Can I file a Workers Compensation claim while on my way to work or on my way home?

Can I file a Maryland Workers Compensation claim while on my way to work or on my way home?

General Principles

Injuries incurred by an employee while going to or returning from the work place do not ordinarily arise out of and in the course of employment, and are therefore not compensable under the Maryland Workers Compensation Act This is known as the going and coming rule.

There are 8 exceptions recognized by Maryland courts to the going and coming rule.

  1. “[W]here the employer furnishes the employee free transportation to and from work, the employee is deemed to be on duty, and an injury sustained by the employee during such transportation arises out of and in the course of employment.

  2. where the worker is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.
  3. furnishing of free transportation does not require that the employer supply the vehicle; it is sufficient that the employee substitute his own vehicle.
  4. where the employer merely pays the costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment;
  5. employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangement with a common carrier, reimbursing employees for the cost of transportation by any means they desire to use. In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed.
  6. key to compensability was the underlying contractual commitment to furnish the transportation, not the mere reimbursement of transportation expenses.
  7. It is generally accepted that the agreement of an employer to provide transportation for his employee need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.”
  8. where an employer agrees to provide transportation by means of reimbursement of expenses, that payment must bear a relationship to “reasonable travel expenses.”
  9. Compensability begins from when the employee is picked up and ends when they arrive at home
  10. where the employee is injured while traveling along or across a public road between two portions of the employer’s premises.

    1. employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties.
    2. a parking lot owned or maintained by the employer is treated as part of the premises, and an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises.
    3. If the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.
  11. The `proximity’ exception

    1. allows compensation for an injury sustained off-premises,
    2. the employee is exposed to a peculiar or abnormal degree to a danger or the presence of a special hazard at the particular off-premises point.
    3. The second is the close association of the access route with the work premises

Injuries incurred while the employee travels to or from work in performing a special mission or errand for the employer are compensable.

  1. employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule
  2. the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
  3. The special errand rule is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual.
  4. The element of urgency or state of emergency may supply the necessary factor converting a trip into a special errand.
  5. reporting was obligatory- employee is obliged to put in a full shift plus the time added by the early arrival or emergency
  6. involved journeys that were irregular or unusual
  7. the errand is not within the employee’s general job description or in furtherance of that duty,
  8. special errand or special mission is a trip undertaken by the employee at the direction or request of an employer for the purpose of helping the employer’s business.”
  9. depends upon the terms of the agreement by which the claimant is employed. If the agreement of employment is made to cover the time of his going to and returning from his place of work, then the case falls within the exception to the rule. Such an agreement, however, need not be an express agreement. It may be implied from the nature and character of the work and employment. There was, we think, an implied agreement, from the nature and character of the employment of the claimant in the performance of the additional duties, that his employment was not to be restricted to the time in which he was at work at the store on such occasions. It was in the nature of an errand or mission on behalf of his employer, and when so treated his employment commenced at the time when he left his home to go to the store, and ended when he returned to his home.
  10. The times when these duties were to be performed were uncertain, as he was to go on the special errand only when unusual conditions existed there
  11. The work that he was called upon to do under these circumstances differs greatly from the regular employment of one employed at regular hours at a given place, and who at the expiration of the period of his work is free to serve himself as he pleases.
  12. if the employee is required to report to work so early or remain so late that hazards are created or magnified, then this element alone may be sufficient to transform the trip into a special errand.
  13. employee was injured while returning from a special errand which he was performing under the direction of his employer and which required him to leave his home at night, after regular working hours, and called for a service outside of his regular duties, the sole purpose of which was to help his employer in the latter’s business; and it was because of the relationship of employer and employee that the one requested the service and the other rendered it.
  14. The “own-conveyance” exception
  15. company policy that the employee makes his own vehicle available for work-related use, for which the employer would then reimburse him.
  16. If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment.
  17. the obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment, and compel the employee to submit to the hazards associated with private motor travel, which otherwise he would have the option of avoiding.
  18. there is at work the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes.
  19. If the car trip from home to office was in the course of employment under the special rule, it would appear illogical to carve out a small segment of the total trip, that from garage to office, and for that distance reconvert the trip to a personal one. After all, the employee had to use his car to get to work because he had to have it available for his employer’s purposes during the day; it follows that he had to put the car in a garage; and thereafter he had to travel from the garage to the office. In short, the character of the journey from beginning to end was colored by the employment requirement of furnishing his own car during the day.
  20. the requirement that employee bring her automobile to work for use in pursuing employer’s business conferred an added benefit on employer beyond the mere fact of employee’s arrival at work.
  21. Such a requirement causes the job duties to extend beyond the work place and makes the vehicle a mandatory part of the work environment.
  22. a requirement to provide one’s own automobile for work eliminates the employee’s option to utilize other means of private or public transportation and thereby avoid the very sort of hazard that caused decedent’s demise.
  23. If employee creates the requirement to bring the vehicle to work and not the employer, then this exception does not apply
  24. Does job description require a vehicle?
  25. Did the employer provide compensation between home and main work place?
  26. employer conveyance exception

    1. That a journey made in the employer’s transportation is within the course of employment.
    2. If the trip to and from work is made in a truck, bus, van, car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment.
  1. dual purpose exception

    1. Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey.
    2. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.
    3. when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone
    4. If work is done at home for the employee’s convenience, the going and coming trip is not a business trip within the dual-purpose rule, since serving the employee’s own convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose.
    5. The actual performance of the work itself may, be within the course of employment; but the trip is not, since it is transfer of the location of the performance and not the performance itself that serves the employee’s personal purposes.
    6. There is no evidence showing any agreement, either express or implied, between [the claimant] and her employer that [the claimant] was undertaking, outside of her regular place of employment, a special assignment for her employer’s benefit, commencing from the time employee left the work premises with employers supplies and continuing, without interruption, until she returned to the work site the following day.
    7. The employer specifically authorized employees to drive personal vehicles to further its interests.
    8. Employees actions must further the interests of his employer
    9. employer must be aware of employees acts to further employer’s business
    10. the employer must require her to perform the task at home.
  1. personal comfort” exception

    1. engaged in some personal comfort activity incidental to his employment.
    2. the terms of employment provide a paid break in which an employer can attend to his or her personal comforts
    3. an employer encourages a break that benefits the employer and the employee.

The specific cases that outline the above guidance are outlined below.

Maryland Casualty Company v. Albert J. Lorkovic 100 Md App. 333 (1994)

Facts

Lorkovic sustained in a one-car accident while he was driving home from the airport after a business trip.

Lorkovic was injured in a one-car accident when he was driving his Ford Bronco from the Baltimore-Washington International Airport to his home in Glennville, Pennsylvania. Lorkovic was returning from a business trip in California at the time. Lorkovic was an assistant vice president and director of property claims at Maryland Casualty. His responsibilities required him to travel throughout the United States approximately twenty percent of his work time. Lorkovic generally made the decision when circumstances required that he travel, but he was often required to leave with short notice to investigate sudden property damage or take part in a legal settlement. Lorkovic was reimbursed for “[t]he mileage as well as airline and everything was paid for by the company.”[3] No mileage expense was permitted, however, for trips between his home and office. He also testified that he was not required to use his own vehicle to get to and from the airport (he could have used any means within reason) but that he did so because there was no public transportation where he lives.

The Maryland Workers’ Compensation Act provides benefits to persons who suffer “accidental injury that arises out of and in the course of employment.” MD. LABOR & EMPL.CODE ANN. § 9-101(b)(1) (1991) [hereinafter the “Act”]. Injuries incurred by an employee while going to or returning from the work place do not ordinarily arise out of and in the course of employment, and are therefore not compensable under the Act. E.g., Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44, 617 A.2d 572 (1993); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A.2d 613 (1977); Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 607-08, 267 A.2d 81 (1970). This general rule has been termed the “going and coming rule.” Alitalia, 329 Md. at 44, 617 A.2d 572.

The Court of Appeals has “engrafted” onto the going and coming rule several exceptions:

  1. “[W]here the employer furnishes the employee free transportation to and from work, the employee is deemed to be on duty, and an injury sustained by the employee during such transportation arises out of and in the course of employment. Tavel v. Bechtel Corp., 242 Md. 299[, 219 A.2d 43] (1966); Rumple v. Henry H. Meyer Co., 208 Md. 350, 357[, 118 A.2d 486] (1955).
  2. “Compensation may also be properly awarded where the employee is injured while traveling along or across a public road between two portions of the employer’s premises. Wiley Mfg., 280 Md. at 206[, 373 A.2d 613]; Proctor-Silex v. DeBrick, 253 Md. 477, 482[, 252 A.2d 800] (1969).
  3. “The `proximity’ exception allows compensation for an injury sustained off-premises, but while the employee is exposed to a peculiar or abnormal degree to a danger which is annexed as a risk incident to the employment. Pariser Bakery v. Koontz, 239 Md. 586, 591[, 212 A.2d 324] (1965); see M[aryland] Paper Products Co. v. Judson, 215 Md. 577, 584-588[, 139 A.2d 219] (1958).
  4. “Injuries incurred while the employee travels to or from work in performing a special mission or errand for the employer are likewise compensable. Reisinger-Siehler Co. v. Perry, 165 Md. 191, 199[, 167 A. 51] (1933); see Dir[ector] of Finance v. Alford, 270 Md. 355, 359-364[, 311 A.2d 412] (1973).”

Alitalia, 329 Md. at 44, 617 A.2d 572.

  1. The “own-conveyance” exception applies where the employee is required to furnish his/her own vehicle for work and is injured while driving to or from the job.

Alitalia, 329 Md. at 44, 47, 617 A.2d 572.[6]

We shall conclude that this case comes within the free transportation exception.[8]

The Ryan v. Kasaskeris, 38 Md. App. 317, 381 A.2d 294 (1977) Court began with the inauguration of the free transportation rule in Harrison v. Central Constr. Co., 135 Md. 170, 108 A. 874 (1919). In that case, the claimant lived in Baltimore and worked in Magnolia. As part of his employment contract, the employer furnished claimant with a “button” that entitled him to free train rides to work. One day, the claimant mistakenly boarded what he thought, and was told, was the “work train.” Realizing his mistake, claimant exited the train and switched to the work train. While boarding the work train, claimant was injured. Relying on other jurisdictions, the Court stated:

When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee, while on his way to work, is not in the course of employment. The second is that where the work[er] is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.Harrison, 135 Md. at 177-78, 108 A. 874, quoted in Ryan, 38 Md. App. at 321, 381 A.2d 294.

In Heaps v. Cobb, 185 Md. 372, 384, 45 A.2d 73 (1945), the Court of Appeals made it clear that the furnishing of free transportation does not require that the employer supply the vehicle; it is sufficient that the employee substitute his own vehicle. Ryan, 38 Md. App. at 323, 381 A.2d 294; see also Watson v. Grimm, 200 Md. 461, 469, 90 A.2d 180 (1952).

The Ryan Court next addressed Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), a leading case in Maryland’s development of the free transportation rule. That case involved the District of Columbia Workmen’s Compensation Act. The employee was an electrical contractor who lived in the District of Columbia and worked in the metropolitan area. At one point, he was transferred to work a project at Quantico, Virginia. The applicable union contract required the employer to furnish “transportation and any necessary expense such as board and lodging … for all work outside the District of Columbia.” Id. at 472, 67 S.Ct. at 804. An agreement was reached whereby the employer would meet this contractual obligation by paying employees working outside the District of Columbia two dollars a day as a transportation expense, the estimated cost of travel between the District of Columbia and Quantico, in lieu of the employer actually furnishing transportation.

Public transportation was not feasible, so the claimant car pooled with other employees. The employees each drove separate cars to a central point, and one employee drove the remaining distance. On the day in question, the employee was driving his car, with other members of the car pool aboard, when a stone propelled through the windshield from a passing truck fatally injured the employee.

To be sure, there are many holdings to the effect that, where the employer merely pays the costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment; there must be something more than mere payment of transportation costs. But assuming those holdings [which were cited in a footnote] to be correct and assuming the Deputy Commissioner’s findings in this case to be justified, there is more here than mere payment of transportation costs. It was found that Ticer’s employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangement with a common carrier, reimbursing employees for the cost of transportation by any means they desire to use. In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed.Id. at 482-83, 67 S.Ct. at 808-10 (emphasis added) (footnote omitted), quoted in Ryan, 38 Md. App. at 325-26, 381 A.2d 294.

Judge Wilner, speaking for the Court, held that “[t]he key to compensability … was the underlying contractual commitment to furnish the transportation, not the mere reimbursement of transportation expenses.” Ryan, 38 Md. App. at 326, 381 A.2d 294.

The next important case in the line of cases reviewed in Ryan was Watson v. Grimm, 200 Md. 461, 90 A.2d 180 (1952). There, the claimant’s decedent, Watson, was a helper for Grimm, a self-employed garbage collector for the City of Hagerstown. Watson was paid fifty dollars per month and board and lodging on Grimm’s farm. Typically, Grimm and Watson would drive the garbage collection truck into Hagerstown to work, stopping on the way to pick up two helpers. Watson and the two helpers rode on the running boards alongside the truck.

On the day of Watson’s accident, the crew finished their work about one mile from the center of town. Rather than ride back to Grimm’s farm, Watson and one of the helpers stated that they wanted to be let off downtown. While traveling downtown, Watson fell off the running board and sustained fatal injuries.

Specifically, the Watson Court concluded:

It is held by the overwhelming weight of authority that where the employer agrees to provide transportation for his employee to and from work, compensability of injury sustained during transportation is in no way dependent upon the method of travel employed.Watson, 200 Md. at 469, 90 A.2d 180 (emphasis added), quoted in Ryan, 38 Md. App. at 326, 381 A.2d 294.

We further noted that the Watson Court was not squarely faced with the principle tacitly accepted by the Supreme Court in Cardillo — that mere payment of transportation costs would not suffice to establish coverage — but, rather was faced with an implicit agreement. See Ryan, 38 Md. App. at 327, 381 A.2d 294.[T]he fact that for three years the employee lived on the employer’s farm three miles away from the city, and the fact that the place where he finished work was often more than a mile from the center of the city, considered together with the other facts and circumstances in the case, warranted the finding of the Commission that the employment continued from the time he got on the truck until he got off.Watson, 200 Md. at 469-70, 90 A.2d 180, quoted in Ryan, 38 Md. App. at 327, 381 A.2d 294.

The Watson Court further noted that “[i]t is generally accepted that the agreement of an employer to provide transportation for his employee need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.Id. 200 Md. at 470, 90 A.2d 180 (emphasis added).

Finally, we juxtaposed two cases, Tavel v. Bechtel Corp., 242 Md. 299, 219 A.2d 43 (1966) and Western Elec. Co. v. Engleman, 13 Md. App. 374, 283 A.2d 437 (1971), to demonstrate the principle that where an employer agrees to provide transportation by means of reimbursement of expenses, that payment must bear a relationship to “reasonable travel expenses.” Ryan, 38 Md. App. at 326-28, 381 A.2d 294. In Tavel, the employee was paid $1.20 per day “travel expense” pursuant to a former collective bargaining agreement that was superseded by a new agreement that did not provide for “travel expenses.” The $1.20 travel expense was also determined to have no “relationship whatever to either the cost of transportation or the time it took to go back and forth.” The Court concluded that the $1.20 was purely a fringe benefit to attract workers from the District of Columbia area, and, therefore, “the employer did not furnish the means of transportation nor pay its equivalent.” Ryan, 38 Md. App. at 327, 381 A.2d 294.

In contrast, the claimant in Western Electric, was a Baltimore-based “installer” for Western Electric. Under the applicable collective bargaining agreement, if an employee was assigned to work at another location within the range of daily travel the employer would either furnish transportation to the job site by assigning the employee to travel as a driver or passenger in a company car or would pay a “daily transportation expense allowance” and a “daily travel time allowance” and would not furnish the employee a company car. Ryan, 38 Md. App. at 327-28, 381 A.2d 294.

In Western Electric, the claimant car pooled with another employee in that employee’s car, and was injured on the trip home from the work site. We held that compensability hinged on whether the two allowances bore a relationship to reasonable travel expenses; if they did, the case would fall within the free transportation exception. The Court concluded that Western Electric was obligated by agreement to provide transportation and made payments which bore a relationship to reasonable travel expenses; Tavel was therefore distinguished and the claimant was covered. Id. at 327-28, 381 A.2d 294.

From the foregoing case law, we are instructed to “look first and always to the employment relationship itself. What was the contract between the parties?” Id. at 329, 381 A.2d 294. In addition, we proceed mindful that in this context the Court of Appeals has stated that an agreement to provide, or to continue to provide, transportation “need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.” Watson, 200 Md. at 470, 90 A.2d 180, quoted in Ryan, 38 Md. App. at 332, 381 A.2d 294.

In the instant context, the Court of Appeals has stated that “[e]ach case involving the coming and going rule and its exceptions must turn on its own particular facts.” Alitalia, 329 Md. at 46, 617 A.2d 572.

Based on the foregoing statements of the pertinent summary judgment standard, we conclude that as a matter of law the free transportation exception is applicable. Lorkovic’s injuries arose out of and in the course of his employment.

The record in this case clearly reflects that Maryland Casualty had obligated itself to provide for Lorkovic’s transportation during his business trips, from the time he left his home until the time he returned to his home or place of business. It is undisputed that Maryland Casualty always reimbursed Lorkovic for the expenses of his business travel, including the cost of transportation to and from the airport. Indeed, the trial court found (in comparing the instant case to Alitalia), “The relevant point is that in both situations it was the agreed company policy that the employee make his own vehicle available for work-related use, for which the employer would then reimburse him.” Appellants have not alleged that the amount Maryland Casualty reimbursed to Lorkovic was not related to his reasonable travel expenses.

Maryland Casualty’s policy of reimbursing Lorkovic for expenses incurred during business travel and its history of reimbursing him specifically for mileage traveled from his home to the airport and return home is a sufficient “custom of the employer” to infer that Maryland Casualty agreed to provide transportation for Lorkovic at the time of his accident. See Watson, 200 Md. at 470, 90 A.2d 180; Ryan, 38 Md. App. at 332, 381 A.2d 294. This conclusion is also supported by the distinction drawn by Maryland Casualty between business travel and travel merely between home and office: Maryland Casualty did not pay for traveling expenses incurred between Lorkovic’s home and the office. During business travel, therefore, Maryland Casualty clearly considered Lorkovic to be on the job and conducting Maryland Casualty business.

[6] Two additional exceptions have been recognized by this Court, the “employer conveyance” exception and the “dual purpose” exception. Alitalia v. Tornillo, 91 Md. App. 191, 200, 203, 603 A.2d 1335 (1992), aff’d, 329 Md. at 44, 617 A.2d 572. The Court of Appeals’s review of exceptions to the coming and going rule did not mention these two exceptions, 329 Md. at 44, 617 A.2d 572, and they are not implicated by this appeal.

[8] We conclude that the own-conveyance exception is inapplicable to the instant facts because the facts do not indicate that Lorkovic was “required to furnish” his own vehicle for work. The undisputed facts of this case indicate that Lorkovic could have chosen other means of transportation to the airport. Lorkovic testified that no public transportation was available, but he provided no evidence that he could not have taken a taxi or airport limousine. In his brief, he asserts parenthetically, and for the first time that we are aware, that taking a taxi is “an expense which the company might not approve on a regular basis, in any event.” (Emphasis added).

Maryland Casualty contends that the case sub judice is distinguishable from Alitalia in that here Lorkovic had an option to use public transportation. That contention is irrelevant. Certainly in either of these cases the employee could have elected, most likely at their own expense, to travel in taxicabs while on company business. The relevant point is that in both situations it was agreed company policy that the employee make his own vehicle available for work-related use, for which the employer would then reimburse him. It was this policy of subsidizing the employee’s use of his vehicle in the performance of his duties which constituted the “requirement” spoken of in Alitalia. [Emphasis added].

Alitalia Linee Aeree Italiane v. John Burton Tornillo 91 Md. App. 191, 603 A.2d 1335  (1992)

The parties stipulated that on January 13, 1986 John B. Tornillo, an outside sales representative employed by Alitalia Linee Aeree Italiane Airlines, was required, as part of his job, to bring with him to work, an automobile or other similar vehicle for use during his work day.

Does Maryland recognize an exception to the going and coming rule solely because it is necessary that the employee have an automobile in order to perform his job duties?

Appellee was an outside sales representative for Alitalia. He worked out of an office located in Washington, District of Columbia. His position required him to have a car. Alitalia, following company policy, granted appellee an interest-free seven thousand dollar loan with which to purchase an automobile. He purchased a 1983 Toyota Celica. Alitalia approved the auto that appellee purchased.Travel was a major component of appellee’s job. His sales territory encompassed Maryland, Virginia, and the District of Columbia. Among other things, he delivered Alitalia promotional material to clients and prospective accounts, attended meetings, and ran company errands. At times, appellee would make sales visits on the way to work or on the way home. Alitalia reimbursed appellee for the miles travelled in furtherance of Alitalia’s business. If appellee made a company trip on his way to work or on the way home, Alitalia would reimburse him for the mileage between the business stop and his home.On January 13, 1986, while driving home (Rockville, Maryland) from the office, appellee “suffered a loss of conscienceness [consciousness].” His Celica “overturned and Tornillo was gravely injured.” He was not on the way to or from a sales appointment. His automobile, however, was loaded with Alitalia materials which he needed for the coming week.

Normally, an employee going to or coming from work is not protected under § 9-101(b)(1) of the Labor and Employment Article because the employee is not acting within his scope of employment. Wiley Mfg. Co., 280 Md. at 205, 373 A.2d 613; Dhanraj v. Potomac Elec. Power Co., 62 Md. App. 94, 99, 488 A.2d 512 (1985), aff’d, 305 Md. 623, 506 A.2d 224 (1986). Gilbert and Humphreys, Maryland Workers’ Compensation Handbook § 6.6 at 105 (1988) (footnotes omitted), suggest the reasons for the rule.

  • 6.6. Going To and From Work.

Injuries sustained while an employee is traveling to or from the workplace ordinarily are not compensable. This is so because the hazards which employees face during daily commuting trips are common to the public at large. The risks to which an employee is exposed while going to or coming from work are no different from the ones which confront workers while they are traveling on personal excursions. Since the Act is designed to provide compensation for work-related injuries, the courts of this State have refused to convert employers into general insurers for their employees.According to the Court of Appeals, Salomon v. Springfield Hosp., 250 Md. 150, 154, 242 A.2d 126 (1968),

traveling upon and crossing busy streets and highways, while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would be exposed to as a member of the general public.

Currently, Maryland recognizes six exceptions to the general rule. We delve into the various exceptions followed in this State with the following instruction from City of Baltimore v. Jakelski, 45 Md. App. 7, 9, 410 A.2d 1116, cert. denied, 287 Md. 753 (1980) (citation omitted) in mind:

[T]he Court of Appeals indicates that each modification case must be dealt with upon its own facts, and that seems the only justification for some of the exceptions which have been considered.See Wiley Mfg. Co., 280 Md. at 205, 373 A.2d 613; Maryland Paper Prods. Co. v. Judson, 215 Md. 577, 584, 139 A.2d 219 (1958).

  1. Free transportation exception

We addressed this exception in Ryan v. Kasaskeris, 38 Md. App. 317, 328-29, 381 A.2d 294 (1977) (emphasis added).

[I]n terms of the “free transportation” exception to the “going and coming” rule, an injury occurring while an employee is on his way to or from work, which otherwise would be non-compensable as being the result of normal hazards unconnected with the employment, becomes compensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee. It is that underlying obligation which brings the travel within the scope of the employment. Where that obligation exists, the method of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception.

Here it is conceded that Alitalia did not have an obligation to provide appellee with transportation. Appellee borrowed money from a commercial lender in addition to taking out an interest-free loan from Alitalia. He told the trial court about Alitalia’s travel policy. The car had to be approved by management at headquarters. Accordingly, this exception is inapplicable here.

  1. Employer conveyance exception

In Carter, supra at 175-76, 422 A.2d 44, we cited Professor Larson’s treatise on Workmen’s Compensation for the proposition that a journey made in the employer’s transportation is within the course of employment.If the trip to and from work is made in a truck, bus, van [added in 1990 treatise], car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment.

Appellee purchased the Celica in his name. Alitalia had no control over the car. The employment contract required only that appellee furnish a car for use during the day. This exception is also inapplicable here.

  1. Premises exception

Once again, the Carter court, Carter, 47 Md. App. at 177, 422 A.2d 44, cited professor Larson’s work.

One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties.Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, most courts, but by no means all, hold that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.[2]See Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 267 A.2d 81 (1970); Proctor-Silex v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969). This exception is inapplicable to the factual scenario before us. Appellee, apparently, suffered his injuries on a public road far removed from Alitalia’s premises.

  1. Proximity or special hazard exception

The Court of Appeals discussed this exception in Wiley Mfg. Co. v. Wilson, 280 Md. 200, 208, 373 A.2d 613 (1977) (citing Larson).

Succinctly stated, the proximity rule is identified with those cases involving accidents which occur at a point where the employee is within range of dangers peculiarly associated with the employment.

The first is the presence of a special hazard at the particular off-premises point. The second is the close association of the access route with the premises, so far as going and coming are concerned.

1 Larson, supra, § 15.13(b) at 4-35. Appellee was on his way home when he lost consciousness and control of his car. The record does not reflect that he faced a peril uncommon to society or one that the public is not usually exposed to. Pariser Bakery v. Koontz, 239 Md. 586, 591-92, 212 A.2d 324 (1965). Thus, this exception does not apply to his situation.

  1. Special errand or mission exception

We quoted this exception from Larson in Fairchild Space Co. v. Baroffio, 77 Md. App. 494, 501, 551 A.2d 135 (1989).

[W]hen an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

[T]he special errand rule is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual.

The element of urgency may supply the necessary factor converting a trip into a special errand.

1 Larson, supra, §§ 16.10, .14, .15 at 4-204, -208.27 — .28, -.39 (footnotes omitted). Appellee was not on a special purpose or mission. Granted, he had loaded his car with Alitalia promotional materials which he planned to distribute during the week. Nevertheless, he was on his way home from work — no sales stops impeded his journey.

  1. Dual purpose exception

We turned to Larson, again, this time for his rendition of the dual purpose exception. Fairchild Space Co., 77 Md. App. at 498-99, 551 A.2d 135.

Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.

The basic dual-purpose rule, accepted by the great majority of jurisdictions, … may be summarized as follows: when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone….

If work is done at home for the employee’s convenience, the going and coming trip is not a business trip within the dual-purpose rule, since serving the employee’s own convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose. The actual performance of the work itself may, under the rules of the next sub-section, be within the course of employment; but the trip is not, since it is transfer of the location of the performance and not the performance itself that serves the employee’s personal purposes.

1 Larson, supra, §§ 18.00, .12, .33 at 4-256, -258 — 274, -327 (footnote omitted). Appellee’s trip home furthered his own ends. The record is devoid of information which would indicate that he was going to make a business stop on the way home or even after arriving at home. Accordingly, this exception is unavailing.

Although none of the extant Maryland exceptions to the going and coming rule are applicable to the case sub judice, appellee’s cause is not lost, for we propose to adopt another. This new exception, like the six discussed above, is recognized by Professor Larson. Moreover, it is, we believe, entirely consistent with the other exceptions and with the policy behind the “going and coming” rule.

Professor Larson states,

If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment.

the obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment, and compel the employee to submit to the hazards associated with private motor travel, which otherwise he would have the option of avoiding.

This exception also has an additional rationale:

in addition there is at work the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes.1 Larson, supra, §§ 17.51, .52, at 4-243 — 244, -249 — 250 (footnotes omitted) (emphasis added).

Larson carefully distinguishes this exception, which he characterizes as the “own-conveyance” rule, from ordinary “going and coming” cases.

If the car trip from home to office was in the course of employment under the special rule, it would appear illogical to carve out a small segment of the total trip, that from garage to office, and for that distance reconvert the trip to a personal one. After all, the employee had to use his car to get to work because he had to have it available for his employer’s purposes during the day; it follows that he had to put the car in a garage; and thereafter he had to travel from the garage to the office. In short, the character of the journey from beginning to end was colored by the employment requirement of furnishing his own car during the day.1 Larson, supra, § 17.54 at 4-254 — 255 (footnote omitted).

We are persuaded to adopt the own-conveyance exception to the going and coming rule based upon the reasoning of Larson, set forth above, and that adopted by the majority of jurisdictions. We find particularly persuasive the opinion of the Colorado Court of Appeals in Whale Communications v. Claimants in the Matter of the Death of Susan Lee Osborn, 759 P.2d 848 (Colo.Ct.App. 1988).

Susan Lee Osborn, a radio station employee, was killed while driving home from her office.[4] On appeal, the court framed the issue as follows, Whale Communications, 759 P.2d at 848:

The question is whether her death is compensable solely by virtue of the fact that she was required to use her automobile to meet with clients during the work day.

Relying on the own-conveyance exception to the going and coming rule, the court affirmed the Panel’s decision. Whale Communications, 759 P.2d at 848-9 (citations omitted).

Generally, an injury sustained while going to or coming from work is not compensable. However, the requirement that employee bring her automobile to work for use in pursuing employer’s business conferred an added benefit on employer beyond the mere fact of employee’s arrival at work. Such special circumstances establish a causal connection between employee’s work and her death and is an exception to the general `going and coming’ rule. The rationale for this exception is that the travel becomes a part of the job since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes. Such a requirement causes the job duties to extend beyond the work place and makes the vehicle a mandatory part of the work environment. In addition, a requirement to provide one’s own automobile for work eliminates the employee’s option to utilize other means of private or public transportation and thereby avoid the very sort of hazard that caused decedent’s demise.

Alitalia required appellee to furnish a vehicle for use during the business day. Appellee purchased a vehicle, partly with Alitalia’s aid, and put that vehicle to both business and private use. We agree with the lower court when it concluded that it would have been senseless for appellee to keep the car parked at Alitalia’s place of business in Washington. One cannot plausibly argue that appellee, after making a sales stop close to his home, drive all the way back to the office and park his car.

 

Joyce A. Morris v. Board Of Education of Prince Georges County 339 Md. 374 (1995)

Morris died as a result of injuries she sustained in an automobile accident, which occurred in Fairfax County, Virginia. At the time of the accident, Morris was operating her own vehicle while en route to her job in Maryland as a speech pathologist for the Prince George’s County Board of Education (the Board), a position she had held for approximately twenty years. Morris was scheduled to report to work between 7:15 and 7:30 a.m. on January 9; the accident occurred at approximately 6:45 a.m. when she was only about three or four miles from her home in Chantilly, Virginia. Morris was not performing any of her designated job responsibilities for the Board at the time of the accident.Morris’s job responsibilities involved providing speech therapy services at two schools, Tayac and Rose Valley Elementary Schools, which are located less than five minutes apart by automobile in Prince George’s County.[2] It was Morris’s task to decide how to divide her time between the two places. She did so by assessing the needs of the children requiring speech therapy and preparing a weekly schedule based on those needs, which was reviewed and approved by her supervisor. According to the schedule Morris developed, she worked three full days a week, spending half of each day at each of her assigned schools. Morris could have arranged a schedule in which she traveled to only one school per day if she had, for example, planned to work a full day at each of her schools and then spent an additional half day at each one. The Board did not provide transportation for speech pathologists assigned to more than one school. It also did not assist employees in financing the purchase of vehicles to be used for travel between schools nor did it pay for these vehicles’ maintenance, fuel, or repair. Furthermore, the Board did not specify the type of vehicle to be driven, where its employees should live, or what route should be taken to and from work. The Board did provide reimbursement for business mileage; however, compensation for travel between home and the “base” school was not included.[3] Finally, the Board did not specifically require its employees to have automobiles nor was there anything in the job description of a speech pathologist that indicated that this was a condition of such employment.

Each case involving the going and coming rule and its exceptions turns on its own particular facts. Alitalia, supra, 329 Md. at 46, 617 A.2d 572; Wiley Mfg., supra, 280 Md. at 216, 373 A.2d 613; Saylor, supra, 258 Md. at 610-11, 267 A.2d 81 (stating that “`[n]o exact formula can be laid down which will automatically solve every case'”). Our holding in Alitalia, in which compensable injuries were found to have been sustained by an employee in an accident that occurred while the employee was driving home in a car specifically required for use in his employment, was based upon the specific facts of that case, facts that are readily distinguishable from those in the case now before us.

“Alitalia’s requirement that Tornillo, as a condition of his job, have the car available during the work day, placed his drive home from the office within the scope of his employment. His underlying obligation to have the car, to bring it to the office, and to have it ready for sales calls or company errands naturally carried with it the practical necessity of commuting between home and work…. His employment as an outside sales representative, who was required by Alitalia to own and use the Toyota for business purposes, encompassed his drive from home to work and back again.”Id. at 45-46, 617 A.2d 572.

To the contrary, the facts in the instant case demonstrate that Morris was not required, as a condition of her employment, to have a vehicle available to fulfill her job responsibilities. The Board neither expressly ordered Morris to provide her own vehicle for use during the work day nor did the job description of a speech pathologist suggest that such a condition existed. Her sole duties as a speech pathologist involved providing speech therapy services to Prince George’s County children in need. While driving to and from her base school, Morris was not executing any of her job-related functions nor was she furthering any business purpose of the Board. Moreover, Morris’s accident occurred at 6:45 a.m., at least 30 minutes before she was to report for work at her base school.

Furthermore, Morris’s use of her own car to commute to work was primarily for her own convenience and to accommodate her own needs and desires, not to further the Board’s interests. She made the decision to work on a six-tenths basis. She set up her schedule in such a way that she had to travel between two schools every day. She never requested to be assigned to only one school. In addition, driving her own car to work was not sufficiently integral to the fulfillment of her duties as a speech pathologist to be regarded as part of the service she performed for the Board.

Finally, the Board exerted no control over the method or means by which Morris operated her personal vehicle. It did not provide or help finance the purchase of the car she used nor did it pay for its maintenance, fuel, or repair. Moreover, the Board did not tell Morris what kind of car to drive, where she should live, or what route she should take to and from work. It did reimburse Morris for her business mileage, i.e., for her travel between schools; however, Morris was not compensated for her commute between her home and her base school.

The circumstances of the instant case also do not satisfy the underlying rationale for which the own conveyance exception was created. In Alitalia, we stated:

“The theory behind this rule is in part related to that of the employer-conveyance cases: the obligations of the job reach out beyond the premises, make the vehicle a mandatory part of the employment environment, and compel the employee to submit to the hazards associated with private motor travel, which otherwise he would have the option of avoiding…. [I]n addition there is at work the factor of making the journey part of the job, since it is a service to the employer to convey to the premises a major piece of equipment devoted to the employer’s purposes.”329 Md. at 46-47 (quoting 1 Arthur Larson, The Law of Workmen’s Compensation §§ 17.51-17.52 (1992) (footnote omitted)).

The evidence in this case shows that it was Morris’s personal decision to 1) live in Virginia and work in Prince George’s County and 2) split her days between two schools instead of working at one per day, which exposed her to the hazards associated with private motor travel, on her job as a speech pathologist itself. Therefore, nothing in the record supports the suggestion that she would have traveled to work by public transportation but for the fact that she was servicing two schools during her work day. In addition, by driving her own car to work, Morris was not conveying to her employer’s premises a major piece of equipment devoted to its purpose. The Board hired Morris to provide speech therapy services to students in its school system; her car was not an essential tool in performing this task, as, for example, it was for the outside sales representative in Alitalia.

Accordingly, we hold that the circumstances of this particular case do not support a conclusion that the Board required Morris, as a condition of her employment, to have a vehicle available for use in her employment; therefore, the own conveyance exception to the going and coming rule does not apply here and Morris’s injuries, sustained while en route to her base workplace, are not compensable under the Act.

[3] The Board’s mileage reimbursement policy states:

“School-based professional personnel who are regularly required to travel between schools will be assigned … a school for the basis of computing mileage.”

“The base school for mileage purposes will be one of the schools to which the individual is regularly assigned. Insofar as possible, such personnel should be assigned to schools within a cluster and the cluster should be the one closest to the individual’s home if requested by the employee. The number of miles this school is located from the individual’s home will be considered commuting mileage. Mileage reported for the reimbursement each day will be the number of miles driven during the day minus twice the distance from home to the designated school. The normal trip between home and the designated school will be deducted from the daily mileage whether the individual goes to the designated school that day or not.”

 

Frank B. Ryan v. Stella Kasaskeris 38 Md. App. 317, 381 A.2d.294 (1997)

We are asked to determine whether an injury sustained by a domestic servant, whose transportation expenses are reimbursed by her employer, arises out of and in the course of her employment, and is therefore compensable under the Workmen’s Compensation Act, if it occurs while she is in transit to or from her employer’s home.When she was first employed, she was unfamiliar with the public transportation system, and also apparently with the English language; and so Mrs. Ryan drove her to and from work. After several months, Mrs. Ryan became disenchanted with this arrangement, and, through a mutual friend, advised appellee that she (Mrs. Ryan) preferred not to drive appellee to and from work any longer. At this point, appellee appeared to be somewhat more comfortable with the public transit system, so the friend suggested that, in lieu of driving appellee, as before, Mrs. Ryan pay the cost of public transportation, which was estimated to be $3.80 per week. This was agreed to by both sides; thenceforth, appellee travelled to and from the Ryan home by public transit bus, and Mrs. Ryan added $3.80 to her compensation, paying her $63.80 per week for the three days’ work.The tragedy struck on January 28, 1976, at which time the new arrangement had been in effect for about eighteen months. Appellee had alighted from the bus, walked the two blocks, and was nearly across the street in front of the Ryan home when she was struck by a car

THIRD: Where, however, the employer arranges for, provides, or, in some instances, reimburses the employee for the expense of, transportation to and from the jobsite, that journey may be considered as part of the employment, thereby making an injury occurring during the journey compensable.[4]

The genesis of the third principle, in Maryland, was Harrison v. Central Con. Co.,135 Md. 170 (1919). The claimant there lived in Baltimore City. He was employed by Central Construction Company to work on a construction project at the Edgewood Arsenal in Magnolia; and it was part of his employment contract that the employer would furnish him with free transportation between Baltimore and Magnolia. The employer arranged with the Pennsylvania Railroad for special “work trains” to carry the laborers between the two points, and the claimant, along with his fellow workmen, was issued a “button” that entitled him to ride the train without charge.

One day, the claimant boarded what he thought, and was told, was the “work train.” He soon discovered that he was on the wrong train — a regular passenger train that did not stop in Magnolia. He was then told to get off that train at Back River and wait for the “work train.” This he did, and it was while boarding the second train that he was injured.

Court  of Appeals inaugurated the “free transportation” rule in Maryland with this statement (135 Md. at 177):

The second is that where the workman is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.”

The next Maryland case to consider the question was Watson v. Grimm, 200 Md. 461 (1952); but, before considering that case, it is first necessary to review a decision of the Supreme Court in Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 (1947), involving the District of Columbia Workmen’s Compensation Act.The employee there, a resident of the District, was employed by an electrical contractor doing work in the District and its environs. At a certain point, he was transferred from a job in the District to work on a project at Quantico, Virginia. The union contract required the employer to furnish “transportation and any necessary expense such as board and lodging … for all work outside the District of Columbia.” The parties (whether the union or the individual employees is not clear) agreed that the employer would pay the employees involved $2 a day as a transportation expense, which was estimated to be the cost of travel between the District and Quantico and was in lieu of the employer actually furnishing the transportation. This they did by means of a carpool: the employees drove their cars to a central point and then proceeded in one car to the jobsite. On the fateful day, the claimant’s decedent, one of these employees, had finished work and was driving himself and some of his carpooling co-workers home when a large stone was propelled through the windshield from the rear tire of a passing truck, striking the employee

The exception relevant to the case was “where the employer contracts to and does furnish

there is more here than mere payment of transportation costs. It was found that Ticer’s employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangements with a common carrier, reimbursing employees for the use of their own vehicles, or reimbursing employees for the costs of transportation by any means they desire to use. In other words, Where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way 326*326 dependent upon the method of travel which is employed.” (Emphasis supplied.)The key to compensability, in the Court’s view, as the emphasized portions of its Opinion make clear, was the underlying contractual commitment to furnish the transportation, not the mere reimbursement of transportation expenses.

Turning now to Watson v. Grimm, supra. The employer, Grimm, was the garbage collector for the City of Hagerstown. The claimant’s decedent, Watson, was his helper. Watson received a salary of $50 per month and board and lodging on Grimm’s farm. The standard practice was for Grimm to drive his truck each day from the farm to Hagerstown, taking Watson with him and picking up two other helpers on the way. The three helpers customarily rode on the “running board” on the side of the truck.

On the day of the accident, after completion of the day’s work, the truck ended up in the northern part of the city, about a mile from the center of town. Watson and one other helper stated that they wanted to get off downtown, rather, in Watson’s case, than riding back to the farm. While en route downtown, Watson fell off the running board and sustained injuries that proved to be fatal.

“We have stated that where an employer provides free transportation for his employee, the employee is deemed to be on duty during transportation, whether the employer supplies the vehicle or compensates the employee for the use of his own…. It is held by the overwhelming weight of authority that where the employer agrees to provide transportation for his employee to and from work, compensability of injury sustained during transportation is in no way dependent upon the method of travel employed.” (Emphasis supplied.)

“The fact that for three years the employee lived on the employer’s farm three miles away from the city, and the fact that the place where he finished work was often more than a mile from the center of the city, considered together with the other facts and circumstances in the case, warranted the finding of the Commission that the employment continued from the time he got on the truck until he got off.”

Tavel v. Bechtel Corporation, 242 Md. 299 (1966).[7] The claimant there was a truck driver for Bechtel. He was assigned to work at Chaulk Point, some 38 miles from his home, and about 27 miles from the District of Columbia. He drove to and from work in his own car. Under a former collective bargaining agreement, employees living more than 25 miles from the jobsite were entitled to $1.20 per day “travel expense”; and, although the agreement currently in effect made no provision for such expense, the employer continued to pay it. The $1.20 had no relationship whatever to either the cost of transportation or the time it took to go back and forth. It was purely a fringe benefit to attract workers from the Washington area.

On these facts, the Court did not feel the case came within the Harrison-Watson principle, noting, at page 304, “the employer did not furnish the means of transportation nor pay its equivalent.”

Finally, in terms of Maryland cases, there is Western Electric Co. v. Engleman, 13 Md. App. 374 (1971), in which Tavel was distinguished and coverage afforded. The claimant was an “installer” for Western Electric. He was based in Baltimore. Under the applicable collective bargaining agreement, if an installer was assigned to work at another 328*328 location within range of daily travel, he was considered to be on “local assignment.” In that event, the employer had two options: one, to furnish transportation to the jobsite by assigning him to travel as either a driver or a passenger in a company car; or, two, pay a “daily transportation expense allowance” and a “daily travel time allowance.” The claimant, Engleman, was on “local assignment”, and was not furnished a company car. Thus, he was entitled to and did receive these two allowances.

In fact, the claimant and another employee “carpooled” to the jobsite. The injury arose from an automobile accident that occurred while the claimant was a passenger in his fellow employee’s car, as they were driving home from the jobsite. The question of whether the injury was compensable depended upon whether the two allowances bore a relation to reasonable travel expenses; for, if they did, the Court stated that the case would fall within the “free transportation” exception to the “going and coming” rule. After examining these allowances, the Court concluded that “Western did in fact, under an agreement to provide transportation, make payments which bore a relation to reasonable travel expenses.” Thus, we distinguished Tavel and held that Engleman’s injuries arose out of and in the course of his employment.

None of these cases involved precisely the point at issue here. What they do establish, in our judgment, is that, in terms of the “free transportation” exception to the “going and coming” rule, an injury occurring while an employee is on his way to or from work, which otherwise would be noncompensable as being the result of normal hazards unconnected with the employment, becomes compensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee. It is that underlying obligation which brings the travel within the scope of the employment. Where that obligation exists, the method 329*329 of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception.

This seems to be the general view. Schneider states:[8]

“Where the payment of transportation costs is in reality one way of carrying out an original contract obligation to furnish transportation itself, an award of compensation is generally recoverable for accidental injuries sustained by an employee while travelling to or from his employment, and the compensability of the injuries is in no way dependent upon the method of travel which is employed. The obligation to furnish transportation must exist, however. The mere payment of the cost of transportation by the employer will not in itself justify an award.”

“Suppose, for example, that Mrs. A pays her cook $40 a week plus $1 with which to buy a streetcar pass, while Mrs. B pays her cook $41, out of which $1 is destined to go for a pass, although it is not so labeled in the agreement for compensation. This technical difference in the name of the payment surely should not thrust upon Mrs. A a liability which extends throughout the streetcar journey, while relieving Mrs. B of the same liability. Yet this is what would happen under the oftenheard generalization that whenever the employer pays or reimburses the employee for travel expenses the travel becomes part of the employment. It should be apparent that, in some cases at least, the transportation allowance is merely a form of added compensation.”

We are aware of only two instances in which the issue of coverage of a domestic servant receiving a “carfare” allowance has been adjudicated by an appellate court. Both were New Jersey cases, and both, relying on the above-quoted statement from Larson, denied coverage.

In Lewis v. Ward, 126 A.2d 664 (1956), the claimant was employed as a domestic, one day a week, at a rate of $8 per day plus 20 cents carfare and one meal to be supplied by the 331*331 employer. The actual carfare was in excess of 60 cents;

“This court comes to the conclusion that under the facts in this case the payment of 20 cents for carfare was merely an additional compensation and nothing more.”

the doctrine that mere reimbursement alone does not suffice to extend coverage.[13]

We thus turn, as inevitably we must, to the contract between the Ryans and Stella Kasaskeris. In the beginning, whether because of appellee’s difficulties with the public transportation system and the English language, or otherwise, Mrs. Ryan provided complete transportation for Ms. Kasaskeris. Clearly, while that arrangement was in effect, transportation was singled out for special consideration and it therefore formed part of the employment. This arrangement was changed, however; and what we must resolve is whether the change was in substance or only in form.

In this context, an agreement to provide, or to continue to provide, transportation “need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.” Watson v. Grimm, supra, 200 Md. at 470. The record in this case establishes that the only reason for going 333*333 to the new arrangement was that, in driving appellee home, Mrs. Ryan had to leave a small child alone in the house. The switch, therefore, was for her convenience, and not for the purpose of withdrawing the element of transportation from the total employment relationship. As she put it, “When I took it upon myself to ask her to supply her own transportation, I felt it was fair and right that I reimburse her for that.”

From this, we conclude that there was more here than mere reimbursement. The substantive relationship continued as before, with the employer remaining responsible, under their private arrangement, for appellee’s transportation. The only change was in the form of satisfying that obligation: reimbursement for carfare in place of the employer acting as chauffeur. Thus, in light of this conclusion, we believe that appellee fell within the “free transportation” exception.

Had appellee’s injury occurred during the bus ride, we would need say no more. But it didn’t. It occurred two blocks from the bus stop, along the “walking” leg of the journey. This raises another question: how much of the total journey is covered — that for which the employer has paid or all of it?

The very rationale of the “free transportation” doctrine is that the travel is part of the employment, that the day’s employment therefore commences when the employee starts on the course of his journey,[14] and that the employee is performing his job-related duties while in transit. Upon that premise, at least from the time appellee stepped on the bus, she was in the course of her day’s employment.[15] That being so, appellee, during the 334*334 course of her walk from the bus stop to the Ryan home, was “at a place where [s]he reasonably may be in the performance of [her] duties.”[16] If she was working for Mrs. Ryan while riding the bus, she was also working for her when crossing the street. Accordingly, the underlying base upon which the “free transportation” doctrine itself rests, necessarily compels extension of the doctrine to include this last leg of the journey.

 

Mayor and City Council of Baltimore v. Theodore E. Jakelski 410 A.2d 1116 (1980)

Baltimore City Police Officer Theodore Jakelski was scheduled to appear in traffic court once each month to testify in regard to traffic citations previously issued. On July 15, 1976, he was scheduled to appear at 2:00 p.m. and, following his appearance, was to report for roll call at 3:30 p.m. assigned to the Northeast District. The officer was compensated by the hour for his courtroom appearances and while usually credited with a minimum of two hours, actual time was recorded by “punching” a clock provided at the traffic court.While en route to the court from his home on July 15, 1976, Officer Jakelski was involved in an accident which caused disabling injuries.

In Coats & Clark’s Sales v. Stewart, 39 Md. App. 10 (1978), an employee injured while grocery shopping for a baby-sitter, necessary to enable him to attend a company party, was compensated because he was on a “special errand or mission”. The special errand or mission exception gives rise to another euphemism known as the “special errand (or mission) rule”, Professor Larsen’s Workmen’s Compensation Law, § 16.10 at 4-123, best expresses that exception which was first recognized in Maryland in Reisinger-Siehler Co. v. Perry, 165 Md. 191 (1933).

“The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.” (Footnote omitted).

In Dir. of Finance v. Alford, 270 Md. 355 (1973), the officer-employee was called to come to work early during an emergency period when all policemen on the force had been alerted “`to keep themselves available’ to be called back `on emergency status'”. On his way to the station, he was involved in an automobile accident which resulted in his disability. The Court held that the facts fell within the “special mission” rule, and that the accident was compensable, even though the employee was on his way to work. The elements emphasized in implementing this “rule” were the existence of a state of emergency during which he was on a constant alert basis, that reporting was obligatory  and that he was obliged to put in a full shift plus the time added by the early arrival.

The officer-employee in Police Comm’r v. King, 219 Md. 127 (1959), had not yet begun his journey to work, nor was there a declared emergency in being. He was dressing for work and received an accidental, though fatal, gunshot wound from his own service revolver. The Court held that since the police officer was off duty at the time of the accident, his beneficiaries were not entitled to the payment from either of two statutory special funds for deceased members of the force killed “while in the actual performance of duty” or in consequence of injuries received “while in the discharge of duty.”

The emphasis placed upon the emergency conditions, stand by orders and obligatory recall indicate that a duty-related trip made regularly in the course of duty is not a “special errand”. We do not find an officer whose duties indicate a monthly court attendance to be on a “special errand” because he must report to a courthouse rather than to a station house to commence his duties.

Alford‘s emphasis upon the emergency, and the immediacy of the obligatory recall, provided the route to the “special errand” exception in that case; however, as pointed out,

“[f]uture cases quite likely will present a variety of factual situations which will make difficult the determination of the precise time the employee actually had embarked upon the special mission. Obviously they will have to be dealt with on a case by case basis.” Id. at 364.

In this case it is clear that Jakelski never embarked upon a special errand or mission; he was en route to a regularly repetitive performance of one of 12*12 his many duties. This regular course of monthly conduct[2] also distinguishes this case from Coats, supra, upon which appellant also heavily relies. As appellant points out in his brief, both Coats and Alford involved journeys that were irregular or unusual. The trial judge here factually found that court appearances by the officer were a part of Jakelski’s regular duties:

it is the officer’s duty to do that and in furtherance of that duty, it is his duty also in the opinion of the Court, obviously, that he has to appear as a witness in either the Traffic Division of the District Court or in answer to a summons if there should be civil litigation thereafter pertianing [sic] to that accident.

Thus, if the court appearance had been an isolated obligation, the journey to testify might well have been a special errand or mission; however, since such appearances were a regular duty, periodically to be performed, the journey from home to place of employment is not a special errand. Officer Jakelski was “going to” work when he was injured. Like most of us, his employment commenced only after he arrived, not while he was on his way there.

Appellant, Scott Garrity, a part-time bailiff at the District Court for Baltimore City, was involved in an automobile accident as he returned to the courthouse. appellant arrived at the District Court for Baltimore City, Hargrove Courthouse, and realized that he was wearing a Christmas tie. Because appellant was assigned to courtroom five, and there were two bailiffs assigned to that courtroom, he decided that he would drive home and change. appellant left the courthouse around 8:55 a.m. without notifying a supervisor. At or around 9:05 a.m., appellant arrived at his house and changed his shirt and tie. As appellant drove back to the courthouse, he was struck by a truck head-on.

A compensable “accidental personal injury” occurs when an “injury … arises out of and in the course of employment….” L.E. § 9-101(b). An injury is considered to arise “out of employment if it results from the nature, conditions, obligations, or incidents of the employment.” Barnes, 109 Md.App. at 554, 675 A.2d 558 (citing Knoche v. Cox, 282 Md. 447, 455, 385 A.2d 1179 (1978); CAM Constr. Co. v. Beccio, 92 Md.App. 452, 460, 608 A.2d 1264 (1992)). “An injury arises in the course of employment “when it occurs during the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.”” Id. at 555, 675 A.2d 558 (quoting Huffman v. Koppers Co., 94 Md.App. 180, 185, 616 A.2d 451 (1992) (quoting Watson v. Grimm, 200 Md. 461, 466, 90 A.2d 180 (1952))).

Ordinarily, an employee that suffers an injury going to or returning from their place of work is not considered to be acting in the course of their employment. See Director of Finance for the City of Baltimore v. Alford, 270 Md. 355, 359, 311 A.2d 412 (1973); Reisinger-Siehler Co. v. Perry, 165 Md. 191, 194, 167 A. 51 (1933); Barnes, 109 Md.App. at 555, 675 A.2d 558; Fairchild Space Co. v. Baroffio, 77 Md. App. 494, 497, 551 A.2d 135 (1989); Coats & Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 13, 383 A.2d 67 (1978). Appellant acknowledges that he was returning to work, but asserts that the injury is compensable because of: (1) the special mission exception; (2) the dual purpose doctrine exception; and (3) the personal comfort exception.

I.

A special mission occurs when “an employee is acting in the course of employment when traveling on a special mission or errand at the request of the employer and in the furtherance of the employer’s business, even if the journey is one that is to or from the workplace.” 1058*1058 Barnes, 109 Md.App. at 555-56, 675 A.2d 558 (citing Huffman, 94 Md.App. at 187, 616 A.2d 451; Richard P. Gilbert & Robert L. Humphreys, Jr., MARYLAND WORKERS’ COMPENSATION HANDBOOK § 6.7-2 at 113 (2nd ed.1993); Elmer H. Blair, BLAIR’S REFERENCE GUIDE TO WORKMEN’S COMPENSATION LAW § 9:17 at 9-65; 82 Am.Jur.2d Workers’ Compensation § 301 (1992)). Put another way, “[a] special errand or special mission is a trip undertaken by the employee at the direction or request of an employer for the purpose of helping the employer’s business.” Coats & Clark’s Sales Corp., 39 Md.App. at 13, 383 A.2d 67 (footnote omitted).

The special mission exception was initially recognized in Reisinger-Siehler Co. v. Perry, supra, 165 Md. at 191, 167 A. 51. There, the claimant, who was employed by Reisinger-Siehler for fifty-two years, worked from 6:00 a.m. to 6:00 p.m., and was subject to being called at any time to attend to the employer’s store. Id. at 192-93, 167 A. 51. On June 22, 1932, the claimant returned to the employer’s store around 11:00 p.m. — 12:00 a.m. to attend to an issue. Id. at 193, 167 A. 51. After addressing the issue, the claimant proceeded home and was struck by an automobile. Id. The claimant applied to the State Industrial Accident Commission and was awarded compensation. Id. Reisinger-Siehler appealed to the Circuit Court for Baltimore City, which affirmed

Whether a case falls without the rule depends upon the terms of the agreement by which the claimant is employed. If the agreement of employment is made to cover the time of his going to and returning from his place of work, then the case falls within the exception to the rule. Such an agreement, however, need not be an express agreement. It may be implied from the nature and character of the work and employment. The question, therefore, whether a case is an exception to the general rule, depends upon its own particular facts.

* * *

The record does not disclose any express agreement between [the claimant] and his employer relative to the duties that he was to perform, or the remuneration he was to receive. Under his regular employment, his duties were to remain at the store during the day; but, in addition to this, he was, as we have said, when at home, subject to further duties when called upon. The times when these duties were to be performed were uncertain, as he was to go to the store only when unusual conditions existed there. What he was to do and the length of time he was to remain there were equally uncertain. It was possible that when called from his home and possibly from his bed, at night, the work he found necessary to be done upon reaching the store would require his presence for but a few minutes, and it could hardly be said that this employment, for which he was to be remunerated, would cover only the period for which he was actually at work in or about the store. The work that he was called upon to do under these circumstances differs greatly from the regular employment of one employed at regular hours at a given place, and who at the expiration of the period of his work is free to serve himself as he pleases.

There was, we think, an implied agreement, from the nature and character 1059*1059 of the employment of the claimant in the performance of the additional duties, that his employment was not to be restricted to the time in which he was at work at the store on such occasions. It was in the nature of an errand or mission on behalf of his employer, and when so treated his employment commenced at the time when he left his home to go to the store, and ended when he returned to his home.

Id. at 198-99, 167 A. 51.

we note that the special mission exception ordinarily is recognized when an employee is acting in accordance with a specific request from an employer, and that did not occur in the case sub judice.

In Director of Finance for the City of Baltimore v. Alford, supra, 270 Md. at 356, 311 A.2d 412, the Police Commissioner of Baltimore City issued a five-day alert that provided that police officers, whether on duty or off, needed to be available. The claimant was scheduled to report at 11:30 p.m.; however, around 9:00 p.m., he was notified that he needed to come in as soon as possible. Id. at 356-57, 311 A.2d 412. As he drove to the police station, the claimant was struck in the rear of his vehicle. Id. at 357, 311 A.2d 412. The Court of Appeals concluded that the special mission exception was applicable because the claimant was on his way to an emergency, he was obligated to report as soon as possible, and failure to do so could have resulted in discipline. Id. at 364, 311 A.2d 412.

In Coats & Clark’s Sales Corp. v. Stewart, supra, 39 Md.App. at 11, 383 A.2d 67,the decedent and his wife were supposed to attend a dinner party to honor two employees, where the decedent was supposed to present a watch to one of the honored employees. Prior to going to the party, the decedent and his wife intended on picking up groceries because there was no food for the babysitter or their child. Id. at 12, 383 A.2d 67. Unfortunately, the decedent and his wife were involved in an accident before arriving at the store. Id. at 11-12, 383 A.2d 67. On appeal, we concluded that the trip to the grocery store was a special mission because babysitting services, which presumably involved acquiring food for the babysitter, would not have been necessary had the decedent 1060*1060 not been required to attend an employer sponsored party that spouses were expected to attend. Id. at 17, 383 A.2d 67.

In the case sub judice, nobody instructed appellant that he needed to go home and change his shirt and tie.[3] The Policy, which appellant contends provides express authority to leave the courthouse without authorization, is merely a policy that gives employees guidance on professional attire. The Policy does not contain a specific mandate that requires employees to leave when they realize that their attire may be inappropriate. Even if an employee’s attire is inappropriate and it is necessary for he or she to change, that decision should be made by a supervisor. Moreover, the discretionary portion of the Policy cannot be considered express authority for an employee to leave without authorization.

Therefore, despite appellant’s good intentions, because appellant did not have express or implied authority to drive home and change, we cannot conclude appellant was on a special mission on behalf of his employer.

II.

The dual purpose doctrine provides that an injury is compensable if the injury occurs during a trip that serves both a business and personal purpose. Montgomery County v. Wade, 345 Md. 1, 13, 690 A.2d 990 (1997); Stoskin v. Bd. of Ed. of Montgomery County, 11 Md.App. 355, 358, 274 A.2d 397 (1971). The doctrine generally is applicable when a “trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey.” Id. (citation omitted). Appellant contends that his injury is compensable under the dual purpose doctrine because he was advancing the judiciary’s interests.

Stoskin is the leading case on the issue. There, the claimant, a recently hired schoolteacher, was unable to attend a beginning of the year orientation, so the principal provided her with several books to familiarize herself with the courses of study. Stoskin, 11 Md.App. at 356, 274 A.2d 397. The next morning, while the claimant was carrying the books, she slipped on “a coca-cola bottle” as she exited the vehicle that dropped her off. Id. at 356-57, 274 A.2d 397. The claimant, among other things, argued that her injury was compensable under the dual purpose doctrine because her employer required her to take the books home and familiarize herself with them. Id. at 358, 274 A.2d 397. In rejecting this argument, we held:

We think it plain that the “dual purpose” doctrine has no application to the facts of this case. At best, the record shows that [the claimant’s] employer gave her school books to study and become familiar with before the opening of school the following day, and that [the claimant] was carrying them when she slipped on a coca-cola bottle off the school premises when coming to work. There is no evidence showing any agreement, either express or implied, between [the claimant] and her employer that [the claimant] was undertaking, outside of her regular place of employment, a special assignment for her employer’s benefit, commencing from the time she left the school premises with the books and continuing, without interruption, until she returned to the school the following day.

Taking the radio may have served a business purpose if Mr. Colburn, or a supervising authority, had authorized appellant to leave on the condition that he took his radio with him. However, that did not occur. Instead, appellant independently 1062*1062 decided that taking the radio would be a sufficient alternative to asking Mr. Colburn for authorization to leave the courthouse.[4] Furthermore, as explained supra, the Policy does not provide appellant with express or implied authority to leave the courthouse without authorization.

Montgomery County v. Wade, supra, 345 Md. at 6, 690 A.2d 990, is also instructive. There, Montgomery County had a program that provided police officers could maintain a “personal patrol vehicle.” The program was established to ensure the “highest level of police service to the community by providing greater police visibility on the streets and in the neighborhoods….” Id. (internal quotations and citation omitted). The claimant, who was a member of the program, was involved in an accident as she drove, in her personal patrol vehicle, her grandmother to her mother’s house. Id. at 5, 690 A.2d 990. The Court of Appeals, among other things, concluded that the dual purpose doctrine was applicable, despite the police officer’s personal use of the vehicle, because the vehicle was also used for business purposes. Id. at 13-14, 690 A.2d 990. In support, the Court of Appeals noted that the vehicle provided a visual deterrence and it was possible that the officer may have been dispatched at any moment while driving the vehicle. Id. at 14, 690 A.2d 990.

The case sub judice is distinguishable because the employer in Wade knew that the employee was acting in the employer’s interests when she drove the personal patrol vehicle. The employer in Wade, in fact, specifically authorized employees to drive personal patrol vehicles to further its interests.

Here, appellant’s actions were not furthering the interests of his employer and the employer did not know about his actions. Thus, because appellant was not furthering the interests of his employer, the dual purpose doctrine is not applicable.

Appellant lastly argues that his injury is compensable under the “personal comfort” exception articulated in King Waterproofing Co. v. Slovsky, 71 Md.App. 247, 524 A.2d 1245 (1987). In Slovsky, the claimant was a part-time telephone solicitor that worked from 4:00 p.m. to 8:00 p.m., and was provided a paid break. Id. at 249, 524 A.2d 1245. One day around 6:30 p.m., which was during the claimant’s paid break, he was struck by an automobile as he crossed the street to get food and drink from a restaurant. Id. In determining whether the claimant’s injury was compensable, we noted that the “going and coming rule” and its exceptions were not applicable. Id.at 253, 524 A.2d 1245. Instead, we held that “[t]he better analysis… is to consider whether the [claimant] sustained his accidental injury while engaged in some personal comfort activity incidental to his employment.” Id.

Thereafter, we acknowledged that because an injury that occurs during an on-premises coffee break could arise out of the course of employment, “it follows that an injury sustained during an off-premises coffee break also can arise out of employment.” 1063*1063 Id. at 253-54, 524 A.2d 1245. We then noted:

It is clear that one cannot announce an all-purpose “coffee break rule,” since there are too many variables that could affect the result. The duration might be five minutes, seven minutes, 10 minutes, or even 20 minutes by which time it is not far from that of a half-hour lunch period. Other variables may involve the question whether the interval is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee’s activity during this period constituted a substantial personal deviation.

We believe Slovsky suggests that the personal comfort exception is applicable where the terms of employment provide a paid break in which an employer can attend to his or her personal comforts, and where an employer encourages a break that benefits the employer and the employee. The record does not suggest that the terms of appellant’s part-time employment entitled him to a paid break in which he could attend to his personal comforts. Notwithstanding, any benefit derived from appellant’s errand was not the mutual benefit envisioned by Slovsky. Moreover, it was not reasonable to assume appellant’s employer could have known he was attending to a personal comfort at his house. Thus, we must conclude that the personal comfort exception does not make appellant’s injury compensable.

[3] There are several cases in other jurisdictions in which courts have held that the special mission exception was applicable because the employer instructed the employee to go home and change clothes. See e.g.’s Sloane Nissan v. Workers’ Compensation Appeal Board, 820 A.2d 925, 927 (Pa. Commw.Ct.2003) (the special mission exception was applicable because an employee was directed to go home and change clothes); Jennette v. MCS Canon, 211 A.D.2d 943, 621 N.Y.S.2d 229 (N.Y.App.Div.1995) (the special mission exception was applicable where an employee was instructed that she had to go home and change into more appropriate attire before returning to work); Powers v. Lady’s Funeral Home, 306 N.C. 728, 295 S.E.2d 473, 475-76 (1982) (the special mission exception was applicable because the employer required the employee to shower and change clothes and there was no shower on the premises); Heinz v. Concord U. Sch. Dist., 117 N.H. 214, 371 A.2d 1161, 1165 (1977) (the special mission exception was applicable where a teacher drove home to change clothes before chaperoning a school dance); Horvath v. Industrial Commission, 26 Wis.2d 253, 131 N.W.2d 876, 881-82 (1965) (the special mission exception was applicable because an employee had to go home to change for a banquet she was required to attend).

 

 

Fairchild Space Company v. Susan M. Baroffio 77 Md. App.494, 551 A.2d 135 (1989)

At the time of the accident, Ms. Baroffio was a salaried employee with Fairchild Space Co. Her duties as an Associate Contract Administrator required her to work whatever hours necessary, without receiving overtime pay, to complete a task. Consequently, she sporadically came into work on the weekends and remained later than her regular working hours during the week.

her supervisor told Baroffio to arrive at work a half-hour early the following Monday morning to prepare for a 7:30 a.m. presentation to two other contract personnel that morning. To prepare for the Monday morning presentation, Baroffio stayed at work late on Friday, copied the pertinent material, and took it home with her. She came back to work on Saturday for approximately one and one-half hours, and she worked on the presentation at home on Sunday evening.On Monday, September 8, 1986, she left for work one half-hour earlier than usual. She was driving her own car, took her usual route, and did not detour for any personal reasons, nor for any employment reasons. At approximately 6:45 a.m., she was involved in a single car accident,

The supporting reasons for this rule are cogently explicated at § 6.6 Maryland Workers Compensation Handbook, Gilbert & Humphreys (1988):

  • 6.6 Going To and From Work.

Injuries sustained while an employee is traveling to or from the workplace ordinarily are not compensable. This is so because the hazards which employees face during daily commuting trips are common to the public at large. The risks to which an employee is exposed while going to or coming from work are no different from the ones which confront workers while they are traveling on personal excursions. Since the Act is designed to provide compensation for work-related injuries, the courts of this State have refused to convert employers into general insurers for their employees.

See also Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A.2d 613 (1977); Director of Finance v. Alford, 270 Md. 355, 359, 311 A.2d 412 (1973); Coats & Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 13, 383 A.2d 67 (1978). Over the years several exceptions to the “coming and going” rule have developed that allow an employee to recover for such injuries. In the case sub judice, we are only concerned with the “dual purpose” and the “special errand or mission” exceptions.[2]

Dual Purpose Exception

The modern “dual purpose” exception is succinctly set forth in Larson’s treatise on Workmen’s Compensation Law:

Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even it it had not coincided with the personal injury.

1 Larson, Workmen’s Compensation Law, § 18.00 (1985). Elaborating on this definition, Larson further explains that:

when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone.Id., § 18.12 at 4-253 — 4-266.

In addition,

If work is done at home for the employee’s convenience, the going and coming trip is not a business trip within the dual-purpose rule, since serving the employee’s own convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose. The actual performance of the work itself may, under the rules in the next sub-section, be within the course of employment; but the trip is not, since it is transfer of the location of the performance and not the performance itself that serves the employee’s personal purposes.Larson, supra, § 18.33 at 4-316.

There is no evidence that Baroffio’s supervisor or anyone else at Fairchild Space Co. required her to prepare this presentation at home. To the contrary, Baroffio admits that she stayed late at work on Friday evening and came in to work on Saturday afternoon in order to prepare the presentation.[3] Preparation for the presentation at home was a matter of her personal convenience and not compelled by the dictates of her employer.

Contrary to the appellee’s argument, we think that Stoskin v. Board of Educ., 11 Md. App. 355, 274 A.2d 397 (1971), is squarely applicable. In Stoskin, a new school teacher was injured in a fall off-premises while reporting for her first full day of work. Because she had missed a new teacher’s orientation, Stoskin had been told by her principal the day before her fall to take certain school books home and familiarize herself with them by the beginning of next day’s classes. She attempted to rely on the “dual purpose” doctrine to receive compensation for her injuries. On appeal, this court referred to Larson’s treatise and held:

We think it plain that the “dual purpose” doctrine has no application to the facts of this case. At best, the record shows that appellant’s employer gave her school books to study and become familiar with before the opening of school the following day, and that appellant was carrying them when she slipped on a coca-cola bottle off the school premises when coming to work. There is no evidence showing any agreement, either express or implied, between appellant and her employer that appellant was undertaking, outside of her regular place of employment, a special assignment for her employer’s benefit, commencing from the time she left the school premises with the books and continuing, without interruption, until she returned to the school the following day. Even if it could be concluded that appellant was in the course of her employment when reviewing the school books, we think her review necessarily ended before she began her regular trip to work the following day. We thus conclude that this case comes squarely within the general rule that employees who suffer injuries on their way to work are excluded from benefits of the workmen’s Compensation Act.

Id. 11 Md. App. at 359, 274 A.2d 397 (emphasis added). Even if the court had conceded the argument that the review of the school books was in the scope of Stoskin’s employment, the injury on the way to school the next day was not. Because there is no evidence that appellant required appellee to perform the work at home, the “dual purpose” exception to the “coming and going” rule is inapplicable. Accord Crouse v. Workmen’s Comp. Appeal Bd., 57 Pa.Cmwlth. 430, 426 A.2d 749 (1981).

The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

1 Larson, Workmen’s Compensation Law, § 16.11 (1985). In general, the rule does not apply “when the only special component is the fact that the employee began work earlier or quit work later than usual.”[5] Id. § 16.14 at 4-150. It is also noted by Larson that “[t]he element of urgency may supply the necessary factor converting a trip into a special errand.” Id. § 16.15 at 4-161.

This court examined the “special errand” exception in a non-“on call” situation in Coats & Clark’s Sales, supra. Although that case is factually inapposite, we noted that “[t]he essential characteristic of a special errand or mission is that it would not have been undertaken except for the obligation of employment.” Id. 39 Md. App. at 13, 383 A.2d 67.

Although a wide discrepancy in the facts and conclusions exists in the many out-of-state opinions addressing the “special errand” exception, one such case is persuasive. In Trent v. Collin S. Tuttle & Co., Inc., 20 A.D.2d 948, 249 N.Y.S.2d 140 (N.Y. Sup. Ct., App.Div. 1964), the appellant, an executive secretary, was required to turn in a report by 9:15 a.m. the next day. She stayed at work late, completed the report that night at home, and came in to work early the next day to type it. She sustained injuries while alighting from a bus on her way to work. The New York court rejected the appellant’s special errand argument:

If this argument were accepted, any time an employee performed even an occasional piece of work at home at his employer’s direction or even with his employer’s permission or knowledge express or implied the risks of travel to and from employment on such an occasion would be incidents of employment. Such a position is untenable. Rather it would seem that unless the employee’s home is truly a second employment location in that more than occasional employment services are required to be rendered there (see Matter of Tiernan v. Potter, 281 App. Div. 787, 118 N.Y.S.2d 431) travel to and from work is not a risk of employment. Here claimant on her own initiative and without her employer’s knowledge chose to take the work home rather than complete it at her place of employment. Such action alone does not create a second situs of employment. Nor does the fact that she altered her schedule to arrive early to complete her assignment affect the result since it has no bearing on the happening of the accident.

Id. 249 N.Y.S.2d at 141-42.

Ms. Baroffio was given a project that required her to perform some work over the weekend so that a presentation could be made the following Monday. In addition, she was required to report to work a half hour earlier than she usually did on Monday. She is a salaried employee who occasionally must perform some tasks outside of regular work hours. No evidence exists that her required arrival at work a half-hour earlier to present the report constitutes a hazard that would justify application of the doctrine. Further, the employer did not require her to perform the task at home.

[3] We do not address the situation where an employee is compelled to work on a day on which he or she does not normally work and, on that day, sustains injuries on the way to or leaving the place of employment.

[4] For the present analysis, the fact that Ms. Baroffio was required to come into work one half hour early does not change the fact that she was still required to report to work on that day, took the same route, and was not subject to any extra hazards as a result of reporting early.

[5] Larson does provide that if the employee is required to report to work so early or remain so late that hazards are created or magnified, then this element alone may be sufficient to transform the trip into a special errand. Id. at 4-154 — 4-157.

 

Reisinger-Siehler Co. v. Perry 165 Md. 191, 167 A. 51 (1933)

On June 22, 1932, William Perry obtained permission from his employer to stop work at 4:30 in the afternoon so that he might, with his wife, make a social call. On his return home, between 11 and 12 o’clock at night, he was told by his neighbors that a policeman had been there apparently concerning the store. After receiving this message, he immediately walked down to the store, where he found the lights on and the back door open. He went through the building, turned out the lights, and locked up the store. Then he saw the policeman at the box and told him that everything was all right. Whereupon Perry started for his home, taking the shortest and most direct route. While he was crossing the intersection of Carroll and Scott streets, about two squares from his home, he was struck by an automobile and injured.

In Harrison v. Central Construction Company, supra, the employee was furnished by the employer free transportation to the place at which he worked. In that case, Judge Burke, speaking for this court, said: “When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee while on his way to work is not in the course of his employment. The second is that where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment. * * *

Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded has hazards of the service, and hence within the purview of the Compensation Act.”

In State Compensation Insurance Fund v. Industrial Accident Commission of California, supra, the decedent had been working for his employer for many years as a salesman, reporting each morning for duty at the company’s store. At the end of his day’s work, on the day of the accident, he was instructed by one in authority to return to the store that night after he had finished his dinner at home for the purpose of unlocking the store and admitting an electrician who would be there to repair a broken switch; to remain on the premises until the work was finished, and then to see that the store was locked.

On the contrary, it shows beyond doubt that decedent was injured while returning from a special errand which he was performing under the direction of his employer and which required him to leave his home at night, after regular working hours, and called for a service outside of his regular duties as salesman, the sole purpose of which was to help his employer in the latter’s business; and it was because of the relationship of employer and employee that the one requested the service and the other rendered it. Manifestly, under such circumstances, it would be a harsh and indefensible rule which would withhold compensation for an injury received by an employee in the performance of such an errand. * * *

Obviously, the service decedent was performing on the night he was injured did not have its inception at the store upon his arrival there, nor did it end there immediately upon leaving. It began the instant he left his home on the errand to go to the store for the purpose of allowing the electrical work to be done [and, we may add, continued until he reached his home];

[2] Whether a case falls without the rule depends upon the terms of the agreement by which the claimant is employed. If the agreement of employment is made to cover the time of his going to and returning from his place of work, then the case falls within the exception to the rule. Such an agreement, however, need not be an express agreement. It may be implied from the nature and character of the work and employment. The question, therefore, whether a case is an exception to the general rule, depends upon its own particular facts.

The claimant in this case was employed regularly at his employer’s store from 6 o’clock in the morning until 6 o’clock in the evening to care for the building, as stated in the evidence. When his day’s work was over, he was, of course, permitted to return to his home, but he was thereafter subject to call at any time to go to the store to care for any unusual conditions that might be found to exist there.

The work that he was called upon to do under these circumstances differs greatly from the regular employment of one employed at regular hours at a given place, and who at the expiration of the period of his work is free to serve himself as he pleases.

There was, we think, an implied agreement from the nature and character of the employment of the claimant in the performance of the additional duties that his employment was not to be restricted to the time in which he was at work at the store on such occasions. It was in the nature of an errand or mission on behalf of his employer, and when so treated his employment commenced at the time when he left his home to go to the store, and ended when he returned to his home.

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