Advanced Diagnostics v. Walsh

• Decision Date: 14 September 1983
• Docket Number: No. AJ-213,AJ-213
• Citation: 437 So.2d 778
• Parties: ADVANCED DIAGNOSTICS and State Farm Fire and Casualty Company, Appellants, v. Patrick WALSH, Appellee.
• Court: Florida District Court of Appeals

Page 778

437 So.2d 778

ADVANCED DIAGNOSTICS and State Farm Fire and Casualty

Company, Appellants, v. Patrick WALSH, Appellee.

No. AJ-213.

District Court of Appeal of Florida First District.

Sept. 14, 1983.

Bernard I. Probst, Walton, Lantaff, Schroeder & Carson, Miami, for appellants.

Joel V. Lumer, Miami, and Neil Chonin, P.A., Coral Gables, for appellee.

LARRY G. SMITH, Judge.

The employer/carrier appeal from a final order of the deputy commissioner finding that appellee-Walsh suffered a compensable injury. The sole issue presented on appeal is whether the deputy commissioner erred in applying the "special errand" exception to the "going and coming" rule, thus finding the accident one which occurred in the course and scope of claimant's employment. We affirm based upon the conclusion that the going and coming rule is not applicable in this case, thus making the finding of an exception to the rule unnecessary in order to justify the award. Any error in the deputy commissioner's application of the "special errand" exception is therefore harmless, and we affirm.

Walsh was employed by Advanced Diagnostic Imaging, Inc., as a sales representative. The employer was in the business of selling x-ray equipment and supplies to hospitals, physicians' offices, radiology technicians, and other medical personnel. Walsh normally worked a 9:00 o'clock to 5:00 o'clock day. However, he occasionally would take a physician or technician out to dinner if he felt it would enhance his chances of making a sale. He also was told that as a part of his duties he would be required to attend the meetings of various professional organizations in order to promote the products of the company, although as of the date of the accident he had not yet attended any such meetings because none had been held. On September 17, 1980, approximately two months after he became employed, a meeting of the Greater Miami Society of Radiologic Technologists was scheduled to be held at Victoria Hospital. At approximately 4:30 that afternoon, Walsh was told of the meeting by a superior. He was directed to go by a printing company, pick up some business cards, go home and eat dinner, then take the cards to the meeting at Victoria Hospital at 8:00 o'clock that evening for distribution. After arriving home and eating dinner, Walsh walked outside and transferred the business cards, which were in the trunk of his wife's car, into the back seat of his own car. While he was in the process of getting into his car to leave for the meeting, a motor vehicle travelling at a high rate of speed along the street went out of control, and ran up into Walsh's yard, striking and injuring him. The accident occurred approximately four to five feet from the street, and on Walsh's property.

In addition to the foregoing facts, it is pertinent to note that Walsh was paid a weekly salary of $265.00, plus a 10% commission on all sales. In addition he was given a car allowance of $150.00 per week, and was reimbursed for his travel expenses.

The facts as briefly stated above clearly show that the "going and coming" rule does not apply here (as claimant's counsel asserted at the hearing), so that it is unnecessary to find some exception to the rule in order for the accident to be considered within the course and scope of the claimant's employment. In the early case of Sweat v. Allen, 145 Fla. 733, 200 So. 348 (Fla.1941), the court stated (Id. at 350) The authorities all seem to hold that, as a general rule, injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment. (emphasis supplied)

It is instructive to notice the emphasis upon the words "regular place of work," which is one, but not the only, factor governing the application of the going and coming rule so as to exclude coverage for injuries received by accident occurring off the premises of the employer. As the Allen opinion points out, the criterion for application of the rule depends upon "the nature and circumstances of the particular employment," and no exact formula can be devised which will automatically solve every case. The facts here are that travel to various meetings and gatherings such as the one Walsh was headed for at the time of his accident, as well as to the offices of potential customers and institutions, was an essential part of his employment. Coverage has long been the rule in Florida under these circumstances. See, Grillo v. Gorney...