Post number 5357

Read the full article at https://www.linkedin.com/pulse/he-who-acts-his-own-lawyer-has-idiot-client-barry-zalma-esq-cfe-d4bwc, See the full video at and at and at https://zalma.com/blog.

Karacson’s Arson for Profit Attempt Required Skill & Experience to Succeed

In Steve Ellis Karacson v. David Shaver, Warden, No. 25-1089, United States Court of Appeals, Sixth Circuit (May 20, 2026) Steve Karacson was convicted in Michigan state court of arson and insurance fraud after evidence showed he burned his own insured home. Investigators found multiple points of origin, gasoline odor, and evidence tying him to the scene, including cell-phone location data and a receipt showing he had purchased a gas can and gloves shortly before the fire.

FACTS

Karacson initially had appointed counsel, but his relationships with both appointed attorneys ...

00:08:55
placeholder
May 11, 2026
Severe Punishment for Failure to Obey Court Orders

Foolish to Repeatedly Disobey Court Orders

All That Remains For Trial Is Plaintiff’s Damages On Each Of These Claims And Establishing Proximate Causation Of Those Damages.

Post number 5348

See the full video at and at and at https://zalma.com/blog plus 5300 posts.

In Linh Wang v. Esurance Insurance Company, No. C24-0447-JCC, United States District Court, W.D. Washington, Seattle (May 1, 2026) John C. Coughenour, United States District Judge, found that throughout this case, culminating with its briefing on Plaintiff’s renewed motion and that Defendant has subjected Plaintiff to unnecessary motion practice for clearly discoverable information and made dubious representations (including to the Court).

FACTUAL BACKGROUND

This case involves an underinsured/uninsured motorist insurance bad faith claim arising from a 2017 motor vehicle collision. The plaintiff, Linh Wang, alleges that Esurance Insurance ...

00:08:27
placeholder
May 08, 2026
Ambiguous Contract to Repair not an Assignment

The Right to Negotiate with Insurer is Not an Assignment of Claims

Post number 5347

Read the full article at https://www.linkedin.com/pulse/ambiguous-contract-repair-assignment-barry-zalma-esq-cfe-2xppc, see the full video at https://rumble.com/v79is1s-ambiguous-contract-to-repair-not-an-assignment.html and at and at https://zalma.com/blog plus more than 5300 posts.

Nebraska Requires an Actual Assignment to Allow Contractor to Sue Insurer

In Millard Gutter Company, a corporation doing business as Millard Roofing and Gutter v. Farmers Mutual Insurance Company of Nebraska, also known as Farmers Mutual Insurance, also known as Farmers Mutual, No. A-24-818, Court of Appeals of Nebraska (May 5, 2026) Millard sued Farmers as an assignee of Jane Anzalone who had hired Millard Gutter to repair the roof of her home and agreed to allow Millard Gutter to coordinate with her insurer, Farmers Mutual, concerning reimbursement for repairs authorized under her insurance policy.

FACTUAL BACKGROUND

In ...

00:08:02
14 hours ago
Insurer Contended it was not Defrauded

Qui Tam Case Without Evidence to Prove Fraud Fails

Post number 5369

Read the full article at https://www.linkedin.com/pulse/qui-tam-insurer-contended-defrauded-barry-zalma-esq-cfe-pgfgc and at https://zalma.com/blog plus more than 5550 posts.

In People Of The State Of California Ex Rel. Heath & Yuen, APC v. Silver Bird Auto Leasing, LLC et al., B342847, California Court of Appeals, Second District, Eighth Division (June 5, 2026) Heath & Yuen, APC defended parties in an automobile collision case involving a McLaren and a tour van. After that case settled for $25,000, the firm filed a qui tam action under California’s Insurance Frauds Prevention Act (IFPA) against Silver Bird Auto Leasing, LLC, X-Law Group, PC, and Filippo Marchino. The firm alleged three fraudulent acts in the underlying litigation:

1. the complaint falsely stated the McLaren was making a “legal turn,”
2. respondents produced a fraudulent repair bill/estimate, and
3. respondents failed to disclose Marchino’s GEICO insurance and its payment for repairs....

post photo preview
14 hours ago
Default Judgment Must be Respected by Federal Court

Full Faith and Credit Act Controlled

Read the full article at https://lnkd.in/evHXiiFE and at https://zalma.com/blog.

Posted on June 9, 2026 by Barry Zalma

Post number 5368

Posted on June 9, 2026 by Barry Zalma

In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.

After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...

post photo preview
June 09, 2026
Default Judgment Must be Respected by Federal Court

Full Faith and Credit Act Controlled

Read the full article at https://lnkd.in/evHXiiFE and at https://zalma.com/blog.

Posted on June 9, 2026 by Barry Zalma

Post number 5368

Posted on June 9, 2026 by Barry Zalma

In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.

After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...

post photo preview
See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals