Alitalia Linee Aeree Italiane v. Tornillo

ALPERT, Judge. At trial of this worker’s compensation appeal, counsel for John Tomillo, appellee, made the following statement during his closing argument. I think there is good news and bad news for Mr. Tomillo and I do not say this flippantly. The good news is that the law in this country is overwhelmingly on his side; the bad side is that the Maryland Court of Appeals ha[s] never directly had the issue before it.

I can say that without any question. What is the issue? The issue is that Mr. Tornillo as an outside sales representative, was required as a condition of his employment to furnish a vehicle and to bring that vehicle to work with him. Judge William M. Cave of the Circuit Court for Montgomery County agreed with him for he ruled in his favor, and so shall we.

Appellants, Alitalia Linee Aeree Italiane and Graphic Arts Mutual Insurance Company, appeal from a judgment and order of the Circuit Court for Montgomery County which, inter alia, held that Tomillo “did sustain an accidental injury arising out of and in the course of his employment____” 1 Appellee claimed that he suffered personal injury while in the course of Alitalia’s employment. A ¹⁹⁵ bench trial was conducted on April 19, 1991, and the parties submitted one issue to the court: Whether the injury arose in the course of Mr. Tornillo’s employment. 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. The trial court determined that the “going and coming” rule did not apply to the facts before it because Alitalia required appellee, as a condition of employment, to have a car.

The trial court concluded that appellee faced a danger different from that which other commuters face. So, the logical application is, yes, he is exposed to a different danger because of the requirement that he bring his car back and forth to work. Whereas somebody who does not have that as a requirement has the option of taking the Metro, car-pooling, or whatever form of transportation that might be available to them aside from bringing their car in. The circuit court dismissed the argument that appellee could leave the car parked at work.

Well, there is no testimony one way or the other specifically on that, but the testimony is clear that he needed his car also, not just during the day, but he may have to leave and go over — he may have to go to places on his way in to work, in to the actual office, and he may have to go to places after he left the office, driving the car, and then go home. Certainly, it could not be seriously contended that the car is there, he drives it back and forth over there, that he would drive to Baltimore, bring the car back all the way back from Baltimore, rather than to come to Rock-ville, to go back downtown and leave it there and take the Metro. That does not make sense. ¹⁹⁶ Appellants raise a single issue, which they characterize as follows: 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 Célica.

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 Célica “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. I. Appellants argue that the “going and coming” rule controls the facts of this case. Appellee and the lower court were of a different opinion. They believe that no Maryland case addresses the factual scenario of the case sub judice, ¹⁹⁷ and that the going and coming rule is inapplicable to the instant case because Alitalia required appellee to furnish a car.

Our research of Maryland case law indicates that the issue presented to us is one of first impression. We start our inquiry with an examination of § 9-101(b)(l) of the Labor and Employment Article. (b) Accidental personal injury. — “Accidental personal injury” means: (1) an accidental injury that arises out of and in the course of employment^] The Court of Appeals has defined the words “out of” and the words “in the course of” on numerous occasions, Wiley Mfg. Co. v. Wilson, 280 Md. 200, 205 , 373 A.2d 613 (1977): As we have said on numerous occadons, the words “out of” refer to the cause or origin of the accident, while the words “in the course of” relate to the time, place and circumstances under which it occurs.

Normally, an employee going to or coming from work is not protected under § 9-101(b)(l) 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 ¹⁹⁸ 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. There are numerous cases which adhere to the general rule.

Yet, as one would expect, there are certain exceptions to the going and coming rule. 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. 758 (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). In Carter v. M.V. Constr. Corp., 47 Md.App. 169, 173 , 422 A.2d 44 (1980), the late Judge Thomas Hunter Lowe, speaking for the court, delineated four exceptions to the going and coming rule.

The “going and coming” rule has resulted in a voluminous body of litigation from which the Court of Appeals distilled a number of exceptions to the application of the rule. These exceptions may be stated as follows: (a) The free transportation exception (b) The employer conveyance exception (c) The premises exception (d) The proximity or special hazard exception. ¹⁹⁹ A. 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 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 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. Q [MR.

SIMMONS COUNSEL FOR APPELLEE] Now, up until that point, the cost of the operation of that car had been paid by Alitalia with their free cars and with their giving you the gas. A Yes, sir. Q That is correct? A Yes.

Q Now, at this point they said they were going to give you a travel allowance; did they also indicate how you were going to go about getting an automobile? A Yes, they did. Q What did they tell you? A Yes, they did.

They told us that they would also give us a substantial interest-free loan to purchase the car, so that way it wouldn’t — you know, with this transportation ²⁰⁰ package they would help us to get this car with an interest-free loan, and it was $7,000. Q All right. So, you in fact took the $7,000 from Alitalia; correct? A Yes, when I bought my car I did.

Q Okay. Can you tell me whether or not you had to get any approval from Alitalia of the car that you were purchasing? A Yes, the car had to be approved by management at headquarters. Accordingly, this exception is inapplicable here.

B. 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. The reason for the rule in this section depends upon the extension of risks under the employer’s control. Another type of case in which the difference of reason must be observed is that in. which a substitution for the normal mode of transportation is made.

If there is nothing more in the facts than the bare availability of the transportation in the employer’s conveyance, which privilege the employee foregoes in favor of using his own car, motorcycle, or bicycle, compensation has been denied. This result is consistent with the present analysis of the underlying rationale of the employer-conveyance exception, since plainly the employee is not subject to the hazards of a facility of his employer while traveling in the employee’s own vehicle. ²⁰¹ 1 Larson, supra, § 17.11, .13 at 4-209, -220 — 222. Appellee purchased the Célica 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. C. Premises exception Once again, the Carter court, Carter, 47 Md.App. at 177 , 422 A.2d 44 , cited professor Larson’s work. The course of employment is not confined to the actual manipulation of the tools of the work, nor to the exact hours of work.

On the other hand, while admittedly the employment is the cause of the workman’s journey between his home and the factory, it is generally taken for granted that workmen’s compensation was not intended to protect him against all the perils of that journey. Between these two extremes, a compromise on the subject of going to and from work has been arrived at, largely by case law, with a surprising degree of unanimity: for an employee having fixed hours and place of work, going to and from work, [comma deleted in 1990 treatise] is covered on the employer’s premises. 1 Larson, supra, § 15.10 at 4-3 — 5 (1990) (footnotes omitted). The court also cited § 15.14, currently numbered § 15.14(a) & (b) (footnotes omitted) (emphasis added). 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, ²⁰² and an employee crossing a public street to get to the parking lot is not protected. 2 According to the Carter court, Carter, 47 Md.App. at 177-78 , 422 A.2d 44 , [t]he Court of Appeals has applied the “premises” exception to those cases involving parking lots contiguous to the company premises. As the parking lot is generally owned, maintained and controlled by the employer, it is treated as a part of the employer’s premises and includes the public street or other off-premises areas between the plant and the parking lot which encompass the necessary route between the actual premises and the parking area. 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. D. 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 Court, quoting from Larson’s treatise, pointed out that the exception has two limitations. 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, §