McElroy Truck Lines, Inc. v. Pohopek

BELL, C.J. The issue in this case is whether, pursuant to Maryland Code (1991, 1999 Repl.Vol.) § 9-203 of the Labor and Employment Article, Alfons James Pohopek, the respondent, a Maryland resident employed as a truck driver, by a trucking company based out of state, who was required to keep and maintain the company owned tractor-trailer truck in Maryland on weekends, but whose employment involved traveling, during the week, to various states along the eastern seaboard, including sometimes Maryland, for regular pickups and deliveries, is a “covered employee.” 1 Following a hearing, the Workers’ Compensation Commission (the “Commission”) found that it had jurisdiction and, so, concluded that he was. ⁵⁷⁸ A petition for judicial review was filed timely by the employer, McEIroy Truck Lines, Inc., the petitioner. The Circuit Court. for St. Mary’s County reversed the judgment of the Commission, ruling, on summary judgment, that jurisdiction over the matter did not lie in Maryland. Dissatisfied with the reversal of the judgment of the Commission, the respondent appealed to the Court of Special Appeals. That court agreed with the Commission and, thus, reversed the judgment of the circuit court.

Pohopek v. McElroy Truck Lines, 140 Md.App. 235, 237 , 780 A.2d 383, 384 (2001). We shall affirm the Judgment of the Court of Special Appeals. The respondent sought employment with the petitioner by filing an application with an agent of the petitioner in North Carolina. After having been offered, and accepted, employment with the petitioner, the respondent underwent a week’s training and orientation in North Carolina, during the course of which he was presented with, and signed, a Workers’ Compensation Agreement.

Under that agreement, all workers’ compensation claims were to be “exclusively governed by the [workers’] compensation laws of the State of Alabama,” 2 where the petitioner’s principal place of business was located. Thereafter, the respondent was assigned a tractor-trailer leased by the petitioner, which he picked up in Virginia, and, having only a Pennsylvania commercial driver’s license, at the petitioner’s request, obtained a Maryland commercial driver’s license. The respondent obtained his delivery assignments by calling the petitioner’s dispatchers. Mostly he called dispatchers in ⁵⁷⁹ North Carolina, but he also received assignments from dispatchers in Alabama and Virginia.

The respondent’s deliveries were to states primarily along the eastern seaboard, from as far north as New Hampshire to as far south as Mississippi. 3 The petitioner argued, and the Circuit Court determined, that it was undisputed that, while he was employed by the petitioner, the respondent made 145 deliveries, of which only 28, or 19 percent, were in Maryland and, of 45 refueling stops, only 9 occurred in Maryland. The Circuit Court concluded: “Given these facts, [the petitioner] conducted around 80 percent of his employment activity outside the State of Maryland.” The respondent was off on weekends. When he was off, as a part of his employment agreement, the company supplied tractor-trailer was kept in Maryland near the respondent’s home in St. Mary’s County. In addition to looking after the tractor-trailer and its contents — it usually was loaded on Fridays for Monday morning delivery — , the respondent was responsible for its regular maintenance and appearance.

The Court of Special Appeals also observed: “In the early morning hours each Monday, Pohopek would conduct a pre-trip checklist of the truck, which consisted of testing the engine, brakes, lights, and other routine mechanical components. Pohopek then, in accordance with federal requirements, updated his log book.” Pohopek , at 237, 780 A.2d at 384 . After having worked for the petitioner for approximately six months, the respondent was involved in an accident while driving the petitioner’s tractor-trailer through South Carolina. He filed in Maryland a workers’ compensation claim for the injuries he sustained.

The petitioner defended on the basis that the Commission had no jurisdiction over the case, that the respondent was not a “covered employee.” As indicated, although the Circuit Court was persuaded, both the Commission and the Court of Special Appeals rejected that defense. ⁵⁸⁰ Whether the respondent is a “covered employer” must be determined by reference to § 9-202 and § 9-203. The former addresses the relationship between the employee and the employer, while the latter, the place of the injury. Section 9-202 makes clear that to be a “covered employee,” an individual must be “in the service of an employer under an express or implied contract of apprenticeship or hire.” On the other hand, § 9-203 provides: “(a) In general. — Except as otherwise expressly provided, an individual is a covered employee while working for the employer of the individual: “(1) in this State; “(2) outside of this State on a casual, incidental, or occasional basis if the employer regularly employs the individual within this State; or “(3) wholly outside the United States under a contract of employment made in this State for the work to be done wholly outside of the United States. “(b) Incidental service in State. — (1) An individual is not a covered employee while working in this State for an employer only intermittently or temporarily if: “(i) the individual and employer make a contract of hire in another state; “(ii) neither the individual nor the employer is a resident of this State; “(iii) the employer has provided workers’ compensation insurance coverage under a workers’ compensation or similar law of another state to cover the individual while working in this State; “(iv) the other state recognizes the extraterritorial provisions of this title; and “(v) the other state similarly exempts covered employees and their employers from its law. “(2) If an individual is exempted from coverage under this subsection and injured in this State while working for the employer of the individual, the sole remedy of the ⁵⁸¹ individual is the workers’ compensation or similar law of the state on which the exemption is based. “(3) A certificate from an authorized officer of the workers’ compensation commission or similar unit of another state certifying that the employer is insured in that state and had provided extraterritorial insurance coverage for the employees of the employer while working within this State is prima facie evidence that the employer carries that compensation insurance. “(c) Outside State. — Except as otherwise expressly provided, an individual who is employed wholly outside of this State is not a covered employee.” Thus, to be a “covered employee” and therefore eligible to bring, and maintain, a worker’s compensation claim in this State, a worker must be an employee, § 9-202(a), and, as the Court of Special Appeals recognized, “the site of one’s employment is the critical element for” making that determination. Pohopek at 240 , 780 A.2d at 385 .

In this case, we are concerned only with § 9-203(a): the petitioner does not contend that the respondent was employed wholly outside of Maryland, rendering § 9-203(c) inapplicable, and although the petitioner maintains that the respondent was not regularly employed in Maryland, so that, in that sense, he was employed in Maryland only intermittently, it does not suggest that the prerequisites that make § 9-203(b) applicable are present in this case. The gist of the petitioner’s argument is that the respondent simply was not regularly employed in the State of Maryland. It asserts, noting that Dixon v. Able Equip. Co., 107 Md.App. 541, 549 , 668 A.2d 1009, 1012 (1995), indicated that “ ‘regular’ implies a uniform course of conduct” and relying on what the Movement Listing for the respondent shows, that about 80 percent of the respondent’s trips were to places other than Maryland, that the respondent’s employment in Maryland lacked the required uniformity of conduct.

The petitioner argues, alternatively, that, even if the respondent were regularly employed in this State, his employment outside the State ⁵⁸² cannot be characterized, logically or appropriately, as “casual, incidental or occasional.” Relying on the same case and the same definition, the Court of Special Appeals concluded otherwise with respect to the regularity of the respondent’s employment in Maryland. Noting the Dixon court’s acknowledgment that there is “no particular formula for establishing ‘regular’ employment” and evaluating the case on its facts, 140 Md.App. at 241 , 780 A.2d at 386 , the intermediate appellate court reasoned: “Here, the consistency of Pohopek’s schedule and the employment responsibilities he carried out within the State persuade us to' find regularity in Pohopek’s Maryland employment. Pohopek was not commuting to work in another state on a daily or regular basis, but, instead, he was based out of Maryland and traveled regularly, albeit extensively, as part of his routine employment.” Id. Turning to the respondent’s employment outside the State, the court conceded that it was, like his employment in State, regular.

Id. Nevertheless, it held: “[0]ur finding that Pohopek regularly works outside the State is inherently a finding that Pohopek does not work wholly outside the State, and, therefore, under Dixon and Garrett, 4 Pohopek’s work outside the State must be inter ⁵⁸³ preted as casual. Dixon and Garrett essentially instruct us that the finding of regular employment outside of the State is inconsequential, until there is a finding of casual employment within the State, which triggers Section 9-203(b). Until there is a finding of casual employment within the State, the only determinative status of work outside of the State is either ‘whole’ or ‘casual.’ Under our interpretation, Pohopek is covered under subsection (a)(2), because his work outside of the State is said to be casual (because it is not whole), while his work within the State is said to be regular, because of the uniformity of his schedule and employment responsibilities in Maryland.” Id. at 242-43, 780 A.2d at 387 .

This Court has not addressed the precise question this case presents. We have, however, interpreted a predecessor of § 9-203(a), Maryland Code (1939, 1947 Cum.Supp.) Art. 101, § 67(3), 5 see Gatton v. Sline Co., 199 Md. 578 , 87 A.2d 524 ⁵⁸⁴ (1952), and considered the meaning of “casual employees” in the context of statutory provisions excluding such employees from the coverage of the workers’ compensation laws. See, e.g. Wood v. Abell, 268 Md. 214, 221 , 300 A.2d 665 (1973); Lupton v. McDonald, 241 Md. 446 , 217 A.2d 262 (1966); Clayburn v. Soueid, Inc. 239 Md. 331 , 211 A.2d 728 (1965); East v. Skelly, 207 Md. 537 , 114 A.2d 822 (1955); Moore v. Clarke, 171 Md. 39 , 187 A. 887 (1936); Marvil v. Elliott, 164 Md. 659 , 165 A. 822 (1933); Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 238 , 136 A. 548 (1927); State Accident Fund v. Jacobs, 134 Md. 133 , 106 A. 255 (1919).

In Gatton , the employer was a Maryland company, with offices in Baltimore City, that worked jobs in other states, including, West Virginia. Gatton, who was accidentally killed while working for the company in West Virginia, was turned down when he applied for a job at the company’s Baltimore office, there being no union openings. As directed, he went to the company’s job site in West Virginia. After being instructed that he had to before he could do work on the West Virginia job, he joined the union in West Virginia, was hired and worked on the West Virginia job.

Although his paychecks were drawn in Baltimore City and sent to him at the job site, he was paid according to the West Virginia union wage scale. The evidence was that Gatton was not provided transportation to West Virginia and that the decision to hire him was made by the job foreman in West Virginia. 199 Md. 578 at 580-81 , 87 A.2d at 524-25 . The Court summarily disposed of the question whether Gatton was a casual employee, concluding that his employment outside the State was not a casual, occasional or incidental employment by a Maryland employer of a workman regularly employed within this State, so that the sole question is whether he was an employee who was “employed wholly without the ⁵⁸⁵ State.” Id. at 581 , 87 A.2d at 525 . It held that Gatton was hired to work entirely and wholly outside the State of Maryland and, thus, his wife could not claim benefits under the Maryland’s Workers’ Compensation Act.

Id. at 584-85 , 87 A.2d at 526-27 . The Court made clear, however, that the place of employment — where the employee was hired — is not dispositive: “However, we do not think the question of where he was actually engaged to do work affects his widow’s rights under our statute. The Legislature has seen fit to exempt from the operation of our act those who are ‘employed wholly without the State.’ That cannot mean those who enter into their contract of employment outside of the State, because otherwise the word ‘wholly’ would have no meaning whatever. It must mean those who are employed to do work entirely or wholly outside of the State, and this is emphasized by the exception which permits casual, occasional or incidental employment outside of the State.

The deceased in this case did not have a casual, occasional or incidental employment outside of the State. His employment was to work entirely outside of the State, and that is all the work he ever did for this employer. The Legislature could have caused the statute to embrace all employments of residents of this State by employers located in this State, but it did not do so, and we cannot change the plain wording of the Act.” Id., 199 Md. at 583-84 , 87 A.2d at 526 . The Court of Special Appeals, in L.R. Willson & Sons v. Garrett, 76 Md.App. 120 , 543 A.2d 875 (1988), relied on this passage to reject the argument that an employee who worked only out of State for a Maryland employer, but was promised an in-state job site at the earliest opportunity, was not entitled, as a matter of law, to workers’ compensation benefits. 6 Id. at 126-27 , 543 A.2d at 878 .

It explained: ⁵⁸⁶ “As Gatton demonstrates, the Court of Appeals has given § 21(c)(4) 7 a broader interpretation than that urged by appellants. This is shown by the fact that it emphasized that the relevant inquiry is whether the employee is ‘employed to do work entirely or wholly outside of the State’ and by its reference to the exceptions for casual, occasional or incidental employment outside of the State. Thus, although we agree with appellants that, where an employee is ‘actually engaged’ is not dispositive, we disagree that the only relevant factor to be considered is where the employee actually worked. We think it necessarily follows from the Court’s interpretation of the statute that the question whether an employee was employed to work wholly outside of the State of Maryland is to be determined from the facts and circumstances of each case.” Id.

Although, as indicated, this Court has considered the term, “casual employee” in a number of cases, it has, as have courts generally, “refrained from giving a definition ... which must govern in all cases.” Hygeia Ice & Coal Co., 152 Md. at 238 , 136 A. at 551 . See Wood v. Abell, 268 Md. at 221 , 300 A.2d at 669 . Instead, we have consistently held that the decision in any case was to be determined by “its peculiar facts and circumstances.” Id. (quoting Hygeia at 238, 136 A. at 551 ).

What has resulted has been the development of “an elastic test for determining whether an employee is ‘casual’ or ‘regu ⁵⁸⁷ lar,’ ” with the factors to be considered being the nature of the employer’s work, the scope and purpose of the hiring and the duration of the employment, Wood at 223 , 300 A.2d at 670 , “whether it is occasional, incidental, accidental, or a usual concomitant of the employer’s business.” Moore at 53 , 187 A. at 894 . See Clayburn at 337 , 211 A.2d at 731 . This Court has held, where the essential terms and manner of employment is undisputed, see Clayburn at 337 , 211 A.2d at 731 , that the worker has been hired to perform a single service on a single or particular occasion, that the employment was casual. Lupton at 450-51 , 217 A.2d at 264 .

See Wood at 223 , 300 A.2d at 670 ; East at 540 , 114 A.2d at 823 ; Moore 171 Md. at 53 , 187 A. at 893-94 ; Marvil v. Elliott, 164 Md. 659 , 165 A. 822 (1933). In Wood v. Abell, the worker was hired to help prepare the local fairgrounds for an upcoming event. Aside from the fact that he was to do various odd jobs as required by the county fair association and would be paid by the hour, there was “[n]o definite understanding ... concerning the duration of their employment, but it was generally expected that [his] services would be needed for approximately one or two weeks. Clearly, no decision was reached that [he] would be employed in the future or that the job[ ] would be continuous.” 268 Md. at 217 , 300 A.2d at 667 .

We noted also, quoting the testimony of the general manager of the county fair association, that the worker was hired to do odd jobs, on an indefinite basis, “like on call.” Id. at 224 , 300 A.2d at 670 . Lupton v. McDonald involved an injury to a worker who had been hired to “help finish the job” that the employer’s previous employee had abandoned. 241 Md. at 449 , 217 A.2d at 264 . The evidence was undisputed that the duration of the job was short, no more than one day, and that there was no prior relationship between the employer and the worker. Concluding that the worker was a casual employee, the Court noted that “[t]he nature of the work was temporary, the duration of the employment was only for a day, and it was occasional and incidental.” Id. at 450 , 217 A.2d at 264 .

The ⁵⁸⁸ Court rejected the argument that the scope and purpose of the hiring must be considered, along with duration and regularity of service, in determining whether the employment was casual, explaining: “But the scope and purpose of Lupton’s hiring by Milburn was only to complete the work which Lupton’s predecessor had left unfinished; the hiring was confined to completing a specific job on a particular piece of land which might ‘possibly’ take a day. Lupton also refers to the definition of casual employment given in 1 Larson, Workmen’s Compensation, § 51.00 (1965), that ‘Employment is casual when it is irregular, unpredictable, sporadic and brief in nature.’ Here, the employment was not only irregular but for a single occasion; Milburn had never employed Lupton before and had no plans to engage him for the future. It was unpredictable and sporadic, in that Lupton was only hired because Marx, who had originally been engaged by Milburn to do the work, had left the job. The hiring was clearly brief in nature.” Id. at 451, 217 A.2d at 265 .

East v. Skelly and Moore v. Clarke both involved jockeys and, in both, the Court concluded, as a matter of law, that the jockeys were casual employees. In