McElroy Truck Lines, Inc. v. Pohopek

• Decision Date: 17 June 2003
• Docket Number: No. 106,106
• Citation: 826 A.2d 474,375 Md. 574
• Parties: McELROY TRUCK LINES, INC. v. Alfons James POHOPEK.
• Court: Maryland Court of Appeals

826 A.2d 474

375 Md. 574

McELROY TRUCK LINES, INC. v. Alfons James POHOPEK.

No. 106, Sept. Term, 2001.

Court of Appeals of Maryland.

June 17, 2003.

Albert B. Randall, Jr. (Robert T. Franklin, Franklin & Prokopik, on brief), Baltimore, for petitioner.

David M. Kopstein (Dross, Levenstein, Perilman & Kopstein, Seabrook, Irving Dross, Waldorf, on brief), for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, C.J.

The issue in this case is whether, pursuant to Maryland Code (1991, 1999 Repl.Vol.) § 9-203 of the Labor and Employment Article, Alfons James Pohopek, the respondent, a Maryland resident employed as a truck driver, by a trucking company based out of state, who was required to keep and maintain the company owned tractor-trailer truck in Maryland on weekends, but whose employment involved traveling, during the week, to various states along the eastern seaboard, including sometimes Maryland, for regular pickups and deliveries, is a "covered employee."¹ Following a hearing, the Workers' Compensation Commission (the "Commission") found that it had jurisdiction and, so, concluded that he was. A petition for judicial review was filed timely by the employer, McElroy Truck Lines, Inc., the petitioner. The Circuit Court for St. Mary's County reversed the judgment of the Commission, ruling, on summary judgment, that jurisdiction over the matter did not lie in Maryland. Dissatisfied with the reversal of the judgment of the Commission, the respondent appealed to the Court of Special Appeals. That court agreed with the Commission and, thus, reversed the judgment of the circuit court. Pohopek v. McElroy Truck Lines, 140 Md.App. 235, 237, 780 A.2d 383, 384 (2001). We shall affirm the Judgment of the Court of Special Appeals.

The respondent sought employment with the petitioner by filing an application with an agent of the petitioner in North Carolina. After having been offered, and accepted, employment with the petitioner, the respondent underwent a week's training and orientation in North Carolina, during the course of which he was presented with, and signed, a Workers' Compensation Agreement. Under that agreement, all workers' compensation claims were to be "exclusively governed by the [workers'] compensation laws of the State of Alabama," ² where the petitioner's principal place of business was located. Thereafter, the respondent was assigned a tractor-trailer leased by the petitioner, which he picked up in Virginia, and, having only a Pennsylvania commercial driver's license, at the petitioner's request, obtained a Maryland commercial driver's license.

The respondent obtained his delivery assignments by calling the petitioner's dispatchers. Mostly he called dispatchers in North Carolina, but he also received assignments from dispatchers in Alabama and Virginia. The respondent's deliveries were to states primarily along the eastern seaboard, from as far north as New Hampshire to as far south as Mississippi.³ The petitioner argued, and the Circuit Court determined, that it was undisputed that, while he was employed by the petitioner, the respondent made 145 deliveries, of which only 28, or 19 percent, were in Maryland and, of 45 refueling stops, only 9 occurred in Maryland. The Circuit Court concluded: "Given these facts, [the petitioner] conducted around 80 percent of his employment activity outside the State of Maryland."

The respondent was off on weekends. When he was off, as a part of his employment agreement, the company supplied tractor-trailer was kept in Maryland near the respondent's home in St. Mary's County. In addition to looking after the tractor-trailer and its contents—it usually was loaded on Fridays for Monday morning delivery—, the respondent was responsible for its regular maintenance and appearance. The Court of Special Appeals also observed: "In the early morning hours each Monday, Pohopek would conduct a pre-trip checklist of the truck, which consisted of testing the engine, brakes, lights, and other routine mechanical components. Pohopek then, in accordance with federal requirements, updated his log book." Pohopek, at 237, 780 A.2d at 384.

After having worked for the petitioner for approximately six months, the respondent was involved in an accident while driving the petitioner's tractor-trailer through South Carolina. He filed in Maryland a workers' compensation claim for the injuries he sustained. The petitioner defended on the basis that the Commission had no jurisdiction over the case, that the respondent was not a "covered employee." As indicated, although the Circuit Court was persuaded, both the Commission and the Court of Special Appeals rejected that defense.

Whether the respondent is a "covered employer" must be determined by reference to § 9-202 and § 9-203. The former addresses the relationship between the employee and the employer, while the latter, the place of the injury. Section 9-202 makes clear that to be a "covered employee," an individual must be "in the service of an employer under an express or implied contract of apprenticeship or hire." On the other hand, § 9-203 provides:

"(a) In general.—Except as otherwise expressly provided, an individual is a covered employee while working for the employer of the individual:

"(1) in this State;

"(2) outside of this State on a casual, incidental, or occasional basis if the employer regularly employs the individual within this State; or

"(3) wholly outside the United States under a contract of employment made in this State for the work to be done wholly outside of the United States.

"(b) Incidental service in State.—(1) An individual is not a covered employee while working in this State for an employer only intermittently or temporarily if:

"(i) the individual and employer make a contract of hire in another state;

"(ii) neither the individual nor the employer is a resident of this State;

"(iii) the employer has provided workers' compensation insurance coverage under a workers' compensation or similar law of another state to cover the individual while working in this State;

"(iv) the other state recognizes the extraterritorial provisions of this title; and

"(v) the other state similarly exempts covered employees and their employers from its law.

"(2) If an individual is exempted from coverage under this subsection and injured in this State while working for the employer of the individual, the sole remedy of the individual is the workers' compensation or similar law of the state on which the exemption is based.

"(3) A certificate from an authorized officer of the workers' compensation commission or similar unit of another state certifying that the employer is insured in that state and had provided extraterritorial insurance coverage for the employees of the employer while working within this State is prima facie evidence that the employer carries that compensation insurance.

"(c) Outside State.—Except as otherwise expressly provided, an individual who is employed wholly outside of this State is not a covered employee."

Thus, to be a "covered employee" and therefore eligible to bring, and maintain, a worker's compensation claim in this State, a worker must be an employee, § 9-202(a), and, as the Court of Special Appeals recognized, "the site of one's employment is the critical element for" making that determination. Pohopek at 240, 780 A.2d at 385. In this case, we are concerned only with § 9-203(a): the petitioner does not contend that the respondent was employed wholly outside of Maryland, rendering § 9-203(c) inapplicable, and although the petitioner maintains that the respondent was not regularly employed in Maryland, so that, in that sense, he was employed in Maryland only intermittently, it does not suggest that the prerequisites that make § 9-203(b) applicable are present in this case.

The gist of the petitioner's argument is that the respondent simply was not regularly employed in the State of Maryland. It asserts, noting that Dixon v. Able Equip. Co., 107 Md.App. 541, 549, 668 A.2d 1009, 1012 (1995), indicated that "`regular' implies a uniform course of conduct" and relying on what the Movement Listing for the respondent shows, that about 80 percent of the respondent's trips were to places other than Maryland, that the respondent's employment in Maryland lacked the required uniformity of conduct. The petitioner argues, alternatively, that, even if the respondent were regularly employed in this State, his employment outside the State cannot be characterized, logically or appropriately, as "casual, incidental or occasional."

Relying on the same case and the same definition, the Court of Special Appeals concluded otherwise with respect to the regularity of the respondent's employment in Maryland. Noting the Dixon court's acknowledgment that there is "no particular formula for establishing `regular' employment" and evaluating the case on its facts, 140 Md.App. at 241, 780 A.2d at 386, the intermediate appellate court reasoned:

"Here, the consistency of Pohopek's schedule and the employment responsibilities he carried out within the State persuade us to find regularity in Pohopek's Maryland employment. Pohopek was not commuting to work in another state on a daily or regular basis, but, instead, he was based out of Maryland and traveled regularly, albeit extensively, as part of his routine employment."

Id. Turning to the respondent's employment outside the State, the court conceded that it was, like his employment in State, regular. Id. Nevertheless, it held:

"[O]ur finding that Pohopek regularly works outside the State is inherently a finding that Pohopek does not work wholly outside the State, and, therefore, under Dixon and Garrett,⁴ Pohopek's work outside the State must be interpreted as casual. Dixon and Garrett essentially instruct us that the finding of regular employment outside of the State is inconsequential, until there is a finding of casual

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