Cook v. A.H. Davis & Son, Inc.

• Decision Date: 05 June 1989
• Citation: 567 A.2d 29
• Court: Delaware Superior Court
• Parties: James P. COOK, III, Employee-Below, Appellant, v. A.H. DAVIS & SON, INC., Employer-Below, Appellee, and Joyce L. Wright and William E. Matthews, acting as the Industrial Accident Board of the State of Delaware. . Assigned:

Page 29

567 A.2d 29

James P. COOK, III, Employee-Below, Appellant, v. A.H. DAVIS & SON, INC., Employer-Below, Appellee and Joyce L. Wright and William E. Matthews, acting as the Industrial Accident Board of the State of Delaware.

Superior Court of Delaware New Castle County.

Assigned: June 5, 1989.

Decided: Oct. 5, 1989.

Joseph W. Weik, of Czajkowski, Weik & Knepper, Wilmington, for Employee-Below, Appellant.

J.R. Julian, of J.R. Julian, P.A., Wilmington, for Employer-Below, Appellee.

BALICK, Judge.

This is an appeal by James Cook from a finding of the Industrial Accident Board that his injuries did not arise out of and in the course of his employment.

Mr. Cook worked on a crew that put siding on new houses. He was hired and supervised by the crew chief, Milton Jarmon. Pay was based on the amount of work done and the hours of work were not fixed. On the date of his injury, August 24, 1987, Mr. Cook and another crew member, David Jarmon, the son of Milton Jarmon, worked late to finish a particular house. The injury occurred while Mr. Cook was driving himself and David Jarmon home in Milton Jarmon's truck. After stopping for dinner, they resumed their route home, when the truck broke down. Mr. Cook unsuccessfully tried to fix the truck and then walked to a pay phone to call Milton Jarmon for instructions. Mr. Cook suggested that the truck be left until the next morning, because he had already tried everything possible to get it started. However, Milton Jarmon did not want to leave the truck where it was. He told Mr. Cook to wait for him at the pay phone, and then picked up Mr. Cook and drove him to the location of the disabled vehicle, where Mr. Jarmon positioned his car to provide additional light for Mr. Cook to repair the truck. Shortly before midnight while Mr. Cook was working on the disabled vehicle, a third party collided with it, resulting in serious injuries to Mr. Cook, including amputation of his leg above the knee.

The employer argued that the case is governed by the general rule that injuries to employees having a fixed place of work are not compensable when they occur off the premises, as in the present case in which Mr. Cook was injured while on the way home from work. The employee argued that several of the recognized exceptions to this rule apply.

Since the material facts are not in dispute, the court must review the Board's application of the law to the facts. The Board ruled as follows:

The Board finds that the accident in which the claimant sustained injury did not arise out of and was not within the course of his employment with the employer, in accordance with 19 Del. C. Section 2301(15)(a) and Section 2304. The claimant, at the time of the accident, was returning home from work. The general rule is that when an employee has a fixed place of employment, injuries suffered while traveling to and from the workplace are not compensable. Quality Car Wash v. Cox, Del.Super., 438 A.2d 1243 (1981). While there are exceptions to this rule, the Board finds no evidence to support a conclusion that the claimant fits into any exception, all of which require some control of the employee by the employer.

The first exception which the claimant puts forward, citing Maryland and New Jersey case law as authority, is a situation where an employer provides transportation for an employee to and from work. The truck which the claimant drove was Mr. Jarmon's personal truck and was not provided by the employer.

The second exception advanced by the claimant applies in a situation where an employee is entitled to remuneration for traveling time or transportation costs. While the claimant stated that at the time of hire, Mr. Jarmon told him that he would be compensated for driving the truck, the claimant was unable to establish that he received such compensation and was unsure as to whether he actually received it. Furthermore, there was no evidence presented to show that the employer was aware of or agreed to such compensation.

The third exception cited by the claimant is the special errand exception which arises when an employee makes an off-the-job-site journey which is viewed as an integral part of work. In connection with this exception, the claimant argues that the accident happened in furtherance of the employer's interest because the truck was a necessary part of the job. The claimant adds that the accident happened after the claimant was specifically ordered by his foreman to repair the truck so that it would be available for work the next day. The Board finds that while Mr. Jarmon may have had personal reasons for hiring someone with a license to transport materials and workers to the job site, possession of a valid drivers license was not a condition of employment with the employer. We find that a vehicle, while helpful, was not required for moving siding at a job site, and transportation off the job site was not authorized by the employer. Any actions taken by the claimant or Mr. Jarmon with respect to the truck were personal in nature and unrelated to work.

Before addressing the Board's reasoning, I will mention three matters that apparently played no part in the Board's decision. The evidence on these matters was introduced over the claimant's objection, and there is a concern that it might have unfairly prejudiced the claimant.

The claimant has obtained a substantial settlement from the third-party tortfeasor. However, he nonetheless has a right to pursue his claim for workmen's compensation, although the employer is entitled to a credit in the amount of the settlement, less the expenses of recovery, in accordance with 19 Del. C. § 2363.

There was evidence that David Jarmon was intoxicated at the time of the accident and that empty beer cans and marijuana were found in Milton Jarmon's truck. Mr. Cook testified that he had one drink during dinner and the investigating police officers testified that there was no evidence that he was under the influence of anything or that intoxication played any role in the...