Poinciana Village Const. Corp. v. Gallarano, AI-55
| Decision Date | 23 August 1982 |
| Docket Number | No. AI-55,AI-55 |
| Parties | POINCIANA VILLAGE CONSTRUCTION CORPORATION and Travelers Insurance Company, Appellants, v. Joseph GALLARANO, Appellee. |
| Court | Florida District Court of Appeals |
J. Burke Culler, Jr. of Adams, Coogler, Watson & Merkel, West Palm Beach, for appellants.
Krupnick & Campbell, P.A., Fort Lauderdale, and Tyrie A. Boyer, of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellee.
This cause is before us on appeal from a workers' compensation order in which the deputy found that the accident arose out of and in the course of employment and that the "going and coming rule" was inapplicable. We reverse.
Claimant/appellee, a superintendent with the appellant construction company, was authorized to use his personal automobile to pick up supplies and other materials needed on the job. No records were kept of whether or when the claimant picked up supplies, and use of the vehicle for such purpose was left to claimant's discretion. For the use of his vehicle in this fashion, he was paid an extra $25.00 per week.
On November 20, 1979, claimant was involved in an automobile accident at approximately 6:45 A.M. while traveling from his home in Boca Raton to his work site in West Palm Beach. He testified that he customarily arranged his schedule so as to arrive on the job site at 7:30 A.M. and leave at 4:30 P.M. This testimony was unchallenged. Normally, injuries flowing from such an accident would fall squarely within the "going and coming rule" and would not be compensable. See Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979); George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980); El Viejo Arco Iris, Inc. v. Luaces, 395 So.2d 225 (Fla. 1st DCA 1981). The deputy found that there was no way to tell from the evidence submitted whether or not the claimant actually was on his way to purchase supplies on the morning that the accident occurred. He nevertheless concluded that
[T]he agreement to pay the claimant $25.00 for his transportation expenses for picking up supplies is in essence a contract to pay the claimant's transportation expenses to the extent of $25.00 per week during the time that the claimant travelled to and from work. For this reason, I find that the claimant's accident does not fall within the "going and coming rule." ...
It is therefore clear that the award is based upon the extra $25.00 per week that the claimant was paid for using his personal vehicle in the manner aforementioned. We fail to see this as an agreement by the employer to furnish transportation, a recognized exception to the "going and coming rule." Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965). Such a finding stretches the evidence beyond its probative value and is contrary to the claimant's own testimony that the employer did not pay him for driving his automobile to work. The deputy's reliance upon employer-supplied transportation or an agreement by the employer to pay for the claimant's transportation to work is unwarranted. No other theory having been advanced for excepting the claimant from the "going and coming rule," the award of benefits was error and is accordingly reversed.
I would affirm because the question of a contract between claimant and employer for the employer to pay the claimant's transportation expenses is one properly resolved by the deputy commissioner and supported by competent, substantial evidence.
In Swartzer v. Food Fair Stores, Inc., 175 So.2d 36, 37 (Fla.1965), the Supreme Court stated the rule for determining whether the facts of a case bring it within the going and "Generally it appears that the employer's liability in such cases depends upon whether or not there is a contract between employer and employee, express or implied, covering the matter of transportation to and from work."
coming rule or make it an exception thereto:
Once an obligation to furnish transportation is demonstrated, by whatever means satisfied, then "[t]he hazards of the highway [are] inherent" in the contract of employment and claims arising therefrom are compensable as arising out of and in the course of employment. (cites omitted.)
Claimant was paid $25 a week to use his automobile to make work-connected pick-ups and deliveries at his discretion during travel to and from work and during the workday. Performing this part of his job necessarily required travel time and travel expenses. Claimant had to use his personal vehicle because the employer provided neither a delivery person nor a company vehicle. In such a situation the following comments by Professor Larson are altogether pertinent:
§ 16.20 Payment for Time of Travel
When the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment. This is a clear application of the underlying principle that a journey is compensable if the making of that journey is part of the service for which the employee is compensated.
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This factor, which is often lumped together with payment for time of travel, is not quite the same.
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[I]n the majority of cases involving a deliberate and substantial payment for the expense of travel ..., the journey is held to be in the course of employment.... [T]hat employment should be deemed to include travel when the travel itself is a substantial part of the service performed.
1 Larson, The Law of Workmen's Compensation, 4-153, 4-158 (1978).
There is another applicable rule of law cited in Larson which provides an independent basis for affirmance:
§ 17.50 Employee Required to Furnish Own Conveyance
If the employee as part of his job is required to bring with him his own car ... for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment.... [T]he obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment...
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