Evans v. Handi-Man Temporary Services and Riscorp

• Decision Date: 17 April 1998
• Docket Number: No. 97-960,HANDI-MAN,97-960
• Citation: 710 So.2d 132
• Parties: 23 Fla. L. Weekly D1036 Danny EVANS, Appellant, v.TEMPORARY SERVICES and RISCORP, Appellees.
• Court: Florida District Court of Appeals

Page 132

710 So.2d 132

23 Fla. L. Weekly D1036

Danny EVANS, Appellant, v. HANDI-MAN TEMPORARY SERVICES and RISCORP, Appellees.

No. 97-960.

District Court of Appeal of Florida First District.

April 17, 1998.

William H. McKnight of William H. McKnight, P.A., Tampa, for Appellant.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for Appellees.

BENTON, Judge.

This case requires us to decide whether a day laborer who was injured traveling from a job site to another location designated by his employer in order to turn in a time card and pick up his pay check was engaged in "travel necessarily incident to performance of the employee's job responsibility." § 440.092(4), Fla. Stat. (1995). We conclude that Danny Evans's trip to collect his pay was necessarily incident to his work and that any injury Mr. Evans may have suffered in a traffic accident en route would be compensable. We reverse the order dismissing his petition for benefits and remand for further proceedings accordingly.

In the fall of 1995, Mr. Evans was "a somewhat irregular employee of" Handi-Man Temporary Services (Handi-Man). Handi-Man is in the business of furnishing temporary labor for other enterprises by contracting out its own employees' services. On the morning of October 20, 1995, Mr. Evans reported to Handi-Man's office, where he was given a "job ticket" indicating he was to work at a moving company that day.

He rode from Handi-Man's office to the moving company as a passenger in a pickup truck driven (and presumably owned) by Robert Panazze, a fellow day laborer. Informed, once there, that he was not properly dressed for work at the moving company, Mr. Evans telephoned the Handi-Man office.

Somebody in the office directed him to report for a different job at a different location nearby, where he ended up working for some ten hours. Afterwards, walking back toward the moving company, Mr. Evans spotted the pickup truck in traffic and flagged Mr. Panazze down. They then set out together for the Alamo to pick up their pay checks.

Mr. Evans alleges he was injured in a traffic accident on the way, but the judge of compensation claims made no findings as to his injuries, if any. The order under review found that the accident had been duly reported to Handi-Man but concluded that Mr. Evan's "desire to travel to the alternate point made available and pick up his check was his own personal decision, for his convenience." On this basis the judge of compensation claims ruled: "I do not find this activity to have arisen out of and in the course of his employment with this employer."

Handi-Man did not require its employees to pick up their checks every day. Nothing prevented their waiting until the end of the work week for their checks. But about half of the laborers working for Handi-Man collected their checks at the end of each day they worked. Whenever laborers failed to claim their checks before Handi-Man closed its office for the day, a Handi-Man employee left the checks at the Alamo, which the witnesses testified was a store, but the judge of compensation claims characterized as a bar. Handi-Man's employees were informed that they could turn in completed time cards and pick up their checks after office hours at the Alamo.

An employee required to travel from one job site to another and "actively engaged" in doing so is eligible for workers' compensation benefits because such travel is "travel necessarily incident to performance of the employee's job responsibility." § 440.092(4), Fla. Stat. (1995). See, e.g., Dade County Sch. Bd. v. Polite, 495 So.2d 795 (Fla. 1st DCA 1986)(holding that a school teacher returning to school from an athletic event to drop off equipment was in the course and scope of employment when injured in a car accident); Schoenfelder v. Winn & Jorgensen, P.A., 704 So.2d 136 (Fla. 1st DCA 1997)(holding that an attorney injured leaving his home while getting into his car to drive to a deposition after preparing for the deposition at home was in the course and scope of employment because he was traveling between two work sites). See also Lucas v. Lucas, 212 Va. 561, 186 S.E.2d 63 (1972).

The going and coming rule, codified in section 440.092(2) Florida Statutes (1995), does not apply in the present case because Mr. Evans was neither going to work (from home) or coming home from work. See Schoenfelder, 704 So.2d at 137. The decision in Oliver v. Faulkner Wood Company, 531 So.2d 675 (Ala.Civ.App.1988) is instructive in this regard. There the lower tribunal found that the going and coming rule precluded coverage on the following facts:

Upon conclusion of their work day, Junior Oliver and Nathaniel Oliver, along with Theoluster Pugh and C.B. Graves, got into Junior Oliver's car to ride back to Old Blue's Stand. Theoluster Pugh was riding back to the store so he could meet up with Joe Lewis Rump and catch a ride back to Union Springs to watch a parade. Nathaniel Oliver was riding back to the store to get his week's pay and was then going to ride with Junior Oliver to the parade in Union Springs. On the way back to the store, an auto accident involving Junior Oliver's car took place for which Theoluster Pugh and Nathaniel Oliver claim workmen's compensation benefits.

531 So.2d at 677 (emphasis omitted). On review, the Alabama Court of Civil Appeals held that Nathaniel Oliver's trip to the store to get his pay did not fall within the going and coming rule.

This case, therefore, does not fall within the general rule that commuting to and from work is not covered by the workmen's...