Winn Dixie Stores, Inc. v. Akin, 4-86-3109

• Decision Date: 19 October 1988
• Docket Number: No. 4-86-3109,4-86-3109
• Citation: 13 Fla. L. Weekly 2372,533 So.2d 829
• Parties: 13 Fla. L. Weekly 2372 WINN DIXIE STORES, INC., and Vincent Magliulo, Appellants, v. Donna A. AKIN, as Personal Representative of the Estate of Scott M. Akin, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 829

533 So.2d 829

13 Fla. L. Weekly 2372

WINN DIXIE STORES, INC., and Vincent Magliulo, Appellants, v. Donna A. AKIN, as Personal Representative of the Estate of Scott M. Akin, Deceased, Appellee.

No. 4-86-3109.

District Court of Appeal of Florida,

Fourth District.

Oct. 19, 1988.

Jonathan L. Alpert and Randall Reder of Alpert, Josey, Grilli, Paris & Hanna, P.A., Tampa, and Richard N. Blank, Fort Lauderdale, for appellants.

Jon Krupnick, Fort Lauderdale, and John Beranek of Klein & Beranek, P.A., West Palm Beach, for appellee.

Michael L. Richmond, Fort Lauderdale, for amicus curiae-Florida Defense Lawyers Assn.

ON PETITION FOR REHEARING

PER CURIAM.

The Appellant's Motion for Rehearing or Clarification is granted. Appellee's Motion to Certify and for Rehearing are denied. The opinion of March 2, 1988, is withdrawn and the following opinion substituted in its place:

The grocery store employer argues on appeal that the trial court erred, as a matter of law, when it failed to grant a directed verdict on the basis that the employee was killed within the scope of his employment. We agree and reverse.

The employee arrived at his workplace at 3:30 a.m. preparatory to a 4:00 a.m. start-up time. ¹ He had not "clocked in" and under company regulations was not deemed to be at work until he did so. A further regulation forbade "clocking in" in advance of actual starting time. After parking his motorcycle in the place provided on the grocery store premises, he was run over and killed by a fellow employee while the latter was maneuvering his truck for departure on company business.

The outcome here is controlled by City of St. Petersburg v. Cashman, 71 So.2d 733 (Fla.1954), wherein our Supreme Court cited the general rule that "an injury shall be deemed to have occurred in the course of employment if it is sustained by a workman on the premises of his employer while preparing to begin the day's work or while doing other acts preparatory or incidental to the performance of his duties, which are reasonably necessary for such purpose." Id. at 734. Arriving thirty minutes early for punctuality's sake is not unreasonable. Johns v. State Department of Health and Rehabilitative Services, 485 So.2d 857 (Fla. 1st DCA), rev. denied, 492 So.2d 1333 (Fla.1986). In the Johns case, there was no evidence of any personal reason for early arrival. There was likewise no reason to suppose a personal motive for early arrival in the case at bar. On the contrary, the evidence indicated he might have been sent on a delivery prior to 4:00 a.m., if he was available.

The employee's estate argues that the grocery store's strict rules, to the effect that an employee is not at work until he punches in, raises a jury question as to whether he was within the scope of his employment when run over on the premises. However, it cites no authority for this proposition which in any event does not adequately distinguish the Cashman and Johns decisions which we deem to be controlling.

The grocery store's pleading established worker's compensation as an affirmative defense and under the facts of this case, a directed verdict should have been rendered in its favor, as well as in favor of the co-employee, Vincent Magliulo, as the claim against him rested upon simple negligence which is barred under section 440.11, Florida Statutes (1985). Iglesia v. Floran, 394 So.2d 994 (Fla.1981).

This cause is reversed and remanded for the entry of a judgment in accordance herewith.

REVERSED AND REMANDED.

LETTS, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, concurring specially.

I concur in the denial of appellee's motion for rehearing but write separately to again focus on my concern about the apparently conflicting results in the caselaw in determining whether an employee is acting within the "scope of business" for purposes of imposing liability on his employer in the vicarious liability context, versus the application of the "course of employment" standard utilized to determine the employee's entitlement to worker's compensation benefits. ² The latter standard is also utilized to determine an employer's entitlement to use the compensation statute as a defense to an employee's tort action. Recognizing the need for further clarification of the issue raised in my original special concurrence, the Florida Defense Lawyers Association filed an amicus brief which I believe is helpful in analyzing the troublesome issue. The amicus brief initially points out that much of the confusion may have been created by the courts in their mistaken use of the terms "course of employment" and "scope of business" interchangeably in both compensation and liability situations. See Thurston v. Morrison, 141 So.2d 291 (Fla.2d DCA 1962); Nazareth v. Herndon Ambulance Service Inc., 467 So.2d 1076 (Fla. 5th DCA 1985); Freeman v. Manpower, Inc., 453 So.2d 208 (Fla. 1st DCA 1984); and Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983).

An expansive definition has been given to the phrase, "in the course and scope of employment" as used in the worker's compensation statute, because the policy goal of that statute is to provide prompt but limited compensation to a worker for her accident-related expenses and to facilitate a speedy return of that worker to her job regardless of...