Wilcox v. Ag Mart Produce

• Decision Date: 28 November 2006
• Docket Number: No. 1D06-1280.,1D06-1280.
• Parties: Timothy D. WILCOX, Appellant, v. AG MART PRODUCE d/b/a Santa Sweets and St. Paul Travelers, Appellees.
• Court: Florida District Court of Appeals

942 So.2d 959

Timothy D. WILCOX, Appellant, v. AG MART PRODUCE d/b/a Santa Sweets and St. Paul Travelers, Appellees.

No. 1D06-1280.

District Court of Appeal of Florida, First District.

November 28, 2006.

Bill McCabe, Longwood, for Appellant.

C. Brad Drummond, Law Office of Jack D. Evans, Tampa, for Appellees.

PER CURIAM.

Claimant was injured in a motor vehicle accident while driving a company vehicle home from work on March 2, 2005. After a hearing, the Judge of Compensation Claims (JCC) denied benefits to claimant based on the going and coming rule, section 440.092(2), Florida Statutes (2005).¹ On appeal, claimant argues that the JCC erred in denying him compensation benefits for the following reasons: (1) the traveling employee exception to the going and coming rule, section 440.092(4), Florida Statutes (2005), precludes application of the going and coming rule on the facts of this case; (2) there is no competent substantial evidence in the record to support the JCC's finding that claimant was operating an employer provided vehicle available for his exclusive personal use, and therefore, the going and coming rule does not apply; (3) there is no competent substantial evidence in the record to support the JCC's finding that the dual purpose doctrine, an exception to the going and coming rule, is not applicable in this case. We affirm the JCC's compensation order, which denied benefits to claimant.

BACKGROUND

Claimant worked as a farm supervisor for Ag Mart Produce. When he was hired by the employer, claimant was given a company vehicle as part of his compensation package to drive to and from work, and for business purposes. Additionally, claimant was allowed to use the vehicle for personal use, except that claimant would have to get approval if he used the vehicle for "excessive personal use." The written personal use policy for the company vehicles provided the following: "While our vehicles are purchased solely for business purposes, we do allow employees to garage their company-owned vehicles at home. It has long been felt that this reduces our exposure to vandalism and provides better access for our employees to their various work assignments."

Claimant's trial summary and memorandum of law, provided before the hearing, argued that the company vehicle was not for his exclusive personal use, and also that the dual purpose doctrine applied to preclude application of the going and coming rule. The dual purpose argument was based on claimant's allegations that the company received a benefit when he parked the vehicle at home.

Testimony was presented at the merits hearing relevant to the dual purpose doctrine. The president of the employer, Don Long, acknowledged the employer's written personal use policy for the company vehicles. However, Long also testified that the vehicle was given to claimant as part of his compensation package, and that there was no benefit to the employer by having the claimant take the vehicle home.

Additionally, testimony was presented regarding claimant's argument that he did not have exclusive personal use of the company vehicle. Claimant testified that he had the vehicle continually, and that the keys were in his possession 24 hours a day. However, he also testified that he did not drive the vehicle for personal use, except to and from home, and that other employees would drive the vehicle occasionally. Long testified that the employees could use the vehicles for incidental personal use, but that the employees must ask permission and fill out log forms for excessive personal use, such as vacations. Other evidence was admitted at the hearing that these logs did not exist and were never used.²

Claimant also presented testimony that, as part of his duties, he completed paperwork daily at home because he had no office on the farm. The paperwork had to be delivered to Fort Lonesome daily at 9 a.m. No other testimony was admitted at the hearing to controvert claimant's testimony regarding this required paperwork.

After the hearing, the JCC entered his compensation order, denying benefits. The JCC found that there was no business purpose to claimant's travel at the time of the accident, and therefore, the dual purpose doctrine was not applicable. The JCC also found that the employer's vehicle was available for the exclusive personal use of claimant. The JCC ultimately found that "[t]he claimant was in no different position on 3/2/05 than any other employee driving his own vehicle to or from work, therefore recovery of workers' compensation benefits is barred by F.S. 440.092(2), otherwise known as the going and coming rule."

ANALYSIS

Claimant's first argument is that the traveling employee exception, section 440.092(4)³, should apply in this case to preclude application of the going and coming rule. This argument is based on facts established at the hearing that claimant had to complete paperwork at home on a daily basis, because the employer did not provide him with a place to complete the paperwork at the farm. However, claimant failed to preserve this argument below.

Although claimant mentioned factually that he had to complete part of his work at home on a daily basis, he never connected this fact with the legal argument that the traveling employees exception applies in this case. In his trial summary and memorandum of law, claimant specifically argues the other two issues on appeal, that the company vehicle was not for claimant's exclusive personal use, and that the dual purposes doctrine applies in this case. However, claimant did not argue that the traveling employee exception barred application of the going and coming rule. Additionally, claimant failed to make this argument at the final hearing. Accordingly, claimant has failed to preserve this issue for appellate review. See Alpizar v. Total Image Beauty Salon, 650 So.2d 109, 110 (Fla. 1st DCA 1995) (providing that where an argument is not presented to the JCC, it is not preserved for appeal); Robinson v. Shands Teaching Hosp., 625 So.2d 21, 23 (Fla. 1st DCA 1993) (providing "[i]n workers' compensation appeals, as in appeals generally, issues which have not been raised below are treated as not preserved, and will not be addressed").

Claimant's second argument on appeal is that the going and coming rule does not apply in this case because there was no competent substantial evidence that the claimant had exclusive personal use of the company vehicle. The going and coming rule applies only where a claimant maintains exclusive personal use of the vehicle. See Securex, Inc. v. Couto, 627 So.2d 595, 597 (Fla. 1st DCA 1993). However, the JCC specifically found that claimant had exclusive personal use of the vehicle. Based on the evidence admitted at the hearing, the JCC specifically found that "personal use of the vehicle was allowed and was intended to be part of claimant's compensation." Additionally, the JCC found that there were "no practical restrictions on claimant's use of the vehicle" and that the employer "has made no effort to enforce [its personal use policy] or to monitor personal use of its vehicles in any meaningful way." Because these findings are supported by competent substantial evidence in the record, we will not disturb them on appeal.⁴

Claimant's third argument on appeal is that there is no competent substantial evidence to support the JCC's finding that the dual purpose doctrine is not applicable in this case. The dual purpose doctrine is an exception to the going and coming rule and provides that an employer is liable for workers' compensation benefits where an employee is injured during a trip "of a concurrent business and personal motive," "[s]o long as the business purpose is `at least a concurrent cause of the trip.'" Swartz v. McDonald's Corp., 788 So.2d 937, 945 (Fla.2001) (citing Cook v. Highway Cas. Co., 82 So.2d 679, 682 (Fla.1955)); see also Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-60 (Fla.2001).

In its order, the JCC found that claimant did not have a dual purpose for his trip from work to home on March 2, 2005 because there was no business purpose to claimant's travel. This finding of fact is supported by competent substantial evidence.⁵ The president of the employer Long, testified that the company vehicle was provided to claimant as part of his compensation package. When asked whether there was a benefit to the employer of claimant having his company vehicle at home, Long replied "no." Accordingly, this testimony provides competent substantial evidence that there was no dual purpose for claimant's trip home at the time he was injured. It is not the proper role of this court to reweigh the evidence presented below. Cape Canaveral Hosp., Inc. v. Nickell, 668 So.2d 219, 220 (Fla. 1st DCA 1996) ("The JCC sits as the finder of fact where the testimony is conflicting, and this court will not reweigh the evidence so long as the JCC's findings are supported by competent substantial evidence.").

The dissent argues that the JCC misconstrued the dual purpose doctrine, and that the JCC erred in inquiring as to whether claimant was required to drive the company vehicle home. However, prior decisions of this court and the Florida Supreme Court have examined whether the task was one mandated by the employer and other similar factors in applying the dual purpose doctrine. See Swartz, 788 So.2d at 949-50 (ruling that the claimant's transportation of the McDonald's company booth for use at a job fair had a dual purpose and noting that the claimant's transport of the booth "was sufficiently important to the operation of the job fair that it cannot be deemed a mere incidental benefit, especially in light of the repeated testimony regarding the mandatory nature of this employment responsibility"; noting that U.S. Fidelity & Guaranty Co. v. Rowe, 126 So.2d 737 (Fla.1961) continues to preclude recovery for employees who are "merely carrying tools of employment when injured and...