Publix Supermarkets v. Finocchi

Full title: PUBLIX SUPERMARKETS AND HARTFORD INSURANCE COMPANY, APPELLANTS, v. SUSAN…

Court: District Court of Appeal of Florida, First District

Date published: Feb 27, 1995

650 So. 2d 1122 (Fla. Dist. Ct. App. 1995)

Opinion

No. 93-2158.

February 27, 1995.

Appeal from the Judge of Compensation Claims, Stephen J. Johnson, J.

Robert C. Barrett and Kristin J. Swanson of Rissman, Weisberg, Barrett Hurt, P.A., Orlando, for appellants.

John R. Gierach and Debra J. Sirkin of Gierach and Gierach, P.A., Orlando, for appellee.

EN BANC

PER CURIAM.

The employer/carrier appeal a workers' compensation order in which it was established that the claimant sustained compensable injuries while traveling to work in response to the employer's sudden call. We conclude that the judge properly applied section 440.092, Florida Statutes (1991), and the special errand doctrine as delineated in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979).

When two other employees failed to appear for work, the employer called the claimant at home on her scheduled day off. The claimant agreed to work, and was told that she needed to arrive as soon as possible. Leaving home without breakfast, the claimant began driving to work along her regular route. She stopped at a convenience store to purchase breakfast which she intended to eat while driving, so as to expedite the travel and hasten her arrival. Upon exiting the convenience store, the claimant was struck by a vehicle and sustained various injuries.

In her employment application the claimant had indicated that she would be available for work at any time. She was called on her day off on other isolated occasions, with the employer generally notifying the claimant in advance. In the present instance the claimant had no advance notice, and the judge found that the employer's call was both irregular and sudden. Also finding that the claimant did not substantially deviate in stopping at the convenience store, the judge determined that the claimant's injuries were compensable because she had embarked on a special errand.

In Eady the supreme court addressed the special errand doctrine. Acknowledging that in the absence of special circumstances injuries sustained while traveling to or from the workplace are not ordinarily compensable, the court recognized a special errand exception to this going and coming rule. See also § 440.092(2), Fla. Stat. (1991). Noting that special errands often arise in the context of an afterhours call, and that the irregularity and suddenness of such a call will almost always qualify it as a special errand, the court indicated that the special errand exception will apply even when such calls are a contemplated part of the employment or are nominally voluntary. Emphasizing that the worker is under a considerable burden in responding to such a call, the court applied the special errand doctrine because the assignment from the employer came suddenly.

Although the claimant in the present case was to perform tasks within the ordinary scope of the employment, and was traveling to work along her regular route, these circumstances do not alter the special errand character of the assignment. The worker in Eady was also called to perform a task within the ordinary scope of the employment, and the court noted that the task involved makes little difference in the context of a sudden call. The court further indicated that either the suddenness of the assignment, or the irregularity of the particular journey, would provide an independently compelling basis for application of the special errand doctrine. Indeed, in the course of this discussion the court cited to Feltner v. Southern Bell Tel. Tel., 274 So.2d 530 (Fla. 1973), where a worker was found to be within the course of the employment when responding to an afterhours call and traveling to the regular workplace.

In Feltner the workers often received afterhours calls. In Eady the worker was subject to being called at any time, and such calls were not unusual. However, in each case the worker apparently had no knowledge or notice that the particular call which led to injury would come when it did. The inconvenience and burden in responding to such an unexpected and sudden call made the journey a part of the rendered service. Likewise, the claimant in the present case had no advance knowledge and could not fairly anticipate the particular call. The suddenness of the call thus brought the journey within the course of the employment, as a special errand.

The application of the special errand doctrine generally depends on factual determinations which must be supported by competent substantial evidence. See Tampa Airport Hilton Hotel v. Hawkins, 557 So.2d 953 (Fla. 1st DCA 1990). The present record contains sufficient evidence to support the factual findings upon which compensability was established, in accordance with section 440.092 and the special errand doctrine. The appealed order is therefore affirmed.

ZEHMER, C.J., and ERVIN, JOANOS, BARFIELD, ALLEN, WEBSTER, DAVIS, BENTON and VAN NORTWICK, JJ., concur.

WEBSTER, J., concurs with opinion in which BENTON, J., concurs.

WOLF, J., specially concurs with opinion.

LAWRENCE, J., dissents with opinion in which BOOTH, MINER, KAHN and MICKLE, JJ., concur.

WEBSTER, Judge, concurring.

It appears relatively clear to me that one holding in Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979), is that the special errand exception to the going and coming rule applies when an employee is injured responding to a "sudden" (i.e., unexpected) call from his or her employer. I am unable to read the following language from Eady as intended to have any other meaning:

The going and coming rule does not apply to this case because Mrs. Eady was on a special errand for her employer when she was injured. The journey was a substantial part of the service for two reasons, either of which standing alone would be compelling. First, the assignment by the employer came suddenly. Even when the call is a regular part of the job or nominally voluntary, the relative burden on the employee responding to such a call is considerable. See Feltner v. Southern Bell Tel. Tel., [ 274 So.2d 530 (Fla. 1973)]. For this reason employees responding to a call from their employer are virtually always outside the going and coming rule. The task performed by the employee makes little difference in that context.

Id. at 696. I am, likewise, unable to agree with the dissent's characterization of the Eady opinion as not "`a binding decision' or `a binding precedential opinion' . . . because there was no majority opinion." The opinion, authored by Justice Adkins, reflects that Chief Justice England and Justices Sundberg and McDonald concurred. Therefore, it would seem to me that there was a majority opinion, which created precedent binding upon us. See Santos v. State, 629 So.2d 838, 840 (Fla. 1994).

I question the wisdom, from a public policy standpoint, of allowing recovery in a case such as this. However, it seems to me that Eady mandates such a result. Accordingly, I concur.

WOLF, Judge, specially concurring.

To the extent that the next to the last paragraph of the majority opinion can be read to indicate that "the suddenness of the call" standing by itself mandates a finding of compensability, I must disagree. I would affirm, however, based on the factual findings of the JCC which determined that the additional burden placed on the employee as a result of the employer's call would justify a finding of compensability.

In Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979), the supreme court reversed an order of the Industrial Relations Commission which overturned a finding by the judge of industrial claims that the employee was on a special errand for the employer. The court stated the general rule that injuries suffered by an employee going and coming from their place of employment are not compensable but that

[T]he going and coming rule does not apply to employees on special errands or missions for the employer.

Id. at 695.

The supreme court found that the Industrial Relations Commission erred because

[A]s a practical matter, the irregularity and suddenness of a call from the employer will almost always qualify it as a special errand exempt from the going and coming rule.

Id. at 695 (emphasis added). While the supreme court indicated that the suddenness of a call normally placed a considerable burden on the employee and, thus, there would be a compelling support for upholding a finding of compensability by the trier of fact, the test for determining whether a trip involved a special errand for the employer was a review of all the circumstances to determine the extent of the burden placed on the employee.¹

1 It should be noted that the factual situation presented to the supreme court in Eady demonstrated a number of other factors which were burdensome to the employee (e.g., the nature of the call involving a serious medical problem, the fact that the employee had already worked a full shift on the day in question, and the brief period of time that the claimant would be at the work site in contrast to the length of the trip).

Larson goes on to explain several variables which case law indicates may be useful in resolving difficult cases. If the particular journey is a regular or frequent one, there is a strong presumption that the going and coming rule applies. Also, the relative burden of the journey on the employee should be compared with the extent of the task to be performed in the context of the employee's duties. A significant journey for the sake of a minor task, as in the example by Larson, is indicated to be a substantial part of the service to the employer. The suddenness of the assignment from the employer, the time and length of the journey, and any special circumstances should be evaluated in assessing the relative burden on the employee. See Larson, The Law of Workmen's Compensation § 16.11 (1978) at 4-136-39.

Eady at 696 (emphasis added).

In Tampa Airport Hilton v. Hawkins, 557 So.2d 953 (Fla. 1st DCA 1990), this court recognized that evaluation of these factors generally depended on factual matters to be determined by the JCC.

In the instant case, the JCC cited the Tampa Airport Hilton case and specifically indicated that he was considering a number of factors and not just the suddenness of the call, "i.e., the expense and inconvenience caused by the employee in having to go to the employer's premises a considerable distance." The JCC also specifically found in pertinent part as follows:

1. Sue Finocchi applied for work with the Employer on August 1, 1989, completed an employment application on that date, and indicated therein that she was available for work "any time."

4. Prior to April 13, 1992, neither Dusty Workman, Al Chancey, nor George Hart, had ever called the Claimant into work on her scheduled day off without advance notice.

5. A deli manager, Donna Nichols, who was not the claimant's supervisor, had called the Claimant into work on her scheduled day off on only one occasion previously, approximately six (6) months prior to April 13, 1992.

6. The Claimant lived forty (40) miles from work.

7. The Claimant was not scheduled to work on April 13, 1992, nor was she advised in advance that she might be called into work on that date.

11. Lisa Switzer, under the instruction of Dusty Workman, requested that the Claimant come to work as soon as possible and assist in the deli department.

14. The Claimant stopped at a convenience store five (5) minutes from her home which was located directly on the street normally traveled to work.

15. The Claimant purchased breakfast which was intended to be eaten while driving to work, and which was intended to expedite travel to work in order to fulfill the requirement of getting to work as soon as possible.²

2 It would also be noted that factual findings number 14 and 15 would negate any argument that stopping at the convenience store constituted a substantial deviation.

16. Upon exiting the convenience store, as a pedestrian, the Claimant was struck by a vehicle and suffered severe injuries, primarily to her hips and legs.

It is clear that the JCC considered not only the suddenness of the call involved, but also other factors which would constitute a burden on the employee, including distance from the job, the request to come immediately, as well as the necessity to make a stop to obtain food at a convenience store. Under these circumstances, I feel that the JCC's determination is supported by competent substantial evidence.

LAWRENCE, Judge, dissenting.

I respectfully dissent because the majority holding extends workers' compensation benefits beyond that authorized by the applicable statutes and case authority. The order of the JCC should be reversed.

The issue best can be expressed as follows: is a sudden (short notice) call from an employer to an employee, without more, sufficient to qualify as a special errand, so as to exempt an employee from the general rule that workers are not covered by workers' compensation when travelling to and from work? The majority essentially concedes that it is relying on short notice alone to determine the special-errand exception, by its conclusion that "the claimant in the present case had no advance knowledge and could not fairly anticipate the particular call. The suddenness of the call thus brought the journey within the course of the employment as a special errand." Majority op. at 1124.

I do not take issue with the JCC's findings of fact. However, in my view, he incorrectly applied the law to the facts. Finocchi was employed by Publix as a meat wrapper, seafood worker, and deli worker. She was accustomed to working according to a schedule prepared on a weekly basis. She was on notice at the time of her initial employment that she might be asked to work at times and on days other than those regularly scheduled. The record indicates it was Publix' policy to call employees in to work whenever someone else called in sick or failed to appear. It was also the store policy to continue to call workers until someone agreed to fill that day's vacancy. Finocchi previously had reported to work on her day off. The only distinguishing feature in the instant case is that the call came without any advance notice.

On the day of the accident, Monday, April 13, 1992, Finocchi was not scheduled to work. When two workers failed to appear for their shift, she was called at her home by a co-worker at 8:30 a.m. and requested to report for work. She was under no compulsion, either direct or indirect, to work on her day off. Other employees were contacted before Finocchi, but had declined to report. Finocchi agreed to come in, took about forty-five minutes to get ready, and then stopped at a convenience store five minutes away from her home to get something to eat, when she was injured.

The majority view relies principally on Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979), as authority for its position. Eady is factually dissimilar from the instant case, a point which even the JCC in this case recognized and acknowledged.¹ Eady was an "on-call" nurse who responded to an emergency call from one of her patients during the evening hours. She was paid a minimum of four hours work for responding to such calls. She was injured while en route to perform a brief task (to change an intravenous bottle) at the patient's home. The court, in holding the special-errand exception applicable, found the journey was irregular both as to its timing and its destination.

1 In his order finding the accident compensable, the JCC recites as follows: "I find that the cases of . . . and Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla. 1979) are also similarly not factually on point."

Feltner v. Southern Bell Telephone Telegraph Co., 274 So.2d 530 (Fla. 1973), another case upon which the majority relies, is also factually dissimilar. Feltner was a worker who responded to an emergency call during the evening hours in order to correct a malfunction of telephone switching equipment. He was paid a minimum of three hours at the overtime rate for responding at an irregular time. Feltner was fatally injured while en route to perform the special errand. The court, in finding the accident compensable, noted that Feltner could not have declined the request for such conduct would have constituted a "black mark" on his record. The court further noted that the nocturnal journey required by the employer's call was not part of Feltner's daily work.

Finocchi, in contrast to Eady and Feltner, was not responding to an emergency situation. The record shows she took a full forty-five minutes to get ready to go to work. She was free to decline the request to report to work. Finocchi moreover was travelling her usual route to work to perform routine job duties. Her hours and task were not substantially different from normal, and the journey, which involved the identical distance and route she normally travelled, as well as the identical destination, posed no unusual hazards. Finocchi was not paid for her travel time or expense. Neither was she paid any additional compensation for working on her day off. Any expense or inconvenience she incurred by having to travel forty miles to work cannot be said to be "special" in view of the fact she always travelled this distance to go to work. In other words, there was nothing special about the day of the accident, except that the request to report to work came on short notice. Finocchi simply elected to take advantage of an opportunity to earn an additional day of wages for that week. Compensation for a going and coming injury is denied when the errand is insufficiently "special," considering an employee's normal hours and duties. Eady, 377 So.2d at 696.

Apparently recognizing that there are multiple factors which must be considered in determining whether a journey qualifies as a special errand, and that "suddenness" or short notice alone is insufficient, the JCC concluded that Finocchi's request to report for work was both sudden and irregular. "Irregularity" in the instant case, however, is nothing more than suddenness — both involve the timing of the call to Finocchi, rather than Finocchi's destination or task. Irregularity and suddenness in the instant case constitute but a single factor.

The Eady court moreover recognized a strong presumption in favor of application of the going and coming rule when it said that "Larson goes on to explain several variables which case law indicates may be useful in resolving difficult cases. If the particular journey is a regular or frequent one, there is a strong presumption that the going and coming rule applies." Eady, 377 So.2d at 696 (emphasis added). Finocchi's journey was both a regular and a frequent one; the going and coming rule therefore should be applied.

No case has been cited, nor am I aware of any Florida case which holds that a sudden call, without more, is sufficient to constitute a special errand. While the suddenness of an employer's call might be "compelling," the Eady court did not hold that a sudden call makes an accident per se compensable. The court recognized that review of all the circumstances² is essential in determining the relative burden placed on the employee by the errand, and whether the errand's burden is sufficient to trigger application of the special-errand exception. Eady, 377 So.2d at 696-97. Of the multiple factors to be considered, at least five were present in Eady: (1) Eady's journey was irregular because her destination was not ordinary; (2) Eady responded to an emergency call from a patient; (3) the task to be performed, though important, was nominal in view of the burden of her journey; (4) the call was sudden; (5) Eady was paid for a minimum of four hours work, even though the actual time worked would have been much less.

2 In determining whether a errand constitutes a "substantial part of the service," courts are to consider: (a) the relative regularity or unusualness of the particular journey; (b) the relative burden of the journey compared with the task to be performed at the end of the journey; (c) the suddenness of the assignment; (d) the time and length of the journey; and (e) any special circumstances affecting the burden on the employee. 1 Larson, The Law of Workmen's Compensation, § 16.13 (1993); Eady, 377 So.2d at 696-97. Other factors to consider are whether the employee is compensated or reimbursed for the travel or the time spent going and coming, whether the employee's work entails travel away from the employer's premises, and whether the call is of an emergency nature. 1 Larson, supra §§ 16.15, 16.31 n. 53; Leonard v. Dennis, 465 So.2d 538, 540 (Fla. 2d DCA), review denied, 476 So.2d 673 (Fla. 1985).

Finally, even if Eady were factually similar to the instant case, Eady does not appear to be "a binding decision" or "a binding precedential opinion" for this court because there was no majority opinion. Santos v. State, 629 So.2d 838, 840 (Fla. 1994). Only three of the seven justices actually and effectively joined in the plurality opinion upon which the majority in the instant case relies. Therefore, it is not a binding precedential opinion pursuant to article V, section 3(a) of the Florida Constitution. Santos.

One may rely simply on his or her common sense to conclude that the circumstances present in Finocchi's case must occur thousands of times every day and are predictable in the commercial world in which we live. I cannot imagine that the legislature intended to extend compensability to these common, everyday circumstances.

I must conclude that there are no special circumstances in this case to warrant application of the special-errand exception to the going and coming rule. I would reverse the order of the JCC and deny compensability for the accident. I would also certify the following question to the Florida Supreme Court as one of great public importance:

IS A SUDDEN (SHORT NOTICE) CALL FROM AN EMPLOYER, WITHOUT MORE, SUFFICIENT TO QUALIFY AS A SPECIAL ERRAND, SO AS TO EXEMPT AN EMPLOYEE FROM THE GENERAL RULE THAT WORKERS ARE NOT COVERED BY WORKERS' COMPENSATION WHILE TRAVELLING TO AND FROM WORK?