Templeton Oldsmobile Dodge v. Charles Dyer ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
TEMPLETON OLDSMOBILE DODGE AND
VADA GROUP SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 0446-99-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 18, 2000
CHARLES DYER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles F. Midkiff (Joshua M. Wulf;
Midkiff & Hiner, P.C., on brief), for
appellants.
Craig A. Brown (Ashcraft & Gerel, on brief),
for appellee.
Appellants, a car dealership and its insurer, appeal the
decision of the Workers’ Compensation Commission affirming the
deputy commissioner’s award of total temporary disability
benefits to Charles Dyer. Appellants contend that the award to
Dyer is erroneous under the "going and coming" rule barring
employer liability for car crashes involving employees driving
vehicles owned by the employer. Dyer argues on cross-appeal
that the commission erred in affirming the deputy commissioner’s
decision to terminate Dyer’s benefits after December 30, 1997.
We find no error and affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
Under familiar principles, we state the evidence in the
light most favorable to Dyer, the party prevailing below. See
Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 179,
510 S.E.2d 740, 741 (1999).
Dyer suffered injuries in a car accident on December 2,
1997. At the time, he was employed as a car salesman by
appellant Templeton, and he was on his way to work when the
crash occurred. The car he was driving was a demonstrator
vehicle owned by Templeton. A demonstrator, or "demo" vehicle,
is a new vehicle owned by a car dealership that its employees
are permitted to drive for a limited amount of time. The
vehicle bore an emblem bearing Templeton’s name, and stickers
were affixed to its windows advertising the vehicle’s features
and its selling price. Demos bear such stickers so that
potential buyers who see the vehicle off the premises of the
dealership are afforded purchase information. Templeton’s
practice is to allow employees to drive demo vehicles until they
attain the 5,500 mile mark. Templeton maintained the insurance
on the vehicle driven by Dyer and provided it with routine
maintenance and service. Employees are required to show demos
to prospective buyers at any time, whether on or off Templeton’s
premises, even after business hours. Furthermore, employees are
not permitted to let family members drive demos, and they are
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required to keep the vehicles clean at all times. The
restrictions on employees’ use of demos include prohibitions
against driving the demo on vacations and on long distance
trips. Employees are further prohibited from driving the
vehicles more than fifty miles per month for purposes other than
commuting to and from work and showing the vehicle to potential
buyers.
Templeton deducted $344 per month from Dyer's paycheck to
help cover expenses associated with his use of the demo,
including the cost of insuring the vehicle and its maintenance.
Dyer also provided fuel for the demo he was assigned.
Dyer filed a petition for workers’ compensation benefits on
January 21, 1998, alleging compensable injury and seeking
temporary total disability benefits from December 2, 1997
through February 9, 1998, as well as medical benefits.
Appellants defended the claim by arguing that the "going and
coming" rule barred any such recovery. On July 6, 1998, the
deputy commissioner awarded benefits to Dyer on the ground that
his injury arose from his employment, and occurred in the course
of that employment. Appellants appealed to the full commission,
and on February 9, 1999, the commission affirmed the award to
Dyer, but declined to award benefits after December 30, 1997,
finding that Dyer's physical restrictions following that date
did not prohibit him from performing his pre-injury duties.
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Appellants noted their appeal of the commission's decision to
this Court.
ANALYSIS
Whether an accident arose out of and in the course of
employment is a mixed question of law and fact and is properly
reviewable on appeal. See Carlson v. Dept. of Military Affairs,
26 Va. App. 600, 607, 496 S.E.2d 107, 110 (1998). Appellants
base their appeal on the general principle that employers are
not liable for injuries sustained by employees while travelling
to or from work, citing in support the Supreme Court of
Virginia’s decision in Ramey v. Bobbitt, 250 Va. 474, 478, 463
S.E.2d 437, 438 (1995). They acknowledge, however, that the
Supreme Court has established three exceptions to the "going and
coming" rule:
[1.] "Where in going to and from work the means
of transportation is provided by the
employer or the time consumed is paid for
or included in the wages[;]
[2.] Where the way used is the sole and
exclusive way of ingress and egress with no
other way, or where the way of ingress and
egress is constructed by the employer[; or]
[3.] Where the employee on his way to or from
work is charged with some duty or task in
connection with his employment."
GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 603-04, 272
S.E.2d 200, 203 (1980) (quoting Kent v. Virginia-Carolina
Chemical Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925)).
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Dyer bears the burden of proving by a preponderance of the
evidence that one of the above exceptions applies to his case.
See Sentara Leigh Hospital v. Nichols, 13 Va. App. 630, 636, 414
S.E.2d 426, 430 (1992). The commission found that Dyer met this
burden by proving that two exceptions to the "going and coming"
rule –- the first and the third -- applied to the facts of his
case.
We find that the commission properly found that Dyer proved
the third exception to the "going and coming" rule. 1 In support
of their contention that the third exception to the rule does
not apply to Dyer's use of the demo, appellants cite Carlson.
Their reliance on Carlson is misplaced. Carlson involved a
soldier in the National Guard who died while travelling to his
duty station at Fort A.P. Hill. See 26 Va. App. at 604, 496
S.E.2d at 108. His dependents sued the Commonwealth's
Department of Military Affairs under the Workers' Compensation
Act, claiming that Carlson's travel and ensuing death arose out
of and in the course of his employment with the National Guard.
This Court held that none of the exceptions to the "going and
coming" rule was applicable. The Court specifically addressed
the third exception, noting that no evidence suggested that
1
Because we find that Dyer met the third exception to the
"going and coming" rule, we do not address the first exception.
It is conceded that the second exception is inapplicable to the
facts of this case, and we will not address the issue.
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Carlson was engaged in any duty or task connected with his
employment while en route to his post. See id. at 608, 496
S.E.2d at 111.
The evidence in this case establishes that Dyer, unlike the
decedent in Carlson, was charged with at least three tasks by
his employer in his travel to work: 1) he was required to get
the car to Templeton’s premises each work day, because his use
agreement with Templeton expressly required him to have the demo
available to show to customers during business hours; 2) he was
required to display the dealer emblem and sales stickers on the
car; and 3) he was required to show the car to any potential
buyers, even off Templeton’s premises. We thus find that Dyer
was engaged in the performance of duties which benefited his
employer as he drove the demo to work on the day of the
accident. The third exception to the "going and coming" rule
therefore applies.
Dyer contends on cross-appeal that the commission erred in
determining that he was able to work after December 30, 1997.
"[T]he findings of fact made by the Workers' Compensation
Commission will be upheld when supported by credible evidence."
Commonwealth/Department of State Police v. Haga, 18 Va. App.
162, 166, 442 S.E.2d 424, 426 (1994) (citing James v. Capitol
Steel Construction Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989)). The commission agreed with the finding of the deputy
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commissioner that Dyer was able to perform his pre-injury work
beginning on December 31, 1997. The commission noted that
Dyer's physician prohibited him from engaging in excessive
bending and lifting at that time and that the evidence showed
Dyer’s employment required him to do only a modicum of bending
and lifting. The commission therefore found that the degree of
bending and lifting described in the evidence did not exceed
Dyer's restrictions. Because we cannot say that the evidence
upon which the commission relied lacked credibility, we affirm
the commission’s finding that Dyer was able to work beginning on
December 31, 1997.
For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
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