McClelland v. Simon-Williamson Clinic, P.C.

• Decision Date: 04 November 2005
• Docket Number: No. 2031075.,2031075.
• Citation: 933 So.2d 367
• Parties: Bryan McCLELLAND v. SIMON-WILLIAMSON CLINIC, P.C.
• Court: Alabama Court of Civil Appeals

933 So.2d 367

Bryan McCLELLAND v. SIMON-WILLIAMSON CLINIC, P.C.

No. 2031075.

Court of Civil Appeals of Alabama.

November 4, 2005.

Certiorari Denied January 13, 2006 Alabama Supreme Court 1050244.

Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.

Joseph H. Driver and Donald E. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.

THOMPSON, Judge.¹

Bryan McClelland, M.D. ("the doctor"), sued Simon-Williamson Clinic, P.C. ("the clinic"), seeking workers' compensation benefits for injuries he claims he sustained on February 7, 2000, in the line and scope of his employment.² The clinic answered and denied liability. The clinic later filed a motion for a summary judgment, and the doctor filed a motion for a partial summary judgment as to the issue of workers' compensation coverage. On April 23, 2004, the trial court entered a summary judgment in favor of the clinic. That judgment stated, in relevant part:

"The undisputed material facts are the following:

"[O]n the morning of February 7, 2000, the [doctor] was seriously injured when his automobile flipped and rolled while he was attempting to avoid another vehicle on U.S. Highway 280 West. The [doctor] was at the time traveling from his home to Shelby Baptist Hospital for morning rounds there.

"The [doctor] owned his vehicle and received no reimbursement from [the clinic] for mileage. His trip to Shelby Baptist was normal and customary; the [doctor]'s practice involved making morning rounds there whenever he was working or on call. The [doctor] would typically arrive at the hospital between 6:45 and 8:00 a.m.

"The [doctor]'s employment with [the clinic] was pursuant to an employment agreement. Under this agreement, the [doctor] was obligated to answer calls from or about patients 24 hours a day.¹ The [doctor] was not formally on duty at the time of the accident, however. Under his contract with [the clinic], the [doctor]'s standard hours at the clinic were from 9:00 a.m. to 5:00 p.m "Before setting out that morning, the [doctor] had received a couple of calls from the hospital about patients. He was at his home when he fielded those calls. It is common for the [doctor] to receive such calls at his home. Further, on the morning of the accident, the [doctor] received a call from his answering service while he was in his automobile and then talked to a patient, directing that the patient meet him at the hospital or the clinic.² The doctor, however, was already en route to the hospital when he received the call.

"The calls that the [doctor] received, both at home and while he was in his vehicle, did not necessitate that he make any special trip to the hospital. His trip was not to attend to any emergency; rather, he was simply following his customary practice and routine. The [doctor] received no additional compensation as a result of receiving the calls at home or in his vehicle on the morning of his accident, moreover.

"Alabama's workers' compensation laws generally cover `injuries by accident arising out of and in the course of the employment.' § 25-5-1(8), Ala.Code 1975. The `arising out of' requirement generally involves a causal connection between the injury and the nature of the employment, while the `in the course of' requirement refers to factors such as the time, place and circumstances of the accident at issue.

"Under these requirements for coverage, an employee injured in an accident on his way to work is generally not covered under the [Workers' Compensation] Act [§ 25-5-1 et seq., Ala.Code 1975]. See e.g., Terry v. NTN-Bower Corp., 615 So.2d 629, 631 (Ala.Civ.App. 1992). Every rule has its exceptions, as the saying goes, so the focus is whether any such exception applies.

"There are cases that recognize an exception to the rule, and, thus, coverage under the Act, if an employer furnishes the transportation or reimburses the employee for his traveling expenses. Under the facts described above, this Court concludes that the grounds for this exception do not exist here, and the [doctor] does not really argue to the contrary.

"Instead, battle is joined over the question whether the [doctor] was engaged in a duty in connection to his employment while en route to the hospital. In arguing that he was, the [doctor] points to the fact that he was on call and was in communication with patients on his cell[ular] [tele]phone while traveling.

"The fact remains, however, that the [doctor]'s travel to the hospital on the day of the accident was pursuant to his normal and routine commute. While he was on call at the time of the accident, the [doctor] was not on duty. His trip on that day, for example, was not the result of a directive by the clinic to make a special trip in order to address some emergency.

". . . .

"For these reasons, the Court concludes that the [doctor]'s accident falls within the `going and coming' rule, precluding coverage under the workers' compensation laws. [The clinic]'s motion for summary judgment must accordingly be GRANTED.

¹ The [doctor] recognized that this obligation also stems from the applicable medical standard of care.

² [The clinic] paid for the [doctor]'s [cellular telephone] that was used to make and receive calls while the [doctor] was in his vehicle."

The doctor timely appeals.

"A party is entitled to a summary judgment when `there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P. `Our review of a summary judgment is de novo.' Crutcher v. Wendy's of North Alabama, Inc., 857 So.2d 82, 85 (Ala.2003)."

Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 707 (Ala.2004) (a case in which the parties had filed cross-motions for a summary judgment).

Pursuant to § 25-5-31, Ala.Code 1975, an employee's injuries are compensable if his accident arose out of and in the course of employment. Although "`"[c]ourts must liberally construe the workers' compensation law `to effectuate its beneficent purposes,' ... such a construction must be one that the language of the statute `fairly and reasonably' supports."'" Fort James Operating Co. v. Irby, 911 So.2d 727, 733 (Ala.Civ.App.2005) (quoting Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003), quoting in turn Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala. 1985)). Our supreme court has said that "[a]n injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it." Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955) (emphasis added). Regarding the "going and coming" rule, our supreme court has stated:

"Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act because those injuries do not meet the `arising out of and in the course of employment' requirement. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Exchange Distrib. Co. v. Oslin, 229 Ala. 547, 158 So. 743 (1935); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ. App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987)."

Ex parte Shelby County Health Care Auth., 850 So.2d 332, 336 (Ala.2002). In Ex parte Shelby County Health Care Authority, the supreme court explained that only a few exceptions exist to the "going and coming" rule:

"Alabama courts have carved out only a few exceptions to this general rule:

"`Such exceptions include situations where the employer furnishes the employee transportation or reimburses him for his travel expenses; where the accident occurs on the employer's property or on public property that is tantamount to the employee's ingress to and egress from the employer's property; or where the employee is injured crossing a public street between the main premises of the employer and the parking lot owned by the employer.'

"Terry v. NTN-Bower Corp., 615 So.2d [629] at 631 [(Ala.Civ.App.1992)] (citations omitted). See also Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1216 (Ala.Civ.App.1996). An additional exception to the general rule arises when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer's business. See Tucker v. Die-Matic Tool Co., 652 So.2d [263] at 265 [(Ala.Civ.App.1994)]."

Ex parte Shelby County Health Care Auth., 850 So.2d at 336 (emphasis added). This last emphasized exception is commonly referred to as the "dual purpose" or "dual capacity" exception. See Tucker v. Die-Matic Tool Co., 652 So.2d 263, 265 (Ala.Civ.App.1994).

The doctor first argues that he was "on the job" while traveling to work during his normal commute on February 7, 2000, because, he claims, he was engaged in performing job duties during the commute. The doctor points to the following facts in support of this argument: the clinic required him to take patient calls 24 hours a day, which included the period of time he was traveling to and from work; the clinic paid for the cost of his cellular telephone; the doctor actually used his cellular telephone to respond to a patient's call during his commute on February 7, 2000; and that call ended within a short time frame before the accident occurred.

However, the doctor concedes in his appellate brief that being on call is not the same as being on duty. See Ex parte Blackmon, 289 Ala. 635, 270 So.2d 108 (1972) (discussed later in this opinion addressing the doctor's "responding to a call" argument). Further, even if we were to...