Leonard v. Dennis

• Citation: 10 Fla. L. Weekly 346,465 So.2d 538
• Decision Date: 08 February 1985
• Docket Number: Nos. 83-2175,A-C,RENT-A-CAR,83-2293,s. 83-2175
• Parties: 10 Fla. L. Weekly 346 James A. LEONARD, State Farm Mutual Automobile Insurance Company, Budget Rent-ar of Tampa, Inc., and Liberty Mutual Insurance Company, Jointly and Individually, Appellants, v. Robert H. DENNIS, Appellee. BUDGET RENT-AR OF TAMPA, INC., and Liberty Mutual Insurance Company, Appellants, v. Robert H. DENNIS, Appellee.
• Court: Court of Appeal of Florida (US)

Page 538

465 So.2d 538

10 Fla. L. Weekly 346

James A. LEONARD, State Farm Mutual Automobile Insurance Company, Budget Rent-A-Car of Tampa, Inc., and Liberty Mutual Insurance Company, Jointly and Individually, Appellants, v. Robert H. DENNIS, Appellee.

BUDGET RENT-A-CAR OF TAMPA, INC., and Liberty Mutual Insurance Company, Appellants, v. Robert H. DENNIS, Appellee.

Nos. 83-2175, 83-2293.

District Court of Appeal of Florida Second District.

Feb. 8, 1985.

Rehearing Denied March 19, 1985.

Jeffrey N. Kramer, Claude H. Tison, Jr., and Stephen H. Sears of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants Budget Rent-A-Car and Liberty Mutual Insurance Company.

Joseph S. Silver of Miller, McKendree & Somers, Tampa, for appellant State Farm Mutual Automobile Insurance Company.

Stuart C. Markman and D. Frank Winkles of Winkles, Trombley & Kynes, P.A., Tampa, for appellee Robert H. Dennis.

GRIMES, Acting Chief Judge.

These appeals involve the question of whether an employee who was injured through the negligence of his co-employee had the right to sue him as a third party tortfeasor.

Robert Dennis was injured in an accident while he was a passenger in an automobile owned by Budget Rent-A-Car of Tampa, Inc., and driven by his fellow employee James Leonard. Dennis sued Leonard, Budget, and their insurers for damages. The jury returned a $100,000 verdict in favor of Dennis. The defendants/appellants appeal the judgment which was entered on the verdict.

The appellants do not question Leonard's negligence in causing the accident. Rather, they contend that they were entitled to a directed verdict because of Leonard's immunity as a coemployee under section 440.11, Florida Statutes (1981). Dennis does not seek to avoid the impact of the statute by asserting that Leonard was not acting in furtherance of his employer's business or that he was grossly negligent in his driving. Dennis does, however, argue that whether or not his injuries arose out of and in the course of his employment was a question of fact which was properly resolved in his favor by the jury.

The facts relevant to Dennis' employment at the time of the accident may be briefly summarized. Both Dennis and Leonard were employed by the Roy B. Paul Construction Company. In 1981 the company was engaged in the construction of two industrial buildings at Crystal River, Florida. Dennis, who was a resident of Tampa, was the construction supervisor on the project. His practice was to stay in a Crystal River motel on the nights of Monday through Thursday and return to Tampa each weekend. Dennis was paid a per diem allowance for room and meals. He often brought his wife with him to Crystal River where she would stay at the motel without additional charge, though there was no company allowance for her meals.

Leonard, who lived in New Jersey, held the job of project manager. His duties required him to make periodic on-site inspections of the Crystal River construction project. While visiting a job site it was Leonard's practice to take his evening meals with the project construction supervisor so as to have an opportunity to discuss the progress of the job. After work on Thursday, December 3, 1981, at about 7:30 p.m., Dennis and his wife accompanied Leonard to dinner in his rented Budget automobile. The accident occurred while the parties were traveling to a restaurant located two to four miles from the motel where they were staying.

Section 440.09(1), Florida Statutes (1981), provides workers' compensation for injuries "arising out of and in the course of employment." To be compensable, an injury must arise out of employment in the sense of causation and be in the course of employment in the sense of continuity of time, space, and circumstances. Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980). Since the briefs focus primarily on whether Dennis was injured in the course of employment, this aspect of the matter will be considered first.

The law of workers' compensation has always recognized a difference between the employment status of off-duty employees whose work does not entail travel away from the employer's premises and traveling employees in their off-duty hours. Ordinarily, an employee in the former category is covered by workers' compensation only when he is on a mission related to his employer's work. However, a traveling employee is deemed to be in the continuous conduct of his employer's business including those times when he is not actually at work but is engaged in such normal and necessary activities as eating and sleeping. As the court noted in N & L Auto Parts Co. v. Doman, 111 So.2d 270 (Fla. 1st DCA 1959), cert. discharged, 117 So.2d 410 (Fla.1960):

The general rule is that an employee whose work entails travel away from the employer's premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a non-essential personal errand. Injuries incurred during such travel and while attending to the normal creature comforts and reasonably comprehended necessities, as distinguished from those incurred in the course of amusement ventures are usually held to be compensable. Compensation in such areas is predicated on the premise that these acts do not take the employee out of the scope of employment because they are necessary to his health and comfort; that although such acts are personal to the employee, nevertheless they are expected incidents of his away-from-home employment and indirectly if not directly benefit the employer; that such acts, therefore, are not in fact deviations from the course of employment.

111 So.2d at 271-272.

In applying the "traveling employee" rule, our sister court in Jean Barnes Collections v. Elston, 413 So.2d 797 (Fla. 1st DCA 1982), quoted 1A A. Larson, The Law of Workmen's Compensation § 25.00 (1979), as follows:

"Employees whose work entails travel away from the employer's premises are held ... to be within the course of their employment continuously during the trip, except when a distinct department [sic] on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable."

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