Opinion
DOCKET NO. A-0592-13T2
06-11-2014
ADI KOTLER, Petitioner-Respondent, v. DCH MOTORS LLC d/b/a DCH KAY HONDA, Respondent-Respondent, v. SAFETY NATIONAL CASUALTY CORPORATION, Respondent-Appellant.
Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Williams, of counsel and on the brief; Patrick F.X. Fitzpatrick, Jr., and Michael D. Celentano, on the brief). John H. Geaney argued the cause for respondent DCH Kay Honda (Capehart & Scatchard, P.A., attorneys; Mr. Geaney, of counsel and on the brief). Gerald A. Dienst argued the cause for respondent Adi Kotler (Herbert I. Ellis, P.C., attorney; Mr. Dienst, on the brief). Francis & Berry, attorneys for amicus curiae Property Casualty Insurers Association of America (Hugh P. Francis and Joanna Huc, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John, and Leone.
On appeal from Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2011-7927.
Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Williams, of counsel and on the brief; Patrick F.X. Fitzpatrick, Jr., and Michael D. Celentano, on the brief).
John H. Geaney argued the cause for respondent DCH Kay Honda (Capehart & Scatchard, P.A., attorneys; Mr. Geaney, of counsel and on the brief).
Gerald A. Dienst argued the cause for respondent Adi Kotler (Herbert I. Ellis, P.C., attorney; Mr. Dienst, on the brief).
Francis & Berry, attorneys for amicus curiae Property Casualty Insurers Association of America (Hugh P. Francis and Joanna Huc, on the brief). PER CURIAM
The issue in this interlocutory appeal is whether the injuries an employee sustained while driving home after being called to work on a normally off-day are compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. The Judge of Compensation concluded that the facts of this case distinguish it from the "premises rule" of N.J.S.A. 34:15-36, which excludes injuries sustained during an employee's going to or coming from work. The judge determined the injuries were compensable because petitioner felt compelled to assist a "special mission" of the employer on his day off. We disagree as a matter of law that the employee's commute back home was part of that special mission, and so, we reverse.
I.
In March 2011, the employee, Adi Kotler, filed a claim petition with the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, against his employer, DCH Kay Honda. He had suffered serious injuries in a motor vehicle accident that occurred on Sunday, December 26, 2010, as he was driving home from the dealership. DCH filed an answer admitting compensability, and it paid medical and temporary disability benefits to Kotler. In April 2012, DCH filed a motion to implead appellant Safety National Casualty Corporation as a respondent in the workers' compensation case and for declaratory judgment as to compensability. DCH has an "Excess Workers' Compensation Insurance agreement" by which Safety National is obligated to indemnify DCH for benefits it pays above $500,000. The workers' compensation judge permitted the impleading of Safety National and held the first part of a bifurcated trial in October 2012 to address the issue of compensability.
The witnesses at the trial were Kotler and DCH's used car manager, Thomas Chrusciel. Their testimony was that, in December 2010, Kotler was employed as a car salesman at DCH's dealership in Eatontown. He was a new employee who had only been working for about five weeks. During that time, Kotler had one weekday off and also did not work on Sundays when the dealership was closed.
On Saturday evening, December 25, 2010, Chrusciel called Kotler and asked him to come to the dealership the following day to move cars. Chrusciel anticipated snow most of that Sunday, and he wanted to empty the lot of cars so snow plows could clear it before the dealership opened on Monday. Kotler felt obligated to agree to Chrusciel's request because he was a new employee and wanted the dealership to view him as dedicated to his job. Although moving cars was not part of Kotler's normal job duties, the dealership's employees chipped in when it snowed to clear the lot of cars.
Kotler arrived at the dealership at 8 a.m. on Sunday. Kotler, Chrusciel, and another employee moved cars into the showroom and service bays. Snow began falling at about 10:00 a.m., when nearly all the cars had been moved. Kotler told Chrusciel his car did not handle well in the snow and asked to leave. Chrusciel told Kotler to go home.
When Kotler left a few minutes later, the roads were covered with about one inch of snow. Kotler took his normal route home toward Brick Township. Five to ten miles from the dealership and after about fifteen minutes of driving time, Kotler's car slid and crashed into a guardrail. He suffered serious injuries.
On these "uncontroverted facts," the Judge of Compensation issued an oral decision on May 7, 2013, that Kotler's injuries were work-related and compensable. The judge found that Kotler felt compelled to go to the dealership on an off-day and help move cars as requested. Although not precisely stated, the judge seemed to conclude that the accident occurred during the commission of a "special mission" for the employer and was therefore compensable. The judge acknowledged that an injury is normally not compensable during the employee's commute to and from work, and that Kotler was following his normal commute, but the judge stated that "the day and dangerous weather conditions during that commute were not normal." The judge concluded that, because the employer had called Kotler in to work when it was not part of his normal duties and on a day when he would otherwise not have driven to or from work, the accident occurred as part of Kotler's work duties.
Our record does not reveal the reason for the seven-month delay from the conclusion of the short bench trial and the judge's decision.
Safety National sought our leave to appeal the ruling of compensability. After our denial of leave to appeal the interlocutory order, the Supreme Court reviewed Safety National's motion and remanded the matter to us to determine the issue of compensability.
II.
Safety National contends that Kotler's claim does not arise from work-related compensable injuries because the accident occurred while he was travelling home from his normal workplace. Safety National's argument is supported by amicus curiae Property Casualty Insurers Association of America. DCH and Kotler contend the judge of compensation correctly determined the injuries were compensable because the accident occurred during a task that Kotler felt compelled to perform for the benefit of the employer. They analogize the circumstances of this case to the "special mission" exception to the normal rule that compensable injuries are those that occur at the employee's work site. Safety National responds that the special mission exception is inapplicable to extra job duties at the normal place of employment.
In a worker's compensation case, a reviewing court must defer to the factual findings and legal conclusions of the judge of compensation as long as they "could reasonably have been reached on sufficient credible evidence present in the record[.]" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, legal questions are not entitled to any deference and are subject to plenary review on appeal. Hersh v. County of Morris, 217 N.J. 236, 243 (2014); see also Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 368 (App. Div. 1996) ("[D]eference need not be given where the judge has applied the wrong legal principles in coming to [his] conclusion.").
The Workers' Compensation Act requires employers to compensate employees for injuries "arising out of and in the course of employment." N.J.S.A. 34:15-7. Before 1979, the Act did not define "employment." The courts developed the "going and coming rule" to distinguish between compensable and non-compensable injuries. Watson v. Nassau Inn, 74 N.J. 155, 158-59 (1977). That rule precluded compensation for injuries that occurred during an employee's normal commute to and from the work place. Ibid. Over time, however, the courts created many exceptions that practically swallowed the "going and coming rule." Id. at 159.
The Legislature amended the Workers' Compensation Act in 1979 and eliminated many of the judicially-created exceptions by defining "employment" more restrictively. Hersh, supra, 217 N.J. at 244. As amended, the Act provides: "Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer." N.J.S.A. 34:15-36. Known as the "premises rule," this definition "is based on the notion that an injury to an employee . . . arises out of and in the course of employment if the injury takes place on the employer's premises." Hersh, supra, 217 N.J. at 244 (quoting Kristiansen v. Morgan, 153 N.J. 298, 316 (1998)).
Here, Kotler's injuries did not occur on the employer's premises. As a result, the premises rule would normally preclude compensability. For Kotler's injuries to be compensable, he and DCH must prove that they fall within one of the exceptions to the premises rule that survived the 1979 amendments.
DCH argues the "special mission" exception applies because it was included in the 1979 amendments. That exception is codified within the definition of employment contained in N.J.S.A. 34:15-36. The statute allows for compensability of off-premises injuries if an employee is (1) "required by the employer to be away from the employer's place of employment," and (2) the employee is "engaged in the direct performance of duties assigned or directed by the employer." N.J.S.A. 34:15-36; Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992).
In Zelasko, the Supreme Court explained the boundaries of this exception, singling out Ehrgott v. Jones, 208 N.J. Super. 393 (App. Div. 1986), and Nemchick v. Thatcher Glass Manufacturing Co., 203 N.J. Super. 137 (App. Div. 1985), as exemplifying its proper application. Zelasko, supra, 128 N.J. at 336-37. In both cases, the employer directed the employee to travel to or from his usual place of employment, and the employee was injured during that travel. Id. at 336. Also in both cases, the "employment required the employee to be away from the conventional place of business, and because the travel was an indispensable part of the performance of the job duty, it was required as part of the mission." Id. at 336-37. The injuries were therefore work-related and compensable under the special mission exception to the premises rule.
In further support of its argument, DCH relies on 1 Larson's Workers' Compensation Law § 16.00 (1992), which provides:
The rule excluding off-premises injuries during the journey to and from work does not apply if the making of the journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed.Nemchick similarly concluded that an off-premises injury was compensable because the injured employee's fifty-mile journey home from an unfamiliar location "was 'sufficiently substantial to be viewed as an integral part of the service itself.'" Nemchick, supra, 203 N.J. Super. at 143 (quoting 1 Larson's Workers' Compensation § 16.10 (1984)). Furthermore, the "inconvenience and enhanced exposure to hazard" caused by the task, specifically the "disruption of [the employee's] normal daily routine" and the resultant "weariness and fatigue," benefitted the employer. Ibid.
The paragraph in Larson this language is taken from is identical to a paragraph contained in the modern edition of the treatise, 1-14 Larson's Workers' Compensation Law § 14.05[1] (2013), which provides:
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.
Here, Chrusciel asked Kotler to come to work on a Sunday to perform a special task for the benefit of the employer. DCH contends the employer's request and the hazardous conditions of Kotler's commute on that day render the task "sufficiently substantial to be viewed as an integral part of the service itself," and therefore, compensable under the special mission exception.
Safety National distinguishes Nemchick by pointing out that the employee in that case was directed to a location away from the usual place of employment, while Kotler was directed to his usual place of employment. Safety National argues the distinction is important because of the plain language of the codified special mission exception that requires the employee to be directed to a place "away from the employer's place of employment." Safety National also argues that Larson similarly recognizes that the special mission exception does not apply to journeys that are "made every day" as long as the journey is not "unusually long or burdensome." 1-14 Larson's Workers' Compensation Law § 14.05[3] (2013).
While pre-1979 case law permitted compensation for injuries suffered away from the work site while the employee was engaged in a special mission, see Briggs v. Am. Biltrite, 74 N.J. 185, 192 (1977); Binet v. Ocean Gate Bd. of Educ, 90 N.J. Super. 571, 574 (App. Div.), certif. denied, 47 N.J. 243 (1966), the bounds of that exception are now determined by the 1979 amendments. The Legislature intended the amendments to remove many of the exceptions to the going and coming rule, and to define restrictively the retained exceptions. Zelasko, supra, 128 N.J. at 335. The plain language of N.J.S.A. 34:15-36 allows the special mission exception to be applied only to travel to and from off-premises locations for the benefit of the employer.
This reading of the amended statute is supported by an article written soon after the 1979 amendments by the Chief Judge of Compensation, stating that the amended version of the special mission exception was "designed to remove from compensability certain cases heretofore held compensable where special hazards existed en route to the employer's premises." Honorable Alfred J. Napier, The Impact of the Reform Act of 1980, 96 N.J. Lawyer 17, 18 (1981) (cited by Ward v. Davidowitz, 191 N.J. Super. 518, 523 (App. Div. 1983)). This reading of the amended statute is also supported by case law, which has emphasized that the employee must be performing the special mission away from the employer's place of employment. See Zelasko, supra, 128 N.J. at 336; Nemchick, supra, 203 N.J. Super. at 142; Ward, supra, 191 N.J. Super. at 523. In sum, the special mission exception does not apply to the employee's normal travel to or from his place of employment.
DCH also argues that the injuries are compensable because an employee is entitled to safe egress from the work site. See Ramos v. M & F Fashions, Inc., 154 N.J. 583, 587 (1998); Cressey v. Campus Chefs, Div. of CVI Serv., Inc., 204 N.J. Super. 337, 344 (App. Div. 1985). In Hersh, supra, 217 N.J. at 239, 249-50, however, the Supreme Court held there was no compensable injury where the employee was struck by a car while crossing a street to her work location from her assigned parking place in a garage rented by the employer. The Court framed the issues thus: "[t]he pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred." Id. at 244 (quoting Kristiansen, supra, 153 N.J. at 316-17). The Court then stated: "the Act reveals that it is not intended to expand the employer's liability to publicly owned areas not under direct control of the employer." Id. at 249.
Here, the accident occurred on a public roadway at least five miles from the dealership. DCH had no control over the condition of the roadway. The cases holding that the employer is required to provide safe ingress and egress are not applicable.
Next, DCH argues the injuries were compensable because Kotler felt compelled to work on a snowy off-day. DCH relies on Sager v. O.A. Peterson Construction, 182 N.J. 156, 162-63 (2004), and Lozano v. Frank DeLuca Construction, 178 N.J. 513, 532 (2004), to argue that the 1979 amendments did not supersede "earlier cases finding that compulsion, standing alone, brings an activity that is unrelated to work within the scope of employment." In Sager, the employee was injured in a motor vehicle accident off the premises of his employment while returning to the work site after getting dinner at the direction of his supervisor. Sager, supra, 182 N.J. at 158-59. In Lozano, supra, 178 N.J. at 518-19, the employee was injured at his work site but while engaged in recreational activity at the direction of his employer. In both cases, the Supreme Court held that the employer's compulsion of the non-work activity rendered it work-related and therefore compensable. Sager, supra, 182 N.J. at 163, 168; Lozano, supra, 178 N.J. at 518, 532-33.
While it is true that compulsion standing alone can make an otherwise non-work-related activity related to the job, compulsion does not abrogate the premises rule and its preclusion of compensability when the employee is commuting. In Lozano, supra, 178 N.J. at 518, the recreational activity and the accident occurred at the construction work site before the employees left for the day. The injured employee had no way to leave the site by himself and was urged by his supervisor to engage in the activity. Id. at 519. In Sager, supra, 182 N.J. at 159-60, the supervisor of the construction crew decided that work would continue after the normal stopping time because the crew could not get home, and he directed the crew to get dinner, which was not available at the work site, and then to come back and continue the job. The Court concluded that the off-premises travel was compelled and therefore work-related. Id. at 163.
In this case, Kotler was only compelled to come to the normal place of employment and to work on an off-day. In its legal effect, the compelled activity was no different from any circumstance where an employer requests overtime or additional work from an employee. If the employee's mere feeling that he must obey his employer's request is sufficient to render an off-premises injury work-related, then another exception has been carved into the premises rule contrary to the Legislature's intent to restrict workers' compensation liability to places and work duties over which the employer retains control. DCH had no more control over the road conditions that caused Kotler's accident and injuries on Sunday, December 26, 2010, than on any other day in which an employee might feel obligated to come to work and then be injured in a motor vehicle accident during his commute.
The premises rule was not applied correctly in deciding that Kotler's accident was work-related and his injuries compensable. The deviation from the normal work schedule does not alter the basic restrictions of N.J.S.A. 34:15-36 to injuries that occur while the employee is at his place of employment or while away from the place of employment on a "special mission" on behalf of the employer. Injuries that occur while the employee is on a normal commute, even in bad weather, are not compensable as work-related injuries.
Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION