Maryland Casualty Co. v. Lorkovic

DAVIS, Judge. This is an appeal from a September 10, 1993 order of the Circuit Court for Baltimore County granting summary judgment in favor of appellee, Albert J. Lorkovic. The dispute arose from Lorkovic’s claim for workers’ compensation, filed September 13, 1990, against his employer, the Maryland Casualty Company (Maryland Casualty), and insurer, the Automobile Insurance Company of Hartford (collectively appellants). The basis of the workers’ compensation claim was injuries Lorkovic sustained in a one-car accident while he was driving home from the airport after a business trip.

Appellants contested Lorkovic’s claim on grounds that his injuries did not arise from or occur in the course of his employment and that his intoxication was the sole cause of his injuries. On April 17, 1992, a hearing was held before the Workers’ Compensation Commission. On June 23, 1992, the commission issued an order denying Lorkovic’s claim because he “did not sustain an accidental injury arising out of and in the course of employment ... and the disability of the claimant is not the result of the alleged accidental injury....” On July 22, 1991, Lorkovic noted an appeal with the Circuit Court for Baltimore County, alleging that the commission “misconstrued the law and facts applicable to [his] case.” On May 25, 1993, Lorkovic filed a motion for summary judgment. Because the motion was filed the same day trial was to begin, the circuit court heard oral argument regarding the summary ³³⁹ judgment motion. 1 Appellants submitted a trial memorandum delineating their positions.

A complete transcript of the Commission hearing was part of the record before the circuit court. Indeed, Lorkovic’s attorney stated, “[Wje’ll be basically submitting with the record below.” Appellees’ counsel, however, requested an opportunity to cross-examine Lorkovic on several points. The court granted this request and Lorkovic testified on direct examination and, subsequently, cross-examination. 2 ³⁴⁰ On August 18, 1993, the circuit court issued its opinion, finding that the commission erred in denying Lorkovic’s claim and granted summary judgment in favor of Lorkovic. On September 10, 1993, appellants noted an appeal to this Court and presented the following issues: I. Whether the circuit court erred in overturning the workers’ compensation commission’s ruling that Lorkovic’s injury [did not arise] out of and in the course of his employment II.

Whether the circuit court erred in holding that Lorkovic’s intoxication was not the sole cause of his injury FACTS On August 17, 1990, Lorkovic was injured in a one-car accident when he was driving his Ford Bronco from the Baltimore-Washington International Airport to his home in Glennville, Pennsylvania. Lorkovic was returning from a business trip in California at the time. Lorkovic claims that his injuries are compensable under the Workers’ Compensation Act. The nature of this appeal requires a close examination of Lorkovic’s employment conditions as well as the facts surrounding his accident.

At the time of the accident, Lorkovic was 39 years old and was an assistant vice president and director of property claims at Maryland Casualty. His responsibilities required him to travel throughout the United States approximately twenty percent of his work time. Lorkovic generally made the decision when circumstances required that he travel, but he was ³⁴¹ often required to leave with short notice to investigate sudden property damage or take part in a legal settlement. Although the record is scant regarding Maryland Casualty’s policy of reimbursing Lorkovic for his travel expenses, the Commission record manifests that Lorkovic was reimbursed for “[t]he mileage as well as airline and everything was paid for by the company.” 3 No mileage expense was permitted, however, for trips between his home and office.

He also testified that he was not required to use his own vehicle to get to and from the airport (he could have used any means within reason) but that he did so because there was no public transportation where he lives. Lorkovic testified that he was suffering from lupus disease and “Raynaud’s disease” at the time of his accident. Neither diagnosis is directly supported by medical evidence in the record. Examinations made of Lorkovic after his accident revealed that his lupus diagnosis may be incorrect and that he may actually suffer from a form of arthritis.

In addition, the Maryland Institute for Emergency Medical Systems’ discharge summary states that Lorkovic developed pain in his right wrist and left knee—the knee pain was diagnosed as gout. No medical evidence was presented by either party affirmatively connecting Lorkovic’s gout to the knee pain he allegedly experienced while on his trip. Lorkovic states in his brief that the Raynaud’s disease “caúseles] occasional sharp constriction of blood vessels, often painfully in the extremities.” In addition he quotes Dorland’s Illustrated Medical Dictionary which describes Raynaud’s disease as “intermittent attacks of severe pallor of the fingers or toes and sometimes the ears and nose, brought on charac ³⁴² teristically by cold and sometimes emotion.” Lorkovic also states that his lupus condition causes pain in the joints. Lorkovic’s brief asserts that he takes medication (Darvocet and Prednisone) for lupus and Raynaud’s disease.

Nonetheless, the record is clear that he only took Darvocet with him on his trip, that he had only a limited supply, and that he had no pills left by the evening prior to his return trip. Lorkovic testified that he had knee pain during his business trip and as a result he could not sleep at night. He states that he slept “maybe an hour, an hour and a half’ per night. He testified that he would elevate his feet and spend the night watching television or reading.

Additional pertinent testimony was as follows: Q [counsel for Lorkovic] You were in these meetings—can you tell me a little bit about your physical condition at the time in 1990. A [Lorkovic] Generally when I go on a business trip I get there, I will rent an automobile to drive to and from. Prior to leaving I was having problems with my left knee, which was swollen up. I could hardly walk.

So, I took some Darvocet with me. I am usually on or had been on Prednisone. Q How long have you had this condition as being diagnosed as [l]upus? A Probably since 1984 Q Were you able to sleep while you were on vacation normally?

A No, sir. Q Not on— A I was on— Q On a business trip? ³⁴³ A I would sleep maybe an hour, an hour and a half at night, and— Q Driving from the airport tell me what happened? A ... I was driving down that, and I recall rolling the window down to get some air into the car because I was— felt like I was going to fall asleep or sleepy....

Q How much sleep had you had the previous night, if any? A Probably a couple of hours. Q Okay. What time did you go to bed?

A I would anticipate somewhere around 3 o’clock in the morning California time. Q What time did you wake up? A I believe I had a wake-up call for 5:00 or 6:00. Q [cross-examination] ...

What did you do on the plane? Did you sleep? A I don’t recall. I believe I slept though.

There is no dispute that Lorkovic conducted his employer’s business during his trip to California. It is also undisputed that on the evening of Thursday, August 16, 1990, when his business was completed, Lorkovic spent time with a friend that included having “several drinks at one or two bars.” Lorkovic did not return to his room until after 2:00 a.m. and, although he does not remember how many drinks he had, Lorkovic admits he was drunk when he got to his hotel room. Lorkovic had a 7:30 a.m. flight that Friday morning, so he requested a wake-up call. He slept about three hours that night and was apparently not bothered by pain.

He boarded the 7:30 a.m. flight back to Baltimore but does not remember whether he slept or drank alcohol during the flight. At one point in his testimony he did state that he believed he slept on the flight home. ³⁴⁴ Lorkovic arrived in Baltimore between 3:30 and 4:00 p.m. Baltimore time; thereafter, he secured his car and began the approximately 60-mile drive to his home. The parties have stipulated that no vehicle defect, tire trouble, or defect in the roadway in any way caused or contributed to the happening of the automobile accident, and that the accident occurred as described in the motor vehicle accident report completed by the Baltimore County Police Department. 4 Lorkovic testified that he thought about stopping at his office, which was on the way home, but chose not to because he was wearing jeans.

He exited Middletown Road off of Route 83 and recalls that he had the air conditioner on and he decided to open the window to get some air in the car because he “felt like [he] was going to fall asleep.... ” The next thing he remembers was that his car was- off the road and his side mirror hit a fence pole. Lorkovic was taken to shock trauma at the University of Maryland Hospital. The University of Maryland toxicology examination of Lorkovic, based on specimens taken more than an hour and one-half after the accident, determined that he had a blood alcohol content of 206 mg/dl. The record contains a letter and attachments from Dr. Brent G. Petty which states that given Lorkovic’s blood alcohol level, “it is probable that it impaired [his] judgment, coordination and response time while driving.” The attached reference, a portion of 2 Emergency Medicine Concepts and Clinical Practice (Peter Rosen ed., 2d ed. 1988), states that blood alcohol concentrations of 150 to 250 mg/dl will cause lethargy [and] difficulty sitting upright without assistance,” hased on the occasional drinker.

Chronic drinkers can, however, function at much higher alcohol concentrations because of tolerance. Id. On the other hand, patients may be comatose with low levels of alcohol in mixed alcohol-drug overdose situations. Id.

Maryland Casualty suggests that given Lorkovic’s blood alcohol level after the accident, the level at which alcohol oxidizes in the blood (a rate of 13 to 25 mg/dl/hour in the ³⁴⁵ nonalcoholic 5 ), and his statement that he is only a social drinker, he would either have had to drink on the plane or been near comatose the night before his flight home. LEGAL ANALYSIS Maryland Casualty presents two arguments in support of its contention that the trial court erroneously overturned the decision of the Workers’ Compensation Commission and granted summary judgment in favor of Lorkovic: (1) the court misconstrued the “coming and going” rule, and (2) it improperly resolved material facts in dispute. I The Maryland Workers’ Compensation Act provides benefits to persons who suffer “accidental injury that arises out of and in the course of employment.” Md. Labor & Empl.Code Ann. § 9—101(b)(1) (1991) [hereinafter the “Act”]. Injuries incurred by an employee while going to or returning from the work place do not ordinarily mise out of and in the course of employment, and are therefore not compensable under the Act.

E.g., Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 , 617 A.2d 572 (1993); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206 , 373 A.2d 613 (1977); Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 607-08 , 267 A.2d 81 (1970). This general rule has been termed the “going and coming rule.” Alitalia, 329 Md. at 44 , 617 A.2d 572 .

The Court of Appeals has “engrafted” onto the going and coming rule several exceptions: 1. “[W]here the employer furnishes the employee free transportation to and from work, the employee is deemed to be on duty, and an injury sustained by the employee during such transportation arises out of and in the course of employment. Tavel v. Bechtel Corp., 242 Md. 299 [, 219 A.2d 43 ] (1966); Rumple v. Henry H. Meyer Co., 208 Md. 350, 357 [, 118 A.2d 486 ] (1955). ³⁴⁶ 2. “Compensation may also be properly awarded where the employee is injured while traveling along or across a public road between two portions of the employer’s premises. Wiley Mfg., 280 Md. at 206 [, 373 A.2d 613 ]; Proctor-Silex v. DeBrick, 253 Md. 477, 482 [, 252 A.2d 800 ] (1969). 3. “The ‘proximity’ exception allows compensation for an injury sustained off-premises, but while the employee is exposed to a peculiar or abnormal degree to a danger which is annexed as a risk incident to the employment. Pariser Bakery v. Koontz, 239 Md. 586, 591 [, 212 A.2d 324 ] (1965); see M[aryland] Paper Products Co. v. Judson, 215 Md. 577, 584-588 [, 139 A.2d 219 ] (1958). 4. “Injuries incurred while the employee travels to or from work in performing a special mission or errand for the employer are likewise compensable.

Reisinger-Siehler Co. v. Perry, 165 Md. 191, 199 [, 167 A. 51 ] (1933); see Dir[ector] of Finance v. Alford, 270 Md. 355, 359-364 [, 311 A.2d 412 ] (1973).” Alitalia, 329 Md. at 44 , 617 A.2d 572 . 5. The “own-conveyance” exception applies where the employee is required to furnish his/her own vehicle for work and is injured while driving to or from the job. Id. at 47 , 617 A.2d 572 . 6 In the present case, a review of each exception is not required because Lorkovic asserts only that the “free transportation” and “own-conveyance” exceptions are applicable 7 . ³⁴⁷ As expected, appellants assert that none of the applicable exceptions apply. We shall conclude that this case comes within the free transportation exception. 8 A Judge Wilner (now Chief Judge), speaking for the Court, assiduously reviewed the free transportation exception in Ryan v. Kasaskeris, 38 Md.App. 317 , 381 A.2d 294 (1977).

Because of the level of detail in that opinion and the lack of substantial development in case law regarding the free transportation exception, we shall only review the more important ³⁴⁸ cases covered in Ryan . We continue to be mindful of the warning set forth in Miller v. United Rys. & Elec. Co., 161 Md. 404, 407 , 157 A. 292 (1931): It is only the simple direction of the statute that is being applied to each set of facts, and there is danger that in following the lead of resemblances in the facts of decided cases we may use them as stepping stones to foreign ground. The Ryan Court began with the inauguration of the free transportation rule in Harrison v. Central Constr.

Co., 135 Md. 170 , 108 A. 874 (1919). In that case, the claimant lived in Baltimore and worked in Magnolia. As part of his employment contract, the employer furnished claimant with a “button” that entitled him to free train rides to work. One day, the claimant mistakenly boarded what he thought, and was told, was the “work train.” Realizing his mistake, claimant exited the train and switched to the work train.

While boarding the work train, claimant was injured. Relying on other jurisdictions, the Court stated: When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee, while on his way to work, is not in the course of employment. The second is that where the work[er] is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.

Harrison, 135 Md. at 177-78 , 108 A. 874 , quoted in Ryan, 38 Md.App. at 321 , 381 A.2d 294 . Based on the free transportation theory, the Court held that it was error for the lower court to have ruled, as a matter of ³⁴⁹ law, that the injury did not arise out of and in the course of claimant’s employment. Harrison, 135 Md. at 180 , 108 A. 874 . In Heaps v. Cobb, 185 Md. 372, 384 , 45 A.2d 73 (1945), the Court of Appeals made it clear that the furnishing of free transportation does not require that the employer supply the vehicle; it is sufficient that the employee substitute his own vehicle.

Ryan, 38 Md.App. at 323 , 381 A.2d 294 ; see also Watson v. Grimm, 200 Md. 461, 469 , 90 A.2d 180 (1952). The Ryan Court next addressed Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 , 67 S.Ct. 801 , 91 L.Ed. 1028 (1947), a leading case in Maryland’s development of the free transportation rule.

That case involved the District of Columbia Workmen’s Compensation Act. The employee was an electrical contractor who lived in the District of Columbia and worked in the metropolitan area. At one point, he was transferred to work a project at Quantico, Virginia. The applicable union contract required the employer to furnish “transportation and any necessary expense such as board and lodging ... for all work outside the District of Columbia.” Id. at 472 , 67 S.Ct. at 804 .

An agreement was reached whereby the employer would meet this contractual obligation by paying employees working outside the District of Columbia two dollars a day as a transportation expense, the estimated cost of travel between the District of Columbia and Quantico, in lieu of the employer actually furnishing transportation. Public transportation was not feasible, so the claimant car pooled with other employees. The employees each drove separate cars to a central point, and one employee drove the remaining distance. On the day in question, the employee was driving his car, with other members of the car pool aboard, when a stone propelled through the windshield from a passing truck fatally injured the employee.

The District of Columbia Compensation Commission found that the injury arose out of and in the course of employment and awarded benefits. After appeals to the District Court and the Circuit Court, the Supreme Court granted certiorari. Speaking to the free transportation exception, the Court stated: ³⁵⁰ To be sure, there are many holdings to the effect that, where the employer merely pays the costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment; there must be something more than mere payment of transportation costs. But assuming those holdings [which were cited in a footnote] to be correct and assuming the Deputy Commissioner’s findings in this case to be justified, there is more here than mere payment of transportation costs.

It was found that Ticer’s employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangement with a common carrier, reimbursing employees for the cost of transportation by any means they desire to use. In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed. Id. at 482-83 , 67 S.Ct. at 808-10 (emphasis added) (footnote omitted), quoted in Ryan, 38 Md.App. at 325-26 , 381 A.2d 294 .

Judge Wilner, speaking for the Court, held that “[t]he key to compensability ... was the underlying contractual commitment to furnish the transportation, not the mere reimbursement of transportation expenses.” Ryan, 38 Md.App. at 326 , 381 A.2d 294 . The next important case in the line of cases reviewed in Ryan was Watson v. Grimm, 200 Md. 461 , 90 A.2d 180 (1952). There, the claimant’s decedent, Watson, was a helper for Grimm, a self-employed garbage collector for the City of Hagerstown. Watson was paid fifty dollars per month and board and lodging on Grimm’s farm.

Typically, Grimm and Watson would drive the garbage collection truck into Hagerstown to work, stopping on the way to pick up two helpers. Watson and the two helpers rode on the running boards alongside the truck. On the day of Watson’s accident, the crew finished their work about one mile from the center of town. Rather than ³⁵¹ ride back to Grimm’s farm, Watson and one of the helpers stated that they wanted to be let off downtown.

While traveling downtown, Watson fell off the running board and sustained fatal injuries. This Court found the holding in Watson very important because it weaved together the essential teachings of Harrison, Heaps, and Cardillo. Ryan, 38 Md.App. at 326 , 381 A.2d 294 . Specifically, the Wat,son Court concluded: It is held by the overwhelming weight of authority that where the employer agrees to provide transportation for his employee to and from work, compensability of injury sustained during transportation is in no way dependent upon the method of travel employed.

Watson, 200 Md. at 469 , 90 A.2d 180 (emphasis added), quoted in Ryan, 38 Md.App. at 326, 381 A.2d 294 . We further noted that the Watson Court was not squarely faced with the principle tacitly accepted by the Supreme Court in Cardillo—that mere payment of transportation costs would not suffice to establish coverage—but, rather was faced with an implicit agreement. See Ryan, 38 Md.App. at 327 , 381 A.2d 294 . [T]he fact that for three years the employee lived on the employer’s farm three miles away from the city, and the fact that the place where he finished work was often more than a mile from the center of the city, considered together with the other facts and circumstances in the case, warranted the finding of the Commission that the employment continued from the time he got on the truck until he got off. Watson, 200 Md. at 469-70 , 90 A.2d 180 , quoted in Ryan, 38 Md.App. at 327 , 381 A.2d 294 .

The Watson Court further noted that “[i]t is generally accepted that the agreement of an employer to provide transportation for his employee need not he express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.” Id. 200 Md. at 470 , 90 A.2d 180 (emphasis added). ³⁵² Finally, we juxtaposed two cases, Tavel v. Bechtel Corp., 242 Md. 299 , 219 A.2d 43 (1966) and Western Elec. Co. v. Engleman, 13 Md.App. 374 , 283 A.2d 437 (1971), to demonstrate the principle that where an employer agrees to provide transportation by means of reimbursement of expenses, that payment must bear a relationship to “reasonable travel expenses.” Ryan, 38 Md.App. at 326-28 , 381 A.2d 294 . In Tavel , the employee was paid $1.20 per day “travel expense” pursuant to a former collective bargaining agreement that was superseded by a new agreement that did not provide for “travel expenses.” The $1.20 travel expense was also determined to have no “relationship whatever to either the cost of transportation or the time it took to go back and forth.” The Court concluded that the $1.20 was purely a fringe benefit to attract workers from the District of Columbia area, and, therefore, “the employer did not furnish the means of transportation nor pay its equivalent.” Ryan, 38 Md.App. at 327 , 381 A.2d 294 . In contrast, the claimant in Western Electric, was a Baltimore-based “installer” for Western Electric.

Under the applicable collective bargaining agreement, if an employee was assigned to work at another location within the range of daily travel the employer would either furnish transportation to the job site by assigning the employee to travel as a driver or passenger in a company car or would pay a “daily transportation expense allowance” and a “daily travel time allowance” and would not furnish the employee a company car. Ryan, 38 Md.App. at 327-28 , 381 A.2d 294 . In Western Electric, the claimant car pooled with another employee in that employee’s car, and was injured on the trip home from the work site. We held that compensability hinged on whether the two allowances bore a relationship to reasonable travel expenses; if they did, the case would fall within the free transportation exception.

The Court concluded that Western Electric was obligated by agreement to provide transportation and made payments which bore a relationship to reasonable travel expenses; Tavel was therefore distinguished and the claimant was covered. Id. at 327-28 , 381 A.2d 294 . ³⁵³ From the foregoing case law, we are instructed to “look first and always to the employment relationship itself. What was the contract between the parties?” Id. at 329 , 381 A.2d 294 . In addition, we proceed mindful that in this context the Court of Appeals has stated that an agreement to provide, or to continue to provide, transportation “need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.” Watson, 200 Md. at 470 , 90 A.2d 180 , quoted in Ryan, 38 Md.App. at 332 , 381 A.2d 294 .

Before we can address the issue of whether the free transportation exception is applicable, we must address two critical questions ignored by the parties: (1) was summary judgment appropriate on the issue of whether Lorkovic’s injuries arose out of and in the course of his employment, and (2) can we affirm summary judgment on an exception not relied on by the trial judge when he granted summary judgment? B The appellate courts of this state have often and recently discussed the pertinent standards governing review of an order granting summary judgment. See Gross v. Sussex, 332 Md. 247, 255-56 , 630 A.2d 1156 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-39 , 625 A.2d 1005 (1993); Nixon v. State, 96 Md.App. 485, 499-500 , 625 A.2d 404 (1993); Fairfax Savings, F.S.B. v. Ellerin, 94 Md.App. 685, 703-04 , 619 A.2d 141 , cert. granted, 329 Md. 756 , 621 A.2d 897 (1993); Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 94 Md.App. 225, 230-31 , 617 A.2d 590 (1992);