Zelasko v. Refrigerated Food Express

HANDLER, J.,

dissenting.

This case concerns the extent of worker’s compensation coverage afforded to truck drivers who are required to use their own trucks in their employment. Employees receive worker’s compensation for accidents that arise in the course of their employment but not for those that occur while they are going to or coming from work. Distinguishing work-related accidents from commute-related accidents poses few problems when employees work in a factory or at some other defined workplace under the control of an employer. The difficulty arises when the nature of the work takes the employee outside a fixed work place. When, as in this case, the accident occurs while the employee is on the road, compensation depends primarily on whether the employee was involved in work authorized by the employer at the time.

The majority would deny compensation in this case on the reasoning that an accident that occurs while a worker is parking a tractor trailer at an off-site location at the end of a work day does not arise in the course of the driver’s employment. Because that approach does not do justice to nature of the work *341 involved and results in a failure to compensate a work-related injury, I dissent.

I

George Zelasko drives a tractor trailer for Refrigerated Foods Express (Refrigerated).. He owns both the tractor and the refrigerated trailer as a condition of his employment. Zelasko begins each working day by logging in his mileage and the time of day as required by his employer. He then drives the tractor, which he parks at his home, to a parking lot owned by a friend, and attaches the refrigerated trailer. He then makes deliveries between various warehouses and retail supermarkets. At the end of the day Zelasko drives the tractor and trailer back to the parking lot, unhitches the trailer, and proceeds home. At that point he logs out with his time and mileage.

On the day in question Zelasko had made his last delivery of the day. He then drove to a warehouse owned by another company to drop off wooden pallets owned by Refrigerated. After leaving the warehouse he proceeded toward the parking area where he would leave the trailer for the evening. On the way he heard pallets left in the trailer rattling around. He owned the pallets. After finding a safe parking area near his home, climbing into the trailer, and securing the pallets, Zelasko lost his balance and fell out of the trailer, breaking his foot.

The compensation judge concluded that once Zelasko had dropped off the pallets and left the warehouse, he was outside the control of his employer and had finished with work for the day.

After petitioner left the terminal on Thursday, he was free to work for someone else. He worked for himself. He could take time off or drive any place he wanted to drive. Petitioner chose to drive to a location within 300 feet of his home, which he had a right to do on his own time.

The Appellate Division reversed, emphasizing that parking the tractor trailer was to the direct benefit of Refrigerated and *342 constituted “the authorized operation of a vehicle on business authorized by the employer.”

II

The critical question is whether Zelasko was at work when he drove from the terminal to the parking lot where he . was to leave the trailer. In the peculiar patchwork system of American social insurance, workers receive compensation only for injuries that arise out of and in the course of employment. Prior to 1979 the question of whether an accident had occurred in the course of employment was resolved by reference to the judicially-fashioned “going and coming” rule. The goal of the rule was to preclude worker’s compensation coverage for accidents arising during the employee’s routine commute to and from work. However, by the 1970s exceptions had largely come to overshadow the rule, as courts allowed recovery for accidents that had only indirect relationships to the employee’s work.

In 1979, the Legislature codified the “going and coming” rule, and in doing so rejected many of the exceptions that had come to qualify and limit the effect of the rule. At the same time the Legislature recognized that not all employees work at a defined workplace and thus made provision for off-site accidents. Under the approach of the 1979 legislation, some of the hardest cases arise where workers work on the road, rather than at a specific worksite, or where they use their own vehicle as part of their work. This case involves both situations and thus raises a difficult set of issues.

New Jersey courts first treated the question of when an employee is in the course of his or her employment at the time of an accident in the context of respondeat superior cases. In 1918 the Court of Errors and Appeals held that an employer could be held liable for the negligence of an employee who was driving a company car home from work. Depue v. Salmon Co., 92 N.J.L. 550 , 106 A. 379 (1919). The Court emphasized *343 that the employee had been given the car to use to enable him to reach his place of employment at an earlier hour than he otherwise could. In Auer v. Sinclair Refining Co., 103 N.J.L. 372, 376 , 137 A. 555 (E. & A.1927), the Court extended the analysis in Depue to cover employees who used their own automobiles for work purposes. The employee in the case had made his last call and was on his way home to park his car. The Court found that because the employee was authorized to use the auto in his work and was reimbursed for expenses, he was a servant of the company rather than an independent contractor. Similarly, in Demerest v. Guild, 114 N.J.L. 472, 474 , 176 A. 558 (E. & A.1935), the Court emphasized the when the employee drove her car home from work and parked it in her garage, she had been acting for the benefit of not only herself but also her company. The Court reasoned that the employer “did not instruct [the employee] to leave the car [in any particular place] ... [but] [n]aturally [she] would keep the car in the least expensive place and this was not objected to by the company.” Id. at 475 , 176 A. 558 .

In the worker’s compensation context, the Court acknowledged a special errand or special-mission exception that later became one of the statutory exceptions. See O’Brien v. First Camden Nat’l Bank & Trust Co., 37 N.J. 158 , 179 A.2d 740 (1962). The employees were deemed to be acting in the course of their employment when they departed from their commutes to perform some activity on behalf of the employer. In White v. Atlantic City Press, 64 N.J. 128 , 313 A.2d 197 (1973), the Court held that the employee was covered because he was required to use his own automobile for work-related duties. In Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 , 543 A.2d 45 (1988), the majority characterized those cases as involving situations arising out of and in the course of employment because “the employee, though not on the employer’s premises, is directly involved in completing employer-directed tasks.” Id. at 97 , 543 A.2d 45 .

*344 The cases illustrate a significant distinction between those situations in which the employee is off-premises but nonetheless engaged in employer-related business and those situations in which the employee is going to or coming from work. When the Legislature codified and restricted the exceptions to the “going and coming” rule in 1979, it preserved the distinction between the two situations. As mentioned, it did not establish a blanket rule that only injuries occurring on work premises are covered. Instead, the Legislature allowed recovery for off-premises accidents that arise in the course of employment. The exceptions it allowed closely tracked earlier common-law exceptions designed to address the peculiar risks that befall those whose very work involves off-premises driving.

The specific language used by the Legislature in N.J.S.A. 34:15-36 is by any measure relatively convoluted. Indeed it requires several readings before its logic can be ascertained. The statute creates two broad exceptions to the “going and coming” rule. The first is the special-mission exception, applicable when an employee departs from his or her commute to perform an errand or duty for the employer. The second exception applies to employees who are either paid for their travel time to and from a distant job site or who use an employer-authorized vehicle for employer-authorized business. Because the second exception applies to two distinct situations, some courts, as did the court below, characterize the provision as creating two separate exceptions.

The provision reads as follows:

but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer. N.J.S.A. 34:15-36.

As noted above, the exception applies to two types of employees: (a) one who is “paid travel time by an employer for time spent traveling to and from a job site,” and (b) one who *345 “utilizes an employer authorized vehicle.” For those persons employment is said to “commence and terminate with” either (a) the time spent traveling to and from a job site or (b) the authorized operation of a vehicle on business authorized by the employer. Breaking down the language of the statute in that way illustrates the direct correspondence between the phrases. Those who are paid for traveling to and from a job site are considered “in the course of” their employment during the time they spend traveling to and from the job site. Those who use an employer-authorized vehicle are considered “in the course of” their employment when they are using the vehicle for business authorized by the employer.

Read in that manner the rule is fully consistent with the underlying purposes that animate the “going and coming” rule. Employees are not compensated for accidents that arise during an ordinary commute to work. Where, however, their work requires that they be away from the specific location of their employer, they are compensated so long as they are involved in employment-related work at the time of the accident. The touchstone for determining whether the accident arises in the course of employment is whether it arises out of work for which benefit accrues to the employer.

Ill

The majority would appear to endorse the formulation that “employment under the Act ‘extends to the time during which an employee is engaged in the authorized operation of a vehicle on business authorized by the employer.'" Ante at 338, 608 A.2d at 235 (quoting Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J.Super. 28, 34, n. 1 , 513 A.2d 367 (App.Div.1986)). Nonetheless, the majority concludes that “[although the employer required that petitioner be off the premises, his work day was over and he was in no sense engaged in the ‘direct performance of duties assigned or directed by the employer.’ ” Ibid, (quoting N.J.S.A. 34:15-36). As did the compensation judge, the *346 majority takes the view that Zelasko “was free to pursue whatever activities he wished” once he had made his last delivery.

As discussed above the exception has two parts: one dealing with the character of the vehicle, the other with the purpose for which it was being used at the time of the accident. In considering the position take by the majority, one must consider each part of the exception in turn.

That the vehicle was owned by Zelasko does not itself exempt accidents arising from its use from compensation. The use of the words “authorized vehicle” rather than “business owned vehicle” are designed to encompass within statutory coverage those vehicle owned by the employee but used in the course of work. That framework is consistent with well-established jurisprudence dealing with accidents arising from the use of employee-owned vehicles. The Court has long emphasized that what matters is not who owns the vehicle but whether the employer pays the expenses of its operation or gains benefit from its use. See, e.g., Demerest v. Guild, supra 114 N.J.L. 472 , 176 A. 558 (emphasizing benefit that accrues to employer when employee parks car in her own garage); Auer v. Sinclair Refining Co., supra, 103 N.J.L. 372 , 137 A. 555 (petitioner deemed employee based on being authorized to use in his work his own vehicle for employer’s benefit).

Given that the tractor-trailer was an employer-authorized vehicle, the remaining question is whether Zelasko was involved in employer-authorized business at the time of the accident. The record is unclear on the question of whether Zelasko is paid for the time he spends parking the trailer at the end of the day or whether he is reimbursed for the travel expenses incurred in doing so. Zelasko’s attorney maintains that he is reimbursed for his travel expenses for the time spent parking the trailer and retrieving it the next morning. The record contains evidence that during his entire thirteen-year employment with Refrigerated, Zelasko maintained travel logs recording his mile *347 age from the moment he entered the tractor cab in the morning until the time he alighted from it at his home in the evening.

Whether the logs are kept for the purpose of reimbursing Zelasko for his travel expenses or for some other purpose, however, is not determinative. Compensation does not turn on whether the employee is paid for the travel time or is reimbursed for the travel expense. The critical issue is whether the work is employer-authorized business. The conclusion that parking the trailer at the end of the day does not constitute “work,” or that if it does, it does not constitute work for which benefit accrues to the employer does not comport with common sense. A refrigerated tractor-trailer is a large cumbersome vehicle. Driving the tractor trailer to the parking lot, unhitching the trailer, and securing its contents involves the expenditure of significant physical and mental energy. When done each working day for thirteen years, that work cannot be written off as simply an activity that Zelasko chooses to do at the end of the day.

The compensation judge was unjustified in assuming that Zelasko was free to go anywhere he wanted after work. When the accident occurred Zelasko was not on his way home. He was driving toward the area where he left the trailer each evening. No evidence suggests that Zelasko uses the trailer for any purpose other than to haul goods for Refrigerated. At the time of the accident Zelasko had already received his next delivery assignment from Refrigerated, and there is no suggestion that he intended to use the truck for any other purpose prior to carrying out that assignment. Nor is there any reason to conclude that in parking the trailer he was motivated by anything other than a desire to complete his assigned tasks for Refrigerated. Zelasko certainly was not free to go about his own business until after he had secured the refrigerated trailer. Prior to that point he was still “working” — as the common understanding suggests — and continued to face the kinds of work-related risks associated with his type of work.

*348 Parking the trailer, the activity in which Zelasko was involved when the accident occurred, is also something that provides palpable and quantifiable benefit to his employer. The expenses of a company involved in wholesale distribution revolve in large part around the costs related to renting and owning space. By not having to provide the space to store trailers used in its distribution activities Refrigerated saves substantial costs associated with purchasing or renting parking areas and securing those areas. In economic terms the arrangement whereby Zelasko parks the trailer effectively shifts part of the cost of doing business from the company to the employee. That Zelasko parks the trailer on his own account provides direct economic benefit for the employer and therefore cannot be written off as an activity unrelated to his work. Moreover, his parking the trailer also benefits the employer because it saves on travel time, allowing Zelasko to drive directly to his next pick up without first driving to the Refrigerated warehouse.

The majority’s reasoning not only mischaracterizes the economic and practical nature of the work in the course of which the accident occurred, but also misconstrues the use of the term “authorized” in the statute. The pre-1979 cases indicate that “authorized” does not mean that the employer has ordered the employee to do the specific action. Zelasko’s employer need not have ordered him to park the trailer in that specific parking lot. That the employer expected Zelasko to park the trailer and accepted his doing so over a long period of time was sufficient. See Demerest, supra, 114 N.J.L. at 475 , 176 A. 558 (holding that employer need not have ordered employee to park car in particular place for parking of car used in course of business to have been authorized.)

The word “authorized” is used in the statute to separate actions that are unauthorized and unrelated to work from actions that employees habitually engage in as part of their work. Although off-premises, at the time of the accident Zelasko was “directly involved in completing employer-directed tasks.” Livingstone, supra, 111 N.J. at 97 , 543 A.2d 45 . In *349 contrast, if the accident were to have occurred while Zelasko was moonlighting for a second company or moving furniture from one house to another, the work would not be employer-authorized business and there would be no obligation on Refrigerated to compensate.

Cases dealing with the “going and coming” rule often deal with the question of control. The accident arises in the course of work when it arises in a situation under which the employer had control of the employee. The employer has no power to control the employee who has left the factory floor on a lunch break and thus has little or no ability to limit the risks he or she faces. The worker’s compensation judge based his decision on that reasoning, concluding that once Zelasko had left the warehouse, he had left the control of his employer. The work of a truck driver, however, should not be viewed through the rubric of employer control over the shop floor. Zelasko has far more independence from his employer than has the worker who operates a machine in a factory. That worker probably chooses what roads to take in reaching his or her destinations, in what order he or she will make deliveries, and when he or she will stop for lunch. Refrigerated exercises control over Zelasko not through direct observation but through the time and mileage logs it requires him to keep. That he was required to be logged in at the time of the accident indicates that given the nature of his employment, he was indeed under the control of his employer. Moreover, his greater independence in choosing how to proceed with his work makes him no more able to bear the risks of workplace accidents than those who work in the factory. See Renshaw v. United States Pipe and Foundry, 30 N.J. 458, 465 , 153 A. 2d 673 (1959) (worker’s-compensation liability designed “ ‘to shoulder on industry the expense incident to the hazards of industry’ ”) (quoting Morris v. Hermann Forwarding Co., 18 N.J. 195, 197-98 , 113 A.2d 513 (1955)).

When Zelasko drove to park the trailer in the lot, he was not under the direct supervision of his employer. But that was not because he had left work but because of the nature of his work. *350 This accident could have occurred after he had made his last delivery but before he had reached the terminal, and then it clearly would have been coverable, even though the employer had exercised the same degree of control. New Jersey courts have long recognized that an employee who drives his or her own vehicle for work purposes does so for the benefit of his or her employer. Nor does the fact that the parking lot is not owned by the employer bar recovery. As the Court indicated in Livingstone, supra, property law alone does not determine coverage under the statute. Ill N.J. at 101, 543 A2d 45 . The work of parking the trailer is authorized not because the employer has given specific instructions about how to do it but because the employer derives direct and substantial benefit from the work.

IV

Because the accident arose from the use of an employer-authorized vehicle for business authorized by the employer, it arose in the course of employment and should result in compensation for the petitioner. Therefore, I would affirm the Appellate Division judgment.

STEIN, J., joins in this opinion.

For reversal and reinstatement — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN and GARIBALDI — 5.

For affirmance — Justices HANDLER and STEIN — 2.