Devine v. Advanced Power Control, Inc.

• Decision Date: 27 February 1995
• Docket Number: No. 94A-11-002,94A-11-002
• Citation: 663 A.2d 1205
• Parties: Leland W. DEVINE, Jr., Appellant, v. ADVANCED POWER CONTROL, INC., Appellee. Civ. A. . Submitted:
• Court: Delaware Superior Court

Page 1205

663 A.2d 1205

Leland W. DEVINE, Jr., Appellant, v. ADVANCED POWER CONTROL, INC., Appellee.

Civ. A. No. 94A-11-002.

Superior Court of Delaware Kent County.

Submitted: Feb. 27, 1995.

Decided: May 24, 1995.

Upon Appeal From a Decision of the Industrial Accident Board. REVERSED AND REMANDED.

James F. Kipp and Francis J. Schanne, Trzuskowski, Kipp, Kelleher & Pearce, Wilmington, for appellant.

Jeffrey M. Austin, Elzufon, Austin & Drexler, Wilmington, for appellee.

RIDGELY, President Judge.

This is an appeal from a decision of the Industrial Accident Board ("Board") denying a petition to determine compensation for injuries incurred by Leland W. Devine, Jr. ("claimant") in a car accident after leaving the work site of one of his employer's customers on February 16, 1994. The Board applied the going and coming rule to the circumstances of claimant's accident. Although claimant testified that he was intending to return to his employer's warehouse when he left the work site, the Board found instead that it was more likely claimant was intending to return home. The Board, therefore, ruled that claimant's accident did not occur in the course and scope of his employment and was not compensable. This Court holds that it was legal error to apply the going and coming rule to an employee who has a semi-fixed place of employment and whose trips to and from work are a substantial part of his employment. Accordingly, the Court reverses the decision of the Board denying claimant's petition for workmen's compensation benefits and remands the case for proceedings consistent with this opinion.

I. BACKGROUND

Claimant is a 28 year old control technician who was employed by Advanced Power Control, Inc. ("employer") to install electrical equipment for customers on their premises. He lives in Rising Sun, Maryland. The employer's warehouse and office is located in Newark, Delaware. Claimant performed his job duties at locations other than his employer's premises, using his own vehicle for transportation. His normal eight-hour working day was from 7:00 a.m. until 3:30 p.m. Claimant was supervised by Randolph Murphy, an installation superintendent. Murphy would often call claimant at night or early in the morning to inform him where to report to and what his duties were. Claimant used his own discretion to determine what parts and materials he needed and would go to the warehouse to pick them up as required. He kept his own time sheets and was paid an hourly rate of $15.50.

Depending upon the particular job, claimant would go to the warehouse at 7:00 a.m. to pick up supplies and then proceed to the job site. In that case, he would be compensated from the time he arrived at the warehouse until the end of the working day, including the time taken to travel to the job site. If he proceeded directly to the job site, he would be compensated from the time of his arrival there at 7:00 a.m. If he had to travel to another job site during the working day, his time traveling would be compensated. If he returned to the warehouse or office in Newark, he would be paid for the time it took to get there. However, if he left a job site and returned home directly, his time traveling from job site to home was not compensated. Mileage was reimbursed by the employer only if a job site was beyond a 50-mile radius from the warehouse in Newark, and then only to the extent the distance exceeded 50 miles.

On February 15, 1994, claimant and Murphy were in Legislative Hall in Dover looking at a one-day job involving the relocation of an outside air sensor. Claimant was directed to do the job the following day. On February 16, 1994, claimant arrived at the warehouse at 6:55 a.m. to pick up a roll of 18/3 plenum wire he needed for the Dover job. He took a roll that had been set aside for another job, as well as some small parts. He then drove down to Dover.

Claimant finished the installation at approximately 2:00 p.m. He loaded up the material that was left over and called Murphy at 2:20 p.m. to tell him the job was done. Murphy said, "Okay. See you." Claimant left Legislative Hall and was involved in a car accident at the intersection of Routes 13 and 113 in Dover. As a result of the car accident, claimant was hospitalized and his car was towed to storage. Subsequently, Murphy and claimant's father went to the car to retrieve the employer's property and claimant's personal belongings. The former consisted of blueprints and some leftover wire. Murphy later completed claimant's time sheet for him, crediting claimant with a full eight hour day.

At the hearing, the Board heard testimony from claimant and Murphy. Claimant testified that he was driving back to Newark in order to return the leftover wire to the warehouse when the accident occurred. Claimant stated that on the afternoon of February 16, 1994 he did not know where his next job assignment would be. He expected that Murphy would call him that night. Claimant explained that he had to return the roll of wire to the shop because it had been set aside for another job and the person working that other job would have been short on material. He also felt that taking the wire home would constitute stealing. Had claimant driven directly home from the Dover job site, the trip would have taken him one and a half hours. The trip from Dover to the warehouse took 45 minutes. It normally took one hour for claimant to travel from the warehouse to his home in Maryland. So had claimant gone home via the warehouse first to return the wire, he would have added 15 minutes to his travel time.

Murphy testified that the Dover job site was approximately 30 miles away from the warehouse and thus not sufficiently distant to reimburse claimant for his mileage. He testified that he did not know whether claimant was returning to the warehouse or going home after the Dover job was finished. It was Murphy's understanding that he would call claimant later that night to tell him where his next job would be. Murphy further testified that wire was an abundant material and it was common practice for people to take home tools and materials in their vehicles until it was convenient to return them. Murphy would not have considered that claimant was stealing from the employer if he had kept the wire overnight. From the employer's point of view, it did not make economic sense to pay someone to bring back the wire. Murphy stated that he paid claimant for working eight hours that day without taking into account the time it would have taken claimant to return to the warehouse. Murphy had not even known that claimant had been to the warehouse that morning.

The Board was not persuaded by claimant's testimony that the accident occurred in the course and scope of his employment. The only issue of concern to the Board was whether the claimant was returning to the warehouse or his home after finishing the job at Legislative Hall. In the latter circumstance, he would be within the going and coming rule and not entitled to compensation under the Board's interpretation of the rule. If he were returning to the warehouse, his accident would be compensable. The Board made the following findings:

The Board did not find Claimant's testimony on this issue to be persuasive. Keeping the wire in his car until the next day would not be an unusual practice and is not likely to have led to any accusation of theft. There was no reason to return it at the end of the day for someone else's use. It is more likely that Claimant left the job and was intending to go home and is therefore within the coming and going rule. He was not reimbursed for his mileage at that site which would have provided an exception to the rule.

The Board, therefore, denied claimant's petition for compensation.

II. STANDARD OF REVIEW

On an appeal from a decision of the Industrial Accident Board, the function of the Superior Court is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. General Motors Corp. v. Freeman, Del.Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 66 (1965); General Motors Corp. v. Jarrell, Del.Super., 493 A.2d 978, 980 (1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., Del.Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del.Super., 517 A.2d 295, 297 (1986), app. dism., Del.Supr., 515 A.2d 397 (1986). The Superior Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the Board's factual findings. 29 Del.C. § 10142(d).

III. FACTUAL FINDINGS

Claimant argues that the Board's factual determination that claimant was more likely to be heading home is not supported by substantial evidence. Claimant testified as to his intent and argues that the uncontroverted facts reasonably support the probability that he was returning to the warehouse. The employer argues, on the other hand, that the issue of claimant's intent was a matter of credibility for the Board to determine and there is substantial evidence to support the Board's finding that claimant was returning home at the time of his accident.

The Board is required to set forth the basis upon which it makes its findings. Hughes v. Catalytic, Inc., Del.Super., C.A. No. 91A-04-1, 1992 WL 91145, Taylor, J. (April 23, 1992) (Order) at 6. Although the Board did not explicitly state that claimant's testimony as to his subjective intent was not credible, the Court can infer such a finding from the Board's statement that it did not find claimant's testimony on this issue "persuasive" and from its ultimate conclusion. See Haveg Industries, Inc. v. Humphrey, Del.Supr., 456 A.2d 1220, 1222 (1983). The Board instead relied upon...