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‘Going-and-coming’ rule bars workers’ comp death benefits

Case turns on ownership of off-site parking space

The Enterprise Rent-A-Car employee died while crossing the street to get from his workplace to the area where his own vehicle was parked.

The Enterprise Rent-A-Car employee died while crossing the street to get from his workplace to the area where his own vehicle was parked.

Finding an exception to the “going-and-coming” rule enunciated by the Rhode Island Supreme Court in Branco v. Leviton Manufacturing Company, Inc. to be inapplicable, the state Workers’ Compensation Court Appellate Division vacated a trial judge’s award of benefits to a deceased employee’s widow.

Writing for the three-judge panel, Judge Debra L. Olsson said the Enterprise Rent-A-Car employee’s death did not “arise out of and in the course of his employment.”

The employee died after he was struck by a car while crossing the street to get from his workplace to the area where his personal vehicle was parked.

Although the injured employee granted benefits in Branco was also walking across the same Warwick thoroughfare to access parking, Olsson identified a key distinction with the case at hand: the Branco employer owned the lot.

“The circumstances of this case do not satisfy the very ‘narrow and particular set of facts’ required to fall under the exception to the going-and-coming rule that the Rhode Island Supreme Court established in Branco,” Olsson wrote. “The Court used very specific language in establishing the criteria that must be met to qualify for the exception, which we are not in the position to expand.”

The panel accordingly reversed the trial judge’s decision in favor of the petitioning widow.

The 19-page decision is Phillips v. Enterprise Rent-A-Car Company of Rhode Island, LLC.

Attorneys for the petitioner were John M. Harnett and John A. Toro, both of whom practice in Warwick, Rhode Island. Joelle M. Hays, Michael F. Edwards and Andrew P. Hogan, all of Providence’s Morrison Mahoney, represented Enterprise.

Off-site parking

The decedent, Joseph Phillips, worked as a driver for Enterprise Rent-A-Car in Warwick, delivering cars to other Enterprise branches. On such occasions, a “chase driver” would follow Phillip in a company van to give him a ride back to Warwick.

Testimony at trial indicated that drivers were not allowed to park their personal vehicles on-site at Enterprise’s Jefferson Boulevard location, but that the company leased areas in several lots for that purpose, including one across the street from the workplace.

Enterprise’s human resources manager testified that while there were no written rules and that drivers could park wherever they wanted off-site, there was a policy that all driver employees park in the lot on the opposite side of Jefferson Boulevard. She further reported that a shuttle service was available to transport employees to and from the remote parking locations, although some chose to walk.

According to additional testimony, when drivers arrived in Warwick after hours, the chase driver would take the driver to his personal car. That driver in turn would pick up the chase driver, after he took the company van back to Enterprise, and take the chase driver to his own vehicle.

On the evening of Dec. 15, 2016, Phillips and two co-workers returned to Warwick after delivering rental cars to a Connecticut branch.

The chase driver, Michael Pezzullo, took one employee to his personal vehicle. But Phillips decided to go with Pezzullo to return the company van, at which point they walked back together to their cars in the lot across Jefferson Boulevard. The fatal accident occurred as Phillips traversed the street.

The decedent’s wife petitioned for workers’ compensation benefits and funeral expenses, alleging that her late husband sustained an injury arising out of and in the course of his employment.

Finding the facts of the case analogous to Branco, the trial judge granted the petition. Enterprise filed a claim of appeal.

Key element absent

The Appellate Division reversed, agreeing with the employer that the lower court improperly applied the Branco factors in deciding that the going-and-coming rule did not preclude benefits.

While the rule operates to bar recovery for injuries incurred while an employee is traveling to or from the workplace, Olsson explained that potentially harsh results are avoided by exceptions that permit an employee to recover when he can establish a “nexus” or “causal relationship” between the injury and employment.

Branco laid out one such exception to the going-and-coming rule in situations in which an employer owns a parking lot separate from its facilities.

But the Appellate Division reiterated that it applies to “very specific and limited” circumstances in which the employer owns and maintains an employee parking area separate from its facility grounds; the employer takes affirmative action to control the route of the employee by directing him to park in that separate area; and the employee is injured while traveling directly from the lot to the facility.

“The case at hand fits squarely into the Branco analysis; both cases involved an employee being struck by an automobile while walking across Jefferson Boulevard to or from a parking lot,” Olsson wrote. “However, the case at hand contains at least one key difference; unlike the employer in Branco, Enterprise did not own and maintain the parking lot.”

She emphasized that the Supreme Court made the first condition of the Branco exception “clear and simple”: The employer must own and maintain the employee parking lot, even if it is separate from the facility’s grounds.

“We find this first condition to be fatal to the outcome of the present case because the employer did not exclusively own [the lot], it merely leased spaces in the lot along with other businesses,” Olsson said, rejecting petitioner Doris Phillips’ argument that leasing is the equivalent of ownership in the workers’ compensation system.

She also declined to adopt Phillips’ contention that the “street-peril” doctrine applied to her case. Under that rule, espoused in the state Supreme Court’s Ellis v. Verizon New England, Inc., street perils can be actual risks of employment, permitting compensation when employees have been injured while using public roads in connection with their employment.

“However, based upon the testimony of the coworkers, we do not find that Enterprise required the employee to walk across Jefferson Boulevard,” Olsson concluded. “[T]he street-peril doctrine does not apply because the course of employment did not require the employee to travel on the public road in such a manner as he did.”

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