Histed v. E.I. Du Pont de Nemours & Co.

• Decision Date: 12 January 1993
• Citation: 621 A.2d 340
• Court: United States State Supreme Court of Delaware
• Parties: Ara Marie HISTED, Claimant Below, Appellant, v. E.I. DU PONT DE NEMOURS & CO., Employer Below, Appellee. . Submitted:

Page 340

621 A.2d 340

Ara Marie HISTED, Claimant Below, Appellant, v. E.I. DU PONT DE NEMOURS & CO., Employer Below, Appellee.

Supreme Court of Delaware.

Submitted: Jan 12, 1993.

Decided: March 10, 1993.

On appeal from the Superior Court. REVERSED and REMANDED. .

William R. Peltz of Kimmel, Weiss & Carter, P.A., Wilmington, for claimant below, appellant.

Robert W. Ralston, Wilmington, for employer below, appellee.

Before HORSEY, MOORE and WALSH, JJ.

MOORE, Justice.

Ara Marie Histed appeals a decision of the Superior Court affirming the Industrial Accident Board's (the "Board") denial of workers' compensation benefits to her. Ms. Histed was injured in an automobile accident that occurred outside of her normal work hours while she was responding to her employer's call for emergency service at one of its plants. This case raises an issue we have not previously addressed under our workers' compensation law--when, if ever, can an employee's commute to the work site qualify under the "special errand" exception to the general "going and coming" rule of employer nonliability? The Board ruled that her return trip to the plant did not qualify under the "special errand" exception, and the Superior Court affirmed. We reverse. Under the totality of circumstances here--including the urgency, inconvenience, increased risk, compensation for, and purpose of the claimant's trip--the necessary factual bases exist to convert what would otherwise be an ordinary commute into a special errand for the employer's benefit in the course and scope of Ms. Histed's employment.

I.

On Monday, January 9, 1989, at 2:00 a.m., Ms. Histed was called by her employer, E.I. Du Pont de Nemours & Co. ("Du Pont"), to return to work at one of its plants. Apparently, an instrument breakdown had brought the plant to a standstill, and all production ceased. None of the workers on duty could fix the problem. Although Ms. Histed could have declined this assignment, she immediately responded to the call, and was injured enroute in an automobile accident that was not her fault. She petitioned the Board for compensation for her injuries. Relief was denied on the ground that her trip to the plant fell within the general "going and coming" rule of employer nonliability.

Ms. Histed has been employed by Du Pont for twenty-six years. At the time of the accident she was a senior instrument technician. Although her regular shift was from 7:00 a.m. to 3:30 p.m., Monday through Friday, her position also required her to be available for emergency "on-call" assignments outside of her regular working hours. As compensation for these emergency assignments, Ms. Histed is paid a three hour minimum based upon her regular hourly rate plus time and one half for each hour actually worked. Over the years she has responded to many emergency calls.

The Board concluded that the additional three hour payment was not reimbursement for the journey, because the payment bore no relationship to the distance or the time required for the employee's travel. Instead, it was described as consideration for "inconvenience." The Board further held that the trip was not a substantial part of Ms. Histed's service to Du Pont because her work did not begin until she arrived at the plant. The Superior Court affirmed, and this appeal followed.

II.

Whether Ms. Histed's injuries occurred in the course and scope of her employment is a mixed question of law and fact. In an appeal from the Board, we examine the record for any errors of law in applying our worker's compensation act, 19 Del.C. § 2301 et seq. (the Act). We also determine whether substantial evidence supports the findings below. When factual determinations are at issue, we must take due account of the experience and specialized competence of the Board and of the purposes of our workers' compensation law. 29 Del.C. § 10142(d). Inherent in these considerations is that the Board's action must be consistent with the purposes of the Act, and in the absence of actual fraud, that its factual findings are supported by substantial evidence on the record. Id. "Substantial evidence" means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Olney v. Cooch, Del.Supr., 425 A.2d 610, 614 (1981).

A.

Under the Act every employee is bound to accept compensation for personal injury caused by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies. 19 Del.C. § 2304. The philosophy of the Act is to obviate the need for litigation and to give an injured employee, irrespective of fault, prompt compensation. Duvall v. Charles Connell Roofing, Del.Supr., 564 A.2d 1132, 1133 (1989); Frank C. Sparks Co. v. Huber Baking Co., Del.Supr., 96 A.2d 456, 461 (1953). Thus, the law must be interpreted liberally to fulfill its intended compensation goal under § 2304. Duvall, at 1134. Towards that end, Delaware is one of forty-three states that have adopted the British Compensation Act formula--providing compensation for injuries "arising out of and in the course of employment"--to ensure compensation for work-related injuries. 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 6.10 (1990). ¹ Consistent with the majority rule, 19 Del.C. § 2301(15) defines a compensable personal injury as:

"Personal injury sustained by accident arising out of and in the course of the employment [but it] shall not cover an employee except while he is engaged in, or about the premises where his services are being performed, which are occupied by, or under the control of, the employer (his presence being required by the nature of his employment), or while he is engaged elsewhere in or about his employer's business where his services require his presence as a part of such service at the time of injury...."

This statute has been interpreted to create the so-called "going and coming" rule of employer nonliability. Thus, injuries resulting from accidents during an employee's regular travel to and from work are noncompensable. Bernadette's Hair Designers v. Incollingo, Del.Super., C.A. No. 89A-JN-10, Babiarz, J., slip op. at 2, 1990 WL 105023 (July 16, 1990); see also 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 15.11 (1990). The rationale behind this rule is that employees face the same hazards during daily commuting trips as does the general public. Such risks, therefore, are no different from those confronting workers on personal excursions. Alitalia Linee Aeree Italiane v. Tornillo, 91 Md.App. 191, 603 A.2d 1335, 1337 (1992).

B.

For Ms. Histed to collect workers' compensation benefits under 19 Del.C. § 2304, she must prove by a preponderance of the evidence that she suffered a personal injury resulting from an accident occurring within the course and scope of her employment. Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 66 (1965); Weaver v. Sea Watch Intern., Del.Super., C.A. No. 91A-12-003, Graves, J., slip op. at 1, 1992 WL 114063 (May 18, 1992). Ms. Histed does not challenge the general proposition of the going and coming rule. Her contention is that the "special errand" exception applies to her case. That exception is a recognized principle of Delaware law. Cook v. A.H. Davis & Son, Del.Super., 567 A.2d 29, 31 (1989); Quality Car Wash v. Cox, Del.Super., 438 A.2d 1243, 1245 (1981). The substance of this rule is that:

When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 16.10 (1990) (emphasis added). Ms. Histed reasons that her journey was of special inconvenience and urgency, constituting a substantial part of the service she provides to her employer. We agree and find the exception fully applicable here.

C.

The going and coming rule is one of the most familiar and troublesome concepts in workers' compensation law. Eady v. Medical Personnel Pool, Fla.Supr., 377 So.2d 693, 695 (1979). Several cases have considered application of the rule in the context of commuting, but with differing results. In Eady, an on-call medical nurse received compensation for injuries sustained in an auto accident that occurred while she was driving to a private patient's home. The court recognized that although there is no general exemption for on-call workers, the special errand exception often arises within the context of an after-hours call from an employer. Id. at 695. Although the irregularity and suddenness of a call from an employer almost always qualifies as a special errand, exempt from the going and coming rule, the single circumstance of irregular hours is by itself insufficient. Id. Notwithstanding this restriction, the nurse in Eady was awarded compensation because she had taken a sudden assignment to an irregular destination, which constituted a substantial part of the claimant's service to her employer. Id.

The courts also consider the increased risk to an employee making an after-hours journey on behalf of an employer. In Hickey v. Union Pacific R. Co., 104 Or.App. 724, 803 P.2d 275, 278 (1990), a warehouse foreman's death was compensable because of an extra, late night trip made outside of normal hours. The court seemed to recognize that such a trip inherently presents increased risks to an employee. Id. 803 P.2d at 278.

In Johnson v. Fairbanks Clinic, Alaska Supr., 647 P.2d 592, 595 (1982), the court granted a physician compensation for an injury incurred while driving to the hospital. Significantly, the court observed that although there may not have been an...