This is an important case for Workers’ Comp insurance brokers to understand. To make a long story short, the plaintiffs sued after Bibinz, an uninsured and undocumented worker with a lengthy criminal record, drove his vehicle negligently while under the influence of drugs, causing the death of a driver in another vehicle. The plaintiff alleged that Bibinz was acting as an agent of his employer, the Sinco property management company, because he was using his vehicle to drive to work, which required him to visit various properties managed by the company.

At the time of the accident, Sinco carried a Commercial Auto policy issued by General Insurance with a million-dollar limit, an Umbrella and Excess policy from Fireman’s Fund with a million-dollar limit, and a CGL policy issued by Fireman’s with a million-dollar limit. Plaintiffs partially settled the Sinco action, with General paying its million-dollar primary limit and Fireman’s Fund paying its excess million-dollar limit. However, the insurer denied coverage under the CGL policy.

The arbitrator awarded $27 million, finding that at the time of the accident, Bibinz was acting within the course and scope of his employment under the “required vehicle” exception under the “going and coming rule” and that Sinco had been negligent in hiring and retaining him. This case focused on Fireman’s Fund under the CGL policy for bad faith in failing to defend the suit or indemnify against it. The definition of insured under the CGL policy included employees, “but only for acts within the scope of their employment while performing duties related to the conduct of your business.” Unfortunately for the plaintiffs, the court did not buy the theoretical possibility that the actions of an employee might be within the actions of the course and scope of employment, but “not related” to the conduct of the business. It ruled that Bibinz’s use of his own vehicle required by Sinco was within the scope and course of the business, and that driving that vehicle to work was at least performing a duty “related” to the conduct of the business. Thus, he was an insured under the policy – as a result, the automobile exception applied.