Henville v. Southwest Airlines, Inc.

KRAUSER, Judge. This Workers’ Compensation appeal demands that we once again consider where the boundaries of the “premises” and “proximity” exceptions to the going and coming rule lie. Specifically, it requires us to determine whether an airport parking lot, neither owned, maintained, or designated for parking by the employer airlines, falls within the former exception and whether the fence, enclosing that lot, which from time to time is climbed by some going to and from work, falls within the latter. ⁸² Appellant, Allen Henville, an employee of appellee, Southwest Airlines, Inc., was injured when, upon leaving work, he attempted to climb over a four-foot fence that enclosed the lot, in which he and his wife had parked their car. The entrance to that lot lay a half mile away and was serviced by a shuttle bus.

To this interesting mixture of facts, we add that the lot in question was not one of those provided by Southwest for its employees. It was a state-owned lot, officially designated “Lot A,” to which his wife had parking privileges, as a state employee, and at which appellant was lawfully parked. Following his fall, appellant filed a claim under the Workers’ Compensation Act (“Act”) against appellee Southwest and its insurer, appellee Reliance National Indemnity, asserting that he had sustained an accidental injury arising out of and in the course of his employment. Specifically, he claimed that because the injury occurred between Lot A and his place of employment, it fell within the “premises” and “proximity” exceptions to the going and coming rule and was therefore covered by the Act. 1 Following a hearing on that claim, the Workers’ Compensation Commission (“Commission”), found that appellant had not sustained an accidental injury arising out of and in the course of his employment.

It therefore concluded that appellant’s injuries were not compensable under the Act. Thereafter, appellant filed a petition for judicial review in the Circuit Court for Anne Arundel County. In response to that petition, appellees filed a motion for summary judgment. At the motions hearing that followed, the circuit court affirmed the order of the Commission and entered summary judgment in favor of appellees, on the ground that, under the “premises” exception 2 and “any of the ⁸³ other exceptionf] to the going and coming rule,” appellant’s injuries did not arise out of and in the course of his employment with Southwest.

From that order, appellant noted this appeal. The only issue before this Court is whether appellant’s claim falls within the “premises” exception or the “proximity” exception to the going and coming rule. Because we find appellant’s claim does not fall within either exception, we conclude that appellant’s injuries did not arise out of and in the course of his employment. Therefore, his injuries are not compensable under the Act.

Accordingly, we shall affirm the judgment of the circuit court. Facts On June 1, 1999, appellant, Allen Henville, a baggage handler for appellee, Southwest Airlines, Inc., and his wife, a state employee, drove in her car to the Baltimore — Washington International Airport where they both worked. Southwest is located in Terminal C of that airport and its employees have parking privileges at satellite lots A, B, and C. On that day, however, appellant’s wife parked in Lot A, a restricted “authorized vehicles only” lot, adjacent to the main terminal of that airport where appellant’s wife, as a state employee, had parking privileges. Lot A, like all of the parking lots and facilities at the airport, is owned by the Maryland Aviation Administration (“MAA”).

Although appellant had no parking privileges at Lot A, his wife, as noted, did. Moreover, appellant was not prohibited from parking at that lot because he was an employee of Southwest Airlines and the vehicle he was driving had the proper sticker affixed to it. In fact, MAA permitted its employees to lend their parking spaces to other airport employees as the need arose. For example, Mr. Keen, 3 director ⁸⁴ of transportation for the MAA, apparently permitted his secretary to park in his spot when he was away on vacation.

And, according to Mr. Keen, another Southwest employee was using her boyfriend’s spot in that lot. On June 1, 1999, appellant began his shift at Terminal C, the location of Southwest. At 12:22 a.m. the next day, appellant “punched out” leaving the lower level of Terminal C through a rear entrance. A co-employee then drove appellant in a Southwest truck around the perimeter of Terminals A, B, and C on airport service roads to Lot A, where his wife had parked earlier.

Lot A was enclosed by a four-foot high fence; its main entrance was approximately one-half mile from the terminal of the airport. Rather than walk or take a shuttle to the main entrance of Lot A, appellant attempted to climb over the fence. Unfortunately, as he began his climb, his foot slipped, causing him to fall and fracture his left leg. DISCUSSION Appellant contends his injury falls within the “premises” and “proximity” exceptions to the going and coming rule.

Therefore, appellant asserts that his injury did arise out of and occur in the course of his employment and, accordingly, is compensable under the Maryland Workers’ Compensation Act (“Act”). We disagree. Before addressing the merits of appellant’s claim, however, we must first place them in the context of the Act. To do that, we must review the applicable portions of the Act and define the terms of the Act that are relevant to this analysis.

The section of the Act that bears directly on appellant’s claim of coverage states that “each employer of a covered employee shall provide compensation in accordance with this title to: (1) the covered employee for an accidental personal injury sustained by the covered employee.... ” Md. Code (1999 Repl. Vol., 2000 Supp.), § 9-501(a)(l) of the Labor & Employment Article (“L.E.”). The Act defines “[ajccidental personal injury [as]: ⁸⁵ (1) an accidental injury that arises out of and in the course of employment; (2) an injury caused by a willful or negligent act of a third person ...; or (3) a disease or infection ... that arises out of and in the course of employment.... ” L.E. § 9 — 101(b). Because appellant’s injuries obviously did not result from the “willful or negligent act of a third person” or “a disease or infection,” his claim falls under L.E. § 9 — 101(b)(1).

That section requires that for an injury to be compensable, it must occur both “aris|ingj out of and in the course of employment.” “The words ‘out of and ‘in the course of employment ... are not synonymous; and both must be satisfied by the claimant.... ” Pariser Bakery v. Koontz, 239 Md. 586, 590 , 212 A.2d 324 (1965); Whiting-Turner Contracting Co. v. McLaughlin, 11 Md.App. 360, 361, n. 1 , 274 A.2d 390 (1971); Kletz v. Nuway Distribs., 62 Md.App. 158, 162 , 488 A.2d 978 (1985). “The words ‘out of refer to the cause or origin of the accident, while the phrase ‘in the course of relates to the time, place and circumstances under which it occurred.” King Waterproofing Co. v. Slovsky, 71 Md.App. 247, 251-52 , 524 A.2d 1245 (1987)(citing Wiley Mfg. Co. v. Wilson, 280 Md. 200, 205 , 373 A.2d 613 (1977); Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 272 , 326 A.2d 186 (1974), aff'd, 275 Md. 192 , 338 A.2d 71 (1975)). As to the appropriate standard of review, we note that the decisions of the Commission are “presumed to be prima facie coirect....” L.E. § 9-745(b)(1). Nonetheless, we are required to determine whether the Commission “(1) justly considered all of the facts about the accidental personal injury ... ;(2) exceeded the powers granted to it under this title; or (3) misconstrued the law and facts applicable in the case decided.” L.E. § 9-745(c).

A Commission ruling may be reversed “upon a finding that its action was based upon an erroneous construction of the law or facts.... ” Frank v. Baltimore County, 284 Md. 655, 658 , 399 A.2d 250 (1979)(cit- ⁸⁶ ing Maryland Bureau of Mines v. Powers, 258 Md. 879 , 382, 265 A.2d 860 (1970)). Indeed, “[notwithstanding the deferential treatment of the Commission’s decision, a reviewing court has broad authority and may reverse the Commission’s decision when it is based on an erroneous conception of the law.” Board of County Comm’rs v. Vache, 349 Md. 526, 533 , 709 A.2d 155 (1998). It is well settled that injuries that are sustained by employees going to or coming from work are not covered by the Act unless they fall within a recognized exception. Morris v. Board of Educ., 339 Md. 374, 380 , 663 A.2d 578 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 , 617 A.2d 572 (1993).

The reason is that the Act “contemplates an employee engaged in a service growing out of his employment. An employee who is merely going to or coming from his work is not rendering any such service.. He is therefore exposed to the hazards encountered on such trips, not as an employee, but rather as a member of the general public.” Wiley Mfg. Co., 280 Md. at 200 , 373 A.2d 613 (citing Tavel v. Bechtel Corp., 242 Md. 299, 303 , 219 A.2d 43 (1966); Rumple v. Henry H. Meyer Co., 208 Md. 350, 357 , 118 A.2d 486 (1955)).

Moreover, “getting to work is considered to be an employee’s own responsibility and ordinarily does not involve advancing the employer’s interest.” Morris, 339 Md. at 380 , 663 A.2d 578 (citing Oaks v. Connors, 339 Md. 24, 32 , 660 A.2d 423 (1995)). Nonetheless, appellant claims that his injuries are compensable under the Act. In support of that claim, he relies on two exceptions to the going and coming rule: the “premises” exception and the “proximity” exception. The “premises” exception is usually invoked' where the employee is injured while traveling along or across a public road between two portions of his employer’s premises, whether going or coming, or pursuing the actual duties of his employment.

A typical application of this exception, according to the Court of Appeals, occurs where injury is sustained by an employee while traveling between a company parking lot and his employer’s plant---- ⁸⁷ Wiley, 280 Md. at 206 , 373 A.2d 613 . On the other hand, “ ‘if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.’ ” Vache, 349 Md. at 533 , 709 A.2d 155 (quoting Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 482-83 , 252 A.2d 800 ) (quoting 1 Larson, Workmen’s Compensation Law, § 15.14 (1968)). The reasoning underlying this exception is: Since ... a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is 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.... Vache, 349 Md. at 533 , 709 A.2d 155 (quoting Wiley, 280 Md. at 206-07 , 373 A.2d 613 ) (quoting 1 Larson, Law of Workmen’s Compensation, § 15.14 (1972)).

Although appellant’s fall did occur between his place of employment and an employee parking lot, his claim does not fall within the ambit of the “premises” exception. The parking lot where appellant had parked and was walking to when his injury occurred was neither owned nor maintained by his employer for the benefit of Southwest employees. Indeed, there was no evidence that appellant’s employer even knew he was using that lot instead of the satellite lots that had been provided for the use of Southwest employees. Yet, appellant, relying principally on May Department Stores Company v. Harryman, 307 Md. 692 , 517 A.2d 71 (1986), maintains that the “premises” exception is applicable to the facts of his case.

In May, an employee of a mall department store parked her car in a parking lot provided by the mall. After getting out of her car, she was mugged and injured on the lot. While the parking lot was not owned, controlled, or maintained by the May Department Stores Company, it was provided by the mall for all of the employees and customers of the mail’s tenants. ⁸⁸ The May Court began its analysis by quoting the following language from Larson’s, § 15.42(a): As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the ‘premises,’ whether within the main company premises or separated from it. This rule is by no means confined to parking lots owned, controlled, or maintained by the employer.

The doctrine has been applied when the lot, although not owned by the employer, was exclusively used, or used with the owner’s special permission, or just used, by the employees of this employer. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all his tenants, or if a shopping center parking lot is used by