THE GOING & COMING RULE: WITH COMPANY CARS
This is a short summary and hypothetical that explains the many ways to examine this issue: Will the going and coming rule be barred by the exception that the employer has provided transportation via company car to the employee? Or will the going and coming rule bar benefits altogether?
The Company Car HypotheticalThere is an employee who uses a company car, that he commutes in daily from his home to his job site. Normally, he goes to one job site, but occasionally, only a few times a year, he has to drive to these off-site job locations. Normally, the car is just used for the commute. One day, the employee is driving to work, his normal job site, like any other day, while driving his company car. He could have driven his personal car as well, but decided to drive his company car instead, knowing it may have to be used for some work at the job site. He then gets into an accident and is severely injured. Is this an industrial injury, where the workers' compensation carrier of the employer could be liable??? We will find out below...
The Going & Coming Rule, and the Exceptions...Pleading the "Going & Coming" rule in this hypothetical will be tough, as we will explain below: While this was a company car, I believe because he was simply on his way to work from home, instead of another off site location, we may be able to prove that this doesn't fall within one of the exceptions. The basic rule is this: If an employee who is traveling to or from a single fixed place of employment where he works, without travel pay and without special conditions attached to the trip, the employee will not be considered to be within the course of his employment. (Ocean Acc. & Guar. Co. v. IAC (Slattery) (1916) 173 Cal. 313.) Thus, the employee on his way to or from work is not considered to be performing any service for his employer, nor is he considered under the control of his employer. The employment relationship does not commence during the ordinary commute to work, until he reaches the premises. (Hinojosa v. WCAB (1972) 8 Cal.App.3d 150.) However, this judicially created rule is riddled with exceptions that may make this hard to plead, and that is why prior defense counsel may not have raised this earlier in the litigation. Ordinarily, where transportation is provided to an employee, such as a company car, furnished to the claimant to get to and from work, it will be considered part of the exception and outside the "Going & Coming" rule. (California Casualty Indemnity Exchange v. IAC (Duffus) (1942) 21 Cal.App.2d 461.) But in an unpublished case, Knight v. WCAB (1991) 56 CCC 166, the court held that the employee commuting in a company car was nonetheless subject to the rule based upon the WCAB's reasoning that the use of the company vehicle for the claimant's commute was permitted for claimant's convenience only, and that use of the vehicle was only permitted when one was available. In providing the car in this situation should not transform an ordinary commute into a potentially liable situation for the employer. Getting to and from work was the employees own business. (Knight v. WCAB (1991) 56 CCC 166.) So if the claimant used this solely for transportation to and from his home to a set job site, such as the headquarters, and did not need it for travel elsewhere to off-site locations, then this may be non-compensable. But if the employee does not have a fixed jobsite, and has multiple jobsites which he must drive to in addition to his normal employer's jobsite, the rule will not apply. (Lefebvre v. WCAB (1968) 69 Cal.App.2d 385.) Again, in rebuttal, there is case law supporting the position that even though an employee has more than one job site where he routinely reports or is transferred to and from by the employer, a claim for benefits will still be barred. (Voice v. WCAB (1988) 53 CCC 497.) However, the "special mission" rule seems to provide a basis for denial of pleading the "going & coming rule" due to its broad application and numerous cases citing it bars the rule. (PG&E v. WCAB (Howard) 46 CCC 158.) However, another case might make this defense hard to plead as well. In Le Elder v. Rice (1993) 21 Cal.App.4th 1604, the claimant was required to bring the company car to his jobsite, which was then used for his employment, and was not free to choose another means of transportation. So if the claimant was forced to accept the company car, then this would be a compensable injury. If he had the free decision to choose to accept the car, it may go the other way. If the claimant had used the car to commute to work, and if he had the free choice to use the company car, and was not a condition of employment, and the car is not used for substantial employer purposes at the jobsites, then there might be a case to apply the "Going & Coming" Rule. This folks, is a perfect example of a judicially created rule, which has almost been entirely eaten up by judicially created exceptions. Our hypothetical gave us probably a 20-25% chance of winning, but it may be worth it if you can bar the claim for benefits altogether.
ConclusionAs you can see, if you encounter this issue, be prepared to search for case law, (most importantly the exceptions!!), get ALL the facts, make sure you can articulate the defense properly. It is a great defense for work comp defense attorneys, and if pled and proved correctly at a priority conference or trial, could result in a bar of benefits completely.