ANNE HAMMILL PASQUA: GOOD MORNING, YOUR HONOR, ANNE HAMMILL PASQUA APPEARING FOR
ALL TERMITE AND PEST CONTROL. APRIL M. GILMORE: GOOD MORNING, YOUR
HONORS, MY NAME IS APRIL GILMORE, I'M WITH THE EPSTEIN LAW FIRM AND WE REPRESENT
THE PETITIONER RESPONDENT HENRY KEIM. RICHARD B. RUBENSTEIN:
GOOD MORNING, YOUR HONORS, RICHARD RUBENSTEIN, I'M HERE AS AMICUS FOR THE
COUNSEL ON OCCUPATIONAL SAFETY AND HEALTH. THE COURT: WELCOME, COUNSEL.
MISS PASQUA? ANNE HAMMILL PASQUA: THANK YOU. MAY
IT PLEASE THE COURT, I RESPECTFULLY REQUEST FIVE MINUTES RESERVED FOR REBUTTAL.
THE COURT: WE'LL HAVE YOU BACK, PERHAPS FOR A LITTLE LESS
THAN THAT. RIGHT RIGHT AHEAD. ANNE HAMMILL PASQUA: THANK YOU, YOUR
HONOR. SINCE THE NOON P 99 AMENDMENTS THE FUVENDMENT AL ROLE IN WORKMAN'S
COMPENSATION'S IS THAT TRAVEL FROM ONE'S HOME TO THE WORK IS NON COMPENSABLE, NO
PUBLISHED PIJ HAS EVER BEEN CONSIDERED FOR THIS RULE, FOR AN ACCIDENT TO BE
COMPENSABLE IT MUST ARRIVE OUT OF AND IN THE COURSE OF EMPLOYMENT. EMPLOYMENT
IS DEFINED AS SECTION 36 OF THE STATUTE, SECTION 36 WAS AMENDED IN 1979
SIGNIFICANTLY REDUCED COVERAGE FOR OFF PREMISES ACCIDENTS. BEFORE THE AMENDMENT,
THE GOING AND COMING RULE APPLIED. THIS STOOD FOR THE DENIAL OF ACCIDENTS
DURING ROUTINE TRAVEL FROM HOME TO THE EMPLOYER'S PLACE OF EMPLOYMENT. DUE TO THE
COLLIDE SCOPE OF JUDICIALLY CREATED EXCEPTIONS, THE RETCHES LASER ENACTED AND
AMENDED THE STATUTE, THE STATUTE DEFINES EMPLOYMENT AS DEEMING TO COMMENCE
WHEN AN EMPLOYEE ARRIVES AT THE PLACE OF EMPLOYMENT TO REPORT FOR WORK AND SHALL
TERMINATE WHEN THE EMPLOYEE LEAVES THE PLACE OF EMPLOYMENT. WE HAVE A
FUNDAMENTAL RULE IN NEW JERSEY, IT IS CALLED THE EMPLOYER'S PREMISES RULE, WHEN
THE EMPLOYEE IS DRIVING TO THE EMPLOYER'S PLACE OF EMPLOYMENT, HE IS NOT
COVERED. THIS RULE HAS STOOD SINCE 1979. CORE RIDGE ATTACHES FROM THE EMPLOYEE
REACHES THE EMPLOYEE'S PLACE OF EMPLOYMENT, THAT IS OWNED OR
CONTROLLED BY THE EMPLOYER, THAT IS WHY IT'S CALLED THE PREMISES RULE AND IS NO
LONGER CALLED THE GOING AND COMING RULE. MR. KEIM'S ACCIDENT HAPPENED ON THE
WAY TO THE EMPLOYER'S PLACE OF EMPLOYMENT, BUT HE WAS NOT YET ON THE PREMISES.
THE PURPOSE OF THE AMENDMENT OF SECTION 36 IN DEFINING EMPLOYMENT WAS TO
ESTABLISH A BRIGHT LINE RULE THAT EMPLOYMENT BEGINS WHEN EMPLOYEE ARRIVES AT THE
PLACE OF EMPLOYMENT AND ENDS WHEN THE EMPLOYEE LEAVES THE PLACE OF EMPLOYMENT AND
TO EXCLUDE AREAS NOT UNDER CONTROL OF THE EMPLOYER. THE AMENDMENT IMPOSED
UPON OFF SIGHT ACCIDENTS A MORE RESTRICTIVE STANDARDGE XENS IBLT.
IT'S REMAINING LANGUAGE IN SECTION 36 ADDRESSES ACCIDENTS WHERE THE EMPLOYER
REQUIRED THE EMPLOYEE TO BE AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT.
IN SUCH CASES THERE MAY BE COVERAGE UNDER ONE OF FOUR EXCEPTIONS. ONE, WHEN THE
EMPLOYEE IS ENGAGED IN THE DIRECT PERFORMANCE OF DUTIES ASSIGNED BY THE
EMPLOYER. 2, WHEN THE EMPLOYEE'S RIS PAID TRAVEL TIME TO AND FROM A JOB SITE.
3, WHEN THE EMPLOYEE UTILIZES AN EMPLOYER AUTHORIZED VEHICLE TRAVELING TO AND
FROM A JOB SITE. THE FOURTH IS OPERATION OF A VEHICLE ON BUSINESS AUTHORIZED
BY THE EMPLOYER. IN THE CASE AT BAR, KEIM WAS NOT REQUIRED BY THE EMPLOYER TO BE
AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT, RATHER HE WAS DRIVING TO
THE EMPLOYER'S PLACE OF EMPLOYMENT WHEN HE WAS INVOLVED IN THE MOTOR VEHICLE ACCIDENT.
KEIM ROUTINELY WENT TO THE PLACE OF EMPLOYMENT TO PICK UP CHEMICALS. THE
JUDGE AT COMPENSATION RECOGNIZED THIS CONTROLLING INQUIRY, WAS THE EMPLOYER
REQUIRING THE EMPLOYEE TO BE AWAY FROM THE PLACE OF EMPLOYMENT. THE JUDGE
ANSWERED THIS IN THE NEGATIVE, FOUND THE CASE FELL OUTSIDE THE SCOPE OF THE
DEFINITION OF EMPLOYMENT AND DISMISSED THE CASE. AS EXPLAINED BY THIS COURT IN
JUMP, EMPLOYEES WHO ARE WHERE THEY'RE SUPPOSED TO BE DOING WHAT THEY'RE
SUPPOSED TO BE DOING ARE IN THE COURSE OF EMPLOYMENT WHETHER ON OR OFF PREMISES
EXCEPT WHEN THEY ARE COMMUTING, THIS CASE WENT ON TO AGREE WITH THE APPELLATE
DIVISION THEN WHETHER THE PETITIONER WORKED ON THE ROAD OR FROM A SPECIFIED SITE
IS NOT SIGNIFICANT. DEVIATION WAS NO DIFFERENT FROM THE OFFICE WORKER WHO
TAKES AN AFTERNOON BREAK AND CROSSES THE STREET TO PICK UP HIS PERSONAL MAIL AT THE
LOCAL POST OFFICE, NEITHER DEVIATION WOULD BE COMPENSABLE. SIMILAR TO THE CASE
AT HAND WHETHER PETITIONER IS IS AN ON PREMISES OR OFF PREMISES WORKER
ROUTINE TRAVEL TO THE PLACE OF EMPLOYMENT IS NOT COMPENSABLE. IN THE 44 YEARS SINCE
THE 1979 AMENDMENT THERE'S NEVER BEEN A CASE FINDING SUCH TRAVEL COMPENSABLE,
OTHERWISE IT WOULD OPEN UP A COMPANY LIED SCOPE OF NEW EXCEPTIONS THAT SECTION
36 AMEND NLT WAS INTENDED TO STOP. SECTION 36 ESTABLISHES A BRIGHT LINE
RULE FOR THE KERNLTS APPLICATION OF THE LAW. XUL SHUN, IN AN EFFORT TO COULD BELIEVE
TOGETHER A NEW EXCEPTION TO EXPANDS THE STATUTORY DEFINITION OF EMPLOYMENT,
LOZANO DID NOT ADDRESS SECTION 36 OF THE STATUTE, RATHER IT ADDRESSED SECTION 37
AND THE ISSUE OF WHETHER THE PHRASE RECREATIONAL OR SOCIAL ACTIVITIES
ENCOMPASSES ACTIVITIES BY THE EMPLOYER. LOZANO IS DISTINGUISHABLE AS IT INVOLVED
AN INJURY SUSTAINED BY A GO CART RIDE. CHIEF JUSTICE RABNER:
COUNSEL, I DON'T WANT TO INTERRUPT YOUR FIRST FIVE MINUTES, BEFORE WE GET ON
TO COMPULSION I'D LIKE TO ADDRESS WITH YOU WHAT ARE THE ELEMENTS HERE AND YOU BEGAN
BY SAYING THERE'S A THRESHOLD ELEMENT OF PROOF REQUIRED THAT THE EMPLOYEE IS
REQUIRED BY THE EMPLOYER TO BE AWAY FROM THE PLACE OF EMPLOYMENT. THIS IS A STATUTORY
CASE, DO YOU HAVE A COPY OF THE STATUTE IN FRONT OF YOU? I HAVE AN EXTRA IF YOU
DON'T. DO YOU WANT TO COME FORWARD, I'LL GIVE YOU A CLEAN COPY.
ANNE HAMMILL PASQUA: I DO HAVE -- I HAVE A COPY OF IT IN FRONT OF ME.
THE COURT: ALL RIGHT, DO YOU HAVE A PEN OR A PENCIL. ANNE HAMMILL
PASQUA: I DO. THE COURT: GOOD. I WANT TO READ THROUGH THIS
WITH YOU AND ASK YOU TO INSERT SOME NUMBERS AT DIFFERENT SPOTS SO THAT WE CAN THEN
GO BACK AND IDENTIFY THE PRECISE ELEMENTS THAT ARE RELEVANT IN THIS SCENARIO
HERE. IT'S OF COURSE THE PARAGRAPH THAT BEGINS WITH EMPLOYMENT SHALL BE DEEMED
TO COMMENCE. ANNE HAMMILL PASQUA: YES, THIS IS THE PORTION
OF THE STATUTE -- THE COURT: IF I COULD JUST TO FRAME IT AND I'LL
GIVE YOU PLENTY OF TIME TO EXPLAIN YOUR POSITION BUT I WANT TO SET THIS OUT FIRST,
AT THE BEGINNING INSERT THE NUMBER 1, EMPLOYMENT SHALL BE DEEMED TO COMBHENS
WHEN A PLOY EYE RIGHTEOUS AT THE EMPLOYER'S PLACE OF EMPLOYMENT TO REPORT FOR WORK
AND DETERMINE 98 WHEN THE EMPLOYEE LEAVES THE PLACE OF EMPLOYMENT EXCLUDING
AREAS NOT UNDER THE CONTROL OF THE EMPLOYER, SO THAT'S NUMBER 1, IF YOU COULD AFTERNOON
THEN THAT IS THEN FELD BY IS STAEM RSEMICOLON AND THE WORDS PROVIDESED
HOWEVER, SO LET'S INSERT THE NUMBER TWO AFTER HOWEVER. WHEN THE EMPLOYEE IS REQUIRED
BY THE EMPLOYER TO BE AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT, THE
EMPLOYEE SHALL BE DEEMED TO BE IN THE COURSE OF EMPLOYMENT WHEN THE EMPLOYEE IS
ENGAGED IN THE DIRECT PERFORMANCE OF DUTIES ASSIGNED OR DIRECTED BY THE
EMPLOYER. AND THEN THERE'S UNDERSTOOD SEMICOLON THERE FOLLOWED
BY THE WORD BUT. INSERT THE NUMBER 3 AT THAT SPOT. AND IT CONTINUES, THE STATUTE
CONTINUES, THE EMPLOYMENT OF EMPLOYEE PAID TRAVEL TIME BY AN EMPLOYER FOR
TIME SPENT TRAVELING TO AND FROM A JOB SITE, OR, AND LET'S INSERT THE NUMBER 4
AT THAT POINT, OF ANY EMPLOYEE WHO UTILIZES AN EMPLOYER AUTHORIZED VEHICLE SHALL
COMMENCE AND TERMINATE WITH THE TIME SPENT TRAVELING TO AND FROM A JOB SITE
OR THE AUTHORIZED OPERATION OF A VEHICLE ON BUSINESS, AUTHORIZED BY THE EMPLOYEE.
SO DEPENDING ON HOW YOU COUNT, IT APPEARS THE STATUTE COVERS THREE OR FOUR
DIFFERENT SCENARIOS. THE LAST SCENARIO, NUMBERED 4, APPEARS TO BE THE ONE THAT
APPLIES HERE AND I SEE TWO ELEMENTS FOR NUMBER 4. UTILIZING -- I'M SORRY,
I WANT TO FIND IT MYSELF. UTILIZING AN EMPLOYEE AUTHORIZED VEHICLE
AND AUTHORIZED OPERATION OF A VEHICLE ON BUSINESS AUTHORIZED BY THE EMPLOYER.
ARE THERE ANY OTHER ELEMENTS THAT APPLY TO THAT PARTICULAR SCENARIO?
ANNE HAMMILL PASQUA: YOU'RE STARTING NUMBER 4. THE COURT:
YES. ANNE HAMMILL PASQUA: WHAT YOU PHRASE AS NUMBER 1 IS
THE FOUNDATIONAL VERBIAGE THAT WAS -- THE COURT: I'M ASKING WHETHER
THERE ARE ANY OTHER ELEMENTS THAT APPLY TO THIS PARTICULAR SCENARIO BECAUSE
THE STATUTE IS BROKEN APART WITH SEMI COLONS, IT DOESN'T -- NOT EVERY WORD APPLIES
TO EVERY SCENARIO. ANNE HAMMILL PASQUA: I UNDERSTAND. THE
OTHER FACTOR TO CONSIDER IS THAT THIS NUMBER 4, EMPLOYEE WHO UT LIGHTS AN EMPLOYER
AUTHORIZED VEHICLE SHALL COMMENCE AND TERMINATE WITH THE TIME SPENT TO AND FROM
A JOB SITE, IT'S TALKING ABOUT A JOB SITE THERE, THAT DISTINGUISHES FROM
EARLIER IN THE STATUTE WHERE THEY'RE TALKING ABOUT THE EMPLOYER'S LOCATION.
EARLIER IN THE STATUTE IT TALKS ABOUT THE EMPLOYER'S PLACE OF EMPLOYMENT,
SO YOU SEE. JUSTICE PIERRE-LOUIS: DO YOU THINK THAT
NUMBER 1 APPLIES TO THIS SCENARIO. ANNE HAMMILL PASQUA: IN NUMBER
1 IT TALKS ABOUT THE EMPLOYER'S PLACE OF EMPLOYMENT AND NUMBER 4 DOWN HERE
THEY'RE TALKING ABOUT JOB SITE SO THEY'RE TALKING ABOUT ACCIDENTS THAT OCCUR OFF
PREMISES WHERE YOU'RE NOT GOING TO THE EMPLOYER'S PLACE OF EMPLOYMENT, YOU'RE
GOING OFF-SITE, SPECIFICALLY JOB SITE. JUSTICE PIERRE-LOUIS: BUT
NUMBER ONE SAYS WHETHER THE EMPLOYEE ARRIVES AT THE EMPLOYER'S PLACE OF
EMPLOYMENT TO REPORT FOR WORK, RIGHT? ANNE HAMMILL PASQUA: RIGHT.
JUSTICE PIERRE-LOUIS: ARE YOU SAYING THAT THIS EMPLOYEE WAS
REPORTING FOR WORK AT THE EMPLOYER'S PLACE OF EMPLOYMENT IN THIS SCENARIO?
ANNE HAMMILL PASQUA: I'M SAYING THAT THE STATUTE IS TRYING TO REDUCE THE
NUMBER OF EXCEPTIONS SO IT'S CODE FIEG WHAT SEPGSS ARE ALLOWED TO THIS MAIN
UNDERLYING PRINCIPLE THAT THE STATUTE IS TRYING TO LIMIT OFF PREMISES ACCIDENTS,
SO WHEN YOU'RE GOING TO OR FROM WORK IT DOESN'T APPLY. AND THEN WHEN YOU'RE DEALING
WITH THESE OTHER PROVISIONS SUCH AS NUMBER FOUR, THEY'RE NOT TALKING ABOUT
TRAVELING TO THE EMPLOYER'S PLACE OF EMPLOYMENT, THEY'RE TALKING ABOUT TRAVELING
TOLLING JOB SITE. JUSTICE FASCIALE: ACTUALLY AS THE CHIEF
POINTERED OUT 4 HAS TWO SUBSECTIONS TO A JOB SITE OR AUTHORIZED BUSINESS
BY AN EMPLOYER. ANNE HAMMILL PASQUA: YES, AND THIS PROVISION
IS READ IN CONJUNCTION WITH THE EARLIER BEGINNING OF THE STATUTE THAT OFF PREMISES
ACCIDENTS ARE NOT COMPENSABLE, BECAUSE THAT WAS THE PROBLEM TO BEGIN WITH
WHY THEY HAD TO AMEND THE STATUTE BECAUSE THERE WERE SO MANY DIFFERENT FACTUAL
SCENARIOS AS TO WHY ACCIDENTS OFF PREMISES BECAME WITHIN THE SKWOEP OF XENS IBLT
THAT THE LEGISLATURE ACTED. CHIEF JUSTICE RABNER: SO IF THE EMPLOYER
SAYS I WANT YOU TO DRIVE FROM HERE TO HERE FOR PURPOSES OF OUR OFFICIAL
BUSINESS, AND AN ACCIDENT TAKES PLACE DURING THAT TRAVEL, NOT COMPENSABLE?
ANNE HAMMILL PASQUA: IF THAT TRAVEL IS FROM A JOB SITE TO A JOB SITE
IT'S COMPENSABLE, YES. TRAVELING FROM YOUR HOME TO A PLACE OF EMPLOYMENT IS
INHERENTLY BENEFICIAL TO ANY EMPLOYER, SO THAT MAY BE A CONDITION.
JUSTICE WAINER APTER: BUT WASN'T THIS NOT HIS ACTUAL PLACE OF EMPLOYMENT, IN THAT
HE SPRAYS CUSTOMERS PROPERTIES FOR TERMITES AND PEST CONTROL, SO HE'S NOT
ACTUALLY SUPPOSED TO SPRAYS IN THE PLACE OF EMPLOYMENT. ANNE
HAMMILL PASQUA: PART OF THE DUTIES REQUIRE HIM TO GO TO THE PREMISES TO RE STOCK
HIS VEHICLE ON A WEEKLY BASIS. JUSTICE WAINER APTER: CORRECT,
BUT THAT'S NOT ACTUALLY WHERE HE'S PERFORMS HIS WORK, HE DOESN'T WORK IN
H R, IN I T, HE'S ACTUALLY PERFORMING HIS WORK OF SPRAYING FOR TERMITES AND PESTS
AUCH PREMISES. ANNE HAMMILL PASQUA: HE DOES DO A DULL BEING
OF HIS EMPLOYMENT OFF PREPSZ BUT IF HE GOES TO LIFT THE CHEMICALS, NO ONE IS GOING
TO DISAGREE THAT HE'S NOT WORKING AT THAT TIME, RE STOCKING THE TRUCK.
JUSTICE WAINER APTER: YOU'RE SAYING HE WAS WORKING AT THAT POINT OR HE WAS
NOT. ANNE HAMMILL PASQUA: YES, FOR EXAMPLE SAY THAT MORNING
HE GOT TO THE EMPLOYER'S PREMISES, HE GOES IN, HE PICKS UP A BUCKET OF CHEMICALS
TO BRING TO HIS TRUCK AND HURTS HIS BACK, WE'RE ALL GOING TO SAY THAT'S
COMPENSABLE, HE IS WORKING AT THAT TIME. JUSTICE WAINER APTER: HERE
HE ONLY HAD TO GO TO GET THE CHEMICALS ON THE EMPLOYER'S PREMISES BECAUSE
THE EMPLOYER DIRECTED HIM DO NOT KEEP THESE IN YOUR CAR BECAUSE THEY MIGHT FREEZE,
THEY MIGHT BOIL IF THE WEATHER IS TOO HOT AND THEY COULD BE STOLEN.
ANNE HAMMILL PASQUA: THAT IS A CONDITION OF HIS EMPLOYMENT BUT IT DOESN'T CHANGE
THE FACT THAT HIS ROUTINE TRAVELING FROM HOME TO THE SHOP IS STILL EXCLUDED
UNDER THE STATUTORY DEFINITION OF EMPLOYMENT. JUSTICE WAINER APTER:
SO WHAT IF INSTEAD OF PICKING THEM UP FROM THE SHOP THERE WAS A PROVISION THAT
EVERY FIVE DAYS YOU HAD TO GO TO HOME DEPOT AND BUY THESE EXACT CHEMICALS
AND HE'S ON HIS WAY TO HOME DEPOT TO BY THE CHEMICAL. ANNE
HAMMILL PASQUA: THAT IS CONSISTENT WITH THE LEGISLATIVE INTENT BECAUSE HE'S NOT
GOING TO THE EMPLOYER'S PLACE OF EMPLOYMENT, HE'S GOING AWAY FROM THE
EMPLOYER'S PLACE OF EMPLOYMENT. JUSTICE WAINER APTER: SO HERE THIS IS
JUST THE ACCIDENT, THAT EVEN THOUGH HE'S AN OFF PREMISES EMPLOYEE WHO HAS
TO SPRAY FOR PESTS AT ODD CUSTOMERS PREMISES, BECAUSE THE EMPLOYER SAYS YOU HAVE
TO COME HERE TO GET THE CHEMICALS FIRST INSTEAD OF GOING TO HOME DEPOT TO
GET THE CHEMICALS FIRST, THAT'S WHY IT'S NOT COVERED. ANNE HAMMILL
PASQUA: YES, THAT'S WHY IT'S NOT COVERED, BECAUSE THE STATUTE LOOKS TO THE EMPLOYER'S
PLACE OF EMPLOYMENT AS THE CONTROLLING FACT TO ENFORCE THE PATROLMEN'S RULE
AND TO ONLY ALLOW THE CODIFIED EXCEPTIONS THAT ARE LISTED IN THE STATUTE TO THEN
APPLY, BUT THESE ARE ALL THE UNDERLYING SCHEME OF ALL OF THESE IS THAT THEY'RE
AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT BECAUSE THE WHOLE PURPOSE OF THE
STATUTE WAS TO LIMIT OFF PREMISES SKLTHS. JUSTICE FASCIALE:
CAN I JUST ADD TO THE FACTS HERE, ZUMMO DIRECTED THAT EMPLOYEES CAN BE LIMITED
THE QUANTITY OF SUPPLIES IN THEIR ASSIGNED VEHICLES. THIS PETITIONER, KEIM,
WAS TOLD NOT TO KEEP MORE THAN ONE CON TAIRN OF A SPECIFIC WORK PRODUCT IN HIS
WORK ASSIGNED VEHICLE. ZUMMO INSTRUCTED KEIM TO RE STOCK SUPPLIES IN THE
MORNING AND ALL ABOVE POLICY HAS REQUIRED KEIM TO RE STOCK SUPPLIES AT THE SHOP.
THE APPELLATE DIVISION CONCLUDED THAT KEIM WAS ENGAGED IN SERVICES WITHIN
THE COURSE AND SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT AND HE WAS
PERFORMING DUTIES THAT WERE EXPRESSLY AUTHORIZED AND DIRECTED BY HIS
EMPLOYER, AND THAT'S WHY THEY SAID IT FELL WITHIN THE AUTHORIZED OPERATION OF A
BUSINESS VEHICLE EXCEPTION TO THE PREMISES RULE. WOULDN'T
WE AGREE THAT IN THE MORNING HE COULDN'T GO TO THE JOB SITE UNTIL HE FIRST RE STOCKED
HIS SUPPLIES, HE NEEDED MORE PESTICIDE AND TRAPS, SO HE WAS IN DIRECT PERFORMANCE
OF DUTIES AUTHORIZED BY HIS EMPLOYER AT THE TIME OF THE ACCIDENT IN AN AUTHORIZED
VEHICLE AND NOT SIMPLY COMMUTING TO AND FROM HIS PLACE OF EMPLOYMENT.
ANNE HAMMILL PASQUA: THE STATUTE CONTEMPLATES THAT TRAVEL
TO THE EMPLOYER'S PREMISES IS NOT COMPENSABLE, IT IS IRRELEVANT THAT THE
EMPLOYER ASKED HIM TO GO THERE IN THE MORNING TO GET THE SUPPLIES AS OPPOSED
TO ANOTHER TIME OF DAY, IT'S NO DIFFERENT THAN ANYONE ELSE'S CONDITION OF EMPLOYMENT
SAY A PHARMACEUTICAL REP. THE COURT: JUSTICE
FASCIALE: EXCUSE ME, THAT BRINGS US TO NUMBER TWO, PROVIDED HOWEVER WHEN THE
EMPLOYER IS REQUIRED BY THE EMPLOYER TO BE AWAY FROM HIS PLACE OF EMPLOYMENT,
THE EMPLOYEE IS TO BE IN THE EMPLOYER'S PLACE OF EMPLOYMENT WHEN ENGAGED IN THE
-- ANNE HAMMILL PASQUA: HOWEVER THE ONE STICKING POINT IS THAT
THE EMPLOYER IS NOT REQUIRING HIM TO BE AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT,
HE WAS GOING TO THE PLACE OF EMPLOYMENT. JUSTICE FASCIALE:
HE HAS TO BE AWAY FROM THE PLACE OF EMPLOYMENT, HOW IS HE GOING TO APPLY THE
PESTICIDES AND TRAPS, BUT BEFORE HE GOES TO THE OTHER PLACE HE'S GOT TO GET HIS
SUPPLIES, AND HE'S DOING IT AT THE DIRECTION OF HIS EMPLOYER, ZUMMO.
ANNE HAMMILL PASQUA: YES, THAT IS ALL CORRECT. HOWEVER, THE STATUTE
DOES NOT CONTEMPLATE THAT THAT TYPE OF ROUTINE TRAVEL IS COVERED UNDER THE
STATUTE. JUSTICE PIERRE-LOUIS: IF IT'S NOT HIS REGULAR
PLACE OF WORK, I MEAN WOULD YOU AGREE THAT HIS -- PLAINTIFF'S PLACE OF WORK IS NOT
AT THE EMPLOYER'S PREMISES, BECAUSE THAT IS NOT WHERE AS WE'VE SAID HE CAN
APPLY THE PESTICIDES. ANNE HAMMILL PASQUA: UNDER THE STATUTE HIS
PLACE OF WORK IS NOT RELEVANT, WHAT THE LEGISLATURE WAS FOCUSING ON IS
REDUCING OFF-SITE ACCIDENTS SO -- JUSTICE PIERRE-LOUIS: IT SEEMS
YOU ARE ONLY LOOKING AT NUMBER 1 PURSUANT TO THE NUMBERS THAT THE CHIEF
SD YOU TO APPLY TO THE STATUTE IN DISCUSSING THIS. SO LET ME JUST ASK, CAN YOU
BREAK DOWN, SO LOOKING AT THIS CASE AND THE FACTS OF THIS CASE, HELP ME UNDERSTAND
WHAT YOU BELIEVE IS COVERED. SO THE EMPLOYEE LEAVES HIS HOME IN THE
MORNING AND DRIVES TO THE EMPLOYER'S PLACE OF EMPLOYMENT IN ORDER TO PICK UP THE
MATERIAL THAT HE NEEDS IN ORDER TO GO TO THE JOB SITE, THIS WAS DONE ON
DIRECTION OF MICHAEL ZUMMO. CORRECT? YOU'RE SAYING THAT THAT IS NOT COVERED
BECAUSE THAT'S ROUTINE. IS THAT CORRECT? ANNE HAMMILL PASQUA:
I'M SAYING THAT'S NOT COVERED BECAUSE HE WAS GOING TO THE PLACE OF EMPLOYMENT.
JUSTICE PIERRE-LOUIS: SO IT'S NORMALLY THE CASE THAT, YOU KNOW,
BEING AT THE PLACE OF EMPLOYMENT COVERAGE UNDER WORKER'S COMPENSATION TERMINATES
WHEN THE EMPLOYEE LEAVES THE PLACE OF EMPLOYMENT IN THIS SCENARIO, THE
EMPLOYEE LEAVES THE PLACE OF EMPLOYMENT TO HEAD TO THE JOB SITE SO HE CAN DO HIS
JOB. IS THAT TRAVEL KOFRND? ANNE HAMMILL PASQUA: THAT WOULD
BE COVERED, YES. JUSTICE PIERRE-LOUIS: AND WHILE HE'S AT THE
JOB SITE HE'S COVERED BECAUSE HE'S DOING HIS WORK. ANNE HAMMILL
PASQUA: YES, BECAUSE THE STATUTE CONTEMPLATES GOING FROM JOB SITE TO JOB SITE.
JUSTICE PIERRE-LOUIS: SO THE OATH THING THAT ISN'T COVERED
IS GOING TO THE EMPLOYER'S PLACE OF EMPLOYMENT WHERE HE DOES -- WHERE THE
EMPLOYEE DOES NOT WORK ON A DAILY BASIS, AND WAS TOLD TO GO, DIRECTED TO GO
TO, BY HIS EMPLOYER, BECAUSE THE EMPLOYER DID NOT WANT HIM TO KEEP THE CHEMICALS
OVERNIGHT IN HIS VEHICLE. ANNE HAMMILL PASQUA: YES, UNDER THE
STATUTORY DEFINITION GOING TO THE PLACE OF EMPLOYMENT, IT DOESN'T MATTER
IF HE'S THERE FOR A MINUTE OR TEN MINUTES OR DETAIL LONG, UNDER THE STATUTE, THE
OFF PREMISES ACCIDENT IN THOSE CIRCUMSTANCES WHERE HE'S GOING TO THE
PLACE OF EMPLOYMENT IS NOT COVERED. JUSTICE PIERRE-LOUIS: CAN YOU
ENVISION A SITUATION WHERE THE LEGISLATURE CONTEMPLATED THAT HE'S GOING
TO THE PLACE OF EMPLOYMENT BECAUSE THAT'S WHERE THEY ARE WORKING.
ANNE HAMMILL PASQUA: THE PURPOSE OF THE STATUTE IS TO LIMIT OFF-SITE ACCIDENTS.
A PERSON CAN BE ON PREMISES EMPLOYEE, AN OFF PREMISES EMPLOYEE, IT CAN BE
FLUID. WHEN THEY'RE STACKING UP THIS VEHICLE, HE WOULD BE COVERED. WHEN HE LEAVES
THE EMPLOYMENT LOCATION GOING TO A CUSTOMER LOCATION, HE WOULD BE
COVERED, BUT THE ROUTINE TRAVEL OF HIM GOING FROM HIS HOME TO THE PLACE OF EMPLOYMENT
IS SPECIFICALLY NOT PERMITTED BY THE STATUTE. CHIEF JUSTICE
RABNER: IS IT ROUTINE TRAVEL WHEN YOU'RE COMING TO PICK UP CHEMICALS BECAUSE YOUR
BOSS SAID YOU MUST, AND ASSUME THESE FACTS, YOU MUST COME AND PICK UP THE
CHEMICALS AND NOT KEEP THEM WHERE I'VE NOT DIRECTED YOU, IS THAT ROUTINE TRAVEL
OR IS THAT DIFFERENT FROM JUST SHOWING UP AT WORK AS WE DID THIS MORNING
BY COMING TO THIS MORNING. ANNE HAMMILL PASQUA: THAT IS ROUTINE
TRAVEL, HE DOES IT ON A WEEKLY BASIS, HE'S GOING TO THE EMPLOYER'S PLACE OF
EMPLOYMENT, IT'S NOTHING THAT HE'S BEEN DIRECTED TO DO SOMETHING OUTSIDE 6 HIS USUAL
ROUTINE, THAT MORNING HE TOOK THE SAME ROUTE HE TAKES TO THE EMPLOYER'S
PLACE OF EMPLOYMENT. JUSTICE WAINER APTER: IS THERE ONLY 1 PLACE
TO PICK UP THE CHEMICALS. ANNE HAMMILL PASQUA: YES.
JUSTICE FASCIALE: AS I UNDERSTOOD IT, WHETHER HE RETURNED TO THE SHOP TO
RE STOCK DEPENDED ON HOW MUCH PESTICIDES AND TRAPS WERE LEFT OVER IN HIS TRUCK
AND THE NEXT JOB SITE, SO IT WASN'T DONE ROUTINELY IT DEPENDED ON WHAT WAS
HAPPENING EVERY WEEK, DEPENDED ON HOW MUCH WORK HE HAD TO DO AND WHERE HE HAD TO BE,
AND HIS EMPLOYER LIKE THE CHIEF SAID YOU HAVE TO GO TO THE SHOP IF YOUR
SUPPLIES ARE INSUFFICIENT, SO IT'S NOT DONE ROUTINELY, IT SEEMS, SILTS.
ANNE HAMMILL PASQUA: THE PETITIONER TESTIFIED HE GOES TO THE SHOP TWO TO
THREE TIMES A WEEK. JUSTICE WAINER APTER: RIGHT, NOT EVERY
FRIDAY, IT VARIES BASED. ANNE HAMMILL PASQUA: IT VARIES BASED PO
WHATEVER HE NEEDS FOR THAT DAY AND DECIDES WHETHER HE NEEDS TO STOP AT THE
SHOP. JUSTICE NORIEGA: IF IN THE MIDDLE OF THE DAY WHILE
AT A CUSTOMER'S HOME ONE OF THE TANKS MALFUNCTIONS AND HE HAS TO GO BACK TO THE
SHOP TO REFILL OR TO REPLENISH OR PICK UP A NEW TANK, WOULD THAT BE COVERED
IF THERE WAS AN ACCIDENT FROM CUSTOMER'S HOME BACK TO THE SHOP.
ANNE HAMMILL PASQUA: AT THAT POINT IN TIME HE IS AT A JOB SITE AND TRAVEL FROM
A JOB SITE WOULD TYPICALLY BE COVERED, IF THE ROUTINE TRAVEL THAT -- YOU DON'T
NECESSARILY NEED TO USE THE WORD ROUTINE, BUT WHAT THE STATUTE IS TALKING ABOUT
IS TRAVEL TO THE EMPLOYER'S PLACE OF EMPLOYMENT. JUSTICE
WAINER APTER: BUT WHAT THEY'RE REALLY TRYING TO GET AT IS COMMUTING, RIGHT, HE'S
NOT COMMUTING BECAUSE HE DOESN'T WORK AT THE EMPLOYER'S PLACE OF EMPLOYMENT,
HE WORKS AT THE JOB SITE, HE WORKS AT THE CUSTOMER'S HOME, HE WORKS AT THE CUSTOMER'S
BUSINESS, WHEREVER HE IS ACTUALLY SPLAG THE PESTICIDES. WHY DID DOES IT
MATTER IF HE HAS TO FILL UP HIS CHEMICALS IN THE MIDDLE OF THE DAY WHEN THEY RUN
OUTER OR BEFORE HE GOES IN THE MORNING BECAUSE HIS EMPLOYER TOLD HIM YOU
CANNOT KEEP THESE CHEMICALS IN YOUR CAR? ANNE HAMMILL PASQUA: BECAUSE
THE LEGISLATURE MADE A POLICY DECISION THAT TRAVEL TO THE EMPLOYER'S PLACE OF
EMPLOYMENT IS NOT COMPENSABLE FROM THE PETITIONER'S HOME FROM THE START OF THE DAY.
JUSTICE WAINER APTER: WHERE IN THE STATUTE DOES IT SAY THAT,
THAT IT'S ONLY FROM THE PETITIONER'S HOME AT THE START OF THE DAY.
ANNE HAMMILL PASQUA: YOU CAN DERIVE THAT, THE REMAINDER OF THE STATUTE IS TALKING
ABOUT AWAY THE PLACE OF EMPLOYMENT, IT IS WHEN THE ASSIGNED DUTIES FIRST
YOU HAVE TO ADDRESS ARE THEY REQUIRED TO BE AWAY THEN THE ASSIGNED DUTIES COME
INTO PLAY AND THEN IT GOES ON TO NUMBER 3, BUT THE EMPLOYMENT OF EMPLOYEE PAID
TRAVEL TIME TO AND FROM A JOB SITE AGAIN TALKS ABOUT JOB SITE.
CHIEF JUSTICE RABNER: KEEP GOING. ANNE HAMMILL PASQUA: AND THEN
AGAIN AUTHORIZED VEHICLE COMMENCED AND TRACHLG TO AND FROM A JOB SITE, OR,
AND THAT -- CHIEF JUSTICE RABNER: LET'S READ THE OR.
ANNE HAMMILL PASQUA: OR AUTHORIZED BUSINESS BY AN EMPLOYER.
CHIEF JUSTICE RABNER: WHY IS THAT NOT SATISFIED HERE WHEN THE BOSS SAYS YOU HAVE
TO COME ON A REGULAR BASIS, WE DON'T WANT THESE THINGS TO STAY IN THE CAR
TOO LONG, YOU HAVE TO COME TO THE OFFICE TO GET #KE78 KALS. ANNE
HAMMILL PASQUA: BECAUSE THIS IS READ IN CONJUNCTION WITH THE KWOOIRMENT THAT THEY ARE
REQUIRED TO BE AWAY FROM THE PLACE OF EMPLOYMENT, IT'S NOT A STANDALONE
PROVISION, IT'S NOT TO BE SEEN IN A VACUUM. CHIEF JUSTICE
RABNER: I UNDERSTAND THE POINT YOU JUST MADE, SO THE PRELIMINARY LANGUAGE UNDER
WHAT WE LABELED NUMBER TWO YOU'RE SAYING APPLIES TO EVERY PART OF THE STATUTE.
ANNE HAMMILL PASQUA: YES. CHIEF JUSTICE RABNER:
DOES IT APPLY TO 1. ANNE HAMMILL PASQUA: 1 AS IN -- MY 1 IS
DIFFERENT THAN YOUR 1, IT DOES NOT APPLY TO WHAT YOU DESIGNATED AS 1, IN MY ARGUMENT
I DESIGNATED WHAT -- CHIEF JUSTICE RABNER: SO AGAIN, JUST AS A
MATTER OF PURE STATUTORY INTERPRETATION, SO YOU WOULDN'T LOOK BACK TO THE
LANGUAGE BEFORE THE SEMICOLON WHERE YOU HAVE THE PHRASE WHEN THE EMPLOYER IS REQUIRED
TO BE AWAY FROM THE PLACE OF EMPLOYMENT AND APPLY IT TO 1, BUT YOU DO SUGGEST
WE LOOK BACK AT THE LANGUAGE IN WHAT I'VE LABELED 4 AND JUMP OVER THAT SEMICOLON
AND APPLY IT BACK TO 2. ANNE HAMMILL PASQUA: YES, BECAUSE
THE LANGUAGE IT SAYS PROVIDED HOWEVER, AND THIS PROVIDED HOWEVER WHERE THE
EMPLOYEE IS REQUIRED BY THE EMPLOYER TO BE AWAY FROM THE EMPLOYER'S LOCATION OF
EMPLOYMENT IS ADDRESSING THE LEGISLATIVE INTENT TO REDUCE OFF-SITE ACCIDENTS.
CHIEF JUSTICE RABNER: WHAT I'M SUGGESTING IS THAT WE READ
THE STATUTE, AND IT COULD HAVE BEEN WRITTEN BETTER TO BE SURE, BUT AFTER THAT
FIRST SEMICOLON THAT SAID HOWEVER, 1, 2, 3, THEN WE WOULD LOOK JUST AT THE
ELEMENTS WITHIN EACH ONE, WE WOULDN'T JUMP BACK AND FORTH, WOULD WE?
ANNE HAMMILL PASQUA: IF YOU LOOK AT THE STATUTE, WHEN THE STATUTE IS NOT CLEAR
WE THEN GO TO THE LEGISLATIVE INTENT AND IN THIS CASE THE LEGISLATIVE INTENT
IS TO REDUCE OFF-SITE ACCIDENTS. JUSTICE WAINER APTER: ARE YOU ALSO
APPLYING 2 TO WHAT THE CHIEF HAD DESIGNATED AS NUMBER 3, SO NUMBER 3 IS
PAID TRAVEL TIME. ANNE HAMMILL PASQUA: YES.
JUSTICE WAINER APTER: ARE YOU ALSO SAYING THAT THERE IS ONLY A SUCH THING AS PAID
TRAVEL TIME WHEN THE EMPLOYEE IS REQUIRED BY THE EMPLOYER TO BE AWAY FROM THE
EMPLOYER'S PLACE OF EMPLOYMENT? ANNE HAMMILL PASQUA: YES, BECAUSE
THEY'RE TRAVELING TO AND FROM A JOB SITE PER THE STATUTE. JUSTICE
WAINER APTER: THE EMPLOYER COULD NOT CHOOSE I AM GOING TO PAY YOU TO COME TO --
THIS IS A REGULAR OFFICE JOB PERSON, BUT I'M GOING TO PAY YOU TO COME TO
THE OFFICE AND I'M GOING TO PAY YOU WHEN YOU COMMUTE HOME AT NIGHT, THAT WOULD
NOT COUNT AS EMPLOYMENT OF EMPLOYEE PAID TRAVEL TIME. ANNE
HAMMILL PASQUA: UNDER THE PLAIN MEANING HERE OF THE STATUTE, TYPICALLY WHEN THERE IS
PAID TRAVEL TIME IT'S FROM A SITE TO A SITE, I'VE NEVER SEEN IT FROM THEIR
HOME TO THEIR OFFICE. JUSTICE NORIEGA: SO COUNSEL WHAT DO YOU
MAKE OF THE FACT THAT IN THE RECORD BEFORE US THAT THE PLAINTIFF STARTED
THE CLOCK AT HOME AND LOGGED IN AND WAS ON THE IPAD, LOGGED IN AS WORKING FROM
THE MOMENT THAT HE LEFT HIS RESIDENCE. ANNE HAMMILL PASQUA:
I DISAGREE WITH THAT BECAUSE HE -- O'CLOCK GO IN DOESN'T NECESSARILY MEAN --
THERE'S BEEN CASE LAW THAT SAID O'CLOCK GO IN DOESN'T TRIGGER EMPLOYMENT, WHAT
TRIGGERS EMPLOYMENT IS THE STATUTE AND THEY'RE TALKING ABOUT EMPLOYMENT COMMENCING
ON THE PREMISES WHEN THEY ARRIVE, OR UNDER THESE WHAT I SAY ARE BUT YOU'RE
NUMBERING THEM DIFFERENTLY BUT I AM SAYING THAT THE EXCEPTIONS TO THE PREMISES
RULE IS THEN CODIFIED AFTER HOWEVER, AND THEY ALL REQUIRE THE WORKER TO BE
AWAY FROM THE EMPLOYER'S PREMISES TO APPLY. JUSTICE WAINER APTER:
DIDN'T MR. ZUMMO TESTIFY THAT THERE WERE SOME DAYS WHEN THE EMPLOYEE WOULDN'T
ACTUALLY KNOW WHETHER THEY HAD TO GO TO ABOVE ALL'S PREMISES TO RETRIEVE THE NECESSARY
SUPPLIES THAT WILL THEY LOGGED INTO THEIR IPAD IN THE MORNING.
ANNE HAMMILL PASQUA: HE DID TESTIFY TO THAT IT COULD CHANGE, SOMETIMES THEY KNEW
A WEEK IN ADVANCE, SOMETIMES IT DID CHANGE, SOMETIMES IT DIDN'T.
JUSTICE SOLOMON: AND IN FACT TWO TO THREE TIMES A WEEK HE NEVER WENT TO THE
EMPLOYER'S PLACE OF BUSINESS. ANNE HAMMILL PASQUA: AND THAT
TRAVEL WOULD BE COVERED GOING TO THE CUSTOMER'S SITE. JUSTICE
SOLOMON: UNDERSTOOD, BUT HE NEVER WENT UNLIKE THIS DAY, SO THAT IF HE WAS GOING
TO GO TO THE EMPLOYER'S PLACE OF BUSINESS, HE CLOCKS IT ON HIS IPAD AND
HE REALIZES HALFWAY THERE HE'S GOT A MALFUNCTION IN ONE OF HIS TANKS AND THEN HE
GIVES GOES BACK TO THE EMPLOYER'S PLACE OF EMPLOYMENT, IS THAT CORD?
ANNE HAMMILL PASQUA: IF HE'S STARTING HIS DAY AND GOING TO THE PLACE OF
EMPLOYMENT UNDER THE STATUTE HE WOULD NOT BE COVERED, HE WOULD HAVE TO --
JUSTICE SOLOMON: OKAY, AND THAT'S THE POINT I'M TRYING TO MAKE, TWO OR THREE
TIMES A WEEK HE DOES NOT GO TO THOSE PREMISES WHERE THE EMPLOYER'S PLACE OF
BUSINESS BECAUSE HE'S GOT ENOUGH CHEMICALS, HE LOOKS LET'S SAY HE CLOSHGS IN HE'S
GOING TO THE SITE OF THE WORK, AND EITHER HE REALIZE OH MY, I DON'T HAVE ENOUGH
CHEMICALS AND HE GOES BACK TO THE EMPLOYER'S PREMISES AND IS INVOLVED IN
AN ACCIDENT OR HE'S GOING THERE, HE REALIZES THERE'S BEEN A MALFUNCTION IN A
PIECE OF EQUIPMENT, AND HE GO TO THE EMPLOYER'S PLACE OF BUSINESS TO GET
CHEMICALS OR TRAPS. AND HE'S IN AN ACCIDENT IN EITHER OF THOSE TWO CIRCUMSTANCES,
YOU'RE SAYING THE STATUTE DOES NOT COVER THE ACCIDENT BECAUSE HE IS ON HIS WAY
-- ON HIS WAY TO THE EMPLOYER'S PLACE OF BIFRS. ANNE HAMMILL PASQUA:
AT THE BEGINNING OF THE DAY OR THE END OF THE DAY -- JUSTICE
SOLOMON: THIS IS THE BEGINNING OF THE DAY. ANNE HAMMILL PASQUA:
IT WOULD NOT BE COVERED. JUSTICE SOLOMON: NEITHER OF THOSE
CIRCUMSTANCES THAT I JUST MENTIONED Z. ANNE HAMMILL PASQUA:
UNDER THE STATUTE IF YOU'RE TRAVELING TO THE PLACE OF EMPLOYMENT, IT'S NOT
COVERED. JUSTICE SOLOMON: SO IF THAT HAPPENED -- ANNE
HAMMILL PASQUA: IF YOU WERE REQUIRED TO BE AWAY FROM THE PLACE OF EMPLOYMENT AND
FROM THAT PLACE HE WAS REQUIRED TO BE AWAY AND GO THERE, ARGUABLY HE COULD
THEN BE COVERED. JUSTICE SOLOMON: BUT IF HOWEVER HE GETS TO
THAT FIRST SITE AND HE RUNS OUT OF CHEMICALS AND HE GOES TO THE EMPLOYER'S PLACE
OF BUSINESS AND HE GOES BACK, IF THE ACCIDENT HAPPENS IN THE FIRST PERIOD BEING
GO TO THE PREMISES, IT'S COVERED, AND BACK TO THE PREMISES WHERE HE'S WORKING
IT'S COVERED AGAIN? ANNE HAMMILL PASQUA: IT WOULD NOT BE
COVERED IN THE MORNING BUT ONCE HE GOES TO AN EMPLOYER LOCATION, IT WOULD BE
COVERED, THAT'S JUST HOW THE STATUTE READS, BECAUSE THE INTENT IS TO REDUCE THE
NUMBER OF OFF-SITE ACCIDENTS, IT'S NOT -- I CAN UNDERSTAND IT CAN BE FRUSTRATING
BUT THERE IS A LEGISLATIVE INTENT HERE TO TRY TO REDUCE OFF-SITE ACCIDENTS,
SO SOME OFF-SITE ACCIDENTS WILL BE COVERED IF THEY MEET WHAT YOUR HONOR PHRASED
AS 2, 3 AND 4, THOSE ARE THE CODIFIED EXCEPTIONS THAT THE LEGISLATURE
PERMITTED TO CONTINUE BECAUSE THEY WERE RUNNING INTO A PROBLEM WHERE THERE WERE
SO MANY EXCEPTIONS, THE GOING AND COMING RULES BASICALLY DIDN'T EXIST ANY MORE
BECAUSE THEY WOULD COME UP TO SO MANY DIFFERENT WISE WHY THIS SHOULD BE
COVERED AND THIS SHOULDN'T. JUSTICE SOLOMON: ISN'T THIS A CIRCUMSTANCE
THAT'S A TYPICAL OF WHAT IS DONE ON A NORMAL WORKDAY, HIS WORK IS DONE
OFF-SITE, HE'S NOT IN THE EMPLOYER'S PLACE OF EMPLOYMENT DURING THE DAY, VIRTUALLY
NEVER THERE EXCEPT TO PICK UP CHEMICALS AND TRAPS, HE'S NOT THE COMING AND
GOING EMPLOYEE THAT THEY'RE TRYING TO DEAL WITH IN THE STATUTE, THIS IS A TOTALLY
DIFFERENT CIRCUMSTANCE. ANNE HAMMILL PASQUA: THE STATUTE
IS NOT DEALING SO MUCH SPECIFICALLY WITH THE EMPLOYEE, THEY'RE DEALING WITH
THE ACCIDENT, THEY'RE DEALING WITH WHETHER THE EMPLOYER HAD CONTROL OVER THIS ACCIDENT
WHEN IT OCCURRED. JUSTICE WAINER APTER: WHY WOULD THE MROIR
NOT HAVE CONTROL HERE IF THE EMPLOYER DIRECTED HIM THAT MORNING YOU HAVE
TO TO #K08 BACK AND PICK UP CHEMICALS AND EVEN IF IT WOULD BE MUCH MORE EASY TO
KEEP A MONTH WORTH OF CHEMICAL IN YOUR CAR, YOU ARE NOT ALLOWED TO DO THAT,
YOU HAVE TO COME AND PICK UP MORE CHEMICALS. ANNE HAMMILL PASQUA:
I DON'T THINK IT'S THAT NARROW OF AN APPLICATION TO SAY HE WAS DIRECTED TO
DO SO THIS, IT WAS SIMPLY PART OF HIS JOB, HE HAD TO FIGURE OUT ON A WEEKLY BASIS
WHETHER HE HAD TO GO TO THE SHOP OR NOT GO TO THE SHOP, IT WAS A CONDITION OF HIS
EMPLOYMENT -- JUSTICE WAINER APTER: HOW WOULD THAT
RECONCILE WITH THE TESTIMONY OF MR. ZUMMO, THAT THERE WERE TIMES WHEN AN EMPLOYEE
WOULDN'T KNOW WHETHER THEY HAD TO COME IN UNTIL THEY REVIEWED THEIR SIGN MGS IN THE
MORNING. JUSTICE NORIEGA: AND THE REQUIREMENT THAT
THEY NOT KEEP THEM IN THE CAR. ANNE HAMMILL PASQUA: THE EMPLOYER
WAS GIVING THEM THE OPTION OF LOOKING TO SEE WHETHER THEY HAVE TO COME OR
NOT, THIS WAS A GENERAL POLICY OF THE EMPLOYER THAT WE'D LIKE TO HAVE YOU COME
AND PICK UP THE CHEMICALS IN THE MORNING AS OPPOSED TO LATER IN THE DAY, JUST
AS IF THEY'RE CONSTRUCTION WORKERS AND THEY NEED TOOLS AND THE EMPLOYER SAID WE
NEED YOU TO GO TO THE SHOP FIRST TO PINNING UP THE TOOLS TO DO THE
CONSTRUCTION JOBS, THAT WOULD NOT BE COVERED. JUSTICE NORIEGA: THAT WOULD
NOT BE COVERED. ANNE HAMMILL PASQUA: NO. JUSTICE
NORIEGA: IF THEY HAD TO STOP AT THE SHOP AND GET THE TOOLS. ANNE
HAMMILL PASQUA: YES, WHEN THEY START OUT IN THE MORNING GO TO THE SHOP AND PICK
UP THE TOOLS, THAT WOULD NOT BE COVERED, JUST LIKE A LAWYER GOING TO THE
OFFICE TO PICK UP A FILE BEFORE YOU GO TO COURT, THAT DRIVE FROM HOME TO THE OFFICE
WOULD NOT BE COVERED, WHEN YOU GO TO COURT, SURE, BUT NOT THE DRIVE TO THE
OFFICE. A PHARMACEUTICAL RIGHTS, IF THEY NEED TO GO TO THE OFFICE TO PISHG UP MORE
PILLS, THERE'S A MILLION DIFFERENT SCENARIOS WHERE THIS WOULD OPEN UP EXCEPTIONS
TO IF THE LEGISLATIVE INTENT IS NOT APPLIED. JUSTICE
NORIEGA: AND I WILL JUST CLARIFY A POINT THAT JUSTICE WAINER ASKED YOU EARLIER,
IT SOUNDED LIKE YOU SAID IF IT WAS GONE TO TO HOME DEPOT AND GET THE ITEMS
THERE THAT THAT WOULD BE COVERED. ANNE HAMMILL PASQUA: YES, BUT
THE LEGISLATURE DREW A LINE IN THE SAND SAYING IF YOU'RE GOING TO THE
EMPLOYER, IT IS NOT COVERED, IF YOU'RE GOING ON WAY, IT IS.
JUSTICE NORIEGA: SO YOUR ARGUMENT IS THAT THE SHOP HAPPENED TO BE ON THE PREMISES
-- ANNE HAMMILL PASQUA: THE SHOP IS THE PREMISES.
THE COURT: BUT IF THERE WAS ANY OTHER PLACE THEY HAD TO GO TO.
ANNE HAMMILL PASQUA: THAT WOULD BE COVERED. JUSTICE SOLOMON: HOW
DO YOU RECONCILE WHAT YOU'RE SAYING WITH THE JUMP CASE, WHERE HE WAS THE
MUNICIPAL WORKER. ANNE HAMMILL PASQUA: IN JUMP BASICALLY WHAT
THE COURT HAD SAID IN THAT CASE WAS EMPLOYEES WHO ARE WHERE THEY'RE SUPPOSED TO BE
DOING WHAT THEY'RE SUPPOSED TO BE DOING ARE COVERED DURING THE COURSE OF EMPLOYMENT
WHETHER ON OR OFF PREMISES EXCEPT WHEN COMMUTING, SO BASICALLY THEY'RE CON
TEMPLATING THAT OFF PREMISES EMPLOYEES ALSO COMMUTE, NOT JUST ON PREMISES EMPLOYEE,
THEN THEY GO ON TO SAY WHETHER THE PERSIAN SER WORKED ON THE ROAD OR FROM A
SPECIFIED PLACE IS NOT SIGNIFICANT, DEVIATION IS NO DIFFERENT FROM AN OFFICER
WORKER WHO TAKES AN AFTERNOON BREAK AND CROSSES THE STREET TO PICK UP HIS
PERSONAL MAIL. SO BASICALLY THEY'RE SAYING IT DOESN'T MATTER IF YOU'RE ON PREMISES
OR OFF PREMISES EMPLOYEE HERE, IF YOU'RE STOPPING TO GET YOUR MAIL AND YOU'RE
OFF PREMISES, IT'S NOT COMPENSABLE, IF YOU'RE ON PREMISES AND YOU GO TO GET YOUR
MAIL, IT'S NOT COMPENSABLE. JUSTICE WAINER APTER: THAT'S
WHEN YOU'RE DOING SOMETHING THAT'S NOT DIRECTED BY YOUR EMPLOYER, BUT HERE
HE WASN'T DOING PERSONAL BUSINESS, HE WASN'T PICKING UP MAIL, DOING THE DISTANCING
OR THE GO CARTING THAT THE OTHER TWO COURSES REFERRED TO, INSTEAD HE WAS
GOING TO PICK UP CHEMICALS WHICH IS WHAT HIS EMPLOYER TOLD HIM TO DO, AND HE'S ONLY
DOING IT BECAUSE HIS EMPLOYER TOLD HIM THAT MORNING OR I GUESS WHEN HE
CHECKED THAT MORNING HE SAW THIS IS A BIG PREMISES THAT I HAVE TO GO TO, I DON'T HAVE
ENOUGH CHEMICAL. JUSTICE FASCIALE: AND THAT'S WHAT JUMP SAID
ON THE SAME PAGE AS WHAT YOU QUOTED BEFORE WHEN YOU SAID THAT THE STATUTE PROVIDES
THAT THEY'RE TO BE COMPENSATED ONLY FOR ACCIDENTS OCCURRING IN THE DIRECT PERFORMANCE
OF THEIR DUTIES. JUSTICE SOLOMON: WHEN THEY ARE SUPPOSED
TO BE WHERE THEY ARE, THAT'S THE LANGUAGE IN JUMP THAT I WAS TRYING TO GET
TO, WHEN AN EMPLOYEE IS DOING WHAT THEY'RE SUPPOSED TO BE DOING, WHERE THEY'RE
SUPPOSED TO BE DOING IT, THEY'RE COMPENSATED. ANNE
HAMMILL PASQUA: YES, BUT IN JUMP IT ALSO SAYS THE STATUTORY DEFINITION OF EMPLOYMENT
IS KEY TO THE ELIMINATION OF EMPLOYER'S RESPONSIBILITY FOR ACCIDENTS OCCURRING
IN AREAS NOT UNDER THE CONTROL UNLESS THE EMPLOYEE IS REQUIRED BY THE EMPLOYER
TO BE AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT 6789 IN THAT EVENT THE
DETERMINING ELEMENT OF COMBENS SIBLT RESTS UPON THE DIRECT PERFORMANCE OF DUTIES
ASSIGNED, SO YOU DON'T GET TO THAT UNTIL THEY'RE REQUIRED TO BE AWAY FROM
THE PLACE OF EMPLOYMENT, IT'S IN JUMP. JUSTICE SOLOMON: OKAY.
ANNE HAMMILL PASQUA: LETTER ME SEE THE SECTION, BUT JUMP
ACKNOWLEDGES THAT THIS FIRST PROVISION OF BEING AWAY FROM THE PLACE OF EMPLOYMENT
MUST APPLY BEFORE YOU GET TO ANYTHING ELSE. JUSTICE NORIEGA:
ISN'T THE PLACE OF EMPLOYMENT THE JOB SITE AND THE SHOP IS A SEPARATE LOCATION.
ANNE HAMMILL PASQUA: IT IS NOT BECAUSE THE STATUTE DEFINES
THE PLACE OF EMPLOYMENT AS THE EMPLOYER'S PLACE OF EMPLOYMENT, IT DOESN'T LOOK
TO THE EMPLOYEE'S PLACE OF EMPLOYMENT, IF IT DID THEN I WOULD SAY TRAVEL
TIME TO JOB SITE TO JOB SITE AND THE EMPLOYER'S PLACE OF EMPLOYMENT, IT DOESN'T
HAVE THAT IN THERE, IT DISTINGUISHES PLACE OF EMPLOYMENT FROM JOB SITE,
BECAUSE IT'S CONTEMPLATING TRAVEL JOB SITE TO JOB SITE. JUSTICE
PIERRE-LOUIS: SO IF THE EMPLOYEE WAS ONLY GOING BACK TO THE EMPLOYER'S PLACE OF
BUSINESS ONCE A MONTH, IS THAT ROUTINE ENOUGH FOR IT TO FALL WITHIN YOUR
DEFINITION OF HIM REPORTING TO THE EMPLOYER'S PLACE OF WORK?
ANNE HAMMILL PASQUA: UNDER THE -- THE ROUTINE LANGUAGE COMES FROM THE OLD GOING
AND COMING RULE. THE STATUTE -- JUSTICE PIERRE-LOUIS: YOU'VE
SAID IT HOW MANY TIMES TODAY, HE WHO ROUTINELY GOES EVERY WEEK, WE
UNDERSTAND THAT THAT LOCATION IS THE EMPLOYER'S PLACE OF BUSINESS, IS THAT WHERE
THE EMPLOYEE IS REPORTING TO WORK? ON A DAILY BASIS? ANNE
HAMMILL PASQUA: THAT IS NOT WHAT THE STATUTE LOOKS AT, WHAT IT'S LOOKING AT IS
IS THIS ACCIDENT COMPENSABLE, THEY'RE NOT LOOKING AT WHAT THE JOB DUTIES,
BECAUSE THERE ARE SO MANY DIFFERENT FLUID JOB DUTIES OUT THERE, ONE DAY YOU'LL
BE ON PREMISES, MAYBE YOU'LL BE OFF, MAYBE YOU'LL BE HYBRID, ESPECIALLY IN
THE POST KOEFD WORLD, SAY I GO TO THE OFFICE ONLY ONES A MONTH BEEN AN I GO TO
MY OFFICE TO MEET WITH MY PARTNERS, IS MY DRIVE NOW TO MY FIRM COMPENSABLE, I
WOULD SAID NOT. A LOT OF US ARE WORKING REMOTELY AND DON'T NECESSARILY REPORT
EVEN TO A PLACE OF EMPLOYMENT, BUT IT'S THE EMPLOYER'S PLACE OF EMPLOYMENT UNDER
THE STATUTE THAT IS THE COMPELLING ISSUE, THAT'S THE FACTOR THAT YOU HAVE
TO LOOK AT FIRST. JUSTICE SOLOMON: BUT IF THE WORK PLACE IS
HOME. ANNE HAMMILL PASQUA: I'M SORRY? JUSTICE
SOLOMON: IF YOUR WORK PLACE IS HOME AND YOU HAVE A SEPARATE OBLIGATION FROM WHAT
YOU DO AT HOME TO GO TO AN OFFICE WHERE THERE'S A FIRM MEETING OR SOME OTHER
KINDS OF A MEETING, YOU'RE SAYING THAT TRAVEL FROM THE WORK PLACE WHICH IS HOME
TO THE OFFICE WHERE THE MEETING IS TAKING PLACE IS NOT COMPENSABLE.
ANNE HAMMILL PASQUA: I AM SAYING THAT MY WORK PLACE DOESN'T MATTER, WHAT MATTERS
IS THE EMPLOYER'S PLACE OF EMPLOYMENT BECAUSE THE PURPOSE IS TO REDUCE
OFF-SITE ACCIDENTS. JUSTICE SOLOMON: NOT ELIMINATE THEM, NOT
OFF-SITE ACCIDENTS ARE ELIMINATED, THERE ARE SOME THAT ARE COVERED AS YOU'VE ALREADY
ADMITTED AND THE STATUTE IS REMEDIAL IN NATURE TO BE BROADLY CONSTRUED SO THEY'RE
NOT TRYING TO EXCLUDE EVERYBODY, THEY RECOGNIZE THAT THERE ARE GOING TO BE
INCIDENTS THAT DON'T FIT THE TEMPLATE OF COMMUTING AND THEY PROVIDE SOME OF THOSE
EXCEPTIONS AND THEN AS THE CHIEF POINTED OUT THERE'S A MORE BROAD PROVISION
AT THE VERY END OF THE STATUTE. ANNE HAMMILL PASQUA: YES, THE RE
MEDIAL OR LIBERAL CONSTRUCTION OF THE STATUTE DOES NOT APPLY WHEN IT FLIES
IN THE FACE OF THE LEVENS LEGISLATIVE INTENT OF THE AMENDMENT TO THE STATUTE.
THE INTENT OF THIS STATUTE WAS TO REDUCE OFF PREMISES ACCIDENTS AND THE WAY
THAT THEY DO THAT IS IF YOU REACH THE PREMISES, YOU'RE COVERED, THEN OFF PREMISES
IF THE EMPLOYER REQUIRES YOU TO BE OFF PREMISES, AND YOU'RE FITTING INTO ONE OF
THESE EXCEPTIONS THAT ARE OUTLINED IN THE STATUTE, THEN YOU'RE COVERED.
IT CODIFIES THE EXCEPTIONS. IT WOULDN'T MAKE SENSE FOR THEM TO JUST DO A CATCH
ALL AT THE END OF AUTHORIZED VEHICLE, UNAUTHORIZED BUSINESS, THAT COULD MEAN
JUST ABOUT ANYTHING, YOU HAVE TO READ THAT IN CONSIDERATION OF THE LEGISLATIVE
INTENT AND THE VERY FIRST PROVISION OF THE STATUTE WHICH IS SAYING ACCIDENTS ON
PREMISES IS THE CONTROLLING ISSUE HERE, IT'S NOT WHAT THIS EMPLOYEE'S ROLE WAS
OR A MILLION OTHER FACTORS THAT YOU CAN COME UP WITH BECAUSE THEN YOU'LL ENDS UP
BACK AT THAT COLLIDE SCOPE OF EXCEPTIONS THAT JUST KEEP COMING AND COMING
AND COMING, SO YOU NEED TO CONSIDER THE APPLICATION IN CONJUNCTION WITH THE
LEGISLATIVE INTENT THAT WHAT THEY'RE LOOKING AT ARE WORDS -- WHERE WAS THE
ACCIDENT AND NOT WHAT THE TYPE OF EMPLOYEE WE'RE DEALING WITH REALLY HERE.
CHIEF JUSTICE RABNER: YOU AGREE THAT IF WE FIND THE LANGUAGE OF THE STATUTE
CLEAR, WE SHOULD APPLY IT, WE DON'T THEN GO AND SUPERIMPOSE LEGISLATIVE INTENT,
WE DO THAT IF THERE'S A LACK OF CLARITY. ANNE HAMMILL PASQUA:
YES, THAT IS FAIR AND I THINK THAT THE PROVISION SHOULD NOT BE READ IN A
VACUUM BUT YOU HAVE TO LOOK AT THE ENTIRE DEFINITION OF EMPLOYMENT TO GET THERE.
CHIEF JUSTICE RABNER: IS THERE ANYTHING ELSE YOU'D LIKE TO
PRESENT? ANNE HAMMILL PASQUA: YES. I JUST WANTED TO
BRIEFLY TOUCH UPON COMPULSION, THE APPELLATE DIVISION ALSO HEAD UPON COMPULSION
UNDER THE LOW RLOZANO CASE IN ORDER TO COULD BELIEVE TOGETHER A NEW EXCEPTION TO
THE STATUTORY DEFINITION OF EMPLOYMENT, LOEZ FLOW DIDN'T ADDRESS SECTION
36, RATHER SECTION 7, WHICH DEALS WITH THE ISSUE OF WHETHER RECREATIONAL OR SOCIAL
ACTIVITIES FALL UNDER THE SCOPE OF XENS IBLT IF COMPELLED BY THE EMPLOYER,
LOZANO IS DISTINGUISHABLE AS IT INVOLVED A GO CART ACCIDENT THAT WAS COMPELLED
BY HIS BOSS AND UNRELATED TO DO HIS MASONRY DO YOU REMEMBER TEASE SO
THAT'S A TOTALLY DIFFERENT ISSUE THAN HERE, IN THE CASE AT BAR, KEIM WAS NOT INVOLVED
IN SOCIAL PACK TIFT, THE PANEL DISREGARDED THE FACT THAT EVERY TIME AN EMPLOYEE
SETS OUT TO WORK IT IS AT THE DIRECTION AND THE COMPULSION OF THE EMPLOYER.
THIS WOULD CREATE FAR REACHING EFFECTS BRINGING US BACK TO THE CASTS PREDATING
THE 1979 AMENDMENT, TRAVEL TO THE PLACE OF EMPLOYMENT IS INTRINSIC TO ONE'S
EMPLOYMENT HOWEVER IT IS STATUTORILY EXCLUDED PER SECTION 36. RESPONDENT REQUESTS
THAT THE APPELLATE DIVISION BE REVERSED AND SOMETHING BE REINSTATED AS THE
ACCIDENT OCCURRED OUTSIDE THE STATUTORY DEFINITION OF EMPLOYMENT.
THE COURT: ALL RIGHT. THANK YOU. I'D LIKE TO START, WE'LL SEE
HOW FAR WE GET AND WE MAY TAKE A BREAK IN THE MIDDLE OF THE ARGUMENT. YOU CAN
BEGIN. THE COURT: LET ME ASK YOU AS YOU APPROACH, DID YOU
INTEND TO USE THE FULLY 30 MINUTES, I KNOW YOU HAD REQUESTED THAT.
APRIL M. GILMORE: I DON'T KNOW THAT I REQUIRE THE FULL 30 MINUTES, I REQUESTED
IT. THE COURT: CHIEF JUSTICE RABNER: LET'S
SEE WHERE IT GOES. APRIL M. GILMORE: IF SOMEONE OFFERS YOU
TIME, YOU TAKE IT ROICHLT THAT'S WHY I ASKED. APRIL M. GILMORE:
MAY IT PLEASE THE COURT THE ISSUE PRESENTED BY THIS CASE YOUR HONORS IS WHETHER
THE SERIOUS AND SIGNIFICANT INJURIES SUSTAINED BY HENRY KEIM AN ADMITTEDLY
OFF PREMISES EMPLOYEE INVOLVED IN A MOTOR VEHICLE ACCIDENT WHILE OPERATING HIS
COMMERCIAL WORK VEHICLE OWNED BY HIS EMPLOYER WERE SUSTAINED IN THE COURSE
OF EMPLOYMENT AS EMPLOYMENT IS DWRIEND BY N.J.S.A. 34:15-36. I
SUBMIT TO YOU THAT IT IS COVERED BY EMPLOYMENT. YOU PRESENTED THE STATUTE THAT
WE ARE RELYING ON HERE AND BROKE IT DOWN INTO 4 PARTS WHICH IS HOW I READ
IT THE FIRST TIME I SAW IT, ONE OF THE MOST PROPORTIONS THAT IT SEEMS THAT ABOVE
ALL HAS MISSED IN THE STATUTE WHEN READING THE FIRST PORTION OF THE STATUTE
IS THAT EMPLOYMENT SHALL BE DEEMED TO COMMENCE WHEN AN EMPLOYEE ARRIVES AT THE
EMPLOYER'S PLACE OF EMPLOYMENT TO REPORT FOR WORK. SO THAT CAN'T APPLY TO MR.
KEIM BECAUSE MR. KEIM, HENRY, DOES NOT REPORT TO WORK AT THE EMPLOYER'S PLACE OF
BUSINESS. THAT'S THE ONLY THING HE DOES THERE IS REPLENISH HIS SUPPLIES.
ON JULY 16TH OF 2020, HENRY GOT INTO HIS COMPANY ASSIGNED VAN, AT HIS HOME,
HE LOGGED INTO HIS COMPANY ASSIGNED IPAD, TO DETERMINE WHAT HIS ASSIGNMENTS WERE
FOR THE DAY. EVERY DAY HIS ASSIGNMENTS WERE DIFFERENT, AND EVERY DAY AS MICHAEL
ZUMMO TESTIFIED, THEY COULD CHANGE, THEY COULD CHANGE FROM THE NIGHT BEFORE,
GRANTED MR. KEIM, HENRY AND THE OTHER TECHNICIANS MAY HAVE HAD A GENERAL IDEA OF
WHAT THEY WERE GOING TO DO FOR THE WEEK AND WHAT THEY MIGHT HAVE NEEDED
FOR THE WEEK, BUT IT WAS NOT UNTIL THEY SIGNED IN THAT MORNING UNTIL THEY ACTUALLY
KNEW WHERE THERM GOING AND WHAT THEY HAD TO DO WHEN THEY GOT THERE. AND ABOVE
ALL DIRECTED THAT HENRY AND THE OTHER TECHNICIANS TAKE THE COMPANY VAN HOME
BECAUSE IT SAVED THE COMPANY TIME, GAS, TOLLS AND POTENTIAL EXPOSURE ON THAT VEHICLE.
ADDITIONALLY IF THEY HAD THE NECESSARY CHEMICALS TO PERFORM THEIR JOB
OBLIGATIONS, THEY CAN GO RIGHT TO THEIR FIRST LOCATION, WHICH WAS ALSO FOR THE
BENEFIT OF THE EMPLOYER. AFTER O'CLOCK GO INTO HIS IPAD AND DETERMINING
THAT HE DIDN'T HAVE THE CHEMICALS NECESSARY, HE HAD TO HEAD TO ABOVE ALL'S LOCATION
TO GET THOSE CHEMICALS AND IT WAS ABOVE ALL'S POLICY THAT MANDATED THAT
HE GO AND PICK UP THOSE CHEMICALS AT ABOVE ALL'S LOCATION AND THAT WAS BASED ON
WHAT HE NEEDED THAT DAY AND IT WAS ALSO ABOVE ALL'S POLICY THAT HE NOT BE ALLUDE
TO GET THOSE ARE CHEMICALS OR THE TRAPS OR ANYTHING ELSE HE MIGHT HAVE NEEDED
FOR LIST GAY IN ORDER FOR HIM TO DO HIS WORK, HE COULD ONLY GET THOSE AT ABOVE
ALL'S LOCATION. AND ABOVE ALL HAD THIS POLICY BECAUSE IT WANTED TO REDUCE
THE AMOUNT OF POTENTIAL EXPOSURE OF THE CHEMICALS THEMSELVES AND EXPOSURE TO WEATHER
AND TO THEFT. AGAIN, THIS IS AT ABOVE ALL'S BENEFIT, SO
ABOVE ALL HAS THE BENEFIT OF HAVING'S EMPLOYEES TAKE THE COMPANY VAN HOME.
ABOVE ALL DID NOT GIVE HIM THE OPPORTUNITY TO DRIVE HIS OWN CAR BACK AND FORTH
TO ABOVE ALL, ABOVE ALL WANTED TO CONTROL THAT IF HE DID HAVE THE APPROPRIATE
CHEMICALS OR TRAPS OR SUPPLIES HE NEEDED IN ORDER TO DO HIS JOB FOR THE DAY, HE CAN
GO RIGHT THERE, IT SAVES HIM TIME, GAS, TOLLS AND EXPENSE. ON
THE MORNING OF JULY 16TH OF 2020, WHILE ON HIS WAY TO THE EMPLOYER'S WAIR HOUSE
TO REPLENISH THE CHEMICALS HE NEEDED WHICH HE LEARNED ABOUT THAT MORNING HE WAS
INVOLVED IN A SERIOUS MOTOR VEHICLE ACCIDENT IN WHICH HE SUFFERED INJURIES THAT
REQUIRED HIM TO UNDERGO BRAIN SURGERY, LOSE A SIGNIFICANT TIME FROM WORK AND PAY
A SIGNIFICANT AMOUNT OF MEDICAL EXPENSES. THE RESPONDENT DENIED HIM THOSE
BENEFITS CLAIMING THAT HE WAS ON A ROUTINE COMMUTE TO HIS PLACE OF EMPLOYMENT AND
THE JUDGE OF COMPENSATION AGREED. BUT THERE WAS NOTHING ROUTINE ABOUT
ANYTHING MR. KEIM HAD TO DO, NOT THAT DAY, NOT THE DAY BEFORE OR NOT THE WEEK LATER.
THERE WAS NOTHING ROUTINE ABOUT IT. AND THE OTHER THING ABOUT ROUTINE IS
AS WE'VE LOOKED AT THE STATUTE AND BROKEN DOWN INTO 4 PARTS THE WORD ROUTINE DOESN'T
EXIST IN THE STATUTE, WHAT DOES EXIST IN THE STATUTE IS THAT IN ORDER FOR
PART 1 AS BROKEN DOWN EARLIER, IN ORDER FOR COUNT -- OR THE PORTION 1 OF THE STATUTE
TO APPLY, THE EMPLOYEE HAS TO BE GOING TO THE EMPLOYER'S PLACE OF EMPLOYMENT TO
REPORT TO WORK. MR. KEIM DID NOT REPORT TO WORK AT ABOVE ALL'S LOCATION,
HE DIDN'T GO THERE FOR MEETINGS, HE DIDN'T GO THERE TO USE A COMPUTER OR DO ANYTHING.
HE REPORTED TO WORK AT HIS CUSTOMER'S LOCATIONS. THE
APPELLATE DIVISION RELYING ON THE PLAIN LANGUAGE OF THE STATUTE, ALONG WITH THE
CASE LAW, FOUND THAT THE FACTS OF THIS CASE FELL SQUARELY WITHIN NOT THE
EXCEPTION BUT THE DEFINITION OF THE AUTHORIZED OPERATION OF A BUSINESS VEHICLE IN
THAT HENRY WAS OPERATING AN AUTHORIZED BUSINESS VEHICLE ON BUSINESS NOT ONLY
AUTHORIZED BUT SPECIFICALLY DIRECTED BY HIS EMPLOYER. HE WAS DIRECTED BY HIS
EMPLOYER TO CHECK HIS IPAD IN THE MORNING, OPEN HIS IPAD AND SEE WHERE HE HAD TO GO.
THIS ACTIVITY WAS SPECIFICALLY DIRECTED AND CONTROLLED BY THE EMPLOYER.
WHILE THE WORKER'S COMPENSATION'S STATUTE, WHILE THE ACT
IS TO BE GIVEN A LIBERAL INTERPRETATION TO AFFORD COVERAGE, I DON'T NEED THAT WE
NEED TO GO THAT FAR, BECAUSE THE STATUTE SPECIFICALLY PROVIDES THAT HENRY
AS AN OFF PREMISES EMPLOYEE IS ENTITLED TO BENEFITS. WHEN WE LOOK AT THAT FOURTH
PORTION -- JUSTICE WAINER APTER: WHERE DOES THE STATUTE
SPECIFICALLY TALK ABOUT THE ON PREMISES VERSUS OFF PREMISES EMPLOYEES?
APRIL M. GILMORE: I'M SORRY. JUSTICE WAINER APTER: WHERE DOES
THE STATUTE SPECIFICALLY DISTINGUISH BETWEEN ON PREMISES VERSUS OFF
PREMISES EMPLOYEES. APRIL M. GILMORE: I DON'T THINK IT USES THOSE
WORDS IN PARTICULAR BUT IN THE FIRST PORTION OF THE STATUTE IT TALKS ABOUT THE
PLACE OF EMPLOYMENT WHERE THE EMPLOYEE REPORTS FOR WORK, SO THE ON PREMISES
PORTION OF THE DEFINITION WOULD BE SUBSUMED IN THAT FIRST PORTION OF THE STATUTE,
WHEREAS THE OFF PREMISES EMPLOYEES ARE THOSE THAT UTILIZE THE EMPLOYER AUTHORIZED
VEHICLE AND THAT GO TO AND FROM JOB SITES. JUSTICE FASCIALE:
ALTHOUGH EVEN IT DOESN'T USE THE WORD PREMISES, IT DOES SAY PROVIDED HOWEVER,
THIS IS OUR NUMBER TWO, WHEN THE EMPLOYEE IS REQUIRED BY THE EMPLOYER TO BE
AWAY FROM THE EMPLOYER'S PLACE OF EMPLOYMENT, MEANING OFF PREMISES.
APRIL M. GILMORE: SO INTERESTINGLY, AND I HOPE THAT I'M GOING TO ANSWER
YOUR QUESTION IN WHAT I'M ABOUT TO SAY, IN PORTION 1 AND PORTION 2, IT MENTIONS
THE PLACE OF EMPLOYMENT AND I THINK THAT THE PORTION TWO OF THE STATUTE
IS CHARACTERIZED BY CASE LAW AS CONCERNING THE SPECIAL MISSION AND THOSE CASES
ARE USUALLY DEFINING WHEN AN EMPLOYEE WHO IS AN ON PREMISES EMPLOYEE IS
INJURED WHEN HE IS OFF PREMISES, HE'S AWAY FROM THE PLACE OF EMPLOYMENT, BUT
INTERESTINGLY ENOUGH, PORTIONS 3 AND 4 OF THE STATUTE DON'T TALK ABOUT THE PLACE
OF EMPLOYMENT AT ALL, IT TALKS ABOUT THE EMPLOYMENT AND FACTOR 4 IT STARTS WITH
BUT THE EMPLOYMENT OF AN EMPLOYEE, NO DIFFERENT THAN THE BEGINNING OF THE
STATUTE STARTS WITH EMPLOYMENT SHALL BE DEEMED, THIS IS BUT THE EMPLOYMENT OF A
N EMPLOYEE WHO UTILIZES AN EMPLOYER AUTHORIZED VEHICLE SHALL COMMENCE AND
TERMINATE WITH THE AUTHORIZED OPERATION OF A VEHICLE ON BUSINESS AUTHORIZED BY
THE EMPLOYER. JUSTICE FASCIALE: YOU MEAN THE AUTHORIZED
VEHICLE, THEY'RE NOT ON PREMISES, THEY'RE OFF PREMISES. APRIL M.
GILMORE: YES. JUSTICE FASCIALE: RIGHT. AND YOU DID SAY
THAT THE APPELLATE DIVISION DID CONCLUDE THE FACTS FELL WITHIN THE AUTHORIZED OPERATION
OF A VEHICLE EXCEPTION, BUT I BELIEVE THAT'S EXACTLY WHAT THEY DID.
APRIL M. GILMORE: WELL I GUESS I'M SPINNING WORDS, WHEN I'M TALKING ABOUT
IT IN TERMS OF AN EXCEPTION, IT'S MORE OF A DEFINITION, AND THE STATUTE ITSELF
DEFINES, SPECIFICALLY DEFINES THESE TYPES OF EMPLOYEES SO TO CALL IT AN EXCEPTION REALLY
DOESN'T DO IT JUSTICE BECAUSE IT'S MORE OF A DEFINITION OF THE TRAVEL TIME
OF AN EMPLOYEE WHO IS PAID FOR HIS OR HER TRAVEL TIME TO AND FROM A JOB SITE AS
OPPOSED TO ANOTHER EMPLOYEE WHO IS UTILIZING AN EMPLOYER AUTHORIZED VEHICLE
ON BUSINESS ACTIVITY OF THE EMPLOYER. JUSTICE FASCIALE: BUT NO
MATTER HOW YOU WANT TO CHARACTERIZE IT'S AN EXCEPTION TO THE PREMISES RULE.
APRIL M. GILMORE: YES, IT'S AN EXCEPTION TO THE PREMISES RULE
ALTHOUGH ACCORDING TO THE STATUTE IT'S JUST PART OF THE STATUTE, IT'S JUST PART
OF THE PLAIN LANGUAGE OF THE STATUTE. CHIEF JUSTICE RABNER:
CAN YOU RESPOND TO MISS PASS KA KWA'S ARGUMENT THAT TO READ THE STATUTE THIS
WAY WOULD BROAD EXPANSION OF ITS WORK, DRUG REPRESENTATIVES, CUSTOMERS WHO HAVE
TO GET TOOLS AND A MYRIAD OF OTHER EMPLOYEES, ARE THEY CURRENTLY
COMPENSATED FOR ACCIDENTS IN THE MANNER THAT WE'RE DISCUSSING. APRIL
M. GILMORE: SO IF A PERSON -- A PERSON WHO WORKS FOR A CONSTRUCTION COMPANY IS
TOLD ON YOUR WAY TO THE CONSTRUCTION SITE YOU NEED TO STOP AT THE SHOP AND
PICK UP A BOX OF NAILS BECAUSE WE ARE SHORT ONE BOX OF NAILS, THAT IS ABSOLUTELY
COVERED, BECAUSE THAT EMPLOYEE IS ACTING AT THE DIRECTION OF THE EMPLOYER,
NO DIFFERENT THAN HENRY WHO WAS TOLD THAT MORNING, THIS IS WHAT YOU NEED, OR YOU
NEED TO GO TO THIS LOCATION AND HENRY KNOWS I NEED TO GO TO THAT LOCATION
WITH X AMOUNT OF CHEMICALS OR I'M NOT GOING TO BE ABLE TO SATISFY MY JOB AND HIS
EMPLOYER THEN -- AND HIS EMPLOYER SAYS TO HIM DON'T BRING ALL THAT WITH YOU, NO
DIFFERENT THAN THE CONSTRUCTION WORKER'S BOSS SAYING I DON'T WANDER YOU TO KIEP
ALL THOSE HAMMERS AND NAILS IN THE TRUCK OVERNIGHT BECAUSE THEY COULD GET STOLEN
OR I DON'T WANT YOU TO KEEP THAT CEMENT, THAT PRE MIXESED CEMENT IN THE
TRUCK BECAUSE IT'S GOING TO FREEZE OVERNIGHT. SO IF THE EMPLOYER IS TELLING THE
EMPLOYEE YOU NEED TO GO HERE, TO GET THIS, IN ORDER FOR YOU TO DO YOUR JOB,
THAT CONTROL, THAT DIRECTION BRINGS IT WITHIN THE STATUTE. CHIEF
JUSTICE RABNER: IS THE SCENARIO THAT WE FACE IN THIS CASE WITH RESPECT TO CHEMICALS
AND HOW OFTEN THEY MAY OR MAY NOT BE NEEDED THE SAME AS A CONSTRUCTION
COMPANY THAT SAYS LOOK, ALL TOOLS START AND END THE DAY IN OUR PLACE OF EMPLOYMENT,
SHOW UP FOR WORK THERE? APRIL M. GILMORE: SO IN ONE OF THE
CASES THAT I DON'T KNOW THAT IT'S BEEN CITED HERE, IN ONE OF THE CASES WHERE
AN EMPLOYEE HAS TO GO TO A CERTAIN PLACE TO PICK UP HIS TOOLS AND HIS TRUCK IN ORDER
FOR HIM TO DO -- HIM OR HER TO DO HIS OR HER JOB, WELL THEN THAT WOULD BE
A COMMUTE. BUT IN ORDER FOR MR. KEIM TO DO HIS JOB, HE MIGHT HAVE BEEN ABLE TO
LEAVE RIGHT WHERE HE WAS AND GO TO HIS FIRST JOB. SO IT'S A BIT OF A DIFFERENT
SCENARIO. JUSTICE NORIEGA: BUT WE HAVE A SITUATION
WHERE THE EMPLOYER SPECIFICALLY SAYS YOU CAN'T TAKE THESE ITEMS HOME SO HE ALWAYS
HAS TO START GOING TO THE SHOP FOR THE MOST PART, RIGHT? APRIL
M. GILMORE: I WOULD FIND THAT TO BE PROBLEMATIC BECAUSE THE EMPLOYER IS TELLING
HIM YOU NEED TO TAKE HOME THE COMPANY VAN EVERY NIGHT, SO IF HE HAS TO TAKE
THE COMPANY VAN HOME THE REASON WHY HE'S TAKING THE COMPANY VAN HOME IS FOR THE
BENEFIT OF THE EMPLOYER SO THAT IF HE DOES HAVE THE CHEMICALS OR APPLIES HE NEEDS
TO GO TO THAT FIRST LOCATION HE'S ALLOWED TO DO THAT, THERE WOULD BE NO REASON
FOR HIM TO TAKE THE VAN HOME ONLY TO TAKE THE COMPANY VAN BACK TO GET THE
CHEMICALS, IN THAT CIRCUMSTANCE THE COMPANY DOESN'T HAVE ANY BENEFIT TO MAKING HIM
DRIVE THE VAN BACK AND FORTH. JUSTICE FASCIALE: WHAT ABOUT THIS
HYPOTHETICAL, LET'S SAY I'M A SECURITY COMPANY TECHNICIAN AND MY JOB IS
TO INSTALL VERY HIGH-TECH SOPHISTICATED SURVEILLANCE CAMERAS AT HOEMENTS AND
YOU'RE A CUSTOMER AND YOU WANDER THAT CAMERA AT YOUR HOME AND MY COMPANY GIVES ME
AN AUTHORIZED VEHICLE TO GO ALL OVER THE PLACE BUT THEY SAY TO ME THESE ARE
EXPENSIVE CAMERAS, WE DON'T WANT THEM IN OUR VAN THAT'S PARKED IN YOUR DRIVEWAY
EVERY NIGHT, EVERY MORNING IF YOU HAVE TO INSTALL A VERY HIGH-TECH CAMERA AS OPPOSED
TO JUST PUTTING IN SOMETHING ELSE, YOU HAVE TO FIRST COME TO OUR SHOP, GET
THE CAMERA AND THEN DRIVE TO YOUR HOUSE. IS THAT COVERED? APRIL
M. GILMORE: I WOULD SUBMIT THAT THAT WOULD BE COVERED BECAUSE IT'S A DIRECTION
OF THE EMPLOYER, THE EMPLOYER IS SPECIFICALLY SAYING IF THIS IS WHAT I
WANT YOU TO DO, YOU NEED TO DO THIS. IT'S THE CONTROL OF THE EMPLOYER, IT'S THE
CONTROL OF THE EMPLOYEE OVER THE EMPLOYER. JUSTICE PATTERSON:
WHAT ABOUT THE EXAMPLE THAT MISS PASQUA TALKED ABOUT WHICH IS FAMILIAR TO MOST
YOUNG LAWYERS, FRIDAY MOURN MORNING, YOU HAVE TO COVER A MOTION, PICK UP
THE FILE, IT'S GOING TO BE LEFT ON YOUR DESK AND THEN GO TO COURT, LET'S ASSUME
AN AUTHORIZED VEHICLE, WOULD THAT BE COVERED? APRIL M.
GILMORE: IT WOULD BE, BECAUSE THE ATTORNEY IN YOUR EXAMPLE IS BEING INSTRUCTED
I WANT YOU TO LEAVE HOME AND I WANT YOU TO COME TO THE OFFICE AND PICK THIS
UP, THERE'S NO PLACE ELSE TO PICK UP THAT FILE. JUSTICE PATTERSON:
WHAT IF THE ATTORNEY WAS PLANNING ON BEING IN COURT THE NEXT DAY BUT REALIZED
THEY LEFT THE FILE IN THE OFFICE, IS THAT COVERED. APRIL M.
GILMORE: THAT'S A LITTLE BIT OF A DIFFERENT SITUATION, BUT IN ORDER FOR THE
EMPLOYEE TO DO THEIR JOB IF THEY'RE BEING DIRECTED TO HANDLE THAT PARTICULAR
CASE AND THAT FILE IS IN THE OFFICE AND THEY HAVE TO GO TO THEIR OFFICE FIRST,
THAT WOULD ABSOLUTELY BE COVERED. JUSTICE PATTERSON: SO THIS
WOULD REPRESENT A PRETTY BROAD EXPANSION OF WHAT MIGHT CURRENTLY BE THE
PRACTICE IN WORKER'S COMPENSATION COURT, COULDN'T IT? IF IN FACT THOSE LAWYER SCENARIOS
WOULD BE COVERED. APRIL M. GILMORE: I THINK THAT THE HARDER CASE
IS THE ATTORNEY WHO DECIDES ON THEIR OWN TO PICK UP THE FILE THE NEXT DAY, WHEN
THE EMPLOYER IS DIRECTING THE CONDUCT AS THE EMPLOYER DIRECTED HERE, THEN IT WOULD
BE COVERED UNDER THE STATUTE. JUSTICE WAINER APTER: DOESN'T
THE EMPLOYER ALWAYS DIRECT, LET'S SAY FOR AN ON PREMISES EMPLOYEE, ISN'T
THE EMPLOYER STILL DIRECTING THE CONDUCT IN THAT THEY TELL THE PERSON THEY HAVE
TO COME TO WORK EVERY DAY? APRIL M. GILMORE: THEY DON'T
HAVE ANY CONTROL OVER THAT PERSON'S COMMUTE TO AND FROM THE OFFICE, SO IN
OTHER WORDS YES, YOU HAVE TO BE THERE AT 9 O'CLOCK IN THE MORNING, BUT ON THE WAY
TO THE COURT I COULD STOP AT THE GROCERY STORE AND WHEREVER I WANT TO, THE
EMPLOYER IS NOT CONTROLLING ANYTHING THAT I'M DOING FROM THE TIME THAT I LEAVE
MY HOUSE AND GETTING TO WORK. CHIEF JUSTICE RABNER: THE SAME IS
TRUE IN THIS CASE? IF KEIM HAD STOPPED AT THE 7-ELEVEN AND PURCHASED SOMETHING
WOULD THAT BE XEJS SIBL IF THE ACCIDENT HAPPENED THERE. APRIL M.
GILMORE: YES, BECAUSE THE ONLY REASON THE EMPLOYEE WAS HEADED IN THAT DIRECTION,
SO IF HE GETS INTO THE ACCIDENT ON HIS WAY INTO THE OFFICE -- EXCUSE ME,
IF HE GETS INTO AN ACCIDENT ON HIS WAY TO HIS EMPLOYER'S LOCATION AND HE IS USING
THE AUTHORIZED VEHICLE, SO IN YOUR SCENARIO IF HE DECIDES THAT HE IS
GOING TO STOP AT THE GROCERY STORE ON THE WAY TO HIS OFFICE, THEN HE HAS HAD A
DEVIATION, THERE'S SOMETHING PERSONAL ABOUT THAT TRIP THAT HE STOPS AND BUYS A
WHATEVER HE'S BUYING AT THE GROCERY STORE. CHIEF JUSTICE RABNER:
IS THAT COMPENSABLE. APRIL M. GILMORE: IF IT'S A PERSONAL STOP
THEN IT'S NO DIFFERENT THAN JUMP. CHIEF JUSTICE RABNER: SO
IT'S NOT COMPENSABLE. APRIL M. GILMORE: IT IS NOT.
JUSTICE FASCIALE: AND THAT'S WHY THE LANGUAGE OF THE STATUTE "ENGAGED IN THE
DIRECT PERFORMANCE OF DUTIES ASSIGNED OR DIRECTED BY THE EMPLOYER" IS
IMPORTANT. APRIL M. GILMORE: YES. THAT'S TRUE, YOUR HONOR.
JUSTICE PATTERSON: CAN YOU ARTICULATE FOR US AND I THINK THE
QUESTIONS ILLUSTRATE THE BREADTH OF THIS RULE IS BEYOND THE SCENARIO OF THIS
PARTICULAR CASE THAT YOU'RE SUGGESTING IS OF SOME CONCERN, CAN YOU ARTICULATE
FOR US A PRINCIPLE THAT WOULD INCLUDE YOUR CLIENT'S CASE BUT WOULD LIMIT THE SCOPE
OF THIS RULE SO THAT PERHAPS EVERY LAWYER WHO EVER FORGOT A FILE IN THE OFFICE
OR JUST DECIDED I'M NOT GOING TO BOTHER TONIGHT I'LL PICK IT UP TOMORROW IS NOT
GOING TO SUDDENLY ON THEIR WAY TO THE OFFICE IF AN ACCIDENT OCCURS HAVE IT BE
COMPENSABLE. APRIL M. GILMORE: IN THE SETTING OF THE
AUTHORIZED BUSINESS VEHICLE AS WELL. JUSTICE PATTERSON: YES.
APRIL M. GILMORE: WHILE THE PURPOSE OF THE STATUTE WAS TO CURTAIL THE MASS
AMOUNTS OF THE GOING AND COMING RULE, I DON'T THINK THAT THE PRINCIPLE BEHIND THE
ACT WAS TRANSFORMED, I THINK THAT THE -- P I'M SORRY MY QUESTION WASN'T
CLEAR, WHAT I'M LOOKING FOR IS A LIMITING PRINCIPLE, IN OTHER WORDS A DIVIDING
LINE BETWEEN CASES THAT WOULD BE COMPENSABLE IN THIS CATEGORY AND THOSE
THAT WOULD NOT BE COMPENSABLE THAT MAY PERHAPS LIMIT THE SCOPE OF THE RULE THAT
YOU'RE SUGGESTING AND PERHAPS WOULD EXCLUDE FOR EXAMPLE A SITUATION WHERE A
LAWYER SIMPLY DECIDES TO GET A FILE ON THEIR WAY TO COURT AND THEN GETS INTO A
N ACCIDENT BETWEEN THEIR HOME AND THE LAW FIRM. APRIL M. GILMORE:
I'M SORRY, YOUR HONOR, YES, I UNDERSTAND NOW. THE BRIGHT LINE RULE, HERE WE
HAVE THE EMPLOYER CONTROLLING THE EMPLOYEES'S ACTION. JUSTICE
FASCIALE: CONTROLLING BY ASSIGNING OR DIRECTING THE PERFORMANCE OF SPECIFIC DUTIES.
APRIL M. GILMORE: YES, IT'S CONTROLLED BY THE EMPLOYER AS
TO WHERE THE EMPLOYEE IS, WHAT THE EMPLOYEE IS DOING, WHAT THE EMPLOYEE IS
DRIVING, WHY THE EMPLOYEE IS WHERE THE EMPLOYEE IS. JUSTICE
WAINER APTER: WHERE DO YOU FIND THAT IN THE STATUTE, ARE YOU SPECIFICALLY FINDING
THAT IN NUMBER TWO INSTEAD OF IN THE CHIEF'S NUMBERING OF THE STATUTE AS
NUMBER 4, BECAUSE NUMBER 4 DOESN'T REALLY TALK ABOUT CONTROL, AS YOU MENTIONED
IT JUST TALKS ABOUT BUSINESS AUTHORIZED BY THE EMPLOYER, IT DOESN'T SAY BUSINESS
CONTROLLED BY THE EMPLOYER. APRIL M. GILMORE: WELL THE QUESTION
POSED WAS REALLY HOW CAN YOU HAVE A -- CAN YOU PROVIDE US WITH GUIDANCE
SO THAT THE FLOOD GATES DON'T OPEN AND I THINK THAT THE GUIDE WAS PROVIDED IS THAT
THE AUTHORIZED OPERATION OF THE VEHICLE ON BUSINESS AUTHORIZED BY THE EMPLOYER
CAN BE CURTAILED IN THE SCENARIO WHERE WE'RE TALKING ABOUT SAY THE ATTORNEY THAT
DECIDES I'M GOING TO GET THE FILE IN THE MORNING, IN OTHER WORDS DECISION IN
THAT RESPECT IS THE EMPLOYEE'S, NOT THE EMPLOYER'S. JUSTICE
WAINER APTER: BUT MY QUESTION IS WHERE DO YOU READ THAT PRINCIPLE INTO THE STATUTE,
ARE YOU ASKING US TO READ IT NOT ON BUSINESS AUTHORIZED BY THE EMPLOYER,
BUT INSTEAD AS BUSINESS CONTROLLED BY THE EMPLOYER, OR ARE YOU NOW RELYING ON NUMBER
TWO WHICH DOES SAY WHEN THE EMPLOYEE IS REQUIRED BY THE RM EMPLOYER TO BE
AWAY SFRT PLACE OF EMPLOYMENT, ASSIGNED OR DIRECTED BY THE EMPLOYER, THAT'S THE
ONE THAT SEEMS LIKE IT'S TALKING ABOUT CONTROL. APRIL M.
GILMORE: SO I THINK WHAT I WAS TRYING TO DO WAS PROVIDE THE COURT WITH A RULE GOING
FORWARD. WHEN AN EMPLOYEE IS OPERATING AN AUTHORIZED VEHICLE, BUT IS OPERATING
THAT -- SO LET'S LOOK AT THE CHISOLM CASE AND I APOLOGIZE IF I'M GOING OFF ON A
TANGENT, IN THE CHISOLM CASE THE EMPLOYEE WAS OPERATING AN AUTHORIZED VEHICLE
AND THAT VEHICLE WAS BEING OPERATED FOR A PERSONAL REASON. THE EMPLOYER HAD NO
CONTROL OVER WHAT THE EMPLOYEE WAS DOING AT THE TIME BECAUSE THE EMPLOYEE
WAS GOING HOME TO HAVE DINNER WITH HER FAMILY AND CHANGE HER CLOTHES BEFORE SHE
GOT INTO THE ACCIDENT SO THE COURT FOUND THAT IT WAS NOT COMPENSABLE BECAUSE
IT WASN'T DIRECTED, THE ACTIVITY WAS PERSONAL. JUSTICE
PATTERSON: AND THE PERSONAL ERRANDS ARE CLEARLY OUT, THERE'S NO QUESTION ABOUT THAT.
BUT WHAT IS IN THE -- ASSUMING THAT DECIDING TO PISHG UP A FILE IN THE
MORNING INSTEAD OF BRINGING IT HOME THE NIGHT BEFORE MAY BE AN OPTION THAT'S
AVAILABLE TO THE EMPLOYEE, DOES THAT DISTINGUISH YOUR CASE FROM THE LAWYER
CASE THAT WAS RAISED BY YOUR ADVERSARY INSOFAR AS NOBODY HAS TOLD THAT LAWYER DON'T
KEEP FILES AT HOME OVERNIGHT BECAUSE THEY MIGHT BE STOLEN OR SOMETHING LIKE
THAT. IN OTHER WORDS IF THE EMPLOYEE HAS THE OPTION TO DO THIS A DIFFERENT WAY
AND BRING THE FILE HOME THE NIGHT BEFORE AND THEN GO STRAIGHT TO COURT, IS THAT
THE DISTINGUISHING FEATURE THAT MIGHT LIMIT THE RULE THAT YOU'RE SEEKING.
APRIL M. GILMORE: WELL, IF THE EMPLOYEE, IF THE ATTORNEY
EMPLOYEE IS OPERATING A BUSINESS VEHICLE OR A COMPANY OWNED VEHICLE AND IS OPERATING
THAT VEHICLE ON BUSINESS AUTHORIZED BY THE EMPLOYER, AND IF THE EMPLOYER ALLOWS
FOR THE LAWYER TO PICK UP THE FILES, IT'S UP TO YOU, YOU COULD PICK UP THE FILES
IN THE MORNING OR YOU COULD BRING THE FILE HOME AT NIGHT AND GO RIGHT TO COURT,
THEN IT WOULD BE FALL WE KNOW THE FOURTH PRONG OF THE STATUTE.
JUSTICE PATTERSON: SO THE RULE THAT YOU'RE PROPOSING WOULD INCLUDE THE LAWYER WHO
PICKS UP THE FILE IN THE MORNING. APRIL M. GILMORE: JUST
BASED ON THE SPECIFIC LANGUAGE IN THE STATUTE AND WHEN YOUR HONOR HAD ASKED
ME ABOUT WHAT DISTINGUISHES THAT, WHAT DISTINGUISHES KEIM, KEIM CLEARLY FALLS WITHIN
THE STATUTE BECAUSE EVERYTHING HE DID WAS CONTROLLED BY THE EMPLOYER, INCLUDING
TAKING THE VEHICLE HOME AND, YOU KNOW, CHECKING HIS IPAD IN THE MORNING TO SEE
WHAT SCYTHEMENTS HE HAD FOR THE DAY. KEEPING A LIMITED AMOUNT OF CHEMICALS
IN HIS VEHICLE THAT HE MIGHT NEED EVEN THOUGH HE MIGHT NEED ADDITIONAL CHEMICALS,
TAKING THE VEHICLE HOME AT NIGHT AND PARKING IT AND ONLY GOING TO THE
COMPANY'S LOCATION FOR HIS CHEMICALS, HIS CIRCUMSTANCE CLEARLY FALLS WITHIN THE
FOURTH CATEGORY OF THE STATUTE HERE. CHIEF JUSTICE RABNER:
WHAT IF HE SHOWED UP FOR WORK AND HAD 5 DRUMS THAT HE NEEDED TO TAKE WITH HIM,
ARRIVED AT THE WORK SITE AND REALIZED OOPS, HE FORGOT, HE FORGOT TWO OF THEM.
HE'S REQUIRED TO PICK THEM UP ON THE FIRST TRIP, IS THE SECOND TRIP IF THE
ACCIDENT WERE TO OCCUR WHEN HE RETURNED BECAUSE OF HIS MISTAKE ALSO COMPENSABLE.
APRIL M. GILMORE: YES, BECAUSE HE IS OPERATING A COMPANY
VEHICLE ON BUSINESS AUTHORIZED BY THE EMPLOYER, THE FACT THAT HE MAY HAVE MADE
A MISTAKE, I DON'T KNOW THAT THE WORKER'S COMPENSATION ACT WOULD PREVENT
HIM FROM COVERAGE THERE. JUSTICE SOLOMON: STILL IN THE COURSE AND
SCOPE OF HIS EMPLOYMENT. APRIL M. GILMORE: YES.
JUSTICE SOLOMON: THE VEHICLE PROVISIONS DON'T MATTER IN THAT CASE, RIGHT?
APRIL M. GILMORE: THAT'S CORRECT. JUSTICE FASCIALE: SO
I HAD MISUNDERSTOOD THEN YOUR ANSWER TO JUSTICE PATTERSON'S QUESTIONING ABOUT
THE LAWYER WHO DECIDES ON HER OWN TO GO INTO THE OFFICE IN THE MORNING TO GET THE
FILE BEFORE THEY SHOW UP FOR THE ARBITRATION OR DEP OR WHATEVER. THE WAY I
THOUGHT YOU WERE ARGUING IS IF YOU'RE USING AN AUTHORIZED VEHICLE AND YOU'RE
ON BUSINESS AUTHORIZED BY THE EMPLOYER AND SPECIFIC THAT YOU'RE ENGAGED IN THE
DIRECT PERFORMANCE OF DUTIES ASSIGNED OR DIRECTED BY THE EMPLOYER, THEN
THIS IS COMPENSABLE. IT'S THE PERFORMANCE OF DIRECT DUTIES ASSIGNED OR DIRECTED.
IF THE LAW FIRM DOES NOT ASSIGN OR DIRECT YOU EVERY MORNING, YOU HAVE TO
COME IN FOR THE FILE, AND YOU GO IN FOR THE FILE ANYWAY, I THOUGHT YOUR ANSWER
TO THE QUESTION ABOUT WHETHER THAT WAS COMPENSABLE IS NO IT'S NOT BECAUSE
EVEN THOUGH THE LAWYER MIGHT BE IN A COMPANY AUTHORIZED VEHICLE AND EVEN THOUGH
THE LAWYER MIGHT BE ON BUSINESS AUTHORIZED BY THE EMPLOYER THAT IS PREPARING TO
TAKE A DEPOSITION, THE EMPLOYEE WAS NOT ENGAGED IN THE DIRECT PERFORMANCE OF DUTIES
ASSIGNED OR DIRECTED BY THE EMPLOYER BECAUSE THE EMPLOYER SAID YOU DON'T HAVE TO
COME IN EVERY MORNING FOR THE FILE. SO TO ME I THOUGHT YOU WERE ARGUING
THAT THE MOST IMPORTANT WORDS IN THE STATUTE AS TO WHAT JUSTICE WAINER WAS TALKING
ABOUT IN THE SECOND SECTION ARE ENGAGED IN THE DIRECT PERFORMANCE OF DUTIES
ASSIGNED OR DIRECTED BY THE EMPLOYER, LIKE KEIM. APRIL M. GILMORE:
THE SECOND PORTION OF THE STATUTE AGAIN RELATES TO PROVIDED HOWEVER WHEN THE
EMPLOYEE IS REQUIRED BY THE EMPLOYER TO BE AWAY FROM THE EMPLOYER'S PLACE OF
EMPLOYMENT, SO THAT PORTION OF THE STATUTE IS ALSO REFERRING TO A PLACE OF EMPLOYMENT
WHEREAS THE SECOND -- EXCUSE ME, WHEREAS THE THIRD AND FOURTH PORTIONS OF THE
STATUTE DON'T REFER TO THE PLACE OF EMPLOYMENT BECAUSE WHEREAS HERE MR. KEIM'S
PLACE OF EMPLOYMENT IS HIS TRUCK, THAT'S WHERE HE REPORTS TO WORK. AND
I THINK WHAT I WAS TRYING -- JUSTICE PATTERSON: IT'S HIS TRUCK BUT
NOT THE LOCATIONS WHERE HE'S DOING THE PEST CONTROL WORK. APRIL
M. GILMORE: AND I GENERALLY SAY HE REPORTS TO WORK IN HIS TRUCK, IN OTHER WORDS
HE GETS IN HIS TRUCK, HE LOOKS AT HIS IPAD, HE MAKES A DETERMINATION AS
TO WHAT HE NEEDS FOR WHERE HE NEEDS TO GO. ALL OF THOSE -- ALL OF HIS WORK SITES
ARE SEPARATE SITES WHERE HE CONDUCTS HIS ACTIVITY. SO USING THE ATTORNEY
EXAMPLE, THE ATTORNEY WHO GOES FROM COURT TO COURT TO COURT TO COURT, SO IF THE
ATTORNEY GETS INTO AN ACCIDENT ON THE WAY TO COURT, THE ATTORNEY IS WITHIN THE
SCOPE OF EMPLOYMENT.