Publix Supermarkets v. Finocchi

• Decision Date: 27 February 1995
• Docket Number: No. 93-2158,93-2158
• Parties: 20 Fla. L. Weekly D529 PUBLIX SUPERMARKETS and Hartford Insurance Company, Appellants, v. Susan FINOCCHI, Appellee.
• Court: Florida District Court of Appeals

Page 1122

650 So.2d 1122

20 Fla. L. Weekly D529

PUBLIX SUPERMARKETS and Hartford Insurance Company, Appellants, v. Susan FINOCCHI, Appellee.

No. 93-2158.

District Court of Appeal of Florida,

First District.

Feb. 27, 1995.

Robert C. Barrett and Kristin J. Swanson of Rissman, Weisberg, Barrett & Hurt, P.A., Orlando, for appellants.

John R. Gierach and Debra J. Sirkin of Gierach and Gierach, P.A., Orlando, for appellee.

EN BANC

PER CURIAM.

The employer/carrier appeal a workers' compensation order in which it was established that the claimant sustained compensable injuries while traveling to work in response to the employer's sudden call. We conclude that the judge properly applied section 440.092, Florida Statutes (1991), and the special errand doctrine as delineated in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979).

When two other employees failed to appear for work, the employer called the claimant at home on her scheduled day off. The claimant agreed to work, and was told that she needed to arrive as soon as possible. Leaving home without breakfast, the claimant began driving to work along her regular route. She stopped at a convenience store to purchase breakfast which she intended to eat while driving, so as to expedite the travel and hasten her arrival. Upon exiting the convenience store, the claimant was struck by a vehicle and sustained various injuries.

In her employment application the claimant had indicated that she would be available for work at any time. She was called on her day off on other isolated occasions, with the employer generally notifying the claimant in advance. In the present instance the claimant had no advance notice, and the judge found that the employer's call was both irregular and sudden. Also finding that the claimant did not substantially deviate in stopping at the convenience store, the judge determined that the claimant's injuries were compensable because she had embarked on a special errand.

In Eady the supreme court addressed the special errand doctrine. Acknowledging that in the absence of special circumstances injuries sustained while traveling to or from the workplace are not ordinarily compensable, the court recognized a special errand exception to this going and coming rule. See also Sec. 440.092(2), Fla.Stat. (1991). Noting that special errands often arise in the context of an afterhours call, and that the irregularity and suddenness of such a call will almost always qualify it as a special errand, the court indicated that the special errand exception will apply even when such calls are a contemplated part of the employment or are nominally voluntary. Emphasizing that the worker is under a considerable burden in responding to such a call, the court applied the special errand doctrine because the assignment from the employer came suddenly.

Although the claimant in the present case was to perform tasks within the ordinary scope of the employment, and was traveling to work along her regular route, these circumstances do not alter the special errand character of the assignment. The worker in Eady was also called to perform a task within the ordinary scope of the employment, and the court noted that the task involved makes little difference in the context of a sudden call. The court further indicated that either the suddenness of the assignment, or the irregularity of the particular journey, would provide an independently compelling basis for application of the special errand doctrine. Indeed, in the course of this discussion the court cited to Feltner v. Southern Bell Tel. & Tel., 274 So.2d 530 (Fla.1973), where a worker was found to be within the course of the employment when responding to an afterhours call and traveling to the regular workplace.

In Feltner the workers often received afterhours calls. In Eady the worker was subject to being called at any time, and such calls were not unusual. However, in each case the worker apparently had no knowledge or notice that the particular call which led to injury would come when it did. The inconvenience and burden in responding to such an unexpected and sudden call made the journey a part of the rendered service. Likewise, the claimant in the present case had no advance knowledge and could not fairly anticipate the particular call. The suddenness of the call thus brought the journey within the course of the employment, as a special errand.

The application of the special errand doctrine generally depends on factual determinations which must be supported by competent substantial evidence. See Tampa Airport Hilton Hotel v. Hawkins, 557 So.2d 953 (Fla. 1st DCA 1990). The present record contains sufficient evidence to support the factual findings upon which compensability was established, in accordance with section 440.092 and the special errand doctrine. The appealed order is therefore affirmed.

ZEHMER, C.J., and ERVIN, JOANOS, BARFIELD, ALLEN, WEBSTER, DAVIS, BENTON and VAN NORTWICK, JJ., concur.

WEBSTER, J., concurs with opinion in which BENTON, J., concurs.

WOLF, J., specially concurs with opinion.

LAWRENCE, J., dissents with opinion in which BOOTH, MINER, KAHN and MICKLE, JJ., concur.

WEBSTER, Judge, concurring.

It appears relatively clear to me that one holding in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979), is that the special errand exception to the going and coming rule applies when an employee is injured responding to a "sudden" (i.e., unexpected) call from his or her employer. I am unable to read the following language from Eady as intended to have any other meaning:

The going and coming rule does not apply to this case because Mrs. Eady was on a special errand for her employer when she was injured. The journey was a substantial part of the service for two reasons, either of which standing alone would be compelling. First, the assignment by the employer came suddenly. Even when the call is a regular part of the job or nominally voluntary, the relative burden on the employee responding to such a call is considerable. See Feltner v. Southern Bell Tel. & Tel., [274 So.2d 530 (Fla.1973) ]. For this reason employees responding to a call from their employer are virtually always outside the going and coming rule. The task performed by the employee makes little difference in that context.

Id. at 696. I am, likewise, unable to agree with the dissent's characterization of the Eady opinion as not " 'a binding decision' or 'a binding precedential opinion' ... because there was no majority opinion." The opinion, authored by Justice Adkins, reflects that Chief Justice England and Justices Sundberg and McDonald concurred. Therefore, it would seem to me that there was a majority opinion, which created precedent binding upon us. See Santos v. State, 629 So.2d 838, 840 (Fla.1994).

I question the wisdom, from a public policy standpoint, of allowing recovery in a case such as this. However, it seems to me that Eady mandates such a result. Accordingly, I concur.

WOLF, Judge, specially concurring.

To the extent that the next to the last paragraph of the majority opinion can be read to indicate that "the suddenness of the call" standing by itself mandates a finding of compensability, I must disagree. I would affirm, however, based on the factual findings of the JCC which determined that the additional burden placed on the employee as a result of the employer's call would justify a finding of compensability.

In Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979), the supreme court reversed an order of the Industrial Relations Commission which overturned a finding by the judge of industrial claims that the employee was on a special errand for the employer. The court stated the general rule that injuries suffered by an employee going and coming from their place of employment are not compensable but that

[T]he going and coming rule does not apply to employees on special errands or missions for the employer.

Id. at 695.

The supreme court found that the Industrial Relations Commission erred because

[A]s a practical matter, the irregularity and suddenness of a call from the employer will almost always qualify it as a special errand exempt from the going and coming rule.

Id. at 695 (emphasis added). While the supreme court indicated that the suddenness of a call normally placed a considerable burden on the employee and, thus, there would be a compelling support for upholding a finding of compensability by the trier of fact, the test for determining whether a trip involved a special errand for the employer was a review of all the circumstances to determine the extent of the burden placed on the employee. ¹

Larson goes on to explain several variables which case law indicates may be useful in resolving difficult cases. If the particular journey is a regular or frequent one, there is a strong presumption that the going and coming rule applies. Also, the relative burden of the journey on the employee should be compared with the extent of the task to be performed in the context of the employee's duties. A significant journey for the sake of a minor task, as in the example by Larson, is indicated to be a substantial part of the service to the employer. The suddenness of the assignment from the employer, the time and length of the journey, and any special circumstances should be evaluated in assessing the relative burden on the employee. See Larson, The Law of Workmen's Compensation Sec. 16.11 (1978) at 4-136-39.

Eady at 696 (emphasis added).

In Tampa Airport Hilton v. Hawkins, 557 So.2d 953 (Fla. 1st DCA 1990), this court recognized that evaluation of these factors generally depended on factual matters to be determined by the JCC.

In the instant case, the JCC cited the Tampa Airport Hilton case and specifically indicated that he was considering a number of factors and not just the suddenness of the call, "i.e., the expense and inconvenience caused by the employee in having to go to the...