Opinion
No. AK-357.
November 9, 1982.
Appeal from the Deputy Commissioner.
Edward F. Gerace, Tampa, for appellant.
Ronald W. Young, Tampa, for appellee.
The self-insured employer appeals the order of the deputy commissioner (deputy) finding claimant's accident compensable, contending the deputy erroneously determined that the claimant's injury arose out of and in the course of his employment. We agree and reverse.
Claimant was injured in an automobile accident on November 1, 1979 at approximately 3:15 a.m. while on his way to work. Claimant normally worked from 7:30 a.m. until 4:00 p.m., but it was not unusual for him to work overtime. On the day before his accident claimant's employer requested that he come to work at 4:30 a.m., or three hours before his normal starting time. While driving to work on November 1, claimant was involved in an accident with two drag-racing vehicles approximately 15 miles from his place of employment.
The claimant contends that he was on a special errand for the employer since he was reporting to work early at the employer's request. Accordingly, he concludes that under Bowen v. Keen, 154 Fla. 161, 17 So.2d 706 (1944), compensation is not precluded by the going and coming rule. The deputy agreed with this rationale and ruled that the claim was compensable.
However, Bowen is distinguishable from the instant case. In Bowen the employee worked irregular hours, often working both early and late, and sometimes rendered 24-hour service to his employer. His employment involved many duties away from the employer's place of business. At the time of his injury he was on the way to work early, at his employer's request, to pick up a truck so he could make two out-of-town business trips for his employer in one day. In the instant case, the claimant worked regular hours from 7:30 a.m. to 4:00 p.m., with the exception of some voluntary overtime, as a rigger at the Tampa Ship Repair and Dry Dock Company. His job did not require travel. At the time of the accident he was driving his own car en route to the employer's place of business to perform his job. The route taken was selected by him, and it was apparently his normal and usual route to work. He was not on any special errand or mission for his employer, but was merely en route to do his regular job. There was no evidence that he was required to take a different or more dangerous route because of going to work earlier than customary, nor that the highway was more congested or dangerous at this time than it was at the time he usually went to work.
With certain exceptions, injuries sustained by employees while going to or from work do not arise out of and in the course of their employment. Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941); George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980). The only circumstances in this case which could even arguably make it an exception to the going and coming rule is the fact that the claimant left for work approximately three hours earlier than normal. The single circumstance of irregular hours is not a sufficient basis for finding that the accident arose out of and in the course of claimant's employment. Everett Ford Company v. Laney, 189 So.2d 877 (Fla. 1966). "Therefore, absent other special circumstances, an employee with irregular hours cannot be considered to be on a special errand when he is simply instructed to perform his usual duties at an irregular time." Eady v. Medical Personnel Pool, 377 So.2d 693, 696 (Fla. 1979). The claimant was not on a special errand or mission for his employer. He was not on 24-hour call, nor do the facts and circumstances of this case set forth any other recognized exception to the going and coming rule. Accordingly, the finding of compensability was erroneous and is reversed.
ROBERT P. SMITH, Jr., C.J., concurs.
SHIVERS, J., dissents, with opinion.
I respectfully dissent and would affirm the order of the deputy commissioner finding claimant's accident compensable.
Our Supreme Court, speaking through Justice Adkins in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979), clarified the going and coming rule. It does not apply to employees on special missions or errands for the employer. Although there is no general on call exception to the going and coming rule, special errands often arise in the context of calls from the employer. The Eady case discusses favorably, and at some length, the analysis of Professor Arthur Larson, author of The Law of Workmen's Compensation, on this subject.
One special circumstance present in the case at bar is that the overtime work which the employer asked the employee to perform required the claimant to drive to work at a particularly hazardous time, i.e., in the middle of the night. Encountering drag racers, as happened here, is the type of hazard which would more commonly be encountered at 3:00 A.M. than at claimant's regular time of going to work. Professor Larson states that if overtime work is extended so far into the night as to transform a journey into a substantially more inconvenient or hazardous trip, a case may be made for invoking the special errand rule. 1 Larson's Workmen's Compensation Law, § 16.12. Larson cites an Oklahoma case which is factually close to the case sub judice. In Thurston Chemical Co. v. Casteel, 285 P.2d 403 (Okla. 1955), a worker who normally started to work at 8:00 A.M. was directed by his employer to appear at 4:00 A.M., and the Oklahoma Court awarded compensation. Larson approved, stating the award was proper due to the onerousness of the trip.
Here, at the end of his regular shift, claimant was instructed to come to work at 4:30 A.M., three hours earlier than the beginning of his regular work day. Based on the suddenness of the assignment and the onerousness of the trip outside his usual and regular working hours, it appears claimant's journey should be considered as part of the service he was rendering to his employer, thus placing his injury under the special errand exception to the going and coming rule.