M ORE L AW
LEXAPEDIA
Home
Verdicts
and
Decisions
Search Database
Recent Cases
Cases By Subject
Report A Case
Lawyers
Search Directory
By State & City
Add A
Lawyer Listing
Court
Reporters
Recent Listings
Search
By States & City
Add A Basic
Reporter Listing
Expert
Witnesses
Recent Listings
Search Directory
By State & Expertise
Add A Basic
Expert Witness
Listing
MoreLaw
Store
The Store
Recent Listings
(Search)
Add A Basic
Classified Ad
Links
County Seats
State Links
Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Date: 02-11-2008

Case Style: Ball-Foster Glass Container Co. v. Giovanelli

Case Number: 77655-5

Judge: Charles W. Johnson

Court: Supreme Court of Washington on appeal from the Superior Court King County

Plaintiff's Attorney: Joseph Andrew Grube, Ricci Grube Aita & Breneman PLLC, Seattle, Washington

Beverly Norwood Goetz, Office of The Attorney General, Seattle, Washington

Defendant's Attorney: Amy L Arvidson, Keehn Kunkler PLLC, Seattle, Washington

Description: This case asks us to determine whether, under the traveling employee doctrine, a worker from out-of-state, injured while working in Washington, is entitled to workers' compensation benefits under the Industrial Insurance Act (IIA), Title 51 RCW. The Department of Labor and Industries, an industrial appeals judge, the Board of Industrial Insurance Appeals, the superior court, and the Court of Appeals all relied on the traveling employee doctrine to find the injured worker in this case entitled to workers compensation benefits. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Alfred Giovanelli is a highly skilled and experienced firebrick mason. Although he resides in Pennsylvania, he regularly travels around the country to work on glass furnace rebuilds. Petitioner Ball-Foster Glass Container Company (currently known as Saint-Gobain Corporation) owns and operates 18 glass container manufacturing plants around the country, including one in Seattle. Saint- Gobain Corporation (St. Gobain) scheduled a rebuild of one of its glass furnaces at its Seattle plant in 2001. Pursuant to St. Gobain's contract with the International Union of Bricklayers and Allied Craftsmen Union, half of the masons used on the rebuild were referred by the local union hall and the other half were referred by Sonny Champ Refractories, a privately owned company with whom St. Gobain regularly contracts to provide labor and supervision on rebuild projects. Thus, half of the masons hired were local and half were from out-of-state. Sonny Champ, owner of Sonny Champ Refractories, would sometimes work as superintendent for St. Gobain's rebuilds and would regularly hire Giovanelli to work as his crew foreman. Giovanelli began working on St. Gobain projects in the 1980s and worked exclusively for St. Gobain for at least five years before being injured. Test. Giovanelli, Tr. (Apr. 25, 2003) at 21-24. Giovanelli worked on five rebuilds for St. Gobain in 1998, three in 1999, and five in 2000. Giovanelli was working on his third rebuild for St. Gobain in 2001 when he sustained the injuries underlying this claim.

Under the union contract, St. Gobain paid for travel to and from the work location for all of the out-of-state masons, including Giovanelli. Giovanelli was also paid his hourly wage for eight hours while traveling to Seattle and an additional eight hours for traveling home. Neither the local or out-of-state masons signed any paperwork until they arrived at the plant to begin work. All of the masons were hired as Washington employees and deductions applicable to Washington employees were taken from their paychecks. St. Gobain paid the out-of-state masons a per diem of $78 for every day they were employed during the project, regardless of whether the mason was required to work that day. St. Gobain also provided Giovanelli with a rental car. St. Gobain points out that, unlike a typical St. Gobain employee, Giovanelli and the other out-of-state masons did not receive medical, dental, life insurance, or 401K benefits, nor were they reimbursed for the actual cost of hotel and meal expenses, over the per diem payment.

The day Giovanelli was injured he was with the superintendent of St. Gobain's Seattle project, Royce A. (Sonny) Champ. Both men were staying at the same hotel. In evidence submitted during Champ's testimony, Champ gave a statement to police that he and Giovanelli had noticed a sign that Sunday that read "Music in the Park." Board Ex. 9, Royce A. Champ statement to Det. W. Butterfield, Apr. 24, 2003.

While Giovanelli was expected to be available to work on Sundays, he was not scheduled to work on Sunday, August 12, 2001, the day of the accident. When the accident occurred, he and Champ had started to walk across the street directly in front of their hotel -- and were headed to the nearby park -- when Giovanelli was hit and injured by a moving car. Decision and Order of the Board, Undisputed Facts, (July 31, 2003) at 2-3. Giovanelli sustained serious injuries, including multiple fractures, degloving of his skin, and a head injury that resulted in permanent blindness. Giovanelli applied for workers' compensation benefits and the Department of Labor and Industries (Department) ordered St. Gobain to allow the claim.1 St. Gobain appealed the order and, following a hearing, the industrial insurance appeals judge issued a proposed decision and order affirming the Department's order. St. Gobain appealed to the Board of Industrial Insurance Appeals (Board). The Board denied the petition for review and adopted the industrial insurance appeals judge's proposed decision and order as its own. St. Gobain appealed to the King County Superior Court. The Department moved for summary judgment. The trial court initially denied the summary judgment motion but before trial was set to begin, granted it. Relying on Shelton v. Azar, Inc., 90 Wn. App. 923, 954 P.2d 352 (1998), the trial court found Giovanelli was "in the course of employment" when he was injured because he was traveling at the direction of his employer and his travel was for a purpose benefiting the employer. Based on this finding, the trial court found there was no issue of material fact and the case could be decided as a matter of law. CR 56(c).

St. Gobain appealed the trial court's decision to the Court of Appeals. The Court of Appeals affirmed the trial court, and St. Gobain petitioned this court for review. Ball-Foster Glass Container Co. v. Giovanelli, 156 Wn.2d 1024, 133 P.3d 473 (2006).

ISSUE

Does Giovanelli qualify for workers' compensation benefits under the traveling employee doctrine?

ANALYSIS

Washington, like most other states, adopted a workers' compensation act nearly a century ago. See 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 2.08 (2006). Our workers' compensation act is a compromise between employers and workers. Dennis v. Dep't of Labor & Indus., 109 Wn.2d 467, 469, 745 P.2d 1295 (1987). Employers are liable for workplace injuries without regard to fault in exchange for limited liability, and employees forfeit common law remedies which may exceed that available under workers' compensation law, in exchange for swift and certain relief. Industrial injuries are viewed as a cost of production. Dennis, 109 Wn.2d at 470.

Workers' compensation is a particularly dynamic field of legislative activity, as the forces of labor and industry assert their interests at each legislative session. However, while specific criteria vary from state to state and change over time, the general standard governing compensability of an injury is remarkably uniform and unchanging. The general coverage provision in the workers' compensation acts of 43 states as well as the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, all share the language first used in the "British Compensation Act formula: injury 'arising out of and in the course of employment.'" 1 Larson & Larson, supra, § 3.01.

Washington is one of the few states that depart from the formula. Dennis, 109 Wn.2d at 480. Under Washington law, there is no requirement that an injury "arise out of" employment, only that the worker was within "the course of employment" when injured.2 RCW 51.32.010. The language of the statute shows the intent of the Washington Legislature to adopt a broader and more comprehensive statute than other states. Stertz v. Indus. Ins. Comm'n, 91 Wash. 588, 594, 158 P. 256 (1916). Although the Washington standard is more lenient, the practical significance of this distinction has been lessened as the "arising out of" prong in other jurisdictions has evolved from something akin to a "proximate cause" requirement to a "but for" test. 1 Larson & Larson, supra, § 3.06 (observing that some jurisdictions now apply a broader unitary "work connection test" examining whether the injury is related to a risk incidental to employment).

As stated by the United States Supreme Court, "the statutory phrase 'arising out of and in the course of employment,' which appears in most workmen's compensation laws, is deceptively simple and litigiously prolific." Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S. Ct. 801, 91 L. Ed. 1028 (1947).

Although each case must be resolved in view of the particular facts, over time a number of intermediate standards for evaluating whether an injury occurs "in the course of employment" have developed as courts apply this statutory language to cases presenting similar fact patterns. See Ridgway v. Combined Ins. Cos. of Am., 98 Idaho 410, 414, 565 P.2d 1367 (1977) (Bistline, J., concurring). Several doctrines address situations in which an employee is injured while off the employer's premises and/or not actually engaged in work duties.3 The common principle underlying each of these doctrines is that it is generally not necessary that a worker was actually performing the duties for which he or she was hired at the time of an accident in order for an injury to be compensable. It is sufficient if the injury arises out of a risk that is sufficiently incidental to the conditions and circumstances of the particular employment. In doubtful cases, the act is to be construed liberally in favor of compensation for the injured worker. McIndoe v. Dep't of Labor & Indus., 144 Wn.2d 252, 257, 26 P.3d 903 (2001).

Although new to this court, the traveling employee doctrine is not a novel concept. The traveling employee doctrine, also known as the "commercial traveler rule," or the "continuous coverage rule," is the prevailing view throughout the United States. See Buczynski v. Indus. Comm'n, 934 P.2d 1169, 1173 (Utah Ct. App. 1997). A traveling employee is generally considered to be in the course of employment continuously during the entire trip, except during a distinct departure on a personal errand. 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 25.01 (2006). The rationale for this extended coverage is that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping, and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of injury. Buczynski, 934 P.2d at 1174 (quoting State Accident Ins. Fund Corp. v. Reel, 303 Or. 210, 735 P.2d 364 (1987)). The rule recognizes that a traveling employee is subjected to '"hazards [he or] she would otherwise have the option of avoiding,'" and that the hazards of travel become the hazards of the employment. Chavez v. ABF Freight Sys. Inc., 2001-NMCA-39, 130 N.M. 524, 528, 27 P.3d 1011 (internal quotation marks omitted) (quoting Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 12, 995 P.2d 1043).

In Shelton, the Court of Appeals adopted the traveling employee doctrine, stating the general rule as: "When employees are required by their employers to travel to distant jobsites, courts generally hold that they are within the course of their employment throughout the trip, unless they are pursuing a distinctly personal activity." Shelton, 90 Wn. App. at 933 (emphasis added).

Consistent with our decisions recognizing the exceptions to the coming and going rule, we now recognize that traveling employees are entitled to expanded coverage for travel-related injuries. Of course, the traveling employee doctrine does not require coverage for every injury. A traveling employee may depart on a personal errand just like any other type of employee, thus losing the right to compensation benefits during such departures. Silver Eng'g Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973). Both the nature of the activity and the manner in which the employee performs it must be reasonable. See Ray Bell Const. Co. v. King, 281 Ga. 853, 642 S.E.2d 841 (2007).

In evaluating whether a worker has left the course of employment, we believe the proper inquiry is whether the employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures. Although distinguishing between reasonable personal ministrations and purely personal amusement ventures may be difficult, courts have had little difficulty denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for employee injured during skiing trip at resort over 50 miles from hotel); Buczynski, 934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention center and days before convention not compensable).

There will, of course, be difficult cases where reasonable minds may differ. Therefore, in order to provide guidance to the courts of this state we believe the approach followed in Texas, which has a workers' compensation act similar to ours, strikes the proper balance. See Shelton v. Standard Ins. Co., 389 S.W.2d 290 (Tex. 1965). The test used by Texas courts is whether the injury '"has its origin in a risk created by the necessity of sleeping or eating away from home . . . .'" No. River Ins. Co. v. Purdy, 733 S.W.2d 630, 632-33 (Tex. Ct. App. 1987) (alterations in original) (quoting Shelton, 389 S.W.2d at 293). This test focuses the court's inquiry upon whether the injury relates to a risk incidental to employment or from an entirely independent act.

Given that the rationale of the traveling employee doctrine is that an employee is entitled to increased coverage commensurate with the increased risk associated with travel, in evaluating the compensability of injuries occurring off- duty, the focus should be whether the injury is fairly attributable to the increased risks of travel. Thus, we believe the standard for determining whether an activity is a "distinct departure" should be consistent with the standard applicable to injuries that occur on the jobsite, while the employee is not actually engaged in work, such as during a rest break or lunch period. This is consistent with the reasoning of decisions by this court, the Court of Appeals, and the Board.

The Board has recognized that an injury resulting from a wholly independent act of the employee for his own benefit or gain, particularly where the employee's act has no connection with the employee's work, is generally not compensable. See Young v. Dep't of Labor & Indus., 200 Wash. 138, 93 P.2d 337 (1939). The Board has observed, "[w]e believe the Legislature by enacting RCW 51.32.015 [extending coverage to lunch period injuries on the jobsite] intended to give the same coverage during the lunch hour as that applicable during the work period." In re Morrill, No. 29,704, Bd. of Indus. Ins. Appeals (Wash. Dec. 7, 1970). The Board's analysis is sound and applies as well to the traveling employee doctrine.

The relevant inquiry for purposes of workers' compensation is whether the injury is related to a risk of employment. A general reasonableness standard without a finding of a connection to the employee's work would go too far in covering the social and recreational activities of traveling employees. The injury must have its origin in a travel related risk. A rule allowing coverage for all reasonable activities untethers the concept of employment risk from the "course of employment" analysis. Since the traveling employee doctrine is an exception to the general rule that injury is not compensable when it occurs off the employer's premises, when the worker is not actually engaging in work activity, coverage should be limited to injuries fairly attributable to the risks of travel.

Application

Giovanelli Is a Traveling Employee

Applying the traveling employee doctrine to the facts of this case, we must first determine whether Giovanelli falls within the category of "traveling employee." There are two widely recognized definitions of a traveling employee. Under Larson's formulation of the rule, a traveling employee is one "whose work entails travel away from the employer's premises." 2 Larson & Larson, supra, § 25.01. An alternate definition provides: "A traveling employee is one whose job requires travel from place to place or to a place away from a permanent residence or the employee's place of business." 2 John P. Ludington, Modern Workers Compensation § 111:15 (Matthew J. Canavan ed., 1993).

The traveling salesperson and the long-haul truck driver are prototypical examples of traveling employees. However, workers who have no fixed site of employment or whose business is travel are not the only categories of employees who fall within the definition. Traveling employees also include those on temporary assignment at a fixed location.

Courts routinely apply the traveling employee doctrine to hourly wage workers who travel to a fixed site to perform a job assignment of temporary duration. This scenario frequently arises in the context of construction workers sent to work on a discrete project. See, e.g., Brown v. Palmer Constr. Co., 295 A.2d 263 (Me. 1972). Courts have little difficulty treating itinerant construction workers as traveling employees when the worker is required, as a condition of the employment, to travel to a distant jobsite, away from home, and find overnight lodging, particularly when the employer provides compensation for the worker's travel expenses.

For example, in Olinger Construction Co. v. Mosbey, 427 N.E.2d 910 (Ind. App. 1981), a construction worker was assigned to a jobsite 150 miles from his home. He lived in a motel while working on the project where, one night, a former co-worker entered his room and stabbed him. The Indiana court held that his death was compensable. The court rejected the employer's argument that the traveling employee rule was inapplicable to a worker assigned to a fixed jobsite for a job of temporary duration, stating, "because of his job . . . his activities, such as eating and sleeping in a distant location, are done for the benefit of the employer." Olinger, 427 N.E.2d at 915.

St. Gobain contends that Giovanelli should be treated as a "local hire" rather than as a traveling employee. They contrast his situation with that of Ernie Peters, a permanent St. Gobain employee who traveled from the corporate headquarters in Muncie, Indiana to oversee the furnace rebuild. Unlike Peters, St. Gobain argues, Giovanelli was not "required" to accept the work assignment in Seattle, but could have elected to stay home.

A distinction based on whether an employee had the option to decline a work assignment that entails travel would resurrect the assumption of risk doctrine, a tort concept that is inapt in evaluating the compensability of a work-related injury. Workers' compensation acts were in great part necessitated by the judicial foreclosure of common law remedies for injured workers through application of the assumption of risk doctrine. The adoption of the IIA represents the rejection of the assumption of risk doctrine in favor of no fault insurance for work-related injuries. No distinction may be drawn between an employee who volunteers for a job that entails travel and one who is "required" by the employer to do so. The question is whether the job assignment entails travel such that the risks of travel become part of the risks of employment.

A more difficult issue is whether a worker who accepts a series of temporary assignments, with breaks in between, can be viewed as a traveling employee. As noted, there are two definitions of a "traveling employee." Giovanelli clearly qualifies under the first definition, as "one whose job requires travel from place to place or to a place away from a permanent residence or the employee's place of business." 2 Modern Workers Compensation, supra, § 111:15. Giovanelli's job assignment to Seattle required him to travel to a place away from his permanent residence. In recognition of that fact, St. Gobain agreed not only to reimburse him for his travel expenses, but also to compensate him for making the journey itself. It paid him for his travel time to and from Seattle and a per diem during his entire stay in Seattle, including his days off.

Under Larson's formulation, which is more widely relied upon by courts, a traveling employee is one who travels "away from" an employer's premises. 2 Larson & Larson, supra, § 25.01. Viewing Giovanelli's Seattle-based job assignment in isolation, he was hired to travel to, not away from, the employer's premises, and thus falls outside the definition. However, considering the nature and history of Giovanelli's employment relationship with St. Gobain, he qualifies as a traveling employee even under Larson's more restrictive test.

Chicago Bridge & Iron v. Industrial Commission, 248 Ill. App. 3d 687, 618 N.E.2d 1143, 188 Ill. Dec. 573 (1993) involved an employee, like Giovanelli, who worked at different jobsites on behalf of his employer to complete short-term projects requiring his expertise. While en route to a job assignment, he was injured in a traffic accident. In concluding the worker was entitled to coverage as a traveling employee, the Illinois court considered the nature of the employment relationship as a whole, rather than focusing narrowly on the particular job assignment. In view of the worker's ongoing and exclusive relationship with the employer, the court concluded that he qualified as a traveling employee, notwithstanding the breaks in employment between job assignments.

Similarly, Atkins v. Workmen's Compensation Appeal Board, 651 A.2d 694 (Pa. Commw. 1994), involved a construction worker who was sent to jobsites in different states to work on projects of limited duration. Based on a claim filed in Pennsylvania for an injury while on a job in Georgia, the court concluded that the worker's job was not principally localized anywhere in view of the worker's ongoing relationship with his employer.

What Chicago Bridge and Atkins demonstrate is that in the context of determining an injured worker's eligibility for workers' compensation, courts should examine the nature of the employment relationship with a wide angle lens, rather than narrowly focusing on a discrete job assignment or period of employment.

Accordingly, in evaluating whether Giovanelli is a traveling employee, the proper focus is not Giovanelli's particular job assignment to St. Gobain's Seattle plant, but his ongoing employment relationship with St. Gobain, the multinational corporation, which has 18 glass manufacturing plants nationwide. Like the workers in Chicago Bridge and Atkins, Giovanelli had an ongoing and exclusive employment relationship with his employer. Giovanelli worked for St. Gobain more than 15 years, exclusively for the previous five years. His job assignments were coordinated and travel expenses were authorized and reimbursed through St. Gobain's headquarters in Muncie, Indiana. St. Gobain contemplated that Giovanelli would return home after the Seattle job was finished, until it was time to travel to the next scheduled furnace rebuild. For all of its furnace rebuilds, St. Gobain relied on Giovanelli's skill and expertise to help ensure the expeditious completion of each project. Failing to recognize Giovanelli as a traveling employee under the facts of this case would be to elevate form over substance, contrary to the remedial purpose of our IIA.

The record is clear: Giovanelli did not merely leave home to seek out better employment. Rather, St. Gobain, through its agent, Sonny Champ, sought him out at his Pennsylvania home and offered him a temporary assignment in Seattle just as it had done numerous times over many years. The terms of the offer were that Giovanelli would fly to Seattle on a specified date, after arranging his flight through the corporate office in Indiana, receive travel pay as well as reimbursement of travel expenses, enjoy the use of a company paid rental car, and receive a per diem to defray the costs of food and lodging during his stay in Seattle.

St. Gobain contends that Giovanelli is not a traveling employee because it did not compensate him for his travel expenses but merely offered "premium pay" as an incentive to accept the Seattle job. It argues that treating Giovanelli as a traveling employee dramatically expands liability every time an employer offers relocation expenses or a housing subsidy. But this is not a case where Giovanelli was relocating for a job; both St. Gobain and Giovanelli expected he would fly home at the end of his assignment.

Giovanelli's willingness to travel from state to state to work on St. Gobain's furnace rebuilds clearly benefited St. Gobain and furthered its business. St. Gobain relied on Giovanelli, along with a small group of firebrick specialists, which it designated "travelers," to provide the expertise necessary to allow it to expeditiously complete a furnace rebuild. It is fair and proper to provide expanded coverage commensurate with the expanded risks of employment faced by Giovanelli and similarly situated "travelers" and to hold St. Gobain liable for injuries related to the expanded risks of employment.

As a traveling employee, Giovanelli was "in the course of employment" continuously during his trip. The next question is whether he "distinctly departed" from the course of employment at the time of his injury.

Giovanelli Did Not Distinctly Depart on a Personal Errand

Although Giovanelli was not required to accompany his supervisor, Sonny Champ, on a Sunday stroll, that does not mean he took himself outside the course of employment by doing so.4 In determining whether there has been a "distinct departure" that takes one outside the course of employment, courts analogize to the "personal comfort" doctrine. Bergmann Precision, Inc. v. Indus. Comm'n, 199 Ariz. 164, 15 P.3d 276 (Ct. App. 2000). "Compensation in such areas is predicated on the premise that these acts do not take the employee out of the scope of employment because they are necessary to his health and comfort." N. & L. Auto Parts Co. v. Doman, 111 So. 2d 270, 272 (Fla. Dist. Ct. App. 1959).

Under the personal comfort doctrine, a worker who engages in acts that minister to personal comfort does not thereby leave the course of employment unless the extent of the deviation is so substantial that an intent to abandon the job temporarily may be inferred or the method chosen is so unusual and unreasonable that the act cannot be considered incidental to the course of employment. 2 Larson & Larson, supra, ch. 21. The personal comfort doctrine applies to such acts as eating, resting, drinking, going to the bathroom, smoking, and seeking fresh air, coolness, or warmth. 2 Larson & Larson, supra, §§ 21.02-.07.

This court has recognized the principle behind the doctrine. See, e.g., Tilly v. Dep't of Labor & Indus., 52 Wn.2d 148, 324 P.2d 432 (1958) (employee remains within the course of employment during a bathroom break). The personal comfort doctrine has also long been applied by the Board. See, e.g., In re Cawley, No. 41,864, Bd. of Indus. Ins. Appeals (Wash. May 6, 1974) (allowing claim for worker who choked on a piece of steak during lunch and died of asphyxiation).

The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a nontraveling employee because a traveling employee is in a significantly different position of risk than a nontraveling employee. The nontraveling employee may satisfy his personal needs without leaving the comfort of home. In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.

St. Gobain contends that Giovanelli was engaging in an "inherently dangerous" activity at the time of his injury by crossing a multilane thoroughfare without first assuring himself that he had the right of way. Seeking personal comfort should fall outside the course of employment only if the method chosen is "unusual or unreasonable." See 2 Larson & Larson, supra, § 21.08. The record here does not support St. Gobain's assertion that Giovanelli walked against the light, and to the extent Giovanelli's Sunday stroll was "inherently dangerous," as St. Gobain contends, much of the risk can be attributed to the circumstances of his employment. The hotel where he and the other "travelers" lodged was near SeaTac airport, adjacent to International Boulevard, which, as St. Gobain correctly states, is a busy, multilane thoroughfare. But for his need to lodge away from home during his job assignment, he would not have been there.

The risk of getting injured while negotiating unfamiliar streets is among the classic "street risks" covered by the traveling employee doctrine, along with hotel fires and mishaps at restaurants. Under the street risk doctrine, injuries to employees whose duties increase their exposure to the hazards of the street arise out of employment. 1 Larson & Larson, supra, § 6.01. If the employment occasions the worker's use of the street, the risks of the street become part of the risks of employment. Accordingly, "when a traveling employee slips in the street, or is struck by an automobile when traveling on foot or is involved in an accident while driving between the hotel and a restaurant, the injury has been held compensable." 2 Larson & Larson, supra, § 25.03[1] (emphasis added) (footnotes omitted).

St. Gobain asserts that Giovanelli is not entitled to coverage because he was not en route to a restaurant. Rather, St. Gobain contends that Giovanelli was engaged in a "purely recreational activity" at the time of his injury, which has "no business purpose." Yet the rationale of the personal comfort doctrine is that ministering to one's personal comforts is not a "purely personal" activity because attending to one's personal health and comfort furthers the employer's interest by ensuring that an employee is healthy, well-rested, and comfortable, and thus able to perform his or her job functions more efficiently. Giovanelli worked 14 hours per day, six days per week. Going for a Sunday stroll on his single day off was a reasonable activity that falls well within the personal comfort doctrine. As one court observed:

To restrict [a traveling employee] to the confines of his room or place of transacting business in his lodging place and hold that he is not covered except when either actually, directly conducting his employer's business or engaged in some activity which is strictly a necessity of life, would unduly limit the intended beneficial purpose of this remedial social insurance, which is to be liberally construed."

McDonald v. State Highway Dep't, 127 Ga. App. 171, 176, 192 S.E.2d 919 (1972).

In taking a Sunday stroll to the park on his single day off, Giovanelli did not "distinctly depart" from the course of employment on a "personal errand." Neither the nature of his activity nor the manner in which he engaged in it was unreasonable or unusual. The risk of getting injured while crossing the street in front of his hotel during a walk to the park was a risk of his employment. Accordingly, he is entitled to compensation.

Providing coverage to St. Gobain's traveling employees is entirely appropriate under our IIA. St. Gobain made the economic decision to use "travelers" presumably because the value they bring to the project, in terms of greater efficiency and quality of work product, more than offsets the increased costs associated with their use. To the extent our decision increases St. Gobain's costs of production by increasing its insurance premiums for the workers engaged in the manufacture of glass containers at its plants, our IIA will operate as the legislature intended.

* * *

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=776555MAJ

Outcome: Although new to this court, the traveling employee doctrine represents the prevailing view throughout the United States, is consistent with our IIA, and has been applied by our statutorily created Board of Industrial Insurance Appeals and a specialized corps of administrative law judges. Accordingly, we adopt the traveling employee doctrine as an analytical tool to determine insurance coverage in this case. Further, we hold that a traveling employee remains in the course of employment except during a distinct departure on a personal errand. In evaluating the compensability of injuries occurring off-duty, our focus is whether the injury is fairly attributable to the increased risks of travel, given that the rationale of the traveling employee doctrine is that an employee is entitled to increased coverage commensurate with the increased risk associated with travel. The personal errand doctrine and deviation analysis appropriate to nontraveling employees applies in determining whether a traveling employee has distinctly departed from the course of employment.

We affirm the Court of Appeals.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None



 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2012 MoreLaw.com, Inc.