An H G Kagan Caselaw Alert:
Confirmation of Last Year’s
“GOING AND COMING” Landmark Alert:
Himalstein v. Water Connection, Inc, and RetailFirst Insurance Company, Summit, 1st DCA No. 1D22-2557, issued 9/6/21, final 9/21/23.
- JCC Jack Adam Weiss.
- Claimant’s counsel: Michael J. Winer, appeal; Brian O. Sutter, trial level.
- Defense counsel: H. George Kagan, appeal; David Roos, trial level.
Some background:
In June of last year, I issued a Landmark Alert on the significant outcome in my case, DSK Group v. Hernandez -- which was met with some ‘too good to be true’ skepticism among esteemed claims clients: did the case really mean what I said it did (conversations persist to this day)? After convincing most that it did, the question became: could the court be counted on to stick to such holding in cases going forward? We now have that answer: yes.
Todays’ case, Himalstein: tragic injury (quadriplegia) -- but no ‘going and coming’ exception shown.
Facts: While the parties agreed on basic elements of the accident, there was wide disagreement over how and why Claimant was at that specific location at that specific time. While the trial judge rejected several among Claimant’s contentions, he accepted a basic scenario (and also entertained some arguments in the alternative), such that I believe it is fair to summarize the facts likely relied on by the 1st DCA, thus:
On his day off – and though he worked for the employer in sales and not installation –– Claimant effectively called on himself to deliver and install a water filter in the home of his son (coinciding with celebrating his son’s birthday) but was grievously injured en route.
JCC ruled claim was barred by the ‘going and coming’ rule, which statutorily defines out of WC coverage injuries traveling to and from work as not “arising” out of and in the course of employment, under § 440.092(2).
Claimant appealed, but the first DCA has just affirmed the denial in a unanimous written “opinion,” not a PCA (“per curiam, affirmed,” which is not treated as a “written opinion”), albeit the briefest sort of opinion the court can write. It reads in its entirety:
AFFIRMED. See DSK Group, Inc. v. Hernandez, 337 So. 3d 814 (Fla. 1st DCA 2022); Kelly Air Sys., LLC v. Kohlun, 337 So. 3d 883 (Fla. 1st DCA 2022).
What the court is signaling is this: all that is necessary to understand the ratio decidendi¹ of the outcome here can be found by reading the two cited holdings in para materia.² Significantly, my DSK/Hernandez case was the subject of last year’s Alert, referenced above!
Hernandez made emphatically clear a doctrine the court had been cozying up to before then (e.g., Kelly Air, the second case cited). In a nutshell, statutory “defining out” of coverage those accidents going to and from work existed since the dawn of the act, and while exceptions are possible, many have created arbitrary distinctions between substantively similarly situated employees within even the same employment, and so it was best to strip many of these exceptions absent something transforming such trip into authentic (versus contrived) "work" that is going on, instead of essentially just a commute with attorney talking points (for there will always be plenty of the latter!).
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¹ Outcome of a case on the precise points discussed in the opinion stated in terms of the facts found to be material to the decision. (It’s fun to keep these venerable Latin terms alive!)
² Upon the same matter or subject. (Ditto!)
The most notable ‘now-eliminated’ exceptions are:
- Irregular first or last place of employment, i.e., one which may change from day to day, even if the employee must look at a calendar or text message to learn where work will start/end.
- Carriage in the vehicle of ordinary tools and equipment or paraphernalia; products to be distributed, installed etc., whether or not the vehicle is company-owned (if for the employee’s exclusive use riding to work) and regardless of whether the truck or car is emblazoned with employer ads.
- The above outcomes are not altered by routine mileage against gas reimbursements which are more akin to remuneration agreements than conversion of the nature of the trip, or mere fact of ‘salaried’ employment, which standing alone is not enough to convert the substantive nature of the commute vis-à-vis overarching statutory policy, lest half the driver’s going to work on I75 be covered and the other half not.
- The Kelly case rounded out some definitions particularly pertaining to the traveling employee: it is the status of the moment, i.e., the trip, not the status of the employee that determines whether one is merely going to work or traveling for employment. Likewise, employer supplied vehicle is analyzed only as pertains to the trip to work and not whether the employee may use the vehicle at other times.
Gray areas, briefly; Extended discussion is beyond the scope here but the closer a particular “commute” is to being a necessary part of the employment by contract or otherwise, via, say, specific travel-time payment (v. generic salaried employee), or unusually long distance for that first/only stop of the day, justifying “traveling employee” status for the commute itself, the more likely it is an exception (but note, every installation/delivery/sales call can be described as “essential,” along with forms of renumeration such as commissions, but these are talking points applicable to almost all trips, not transmogrification of the essential nature of the commutes). Also, a special or irregular call of a special urgent nature, i.e., not likely just switching days to fill in for illness of co-employee etc. (Here, implicitly, Claimant’s ‘deputizing’ himself vis-à-vis the alleged work activity did not qualify.)
A few classic exceptions also likely still pertain, such as uniquely special hazard en route (though the court will be looking for contrivances here), and/or carriage of materials almost literally vital to employer’s operation, i.e., cash box for ticket booth to open, in one of the older landmark cases, but decidedly not computers, equipment, tools, products or literature which are only “arguably” but not virtually essential.
Summing up; The unfortunate Himalstein, on a his day off, “decided” to make a special call on his son, carrying a company product to install there: he was effectively accepted as being on his way to the “first” stop of the day at a ‘customer’s’ home, but the trip was neither sufficiently irregular; and the employment materials in company-supplied vehicle for his exclusive use, covered with employer ads, were altogether insufficient to trump the fundamental public policy informing the “going and coming” rule.
As stated at the outset, by express reference to Hernandez and Kelly, these doctrines are the law going forward. But because there remain some arguable ambiguities, nothing contained within this alert can be construed as specific advice in a specific case (and in one of my earliest appeals [my only Claimant’s appeal], the court in an en banc split eight to five (!) with four dissenting opinions(!) [which I took as a sign not to do Claimant’s work!]
A final note – for stakeholders with aversion to appeals:
- On the one hand, catastrophic injury cases such as these never fail to impact conscientious practitioners, and I have had my somber moments, reflecting on my task, both here and in Hernandez. But as a zealous advocate, there is no choice but to persevere zealously. As it is written: “Justice, justice shall you pursue”³ -- but also – “you shall not favor the rich, nor shall you favor the poor ... man in his cause.”⁴
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³ Deut. 16:20
⁴ Exod. 23.3 and Lev. 19:15
That being said, some claims clients are reluctant to take (or even defend) appeals in notable cases -- for fear of the so-called “sympathy factor,” or of making bad law, among other concerns.
- As for the sympathy factor, in another of my cases decided several years ago, a tragic case involving dread ‘Lou Gehrig’s’ disease (ALS), the Court ended its reversal, thus:
It is clear from the record that the claimant, who has since died, presented a compelling portrait for sympathy, and the medical expense for treating ALS is staggering. Visiting this expense on the employer must be supported by evidence which is both competent and substantial.” Above All Drywall v. Shearer, 651 So. 2d 195, 197 (Fla. 1st DCA 1995)
I think this dispassionate approach applies more so at the appellate level than at the trial level, where the anguish of loss is more immediately palpable.
- Second: I have been campaigning for this ‘going and coming’ outcome through several appeals, and the goal has been both attained, and now solidified. I have conducted a few such campaigns in my career, e.g., the contours of “arising of;” what I perceived to be the excesses of late 80s early 90s “house-van-hot tub” awards and in the same time-frame, excess attorney’s fee awards, all of which I played a role in either curtailing or bending toward industry’s point of view (notable citations on each of these three categories available on request).
Importantly, I also have always believed, and believe I can demonstrate, perceived ‘excesses’ in each of the above categories greatly contributed to the sometimes-over-reactive statutory countermeasures “the poor” so often come to lament! (‘Proof of concept,’ I believe, of the Biblical references cited above.)
- Savings to industry resulting from just my two cases discussed here, Hernandez and Himalstein, are momentous, and one can only guess the state-wide impact of this ‘going and coming’ purification holding going forward – not to mention the taming of the “houses, hot tubs and vans” cases, etc. While we cannot always capture lightning in a bottle, carefully vetted appellate work – – and there are several excellent advocates I can think of who played pivotal roles in all the subjects discussed here (e.g., Kelly) -- demonstrate that efforts to improve the functioning of the act and reign-in perceived excesses/imbalances are, as ancient texts imply, a benefit to all.
- Of course, there may be untoward results now and again, but by and large, it does not cost, it pays.
George Kagan is once again proud to be part of an Employer/Carrier claims team that, as a system stakeholder, perceives an obligation to defend its vision of the law on behalf of Florida industry, and then does so!