General Ins. Co. v. Workers' Comp. Appeals Bd.

• Decision Date: 26 March 1976
• Citation: 546 P.2d 1361,128 Cal.Rptr. 417,16 Cal.3d 595
• Court: California Supreme Court
• Parties: , 546 P.2d 1361 GENERAL INSURANCE COMPANY OF AMERICA, Petitioner, v. WORKMERS' COMPENSATION APPEALS BOARD and Lilia Chairez, Respondents. L.A. 30542.

Page 417

128 Cal.Rptr. 417

16 Cal.3d 595, 546 P.2d 1361

GENERAL INSURANCE COMPANY OF AMERICA, Petitioner, v. WORKMERS' COMPENSATION APPEALS BOARD and Lilia Chairez, Respondents.

L.A. 30542.

Supreme Court of California In Bank.

March 26, 1976.

Kendig, Stockwell & Gleason, Los Angeles and Zachary H. Sacks, Encino, for petitioner.

Philip M. Miyamoto, San Francisco, Rose, Klein & Marias and Jason A. Gottlieb, Los Angeles, for respondents.

CLARK, Justice.

Petitioner seeks review of a workers' compensation award to an employee's widow contending the going and coming rule precludes her recovery.

Edward Chairez, the deceased, was employed as a delivery and service man, his work day commencing at 8 a.m., including Saturday. He commuted to work in his personal automobile, departing from his residence at approximately 7:30 a.m. The employer did not compensate its employees for their commute expense or for their activities prior to 8 a.m.

The employer's place of business is on South La Cienega Boulevard in Los Angeles. The few parking spaces on the premises were used for business vehicles, being unavailable for employee parking. Employees customarily parked their cars around the corner on streets perpendicular to or in back on a street parallel to La Cienega. A city ordinance precluded parking on La Cienega itself from Monday through Friday.

All eight employees possessed keys to the employer's business. The first employee to arrive for work customarily entered and made coffee. The employer provided the coffee and coffee pot.

On the Saturday of his death, Chairez left his residence at 6:15 a.m., informing his wife he was leaving early to buy gas and to stop for coffee at the business. There being a fuel shortage, it was then necessary to wait in line for gasoline. At approximately 7:15 a.m., Chairez parked his car on La Cienega in front of his employer's premises. As Chairez alighted from his car he was struck by a passing motorist.

The referee awarded benefits, determining that Chairez' death occurred in the course of employment. The referee reasoned that once Chairez stopped his vehicle in front of his place of employment, at an hour compatible with entry for purposes of engaging in employment related activities, his conduct came within the reasonable contemplation of his employment. On petition for reconsideration, the Workers' Compensation Appeals Board adopted the referee's decision.

APPLICABILITY OF GOING AND COMING RULE

The going and coming rule precludes compensation for injury suffered during the course of a local commute to a fixed place of business at fixed hours in the absence of exceptional circumstances. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176.)

For purpose of the rule, the employment relationship does not begin until an employee enters the employer's premises. Prior to entry the going and coming rule ordinarily precludes recovery; after entry, injury is generally presumed compensable as arising in the course of employment. (Pacific Indem. Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 329, 336, 170 P.2d 18; Cal. Cas. Ind. Exch. v. Ind. Acc. Com. (1943) 21 Cal.2d 751, 755, 135 P.2d 158; 1 Larson, Workmen's Compensation Law (1972) §§ 15.00--15.11, pp. 4--2--4--4.) The employer's premises include his parking lot as well as plant or office, and once the employee has reached the premises, employment is not interrupted by crossing public property while travelling from one part of the premises to another. (Lewis v. Workers' Comp. App. Bd. (1975) 15 Cal.3d 559, 563, 125 Cal.Rptr. 353, 542 P.2d 225.)

The 'premises line' has the advantage of enabling courts to ascertain the point at which employment begins--objectively and fairly. This outweights the disadvantages incurred by attempting to formulate and apply a subjective rule justly. As Professor Larson has so clearly pointed out, '(i)t is a familiar problem in law when a sharp, objective, and perhaps somewhat arbitrary line has been drawn . . . to encounter demands that the line be blurred a little to take care of the closest cases. For example, one writer says that there is no reason in principle why states should not protect employees 'for a reasonable distance' before reaching or after leaving the employer's premises. This, however, only raises a new problem . . . because it provides no standard by which the reasonableness of the distance can be judged. It substitutes the widely-varying subjective interpretation of 'reasonable distance' by different administrators and judges for the physical fact of a boundary line. At the same time, it does not solve the original problem, because each time the premises are extended a 'reasonable distance,' there will inevitably arise new cases only slightly beyond that point--and the cry of unfairness of drawing distinctions based on only a few feet of distance will once more be heard.' (1 Larson, Supra, § 15.12, pp. 4--5--4--6; fn. omitted.)

Although broad language in some cases seemingly extends the 'premises line,' the language must be read in context, and when this is done, it becomes apparent the cases are fully consistent. Several cases broadly state 'the term 'employment' has been held to include 'not only the doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done.' (Citations.)' (E.g., Pacific Indem. Co. v. Industrial Acc. Com., supra, 28 Cal.2d at p. 336, 170 P.2d at p. 22, quoting from California Cas. Ind. Exch. v. Industrial Acc. Com. (1943) 21 Cal.2d 751, 754, 135 P.2d 158; see Lewis v. Workers' Comp. App. Bd., supra, 15 Cal.3d 559, 561, 563, 125 Cal.Rptr. 353, 542 P.2d 225; 2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed.1975) § 9.02(3)(b), pp. 9--15--9--16.) In most of the cases, the employee had entered the employer's premises prior to injury and was injured while travelling from the point of entry to his work station. (E.g., Lewis v. Workers' Comp. Appeals Bd., supra, 15 Cal.3d 559, 125 Cal.Rptr. 353, 542 P.2d 225.) Within such factual context, the language does not establish that the employment relation commences before entry into the business premises. The remaining cases involve special risks encountered in entering--a subject discussed later. (E.g., Pacific Indem. Co. v. Industrial Acc. Com. (Henslick) (1946) 28 Cal.2d 329, 170 P.2d 18; Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490, 47 Cal.Rptr. 384, 407 P.2d 296.

The facts of the instant case show that Chairez had not entered the employment premises prior to his death. Chairez parked his car, suffering his injuries on the street. Accordingly, the going and coming rule applies, and Chairez' death is not compensable as having occurred upon the premises. However, we must determine if compensation is due under some exception to the going and coming rule.

SPECIAL RISK EXCEPTION

If, prior to entry upon the premises, an employee suffers injury from a special risk casually related to employment, the injury is compensable under the 'special risk' exception to the going and coming rule. 'The facts that an accident happens upon a public road and that the danger is one to which the general public is likewise exposed, however, do not preclude the existence of a causal relationship between the accident and the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.' (Freire v. Matson Navigation Co. (1941) 19 Cal.2d 8, 12, 118 P.2d 809, 811; 1 Larson, Supra, § 9.30, pp. 3--48--3--50.)

Thus, in Freire we held that an employee injured on a bulkhead while attempting to enter the employer's premises was within the ambit of workers' compensation because 'the plaintiff (employee) by reason of his employment was subjected to the risks arising on the bulkhead peculiarly and to an abnormal degree.' (19 Cal.2d at p. 13, 118 P.2d at p. 812.)

Similarly, the special risk exception was held applicable in Pacific Indem. Co. v. Industrial Acc. Com. (Henslick), supra, 28 Cal.2d 329, 170 P.2d 18 and Greydanus v. Industrial Acc. Com., supra, 63 Cal.2d 490, 47 Cal.Rptr. 384, 407 P.2d 296. In both Henslick and Greydanus the employees were injured in accidents while making left turns on a public street to the employers' premises in the face of oncoming traffic. In both cases we held the making of a left turn exposed the employee to a particular risk--one distinctive in nature--not shared by the public generally. (Henslick, supra, 28 Cal.2d at pp. 337--338, 170 P.2d 18; Greydanus, supra, 63 Cal.2d at p. 493, 47 Cal.Rptr. 384, 407 P.2d 296; see generally, 1 Larson, Supra, § 15.13, pp. 4--7--4--19.)

The facts of the present case show that Chairez' injury was casually related to his employment. But for his job, Chairez would not have been on La Cienega that morning. However, Chairez' death does not come within the second requirement of the special risk exception--that the risk is distinctive in nature or quantitatively greater than risks common to the public. Chairez was parked on a public street at a time and in a location where parking is available to the general public. The fact that he was struck by a passing motorist, while tragic, is a type of risk the public is subject to daily. Moreover, nothing in the facts indicates Chairez was exposed to a greater risk from passing motorists than was anyone else on La Cienega that morning.

SPECIAL MISSION EXCEPTION

An injury suffered by an employee during his regular commute is compensable if he was also performing a special mission for his employer. (2 Hanna, Supra, § 9.03(3)(iv), pp. 9--41--9--43.) The employee's conduct is 'special' if it is 'extraordinary in relation to routine duties, not outside the scope of the employment.' (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 295, 38 Cal.Rptr. 352, 355, 391 P.2d 832, 835.) The...