The Legislature Did Not Intend to Make the California Highway Patrol the Special Employer of Freeway Service Patrol Tow Truck Drivers

In California Highway Patrol v. Superior Court (Alvarado), ordered published October 15, 2013, the Fourth District Court of Appeal, Division Three, issued a writ of mandate reversing a trial court order denying the CHP's motion for summary judgment in a personal injury case brought by plaintiffs injured when rear-ended by a tow truck driver.  The driver was employed by a towing company that contracted with the Orange County Transportation Authority to participate in the Freeway Service Patrol program.  OCTA contracted with the CHP to provide funding for CHP's involvement in the program, and CHP supervised the FSP.  The trial court certified to the appellate court the question of whether, under the statutes governing the FSP program, the CHP could be the special employer of a tow truck driver in the FSP program.  Interpreting the statutes governing the program, the court determined that the Legislature intended to distinguish between employers of tow truck drivers and the CHP.  The CHP therefore could not be the special employer of  tow truck drivers as defined under those statutes.  The appellate court declined to address whether this driver was a special employee of the CHP at the time of the accident.