Gilbert v. Publix Supermarkets, Inc.

Decision Date12 July 2001
Docket NumberNo. SC94998.,SC94998.
Citation790 So.2d 1057
PartiesCaroline GILBERT, Petitioner, v. PUBLIX SUPERMARKETS, INC., et. al., Respondents.
CourtFlorida Supreme Court

Thomas A. Vaughan of Vaughan, Donohoe & Williams, Orlando, FL, and Bill McCabe, Longwood, FL, for Petitioner.

Arthur J. England, Jr. and Brenda K. Supple of Greenberg Traurig, P.A., Miami, FL, for Respondents.


We have for review Gilbert v. Publix Supermarkets, Inc., 724 So.2d 1222 (Fla. 1st DCA 1998), which is alleged to expressly and directly conflict with our opinions in Nikko Gold Coast Cruises v. Gulliford, 448 So.2d 1002 (Fla.1984), and Cook v. Highway Casualty Co., 82 So.2d 679 (Fla.1955), and which cited to the First District's decision in Swartz v. McDonald's Corporation, 726 So.2d 783 (Fla. 1st DCA 1998),quashed, 788 So.2d 937 (Fla.2001), a decision which was granted review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981). For the reasons expressed below, we hold that under the facts of this case workers' compensation benefits are not payable under the dual purpose exception to the "going and coming" rule and approve the decision below.


Caroline Gilbert (Gilbert) seeks review of the denial of a workers' compensation claim. Gilbert, a second assistant manager for Publix Supermarkets, Inc. (Publix), was injured in an automobile accident which occurred at approximately 3:45 a.m. on January 26, 1995, en route from her home to her place of employment at Publix. Although Gilbert's obligations for this position varied, she was responsible for both opening the store at 4:00 a.m. and preparing the weekly store newsletter. At the compensation hearing, Nathan Hicks, a second assistant store manager, Michael Seithel, the assistant store manager, and David Curry, the store manager, all testified that the newsletter was distributed with the paychecks on Thursday mornings at 8:00 a.m. Both Curry and Hicks testified that Gilbert was held accountable for preparing the newsletter. Indeed, Gilbert began preparing the newsletter at the request of Curry.

Typically, Gilbert prepared the newsletter at home on Wednesday evenings and delivered it to the store by 7:00 a.m. on Thursday mornings. The record is unclear as to why Gilbert prepared the newsletter at home. Although Gilbert suggests that she worked on the newsletter at home because there was no typewriter in the store, the record also reflects that there was a computer at the store which she could have used to prepare the newsletter. Although Seithel and Curry testified that they encouraged Gilbert to prepare the newsletter at work, they both admitted that they never prohibited her from preparing it at home. Indeed, Publix paid Gilbert for the time she spent working on the newsletter at home if she kept a record of her time. Publix, however, did not pay Gilbert for her travel time when transporting the newsletter to work. Interestingly, Kelly Wagoner, another Publix employee, temporarily assumed the responsibility of preparing the newsletter after Gilbert's accident. Like Gilbert, Wagoner prepared the newsletter at home, delivered it on days she was not scheduled to work, and was never advised against working on the newsletter at home.

According to the unrefuted testimony, Gilbert's usual practice was to deliver the newsletter on Thursday mornings, even on days when she was not scheduled to work. Publix, however, alleges that Gilbert was not required to deliver the newsletter on days she was not working. Curry testified that he merely expected the newsletter to be completed on Wednesday if Gilbert were not reporting to work the next day. Moreover, on the day of the accident, the newsletter was not delivered, but paychecks were still distributed. Curry's testimony nevertheless indicates that there were no restrictions as to when Gilbert could deliver the newsletter, so long as it was delivered before paycheck distribution.

Although Gilbert was scheduled to open the store on the morning of the accident, the record indicates that Gilbert was also transporting the newsletter. Indeed, the store newsletter was among the belongings retrieved from Gilbert's car after the accident. In addition, Gilbert's son testified that he heard his mother working on the newsletter on both the evening before and the morning of the accident. The record further indicated that the site of the accident was four to five miles from Publix and was located on the most direct route from Gilbert's home to Publix. After the accident, Gilbert filed a petition for workers' compensation benefits. Publix, however, filed a notice of denial, claiming Gilbert's injuries were not compensable because her injuries did not arise out of or in the course of her employment. The Judge of Compensation Claims (JCC) held evidentiary hearings and entered an order denying compensability. The JCC, however, vacated this order in response to Gilbert's motion for rehearing. After several more hearings, the JCC entered a final order denying compensability. The JCC made the following findings: Gilbert drove her normal route to work; she was scheduled to open Publix at 4:00 a.m. as part of her customary work schedule; the stretch of the road driven posed no special hazard; the managers did not prohibit her from working on the newsletter at home; the newsletter was completed before she left her house for work; the newsletter was in the car at the time of the accident; she was not paid for her travel time; she was not transporting the newsletter purposely for delivery at 4:00 a.m.; her sole purpose for traveling to work was to open the store; and the trip did not constitute a special errand. Accordingly, the JCC denied compensation and the attendant claims for indemnity, medical expenses, costs, and attorney's fees. The JCC also denied Gilbert's subsequent motion for rehearing.

Thereafter, Gilbert appealed to the First District Court of Appeal. The First District affirmed on all issues, but specifically addressed exceptions to the "going and coming" rule. The court concluded that because Gilbert prepared the newsletter at home for her convenience, her home did not constitute a second job site. See Gilbert, 724 So.2d at 1222. Therefore, she did not fall under the exception to the "going and coming" rule for traveling between two employment premises. See id. The court further held that it was not necessary for Gilbert to deliver the newsletter to the store on the morning of the accident. See id. Instead, delivering the newsletter was an incidental part of her trip and "she would not have made the drive if the personal motive (going to work) was removed." Id. Gilbert sought review of the First District's decision, and this Court accepted jurisdiction and dispensed with oral argument.


At issue in the present case is whether Gilbert's accident is compensable under our Workers' Compensation Law. To be compensable, the accident must arise out of or in the course and scope of employment. See § 440.09(1), Fla.Stat. (Supp. 1994). The "going and coming" rule, as codified in section 440.092(2), Florida Statutes (Supp.1994), provides that injuries sustained while going to or coming from work do not arise out of or in the course and scope of employment.1 See Bechtel Constr. Co. v. Lehning, 684 So.2d 334 (Fla. 4th DCA 1996). There are several exceptions to the "going and coming" rule. In the present case, the parties dispute the applicability of the dual purpose exception.

This Court first adopted the dual purpose exception to the "going and coming" rule in Cook. In determining whether the employees' workers'...

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4 cases
  • Rodriguez v. Tri-State Carriers, Inc.
    • United States
    • Florida District Court of Appeals
    • September 4, 2001
    ...has no application here. Mr. Rodriguez took the truck home solely for his personal convenience. Compare Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-61 (Fla.2001), with, Swartz v. McDonald's Corp., 788 So.2d 937, 940-46 (Fla.2001). At the time of the accident, Mr. Rodriguez wa......
  • Wilcox v. Ag Mart Produce
    • United States
    • Florida District Court of Appeals
    • November 28, 2006
    ...788 So.2d 937, 945 (Fla.2001) (citing Cook v. Highway Cas. Co., 82 So.2d 679, 682 (Fla.1955)); see also Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-60 (Fla.2001). In its order, the JCC found that claimant did not have a dual purpose for his trip from work to home on March 2, ......
  • PEREZ-ABREU, ZAMORA, PA v. Taracido
    • United States
    • Florida Supreme Court
    • July 12, 2001
    ... ... Manuel E. TARACIDO, Medical Centers of America, Inc., Medical Centers of America at South Florida, and Medical Centers of ... ...
  • Adams v. Mitchell G. Hancock, Inc., 5D10–1100.
    • United States
    • Florida District Court of Appeals
    • November 4, 2011
    ...Further, under these material undisputed facts, the “dual purposes exception” did not apply. See generally Gilbert v. Publix Supermkts., Inc., 790 So.2d 1057 (Fla.2001). Accordingly, the final summary judgment in favor of Hancock is affirmed. AFFIRMED.TORPY, COHEN and JACOBUS, JJ., concur. ......

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