Sentry Ins. Co. v. Hamlin

Citation69 So.3d 1065
Decision Date22 September 2011
Docket NumberNo. 1D11–1041.,1D11–1041.
PartiesSENTRY INSURANCE COMPANY and Express Script, Inc., Appellants,v.Leon HAMLIN, Appellee.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

William H. Rogner and Gregory D. White of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.Bill McCabe of Shepherd, McCabe & Cooley, P.A., Longwood, and Clint M. Lavender of Morgan & Morgan, Orlando, for Appellee.

HAWKES J.

In this workers' compensation case, the employer carrier (E/C) appeals a non-final order adjudicating compensability in Claimant's favor. Claimant was injured when he attempted to retrieve personal property from a car which his lender was repossessing from his employer's parking lot. There is no dispute that the accident resulting in the injuries occurred in the course and scope of Claimant's employment. The question we address focuses only on the first part of the coverage formula, “arising out of work performed,” as set forth in section 440.09, Florida Statutes (2008).

The E/C argues the phrase “arising out of work performed” requires that the risks that caused Claimant's accident and injuries must be work-related. The risk cannot be personal to Claimant or “imported” to the workplace by the Claimant. We agree. Because, at the time of the accident, Claimant was on a purely personal mission having no relationship to work, the accident and injuries did not arise out of his employment. We therefore reverse.

FACTS

Claimant, a sales associate, was sitting at his cubicle working, when his supervisor informed him that a tow truck was near his vehicle in the company parking lot. Claimant immediately exited the building and had a conversation with the tow truck driver who informed him he had orders to take possession of the car and suggested he call his bank or finance company.

Claimant went back inside the office and phoned the bank. A bank representative informed him that his car was being repossessed (Claimant was two months behind on his car payments) and he needed to get his personal items out of the vehicle. Claimant went back to his vehicle to retrieve his personal belongings, (incidental bills and school textbooks) not work-related items. While Claimant was collecting his belongings with his body partially in his car and his feet on the surface of the parking lot, the tow truck driver (who had hooked Claimant's car up to the truck) drove off, dragging, and eventually running over Claimant, causing injuries.

The entire episode described above occurred within fifteen to twenty minutes. Claimant, who is permitted to take two paid fifteen-minute breaks per day, had not taken his breaks that day and was paid for this time. The parking lot, where the accident occurred, is used exclusively by the Employer and monitored by security guards. The Claimant was not disciplined or sanctioned in any way by his employer for going to the parking lot in response to the repossession of his car.

The parties bifurcated the issue of compensability from the issues regarding the precise amount of benefits due, and attended a merit hearing on only the issue of compensability. Claimant and his supervisor testified live (consistent with the account of the events as depicted above), and the parties, who had no ostensible disagreement over the facts, represented that the issue was primarily a legal matter.

CLAIMANT'S ARGUMENTS

Claimant maintains that because the injury occurred on the Employer's premises, while he was on a paid break, doing an activity implicitly permitted by the Employer, the “arising out of” requirement of section 440.09, Florida Statutes (2008) was satisfied. Specifically, he claims he had not substantially deviated from his employment when he was injured, and makes the following four points in support of his compensability argument.

• First, his injury is compensable under the premises rule because he was injured on the employer's premises while preparing to perform work.

• Second, his injury is compensable because it occurred during a paid work break.

• Third, his injury is compensable because he was injured while ministering to his personal comfort; yet, he had not deviated from the course and scope of his employment (rendering Employer consent irrelevant). Additionally, even if there was a deviation, it was insubstantial—which would not remove him from the course and scope of his employment.

• Fourth, his injury is compensable because retrieval of his schoolbooks was an emergency and injuries sustained as a result of an emergency designed to save property are compensable under section 440.092(3), Florida Statutes (2008).

STANDARD OF REVIEW

We accept the facts as found by the JCC and stipulated to by the parties. To the extent this issue involves the JCC's interpretation and application of a statute, it is a question of law and subject to a de novo standard of review.

“Arising out of” pertains to occupational causation. § 440.02(36), Fla. Stat. (2008). An accidental injury or death arises out of employment if work performed within the course and scope of employment is the major contributing cause of the injury or death. See Id. A condition is considered to “arise out of employment” when the employment necessarily exposes a claimant to conditions which substantially contribute to the risk of injury and to which the claimant would not normally be exposed during his life outside employment. Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995).

Work connection determines coverage under chapter 440, not fault. Compensation “shall be payable irrespective of fault as a cause for the injury.” § 440.10(2), Fla. Stat. (2008). The Supreme Court has summarized workers' compensation law and its unique relationship with the concept of liability:

The right to compensation benefits depends on one simple test: Was there a work-connected injury? Negligence, and, for the most part, fault, are not in issue and cannot affect the result. Let the employer's conduct be flawless in its perfection, and let the employee's be abysmal in its clumsiness, rashness and ineptitude; if the accident arises out of and in the course of the employment, the employee receives an award. Reverse the positions, with a careless and stupid employer and a wholly innocent employee and the same award issues.

Thus, the test is not the relation of an individual's personal quality (fault) to an event, but the relationship of an event to an employment. The essence of applying the test is not a matter of assessing blame, but of marking out boundaries.

Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 5 (Fla.2004) (citing Arthur Larson & Lex K. Larson, Larson's Workers' Compensation, Desk Edition § 1.03, at 1–4 to 1–5 (2003)). “Arising out of” is part of the work connection test.

For an injury to “arise out of work performed,” the injury must (1) be causally connected to the claimant's employment; (2) have had its origin in some risk incident to or connected with the employment; or (3) flow from the employment as a natural consequence. See Fid. & Cas. Co. of N.Y. v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940).

In workers' compensation, all risks causing injury to a claimant can be brought within three categories: risks distinctly associated with the employment, risks personal to the claimant, and “neutral” risks—that is, risks having no particular employment or personal character. Griffith v. Budget Rent–A–Car Systems, Inc., 692 So.2d 294, 296 (Fla. 3d DCA 1997) (quoting A. Larson, The Law of Workmen's Compensation § 7.00 (1984)). Harms from risks peculiar to employment are universally compensable. Id. Harm caused by personal risks are universally noncompensable. Id. It is within the third category (neutral risks) that most controversy in modern compensation law occurs. Id.

COURSE AND SCOPE INSUFFICIENT

The coverage formula found in section 440.09(1) reads: “The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.” (emphasis added). The “arising out of” requirement comes first and controls or modifies all that comes after it in the sentence. The “course and scope of employment” phrase defines the “work performed” that the injury must “arise out of.” Chapter 440 does not cover an accident resulting in injury, which does not arise out of, but does occur in the course and scope of employment.

Claimant's first two arguments are based on the fact that he was in the course and scope of his employment when injured. These arguments fall short. Under the “premises rule” cases, the claimants are engaged in some activity related to work, such as getting tools, entering the work place or picking up their pay check. In the paid break cases, the question is frequently resolved in favor of the claimant because there has been no substantial deviation from work. The paid break is normally of short duration and related to the concept of the personal comfort rule and is, in essence, a continuation of the work. Injuries, even those undoubtedly suffered in the course and scope of employment (such as on the premises or on paid breaks), are not compensable if the risk giving rise to injury is distinctly (or wholly) personal in nature or the injury results from a risk that the employee has imported into the workplace. See Leon County Sch. Bd. v. Grimes, 548 So.2d 205 (Fla.1989) (concluding employee's injuries resulting from fall occurring while employee was performing work in the course and scope of employment were not compensable because fall occurred as a result of personal risk, and “employment conditions did not contribute to her injury”); see also Carnegie v. Pan Am. Linen, 476 So.2d 311 (Fla. 1st DCA 1985) (“In circumstances where the workplace is merely the fortuitous site of a personal assault which is purely private in origin, and the...

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