Ohio Cas. Group v. Aetna Cas. & Sur. Co.

• Decision Date: 30 October 1986
• Citation: 517 A.2d 166,213 N.J.Super. 283
• Parties: OHIO CASUALTY GROUP, Petitioner-Respondent, v. AETNA CASUALTY & SURETY COMPANY, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 283

213 N.J.Super. 283

517 A.2d 166

OHIO CASUALTY GROUP, Petitioner-Respondent, v. AETNA CASUALTY & SURETY COMPANY, Respondent-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 30, 1986.

Decided Oct. 30, 1986.

Nancy S. Freeman, Haddonfield, for respondent-appellant (Freeman & Barton, attorneys; Nancy S. Freeman, on the brief).

William W. Summers, for petitioner-respondent (Montano, Summers, Mullen, Manuel & Owens, Westmont, attorneys; William W. Summers, on the brief).

Before Judges O'BRIEN, SKILLMAN and LANDAU.

LANDAU, J.S.C. (temporarily assigned).

This is an appeal by Aetna Casualty & Surety Company from final judgment of the Division of Worker's Compensation in favor of petitioner Ohio Casualty Group as subrogee of Victor Vittorino under personal injury protection (PIP) provisions of an automobile insurance policy. ¹ Aetna Casualty & Surety Company provided worker's compensation insurance for Vittorino's employer Hydro-Nuclear Services (Hydro-Nuclear).

The Worker's Compensation Judge interpreted N.J.S.A. 34:15-36 to find that Vittorino's injuries occurred within the scope of his employment. We reverse.

The facts are uncontroverted.

In 1981, Vittorino was a salaried employee of Hydro-Nuclear, a New Jersey company which contracted to provide services for a nuclear power plant in Vermont. He was the day shift supervisor for a number of other Hydro-Nuclear employees who were assigned to the job site. Vittorino and the others stayed at a Holiday Inn about 12 miles from the power plant. All received a per diem allowance for room and board, and were not required to stay at the Holiday Inn. Vittorino initially travelled with a coemployee in a company van from Marlton, New Jersey to Vermont, bringing a high pressure pump to the job site, and thereafter he drove the van to and from the Holiday Inn and job site. Hydro-Nuclear permitted, and did not require employee reimbursement for, use of company vehicles for minor local personal trips. It did not discourage social activities for relaxation after work.

On October 22, 1981, Hydro-Nuclear's president and its operations manager went to Vermont in a company car to check progress. That evening Vittorino and his immediate supervisor joined with these company officials in a dinner hosting executives of the Vermont power plant. After dinner the Hydro-Nuclear group left their customers and returned to the Holiday Inn at approximately 10:30 p.m. They went into the bar, but Vittorino separated himself from the employer group and socialized with friends he had made while in Vermont. Although sometimes required to be on "24 hour call," he was not on such call that evening.

One of Vittorino's Vermont friends in the bar was a part-time Holiday Inn cocktail waitress, who that night was a guest at an unrelated party in the next room. When her friends became intoxicated, she asked Vittorino for a ride to her home which was approximately three miles from the Holiday Inn.

Vittorino approached one of the visiting Hydro-Nuclear officials and requested permission to borrow the company car which had been driven to Vermont that day. He explained that he wished to drive the woman home, and was given the car keys. There is no question that Vittorino received proper authorization to use the company car. While driving her home, he was seriously injured in an automobile accident.

The PIP carrier made medical payments on his behalf, and now seeks subrogation recovery through the worker's compensation action. There is no dispute as to its right to so institute the worker's compensation proceeding.

THE COMPENSATION JUDGE'S DECISION

In considering whether the accident was one "arising out of and in the course of his employment" under N.J.S.A. 34:15-7, the compensation judge defined the principal issues to be whether N.J.S.A. 34:15-36 "rendered the accident sustained non-compensable," and whether the decision in Cavalcante v. Lockheed Electronics Co., 85 N.J.Super. 320, 204 A.2d 621, (Cty.Ct.1964), aff'd 90 N.J.Super. 243, 217 A.2d 140 (App.Div.1966) was "still the law in the State of New Jersey?"

Citing familiar authority requiring that the Worker's Compensation Act be given a liberal construction in aid of its remedial purpose, the Compensation Judge concluded generally that "the injured employee, Mr. Victor Vittorino, was under the mantle of protection of the New Jersey Worker's Compensation Law from the time he left Marlton, New Jersey and all during the time he was in Vermont, and that this protection would continue up until the time he had returned safely to his home in Marlton, New Jersey ..." He found that Vittorino's operation of a company vehicle brought him within the provisions of the act because he was operating a vehicle on "business authorized by the employer"; that Nebesne v. Crocetti, 194 N.J.Super. 278, 476 A.2d 858 (App.Div.1984) provided additional authority for compensability because Vittorino was being paid for his "travel time" by reason of continuation of his annual salary while on travel status; and that the claim should be compensable because the employer was aware of the purpose for which the company car was borrowed. In this respect he found that, because the company would probably have chivalrously responded to the call of a "damsel in distress," transportation of Vittorino's friend should be deemed a "special mission" which would bring the off-premises injury within the definition of "employment."

The Compensation Judge also held the claim compensable as occurring on the "job site" because that phrase "encompasses any place where the injured employee may have been which could not or would not be construed as an unreasonable deviation from his normal activities with respect to his assignment." We understand this finding to be a way of stating a conclusion that Vittorino's off-hours social activities, including driving his female friend home, were not unreasonable for an employee sent to Vermont by his employer for an extended period, and that any accident which occurred in the course of such reasonable social activities should be deemed to arise out of and in the course of his employment under Cavalcante, 85 N.J.Super. 320, 204 A.2d 621.

The Compensation Judge also invoked, somewhat tentatively, an equitable concept of "estoppel" against the compensation carrier, apparently held to arise by reason of the employer's grant of permission for use of the car.

THE LEGAL ISSUES

Our review of the compensation award below must begin, not with the inquiry whether N.J.S.A. 34:15-36 "rendered the accident sustained non-compensable," but whether Vittorino's accident is compensable under that statute. The inquiry in this case is solely one of law. In pertinent part N.J.S.A. 34:15-36 provides:

... when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of [an] employee paid travel time by an employer for time spent travelling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent travelling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

In Mangigian v. Franz Warner Assocs., Inc., 205 N.J.Super. 422, 501 A.2d 179 (App.Div.1985) we recently reviewed the history of decisions which preceded amendment of N.J.S.A. 34:15-36 in 1979 as part of an extensive revision and reform of the Worker's Compensation Act. There, and in Ehrgott v. Jones, 208 N.J.Super. 393, 506 A.2d 40 (App.Div.1986) we noted the clearly expressed legislative purpose to curtail sharply compensability for off-site accidents. Mangigian at 205 N.J.Super. at 426, 427, 501 A.2d 179; Ehrgott 208 N.J.Super. at 397, 506 A.2d 40. ²

As we recognized in Ward v. Davidowitz, 191 N.J.Super. 518, 523, 468 A.2d 250 (App.Div.1983) the starting point of the amendment was to eliminate an employer's responsibility for accidents occurring in areas not under the employer's control unless the employee is required to be away from the work place by the...