Judge: Cynthia A Freeland, Case: 37-2023-00014378-CU-PO-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00014378-CU-PO-NC WARD VS. AEROMEDEVAC, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/22/2023

Defendant Aeromedevac, Inc. ('Defendant')'s demurrer to Plaintiffs Hannah Ward, Lauryn Ward, Meagan Ward, and Joseph Ward individually and as Successor-in-Interest to Christina Ward ('Decedent' and, together with the Wards, 'Plaintiffs')'s Complaint is overruled.

Defendant's request for judicial notice is granted. However, '[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.' Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375.

Factual Background and Procedural History The Complaint alleges that Defendant is an air ambulance provider that runs medical transport flights domestically and in Mexico. See Complaint, ¶ 14. Decedent began working for Defendant as a registered flight nurse in July 2021. Ibid., ¶ 15. Defendant's typical flight crew consists of both a medical crew, i.e., registered nurses, paramedics, and physicians, and a flight crew, i.e., a pilot-in-command and a first officer. Ibid., ¶ 17. Defendant requires its medical and flight personnel to meet certain qualifications, including maintaining active professional licenses and staying current on various required training. Ibid., ¶ 18. However, the Complaint alleges that neither Decedent nor the flight crew on the subject flight received the appropriate training or qualifications to fly Defendant's aircraft. Ibid., ¶¶ 19-23.

As a flight nurse, Decedent's duties, as outlined in Defendant's orientation materials, required Decedent to: (1) render appropriate nursing care in accordance with established licensure and protocol guidelines; (2) direct paramedic and ancillary personnel in assisting with the care of the acutely ill or injured; (3) maintain and assure proper use, storage, and allocation of equipment, medications, supplies and assure that all equipment is taken on patient transfers; and (4) communicate effectively and professional in the course of her duties. Ibid., ¶ 24. However, once Decedent effectuated a patient drop off she had completed her employment duties and while seated on Defendant's aircraft on the return flight home was merely a passenger who no longer was in the course and scope of her employment with Defendant. Ibid.

Indeed, as a medical crew member, Decedent had no further responsibilities and was essentially 'off duty' once a patient drop off was completed. Ibid., ¶ 25.

On December 27, 2021, Decedent, along with a paramedic, first officer, and pilot-in-command Douglas James Grande, were transporting a patient from Gillespie Field in El Cajon, CA to John Wayne Airport ('SNA') in Santa Ana, CA. Ibid., ¶ 26. The medical and flight crew were traveling in an air ambulance aircraft, Tail No. N880Z. Ibid., ¶ 8. The patient was dropped off at SNA at approximately 6:45 p.m., at which time they began their return to Gillespie Field. Ibid., ¶ 28. Per Defendant's policies, Decedent was not required to return to the flight headquarters once a patient transport was complete – the means of Calendar No.: Event ID:  TENTATIVE RULINGS

2977295 CASE NUMBER: CASE TITLE:  WARD VS. AEROMEDEVAC, INC.

[IMAGED]  37-2023-00014378-CU-PO-NC return travel was a personal decision. Ibid., ¶ 25(a). In this instance, Decedent elected to remain on the aircraft for the return flight, though she did not have another assignment or further services to perform for Defendant. Ibid., ¶ 29. Tragically, the aircraft crashed near Gillespie Field, killing Decedent. Ibid., ¶¶ 31-37. The Complaint alleges that: (1) Defendant is vicariously liable for Mr. Grande's failure to use ordinary care in piloting the aircraft; (2) Defendant is directly liable for failing to properly supervise and train its employees and/or agents, including Mr. Grande; and 93) Defendant is directly liable for failing to implement proper and reasonable safety rules and policies.

Legal Analysis A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

Defendant's demurrer to the Complaint is overruled. Defendant does not attack the validity of any individual cause of action. Instead, Defendant contends that the entire Complaint fails to state facts sufficient to constitute a cause of action because the Complaint does not allege facts supporting an exception to Defendant's 'exclusive remedy' defense. The court respectfully disagrees.

The Second District Court of Appeal has explained: The [Workers' Compensation Act] is ' 'a comprehensive statutory scheme governing compensation given to California employees for injuries incurred in the course and scope of their employment.' [Citations.] At the core of the WCA is what we have called the ' ' 'compensation bargain.' ' ' [Citation.] Under this bargain, ' 'the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.' ' [Citation.] The employee, for his or her part, ' 'is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.' ' [Citation.]' (King, supra, 5 Cal.5th at pp. 1046-1047, 236 Cal.Rptr.3d 853, 423 P.3d 975.) See's Candies, Inc. v. Superior Court of California for County of Los Angeles (2021) 73 Cal. App. 5th 66, 76-77.

The Workers' Compensation Act (Cal. Lab. Code §§ 3200 et seq.) (the 'WCA') preempts claims premised on a compensable workplace injury, which instead must be addressed within the workers' compensation system. This rule of exclusivity is codified at CLC §§ 3600 and 3602. See King, 5 Cal. 5th at 1051. CLC § 3602(a) provides that '[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is . . . the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.' Cal. Lab. Code § 3602(a). CLC § 3600(a), in turn, provides that, under specific conditions, liability for workers' compensation 'shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death[.]' Cal. Lab. Code § 3600(a). One such condition under CLC § 3600(a), in relevant part, exists '[w]here, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course Calendar No.: Event ID:  TENTATIVE RULINGS

2977295 CASE NUMBER: CASE TITLE:  WARD VS. AEROMEDEVAC, INC.

[IMAGED]  37-2023-00014378-CU-PO-NC of his or her employment.' Cal. Lab. Code § 3600(a)(2).

The court finds that the Complaint states facts sufficient to constitute wrongful death and survival claims sounding in negligence against Defendant under direct and vicarious theories of liability. Generally, an employer is not liable for an injury that occurs when the employee is going to and from work because such activity is ordinarily considered outside the scope of employment. See, e.g., Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 961; G.E. Engine Maintenance/Elec. Ins. v. WCAB (1998) 69 Cal. App. 4th 1528, 1531; State Lottery Comm. V. WCAB (1996) 50 Cal. App. 4th 311, 315. 'It is well recognized, however, that if an employer, as an incident of the employment, furnishes his employee with transportation to and from the place of employment and the means of transportation are under the control of the employer, an injury sustained by the employee during such transportation arises out of and is in the course of the employment and is compensable.' California Cas. Indem. Exchange v. Industrial Acc. Commission (1942) 21 Cal. 2d 461, 463. 'The essential prerequisite to compensation is that the danger from which the injury results be one to which he is exposed as an employee in his particular employment . . . this requirement is met when, as an employee and solely by reason of his relationship as such to his employer, he enters a vehicle regularly provided by his employer for the purpose of transporting him to or from the place of employment.' Zhu v. Workers' Comp. Appeals Bd. (2017) 12 Cal. App. 5th 1031, 1039.

The court finds that there is a factual dispute as to whether Decedent was acting within the course and scope of her employment at the time of the crash and, as a result, whether the exclusivity rule applies.

See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts'). The Complaint adequately alleges, for purposes of the pleading stage, that: (1) as a flight nurse, Decedent had certain duties that ceased once a patient's medical transportation was complete; (2) once the medical transportation was completed, Decedent had completed her employment obligations and was merely a passenger; (3) Defendant does not have a policy that its employees return to the flight headquarters on the company aircraft once a patient transport is complete and, in fact, Decedent had in the past arranged for her own return travel not on Defendant's aircraft (see Complaint, ¶ 25(a)); (4) medical personnel who choose to return on Defendant's aircraft are not required to wear flight suits and may engage in personal activities; (5) on the date of the subject crash, Decedent had removed her flight suit, was engaged in personal activities, and was not on her way to another assignment. Consequently, there is a factual dispute as to whether Decedent's use of the aircraft to transport her to Gillespie Field was an incident of the employment and otherwise arose from the employment relationship. Such issues cannot be resolved at the pleading stage.

Conclusion In light of the foregoing, the court overrules the demurrer. Defendant shall file and serve an answer or otherwise plead to the Complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(j).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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