Bruck v. Glen Johnson, Inc., AG-452

• Decision Date: 01 September 1982
• Docket Number: No. AG-452,AG-452
• Citation: 418 So.2d 1209
• Parties: Jeffrey E. BRUCK, Appellant, v. GLEN JOHNSON, INC., Risk Management Services, Inc., and/or Insurance Company of North America, Appellees.
• Court: Florida District Court of Appeals

Page 1209

418 So.2d 1209

Jeffrey E. BRUCK, Appellant, v. GLEN JOHNSON, INC., Risk Management Services, Inc., and/or Insurance Company of North America, Appellees.

No. AG-452.

District Court of Appeal of Florida,

First District.

Sept. 1, 1982.

Peter N. Meros of Meros, Coit, Edman, Meros, Smith & Meros, St. Petersburg, for appellant.

Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellees Glen Johnson, Inc. and Ins. Co. of North America.

Ivan Matusek, St. Petersburg, for appellee Risk Management Services, Inc.

PER CURIAM.

This cause is before us on appeal and cross-appeal from a workers' compensation order denying benefits to claimant Jeffrey E. Bruck and granting the claim of carrier Risk Management Services, Inc. (Risk) for reimbursement, attorney fees and costs against carrier Insurance Company of North America (INA). On appeal, claimant contends that the deputy erred in denying his claim on the basis of the "going and coming rule," and in determining his average weekly wage. On the cross-appeal, carrier INA argues that the deputy further erred in finding that INA had coverage on the day of the subject accident and in awarding attorney fees to cross-appellee Risk. We reverse the denial of Jeffrey Bruck's claim on the appeal and further reverse the award of attorney fees to Risk on the cross-appeal. However, the award of reimbursement to Risk is affirmed.

Claimant and his brother, Scott Bruck, were both paid by appellee Glen Johnson, Inc. to perform construction work. Scott began work in late January, 1981 as a fire sprinkler fitter. The employer testified that he knew Scott had no transportation but did not know or care how he got to the job site.

Claimant started work on February 9, 1981 as a fire sprinkler fitter's helper and began driving Scott to work on that date. The uncontroverted testimony was that Scott was claimant's immediate supervisor and that claimant received all instructions from Scott. Claimant testified that, on the afternoon prior to the February 12, 1981 industrial accident, "Scott told me that he got a call from Bill Chance down at the office and that Bill wanted us to ... go to [the supply] house in the morning." Accordingly, on the date of the accident, claimant picked Scott up 15 to 20 minutes early so that they could go to the supply house, which was approximately ten miles out of the way, on the way to work. After picking up the parts at approximately 8:00 a.m., claimant and Scott left the supply house to drive to work. Both were injured in an automobile accident which occurred at approximately 8:20 a.m.

Jeffrey Bruck's subsequent claim for workers' compensation benefits was denied on the basis of the "coming and going rule." The deputy accepted the testimony of the employer that the employer never intended to furnish transportation to Jeffrey or Scott, that he never envisioned both claimant and Scott making the trip to the supply house on the morning of the accident, and that he would have asked another employee to go for the supplies if he had known that Scott could not go without claimant. Therefore, the order found that claimant was not in the course or scope of his employment at the time of the accident and was not entitled to benefits for the injury sustained.

The "coming and going rule" generally bars compensation for injuries sustained while an employee is going to or coming from work, on grounds such injuries are "essentially similar to other injuries suffered off duty away from the employer's premises, and, like those other injuries, are usually not work related." Eady v. Medical Personnel Pool, 377 So.2d 693, 695 (Fla. 1979). However, an exception to this rule exists where the employee is instructed by the employer to perform a special errand which grows out of and is incidental to his employment. Eady v. Medical Personnel Pool, supra; Moody v. Baxley, 158 Fla. 357, 28 So.2d 325 (1946).

Under the circumstances of this case, we find that the deputy erred in focusing on the employer's intent to send only Scott Bruck on the special errand, given the uncontroverted evidence that claimant had been instructed to perform an errand by Scott, who even the employer conceded was claimant's immediate...