SECUREX, INC. & CLAIMS CENTER, APPELLANTS,
v.
JOHNNY COUTO, JR., APPELLEE
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The court held that employer-provided transportation, even if a nominal fee was charged, was not for the employee's exclusive personal use and thus fell under an exception to the 'going and coming rule'.
[1] Injuries incurred while going to and from work are ordinarily not compensable, but exceptions to this "going and coming rule" exist.
[2] An exception to the "going and coming rule" applies when transportation is provided by the employer, making the transportation an implicit part of the employment contract…
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Join FLexlaw to unlock all legal intelligenceAn employee was injured in a car accident while being transported home from work in a company car. The employer provided this transportation as an acc…
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DAVIS, Judge.
Securex, Inc. and Claims Center have appealed a non-final order of the judge of compensation claims (JCC) finding compensable the injuries suffered by Johnny Couto, Jr. We affirm.
Mr. Couto was injured in a car accident while on his way home from work. At the time, Mr. Couto was a passenger in a company car being driven by a fellow employee. For over two years, since his own car stopped running, Mr. Couto had been driven to and from the job site every time he worked. When Mr. Couto worked a regular shift he was charged a nominal fee by Secu-rex for the transportation, but there was no charge if Mr. Couto was working overtime or an extra shift. Securex had a rule that employees were to have their own cars and provide their own transportation. An exception was made for Mr. Couto because he was a reliable employee, available on short notice, and “a nice guy who needed to work.” However, no other employees were allowed to ride in the ear when Mr. Couto was being taken to work or to his home. The only persons in the car were Mr. Couto and whoever had been designated to drive him. Mr. Couto was never given a car to take home, and never drove the company car which transported him. On the day of the accident, Mr. Couto was being taken directly home from his job site; he was not running any personal errands in the company car and the driver was not running any business errands other than transporting Mr. Couto.
Ordinarily, injuries incurred while going to and from work are not compensable. Andrews v. Drywall Enterprises, 569 So. 2d 821 (Fla. 1st DCA 1990), review denied mem., 581 So. 2d 1307 (Fla.1991). Over the years, a number of exceptions to the “going and coming rule” have been recognized. Sweat v. Allen, 145 Fla. 733, 200 So. 348, 350 (1941), overruled on other grounds by City of Fort Lauderdale v. Abrams, 561 So. 2d 1294 (Fla. 1st DCA), review denied mem., 574 So. 2d 139 (Fla.1990). One of these recognized exceptions is for transportation provided by the employer. Florida Rock and Tank Lines, Inc. v. Alford, 474 So. 2d 1233, 1235 (Fla. 1st DCA 1985). An injury is deemed to have occurred in the course and scope of one’s employment if it took place while one was being transported pursuant to a custom which made the transportation an implicit part of the employment contract. Andrews v. Drywall Enterprises, Inc., 569 So. 2d at 823.1 Seeurex argues that even if this transportation used to come under an exception to the coming and going rule, the exception no longer applies because of a newly enacted statute, section 440.092(2), Florida Statutes (Supp. 1990). This case presents a question of first impression regarding the extent to which section 440.092(2) has abrogated the exception to the going and coming rule for employer-provided transportation. The law provides that:
An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer. Obviously, this new law is not intended to completely abrogate the exception to the going and coming rule for employer provided transportation. If the scope of the new law had been that broad, the Legislature would have stopped after the words “whether or not the employer provided transportation.” The specific question before this Court is whether, under the facts of this case, Seeurex provided transportation to Mr. Couto “for the exclusive personal use by the employee.”
Generally, the term “exclusive use” means something more than the degree of possession or control found here. See, e.g., Hume v. Royal, 619 So. 2d 12 (Fla. 1st DCA), review denied mem., 629 So. 2d 135 (Fla.1993) (by terms of easement, grantor did not grant exclusive use to grantee; grantor retained the right of access and full use and enjoyment of the easement); Hathcock v. Hathcock, 533 So. 2d 802 (Fla. 1st DCA 1988), review denied mem., 542 So. 2d 1333 (Fla.1989) (wife awarded exclusive use of Buick owned by both parties); see also Kuhn v. P.J. Carlin Const. Co., 274 N.Y. 118, 8 N.E. 2d 300, 305 (1937) (employer did not have exclusive use of ferry hired to transport employees; ferry owner was responsible for supervision, control, maintenance, inspection, navigation and operation of the vessel).
Seeurex decided when to send a car for Mr. Couto, decided which car to send, and decided who should drive the car. Mr. Couto did not have the exclusive use of this means of transportation. The argument advanced by Seeurex that the transport was for Mr. Couto’s exclusive use because no other employees were permitted to be passengers at the same time as Mr. Couto is not persuasive. The judgment of the JCC, finding Mr. Couto’s injuries compensable because the accident occurred in the course and scope of his employment, is Affirmed.
ZEHMER, C.J., and SHIVERS, Senior Judge, concur. . Securex argues that only free transportation is encompassed by this exception to the going and coming rule. Securex has not cited any Florida cases holding that transportation must be free to fall within this exception. It is the judgment of this Court that it is not relevant whether the employer charged a fee for the transportation. Other jurisdictions have reached this same con- elusion. See, e.g., Peski v. Todd & Brown, 158 F. 2d 59 (7th Cir.1946).
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Tessann Swartz v. McDONALD'S Corp. & Corporate Sys., 726 So. 2d 783 (Fla. 1st DCA 1998)…n 14, at 920 (reenacted in chapter 91-1, Laws of Florida, section 10, at 35), does not abrogate the exception for trips that serve a dual purpose. See Hages v. Hughes Elec. Serv., 654 So. 2d 1280 (Fla. 1st DCA 1995). See also Securex, Inc. v. Couto, 627 So. 2d 595 (Fla. 1st DCA 1993). The trip Ms. Swartz was making at the time of the accident had two purposes. She was going home (although she had not yet deviated from the route that led to the job fair) at the same time that she was performing her job by tra…
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Ryan v. Boehm, 673 So. 2d 494 (Fla. 1st DCA 1996)…ily incidental to the employment, and injuries resulting from such hazards do not arise out of and in the course of the employment.” Doctor’s Business Service, Inc. v. Clark, 498 So. 2d 659, 662 (Fla. 1st DCA 1986) (en banc); Securex, Inc. v. Couto, 627 So. 2d 595 (Fla. 1st DCA 1993). This principle is generally characterized as a “going and coming” rule. As the JCC recognized, the special hazard exception to the going and coming rule brings an off-premises injury within the course of employment on [*496] pro…
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Charles Gulbrandsen (Donna Masters) v. Carlton Wilbert Vault, Inc., 742 So. 2d 294 (Fla. 1st DCA 1998)…gislature modified the Swartzer rule in the context of the going and coming rule. Under section 440.092(2), Florida Statutes (1990), it is a question of fact whether the employee has exclusive personal use of the vehicle. See Securex, Inc. v. Couto, 627 So. 2d 595 (Fla. 1st DCA 1993). Here, there was competent, substantial evidence to support the JCC’s factual finding that Claimant had exclusive personal use of the employer-provided vehicle. Accordingly, we AFFIRM. ERVIN, BOOTH and VAN NORTWICK, JJ„ concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sweat v. Allen, 145 Fla. 733 (Fla. 1941)
- Hathcock v. Hathcock, 533 So. 2d 802 (Fla. 1st DCA 1988)
- City OF Fort Lauderdale v. Abrams, 561 So. 2d 1294 (Fla. 1st DCA 1990)
- Andrews v. Drywall Enters. & Executive Risk Consultants, Inc., 569 So. 2d 821 (Fla. 1st DCA 1990)
- Fla. Rock & Tank Lines, Inc. v. Arlington Dewey Alford & Craggs Constr. Co., Inc., 474 So. 2d 1233 (Fla. 1st DCA 1985)
- Peski v. Todd & Brown, Inc., 158 F.2d 59 (7th Cir. 1946)
- Anthony v. State, 619 So. 2d 12 (Fla. 5th DCA 1993)
- Hume v. Royal, 619 So. 2d 12 (Fla. 5th DCA 1993)