Drake v. Industrial Com'n of Utah

• Decision Date: 28 September 1995
• Docket Number: No. 940769-CA,940769-CA
• Citation: 904 P.2d 203
• Parties: Barbara DRAKE, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH; FHP of Utah; and Transamerica Insurance Co., Respondents.
• Court: Utah Court of Appeals

Page 203

904 P.2d 203

Barbara DRAKE, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH; FHP of Utah; and Transamerica Insurance Co., Respondents.

No. 940769-CA.

Court of Appeals of Utah.

Sept. 28, 1995.

James R. Hasenyager (argued), Marquardt, Hasenyager & Custen L.C., Ogden, for Petitioner.

Theodore E. Kanell (argued), Hanson, Epperson & Smith, Salt Lake City, for Respondents.

Before BILLINGS, GARFF ¹ and JACKSON, JJ.

OPINION

BILLINGS, Judge:

Barbara Drake petitions this court for review of a final decision and order of the Utah Industrial Commission (the Commission), denying her workers' compensation benefits for injuries she received in an automobile accident on August 14, 1991. The Commission determined petitioner was not acting within the scope and course of her employment at the time of her accident, see Utah Code Ann. § 35-1-45 (1994), and thus denied benefits. We reverse and remand for an award of benefits.

FACTS

The facts in this case are not in dispute. Petitioner is an FHP employee. At the time of her accident, petitioner, who resides in Ogden, Utah, worked as a referral coordinator in the Salt Lake City FHP office. FHP operates a shuttle system to deliver referrals to its offices throughout the state. Referrals are documents authorizing FHP clients to seek treatment from non-FHP physicians. Under FHP policy, referrals are to be processed within forty-eight hours. However, petitioner was not receiving referrals until four to five days after they had been filed.

Petitioner discussed this delay with her supervisor. Because petitioner lived in Ogden, her supervisor requested that she deliver the Ogden referrals to that office and pick up the Salt Lake referrals and return them to Salt Lake the next working day. Thereafter, on her way home from work two to three times a week, petitioner delivered referrals from Salt Lake City to Ogden and picked up Salt Lake referrals.

Petitioner traveled different routes depending on whether she was delivering referrals or proceeding directly home. She would take Interstate 15 if she was delivering referrals and Highway 89 if she was driving directly home. The route petitioner took to the Ogden office constituted a five- to six-mile detour from the route petitioner normally drove home.

Petitioner's normal working hours are from 8:30 a.m. to 5:30 p.m. When delivering referrals, petitioner would sometimes be permitted to leave the Salt Lake office as early as 4:45 p.m. and as late as 5:00 p.m. The delivery of referrals to Ogden often took petitioner beyond an eight-hour work day.

On August 14, 1991, petitioner left the Salt Lake office around 4:45 or 4:50 p.m. Because she had referrals to drop off, petitioner took Interstate 15 to the Ogden office, dropped off the Ogden referrals, and picked up the referrals to be delivered to Salt Lake City the next morning. These referrals were in petitioner's car at the time of her accident. Shortly after exiting the Ogden FHP parking lot, petitioner was involved in an automobile accident. Petitioner was struck by another vehicle as she attempted to make a U-turn. She sustained severe injuries as a result of this collision.

Petitioner filed for workers' compensation. A hearing was held before an administrative law judge (ALJ). The ALJ entered findings of fact and an order, granting petitioner benefits, holding that she was on a "special errand" for her employer when the accident occurred. FHP filed a Motion for Review. The Commission overturned the ALJ's decision and denied petitioner worker's compensation. Petitioner filed a petition for review with this court.

STANDARD OF REVIEW

On appeal, petitioner contends she was on a "special errand" for the benefit of FHP when her car was struck by another vehicle. FHP responds that the Commission correctly determined that petitioner's trip to the Ogden office was a part of petitioner's regular work duties, which were completed when she was injured, and that the "coming and going rule" therefore bars her recovery.

Whether petitioner was injured in the scope and course of her employment presents a question of law which, absent a grant of discretion, this court reviews for correctness. See Morton Int'l, Inc. v. State Tax Comm'n, 814 P.2d 581, 588 (Utah 1991); Walls v. Industrial Comm'n, 857 P.2d 964, 966 (Utah App.1993). In Stokes v. Industrial Commission, 832 P.2d 56 (Utah App.1992), this court refused to grant the Commission discretion to interpret the Workers' Compensation Act (the Act). Id. at 58. Therefore, we review for correctness the Commission's determination that petitioner was not acting within the scope of her employment at the time of the accident. ²

ANALYSIS

A. The Coming and Going Rule and the Special

Errand Exception

Section 35-1-45 of the Act provides:

Each employee ... who is injured ... by accident arising out of and in the course of his [or her] employment, wherever such injury occurred, if the accident was not purposefully self-inflicted, shall be paid compensation for loss sustained on account of the injury ... and such amount for medical, nurse, and hospital services and medicines ... as provided in this chapter.

Utah Code Ann. § 35-1-45 (1994) (emphasis added).

It is well-settled "[t]hat traveling to and from work is not part of the employment and is not covered by Workmen's Compensation." Lundberg v. Cream O'Weber/Federated Dairy Farms, Inc., 24 Utah 2d 16, 465 P.2d 175, 176 (1970). This is commonly called the "coming and going rule." However, an injury suffered by an employee traveling to or from work is compensable if the employee is on a special errand for the employer. State Tax Comm'n v. Industrial Comm'n, 685 P.2d 1051, 1053 (Utah 1984).

In an early case favorably quoted by the Utah Supreme Court in State Tax Commission, the California Supreme Court stated

"[W]hen the employee engages in a special activity which is within the course of his employment, and which is reasonably undertaken at the request or invitation of the employer, any injury suffered while traveling to and from the place of such activity is also within the course of employment and is compensable."

Id. at 1054 (quoting Dimmig v. Workmen's Compensation Appeals Bd., 6 Cal.3d 860, 101 Cal.Rptr. 105, 111, 495 P.2d 433, 439 (1972)). Moreover, " '[a]n act outside an employee's regular duties which is undertaken in good faith to advance the employer's interest, whether or not the employee's own assigned work is thereby furthered, is in the course of employment.' " Id. (quoting 1A Arthur Larson, Larson's Workmen's Compensation Law § 27.00 (1982)). In determining whether an exception to the coming and going rule should apply, Utah courts have focused "on the benefit the employer receives and his control over the conduct." Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934, 937 (Utah 1989); accord VanLeeuwen v. Industrial Comm'n, 901 P.2d 281, 284 (Utah App.1995).

The Utah Supreme Court has examined the special errand exception in several cases which are helpful to our analysis. In Whitehead, the court held that although the plaintiff intended to make some work-related phone calls at his home he was not on a special errand when he was injured while driving home. The court noted that the employer had no control over the plaintiff's decision to commute to and from work and that the plaintiff's commute was not performed for the benefit of the employer. Whitehead, 801 P.2d at 937.

Further, in State Tax Commission, the Utah Supreme Court considered a case in which the plaintiff sustained injuries in an automobile accident as she drove to a job-related training program located away from her usual place of employment. The court determined that although the plaintiff had traveled the same route to the training program every day over a period of two months she was nonetheless engaged in a special errand. 685 P.2d at 1054-55. The court explained that the plaintiff embarked on her training program with the knowledge and permission and at the direction of her employer, that her employer desired her to participate in the program, and that her employer would have benefitted from the training had the plaintiff been able to complete it. Id.

This court in Cross v. Industrial Commission, 824 P.2d 1202 (Utah App.1992), distinguishing the coming and going rule from its special errand exception, held that the injury the plaintiff suffered when his van exploded into flames as he drove home was not compensable. The plaintiff in Cross contended that because his job required that he travel long distances to work, the injuries he received on his commute home arose in the course of his employment. Id. at 1204. This court rejected Cross's argument that he conferred a substantial benefit on his employer by traveling long distances to and from temporary construction sites. Id. at 1205.

Thus, under Utah law, in determining whether petitioner was on a special errand for FHP at the time of her accident we focus on whether performance of the errand was outside her regular work activities, whether the activity was performed for the benefit and under the direction of FHP, whether the activity was related to the petitioner's job, and whether the nature of the journey was more onerous, inconvenient, or hazardous in relation to her regular travel to and from work.

Applying these principles to the instant case, we conclude petitioner's delivery of referrals constituted a special errand. Petitioner was employed by FHP as a referral coordinator in Salt Lake City. FHP had in operation an independent shuttle system designed to deliver referrals to petitioner in a timely fashion. This system was not operating as expected. Petitioner was not employed as a delivery person--nor did her job anticipate that she act as such. Petitioner undertook the delivery of referrals between Ogden and Salt Lake City at the request of FHP solely to remedy a problem with FHP's shuttle system. Her accepting this assignment helped her...