Securex, Inc. v. Couto

• Decision Date: 07 December 1993
• Docket Number: No. 93-39,93-39
• Citation: 627 So.2d 595
• Parties: 18 Fla. L. Weekly D2596 SECUREX, INC. & Claims Center, Appellants, v. Johnny COUTO, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 595

627 So.2d 595

18 Fla. L. Weekly D2596

SECUREX, INC. & Claims Center, Appellants, v. Johnny COUTO, Jr., Appellee.

No. 93-39.

District Court of Appeal of Florida,

First District.

Dec. 7, 1993.

Nancy A. Lauten and James A. Tucker of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellants.

J. Michael Brennan, Fort Pierce, for appellee.

DAVIS, Judge.

Securex, Inc. and Claims Center have appealed a non-final order of the judge of compensation claims (JCC) finding compensable the injuries suffered by Johnny Couto, Jr. We affirm.

Mr. Couto was injured in a car accident while on his way home from work. At the time, Mr. Couto was a passenger in a company car being driven by a fellow employee. For over two years, since his own car stopped running, Mr. Couto had been driven to and from the job site every time he worked. When Mr. Couto worked a regular shift he was charged a nominal fee by Securex for the transportation, but there was no charge if Mr. Couto was working overtime or an extra shift. Securex had a rule that employees were to have their own cars and provide their own transportation. An exception was made for Mr. Couto because he was a reliable employee, available on short notice, and "a nice guy who needed to work." However, no other employees were allowed to ride in the car when Mr. Couto was being taken to work or to his home. The only persons in the car were Mr. Couto and whoever had been designated to drive him. Mr. Couto was never given a car to take home, and never drove the company car which transported him. On the day of the accident, Mr. Couto was being taken directly home from his job site; he was not running any personal errands in the company car and the driver was not running any business errands other than transporting Mr. Couto.

Ordinarily, injuries incurred while going to and from work are not compensable. Andrews v. Drywall Enterprises, 569 So.2d 821 (Fla. 1st DCA 1990), review denied mem., 581 So.2d 1307 (Fla.1991). Over the years, a number of exceptions to the "going and coming rule" have been recognized. Sweat v. Allen, 145 Fla. 733, 200 So. 348, 350 (1941), overruled on other grounds by City of Fort Lauderdale v. Abrams, 561 So.2d 1294 (Fla. 1st DCA), review denied mem., 574 So.2d 139 (Fla.1990). One of these recognized exceptions is for transportation provided by the employer. Florida Rock and Tank Lines, Inc. v. Alford, 474 So.2d 1233, 1235 (Fla. 1st DCA 1985). An injury is deemed to have occurred in the course and scope of one's employment if it took place while one was being transported pursuant to a custom which made the transportation an implicit part of the employment contract. Andrews v. Drywall Enterprises, Inc., 569 So.2d at 823. ¹

Securex argues that even if this transportation used to come under an exception to the coming and going rule, the exception no longer applies because of a newly enacted statute, section 440.092(2), Florida Statutes (Supp.1990). This case presents a question of first impression regarding the extent to which section 440.092(2) has abrogated the exception to the going and coming rule for employer-provided transportation. The law provides that:

An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

Obviously, this new law is not intended to completely abrogate the exception to the going and coming rule for employer provided transportation. If the scope of the new law had been that broad, the Legislature...