SUSAN LOVERINGS FIGURE SALON AND AETNA LIFE & CASUALTY, APPELLANTS,
v.
TRISHA MCRORIE, APPELLEE
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The court held that the employee's injury sustained while commuting home from work did not arise out of or in the course of employment, as it did not fall under any exception to the 'going and coming' rule.
[1] Injuries sustained by an employee en route to or from their regular place of business are generally non-compensable under the "going and coming" rule.
[2] The "going and coming" rule does not apply when an employee is on call and responding to an employer's request to perform a special errand or mission.
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PER CURIAM.
This cause is before us on appeal from a workers’ compensation order finding appellant temporarily totally disabled as a result of her motorcycle accident on the way home from work and awarding temporary total disability and medical benefits. The deputy commissioner found the accident to fit under an exception to the “going and coming” rule in finding compensability. We reverse.
Appellee, a 39-year-old employee of the figure salon (appellant), was injured in a motorcycle accident at approximately 11:25 p.m., while en route home after working late to finish up some paperwork. Appel-lee was considered the manager of the salon by most of the employees and was known to often work odd hours, filling in for other employees and performing some of the owner’s duties. Appellee testified that she considered herself the manager of the salon, as she was paid more than the other employees, had the authority to hire and train employees, was required to pick up supplies using her vehicle, would clean up and do paperwork at the end of her shift, and would fulfill some of the owner’s functions when she was not there.
On the evening of the accident, her shift ended at 9:00 p.m., but she stayed late to finish her paperwork, as she had before on numerous occasions. She testified that she was on her “regular way home” that evening when the accident occurred. The other driver was charged with driving under the influence of alcohol.
The record indicates that appellee was never paid overtime for working late and that she never received direct reimbursement for using her vehicle to pick up supplies or going to the salon at odd-hours, although the owner would frequently buy her dinner. The owner testified that appel-lee declined the manager’s position when offered and that all the employees run errands with their vehicles and are required to do paperwork.
The deputy found compensability and awarded benefits on the basis that appellee was the “defacto” manager of the salon, who was “on call” on the evening of the accident and expected to work late, and (because of her late-night hours) was exposed to a hazard (drunk drivers) which resulted in her injuries.
As a general rule, injuries sustained by an employee when en route to or from his regular place of business are non-compensable, as they are not considered to have arisen out of or in the course of employment. However, there are many exceptions under which compensation may be awarded. George v. Woodville Lumber Co., 382 So. 2d 802, 803 (Fla. 1st DCA 1980). Technically, there is no “on call” exception to the going and coming rule for persons subject to being called, who (unlike police officers) are not on duty at all times. Eady v. Medical Personnel Pool, 377 So. 2d 693, 695 (Fla.1979). However, circumstances may arise where at the time of the injury, the employee was on call and responding to an employer’s request that the employee perform a special errand or mission. In such instances, the going and coming rule does not apply. Eady, supra at 695, citing Moody v. Baxley, 158 Fla. 357, 28 So. 2d 325 (1946). For the special errand exception to apply, the Eady court found the suddenness and irregularity of the call to be essential, pointing out that the irregularity of hours alone is insufficient. Id. at 696, citing Everett Ford Company v. Laney, 189 So. 2d 877 (Fla.1966).
In the instant case, appellee was not on duty at all times but may have been on call when the accident occurred. Nevertheless, the record is devoid of any evidence indicating that appellee was responding to a sudden call from the employer to run a special errand or mission at an irregular hour. To the contrary, the record is clear that appellee was working late to finish one of her ordinary duties (paperwork), as she had often done on previous occasions, and was on her “regular route home,” approximately two and one-half hours later than her official end of shift, when the accident occurred. We find the application of an exception to the going and coming rule under these circumstances to be in error. As to the deputy’s finding that “working after hours at night created the hazard of encountering a drinking driver from which the injury arose; and, as a result of her employment after regular working hours she was more susceptible to injury by a drinking driver,” we find no competent, substantial evidence in support thereof.
Accordingly, we reverse the order below.
BOOTH, C.J., and MILLS and WENT-WORTH, JJ., concur.
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Tessan Swartz v. McDONALD'S Corp., 788 So. 2d 937 (Fla. 2001)…Eady, [*944] 377 So. 2d at 695 (“As 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.”); Susan Loverings Figure Salon v. McRorie, 498 So. 2d 1033 (Fla. 1st DCA 1986). Despite the fact that the special errand exception can be an independent basis for finding an injury compensable under the workers’ compensation laws, several cases applying this exception have also used this exception when ref…
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Spartan Food Sys. & Subsidiaries & Seibels v. Hopkins, 525 So. 2d 987 (Fla. 1st DCA 1988)…warded temporary disability and medical benefits. Where an employee is merely performing ordinary employment duties which are occasionally required, the special errand doctrine is not always applicable. See Susan Loverings Figure Saloon v. McRorie, 498 So. 2d 1033 (Fla. 1st DCA 1986). Appellant argues that the special errand doctrine should not apply in the present case because claimant had previously, on one occasion, made a similar trip to benefit the employer. However, one prior instance does not negate th…
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NEW Dade Apparel, Inc. v. De Lorenzo, 512 So. 2d 1016 (Fla. 1st DCA 1987)…Larson, Workers’ Compensation Law, s. 16.11 (1985). In determining whether the special errand rule applies, courts have found that irregularity and suddenness of the employer’s request are essential elements. Susan Loverings Figure Salon v. McRorie, 498 So. 2d 1033 (Fla. 1st DCA 1986); Eady, supra. In this case, although appellee normally worked Saturday mornings, he was not scheduled to do so on the day in question but returned early from vacation to work at the special request of his employer. Absent his em…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eady v. Medical Personnel Pool, 377 So. 2d 693 (Fla. 1979)
- Moody v. Lovett W. Baxley & Fla. Indus. Comm'n, 158 Fla. 357 (Fla. 1946)
- Everett Ford Co. v. Laney, 189 So. 2d 877 (Fla. 1966)
- Whaley v. State, 382 So. 2d 802 (Fla. 1st DCA 1980)
- Handy George, Jr. v. Woodville Lumber Co. & Travelers Ins. Co., 382 So. 2d 802 (Fla. 1st DCA 1980)
- Carroll E. Turner v. Turner, 158 Fla. 330 (Fla. 1946)