*1 No. 30542. In Bank. Mar. [L.A. 1976.] AMERICA, Petitioner,
GENERAL INSURANCE COMPANY OF WORKERS’ COMPENSATION APPEALS BOARD and CHAIREZ, LILIA Respondents.
Counsel & H. for Petitioner. Stockwell Gleason Sacks
Kendig, Zachary Rose, M. Klein & Marias and Jason A. Gottlieb for Miyamoto, Philip Respondents.
Opinion
CLARK, J. of a award Petitioner seeks review workers’ compensation to an widow employee’s precludes contending her recovery. deceased, Chairez, and service
Edward was as employed delivery a.m., He man, at 8 his work including Saturday. day commencing automobile, from his to work in his commuted departing personal The did not 7:30 a.m. residence compensate approximately their activities commute for its their expense employees a.m. is on South La Boulevard
The of business Cienega employer’s place The few on the were used for Los Angeles. parking spaces premises vehicles, business unavailable for being parking. Employees their the comer on cars around streets customarily perpendicular parked to or in back on a to La A ordinance street Cienega. city parallel on La itself from precluded parking Cienega Monday through Friday. All business. eight keys employees possessed employer’s first to arrive for work entered and made coffee. customarily and coffee coffee employer provided pot. a.m., death,
On 6:15 Chairez left his residence at Saturday he and to for coffee his wife was informing leaving early buy gas stop *4 at the then to wait business. There a fuel it was being shortage, necessary a.m., in his car line for At 7:15 Chairez gasoline. approximately parked on La in of As Chairez front his employer’s premises. alighted Cienega from his was motorist. car he struck by passing
The referee
benefits,
awarded
that Chairez’ death oc-
determining
curred in the course of
The referee reasoned
employment.
that once
Chairez
his vehicle in front of his
of
stopped
at an
place
employment,
hour
with
for
compatible
of
entry
purposes
engaging
employment
related activities, his conduct came within the reasonable contemplation
of his
On
reconsideration,
for
employment.-
petition
Workers’
Board
Compensation
the referee’s decision.
Appeals
adopted
Applicability
Going
Coming
and
Rule
The
and
rule
going
coming
for
precludes compensation
injury
suffered
the course of a local
during
commute to a fixed
of business
place
at fixed hours in the absence of
circumstances.
v.
exceptional
(Hinojosa
Workmen’s
150,
Bd.
(1972) Cal.3d
Comp. Appeals
Cal.Rptr.
[104
456,
For of the does not employment relationship begin until an enters the Prior to employer’s premises. entry and rule after ordinarily precludes recovery; entry, injuiy is as in the course of generally arising presumed compensable employ- 329, ment. Indem. v. Acc. Com. 28 Cal.2d Co. (1946) {Pacific 21 Cal.2d P.2d Ind. Exch. v. Ind. Acc. Com. 18]; (1943) Cal. Cas. [170 Larson, Law (1972) Workmen’s 158]; Compensation [135 15.00-15.11, include his §§ 4-2—4-4.) premises pp. employer’s office, has reached and once the lot well as as plant parking not is interrupted by crossing public property premises, employment from of the another. one premises {Lewis travelling part 15 Cal.3d Workers’ Bd. Comp. Appeals
353, 542 P.2d line” courts to ascertain has the “premises advantage enabling n at which and This fairly. point employment begins—objectively incurred to formulate and
outweighs disadvantages by attempting has As Larson so Professor subjective clearly apply out, justly. pointed is a familiar in law when a problem sharp, objective, “[i]t somewhat has line been drawn ... to encounter perhaps arbitrary demands that the line be blurred a little to take care of the closest cases. For one writer that there is no reason in example, says principle why states should not ‘for a reasonable before distance’ protect employees however, This, or after reaching leaving employer’s premises. only . . raises a new . it no which the because standard problem provides by can be It substitutes the reasonableness distance judged. widely- of ‘reasonable distance’ different by varying subjective interpretation At fact of a line. administrators judges physical boundary time, time because each same it does not solve the original problem, *5 distance,’ are extended a there will arise ‘reasonable inevitably premises cases that the of unfairness of new cry only slightly point—and beyond few will once more based feet of distance distinctions on drawing only Larson, 15.12, 4-5—4-6; fn. omitted.) be heard.” (1 § pp. supra, extends the broad in some cases Although language seemingly context, line,” be when is the must in and this read “premises language done, it the cases consistent. Several cases becomes are apparent fully to ‘not state “the term been held include has broadly only ‘employment’ work, of time and the but a reasonable space doing margin and the work is to be used to from the where .in necessary passing place Com., v. Acc. to be done.’ Indem. Co. Industrial (E.g., [Citations.]” Pacific 336, from Ind. v. Ind. Acc. 28 Cal. Cas. Exch. Cal.2d quoting supra, see v. Workers’ 158]; 21 Cal.2d 754 P.2d Lewis Com. (1943) [135 563; Hanna, Law Bd., 559, 561, 2 Cal. Cal.3d 15 Comp. Appeals supra, 9.02 1975) § ed. (2d and Workmen’s Employee Injuries Compensation entered cases, the had the In most of 9-15—9-16.) [3][b], pp. and was to travelling the injured prior injury employer’s premises Lewis v. Workers’ work his station. the to (E.g., from entry point context, factual Within such Bd., Cal.3d 15 supra, Appeals Comp. commences relation the that does not establish the employment language 600
before cases involve into business entry premises. remaining later. in discussed risks encountered (E.g., entering—a subject special v. Acc. Cal.2d (1946) Indem. Co. Industrial Com. (Henslick) Pacific Cal.2d P.2d Com. v. Acc. 18]; (1965) Greydanus [170 384, 407 P.2d [47 of the instant case show Chairez not entered facts had car, to Chairez his death. his employment premises prior parked on the street. and
suffering injuries Accordingly, going coming Chairez’ is not and death as occurred applies, having compensable However, we if must determine is due upon premises. compensation under some and rule. exception going coming
Special Exception Risk If, suffers entry upon premises, injury from a risk related to is causally, employment, injury under the risk” and compensable “special exception rule. “The facts that an accident road happens public upon is one to which the is likewise danger general public exposed, however, do not between the existence of a causal relationship preclude the accident which if the is one to danger employment reason of is and in connection with his employee, by employment, Matson to an abnormal (Freire subjected peculiarly degree.” Larson, Co. Cal.2d 809]; Navigation 9.30, § 3-48—3-50.) pp.
Thus, we held Freire that an on a bulkhead while employee injured to enter the was within the ambit of attempting employer’s premises workers’ “the because reason of his *6 compensation plaintiff [employee] by was to the risks on the bulkhead employment subjected arising peculiarly and to an abnormal Cal.2d at (19 degree.” p. the risk was held in Similarly, special exception applicable Pacific
Indem. Co. v. Industrial Acc. Com.
28
329 and
Cal.2d
(Henslick) supra,
Com.,
v. Industrial Acc.
The facts of injury present would But Chairez not for his related to his job, employment. causally However, death Chairez’ does that have been on La morning. Cienega risk of the second come within the not special excep requirement than in nature or the risk is distinctive greater tion—that quantitatively a was on a street at Chairez common to the risks public public. parked is and in a location where available time general public. parking motorist, is a that was struck a The fact he tragic, type by passing Moreover, in the facts is of risk public subject daily. nothing was to a risk from motorists indicates Chairez exposed greater passing was on La that than else anyone Cienega morning. Exception
Special Mission An suffered an his commute is injury by employee during regular was for if he also mission compensable performing special Hanna, (2 9.03[3][iv], 9-41—9-43.) § employee’s employer. supra, pp. duties, is if it is relation conduct in to routine “special” “extraordinary of Acc. Com. not outside the scope (Schreifer employment.” Cal.2d special when the rule “is held mission only special inapplicable ordinarily or work work earlier the fact that the is quit employee began component 16.12, Larson, 4-98.) later than usual.” (1 § most, was, case, coffee
In the of this circumstances preparing Such of the duties of first routine employee. preparation arriving part not to the office and was not did exceptional require special trip of the of the So far as terms duties appears, ordinary employees. would arrive did not even employees request expect fact mere than for the of coffee. The
earlier usual preparing purpose chose to to work go early—without request—for not commute into a coffee does turn the ordinary purpose preparing rule. mission from the warranting exception The instant case is from those where distinguishable duties, work not for the routine but early goes performing at the employer. extraordinary purpose special request *7 65, Jewish etc. Council Acc. 94 68 (1949) v. Ind. Com. (L.A. Cal.App.2d 379, P.2d Fenton v. Acc. 44 991]; (1941) Com. Cal.App.2d [209 where are cases the 763].) 381 et P.2d Likewise seq. distinguishable [112 to work in addition his is an extra make employee required trip 89 (1928) Acc. Com. commute. State C. I. Fund v. Indus. ordinary (E.g., 602 197, cases, et 199 P. In such 514].) the
Cal.App. seq. special purpose [264 commute, of the or the fact that it is in addition to the trip ordinary the from circumstance the provides warranting extraordinary exception case, In the was an and rule. instant going coming ordinary trip chore, for of commute an purpose performing ordinary preparation of is in the coffee. There choice of work employee’s nothing arriving earlier than usual an circumstance constituting extraordinary warranting from the and rule. exception
The award is annulled. J.,C. McComb,, J., Sullivan, J., Richardson, J., and Wright, concurred. TOBRINER, J. I dissent.
The board ruled that the was covered properly employee by compen- case; sation in this to work of employee’s time his trip routine commute for the of for his coffee fellow making falls within the mission” of employees limitation and “special “going rule. referee, of the board coming” found Adopting that findings activities of the “were with special or employee expressed of the and for his benefit.” implied permission perfor- of task, minor, mance an added no matter how undertaken for the of benefit employer, entailing early appearance employee on the carries with it the from loss incurred job, corresponding protection in the of that mission. pursuit employer-ordained mandated
California’s is not “going legislatively coming” enacted, but conceived and created. v. Workmen’s judicially {Hinojosa 150, 456, 153 Bd. Cal.3d 501 P.2d (1972) Comp. Cal.Rptr. Appeals [104 have courts rule is not 1176].) recognized ubiquitous judicial limited; but one limitation is the mission” necessarily important “special reservation, if an which is whether permits injured, recovery on his own or on of time his in the execution employer, Hanna, Law mission” Cal. (2 “special employer. Employee 9.03, 9-24.) ed. (2d 1975) Workmen’s Injuries § Compensation A mission” occur when an makes regular “special may trip to work at a time. v. Industrial Acc. Com. (1964) {Schreifer 352, Cal.2d 289 P.2d v. Fenton Industrial Acc. 832]; [38 Com. P.2d L. A. Jewish 763]; etc. Cal.App.2d [112 Council Ind. Acc. Com. To (1949) Cal.App.2d *8 mission,” constitute which necessitates the “special activity trip need be not “outside the it is sufficient that the employment”; scope be in relation to routine duties.” activity “extraordinary {Schreifer Com., 61 Cal.2d at Acc. supra, case, In the decedent travelled to work at a time to special present a service which was in relation to routine perform “extraordinary [his] man at duties.” Decedent was as a and service Martin employed delivery week, Rents. He worked left six home days normally 7:30 a.m. of coffee is not a routine of a approximately Preparation duty man, and service but on decedent travelled to work delivery Saturdays to the time of his commute for the regular making coffee for fellow had decedent a to employees. employer given key arrival, him to enter and had premises, enabling upon early a coffee and coffee. provided pot states that the of coffee was majority preparation “part
routine duties of the first of Martin arriving employee.” Employees Rents have coffee arrival at may the normal customarily prepared upon hour, but none of the evidence received at the referee’s indicates hearing other than the decedent travelled to employees work early this service. perform
Decedent, however, made a to work at a hour on trip special Saturdays so that of coffee could be before the preparation accomplished Performance at a time of a service working day began. routinely the normal work constitutes a performed by employees during day Com., mission.” In v. Industrial Acc. this court “special supra, Schreifer the award of benefits when a while sheriff was upheld injured travelling to work before his scheduled shift at the of his request employer, he would have In normal duties L. A. arrival. although performed upon Com., Jewish etc. Council v. court an award Ind. Acc. sustained because decedent librarian was killed to work early driving books, order to and discuss the of some inspect activity purchase which the court noted was within normal duties of the employee. case,
Likewise in the decedent’s to work before the time of present trip his normal commute to a service for the benefit of his perform employer constitutes a mission” and mandates the award of benefits. “special
In mission” limitation in the holding “special inapplicable present case, the also relies of a absence direct majority upon request by deceased arrive coffee. This reliance is early prepare
604 “the which cases have considered the of the misplaced, scope mission doctrine have not held it essential the special activity involved be the as a condition to required by employer employment.” 860, Workmen’s Bd. 6 (1972) Cal.3d {Dimmig Comp. Appeals [101 105, Indeed, 495 P.2d have courts Cal.Rptr. specifically observed that and rule is when an “going coming” inapplicable a mission which or “engage[s] upon incidentally indirectly to the service and of the benefit Co. v. Oil employer.” contribute^] {Shell 426, (1962) Industrial Acc. Com. 540]; Cal.App.2d Cal.Rptr. [18 italics stated in added.) As we Smith v. Workmen’s Bd. Comp. App. 253, 69 Cal.2d (1968) 365], 447 P.2d “An employer [73 cannot or of the benefit an services and request accept employee’s contend that he is not service out of concomitantly growing ‘performing ” and incidental to his employment.’ case, In the decedent’s sanctioned the present employer expressly urn, of coffee the coffee and the and making by providing by giving decedent a so that he could enter his key premises upon early arrival to this service. The thus of knew and perform, employer arrival; sanctioned the of, knew and early employer expected mission, and distinct from the normal routine special. early commute. The minor, sanctioned and this if employer service expected special, because the of coffee contributed to probably the content- availability and ment of his thus the business as a productivity employees, benefiting whole. The referee found that the of the activities deceased specifically “were with the of the and for expressed implied permission employer his benefit.” Under these circumstances direct request by employer that the this service was not to employee perform necessary bring trip within mission” limitation. “special and static of the and rule majority’s rigid coming” concept “going a retreat
constitutes from our that “the so-called position previous and no formula of automatic composes application.” Bd., v. Workmen’s 8 Cal.3d at {Hinojosa Comp. Appeals fact that decedent travelled to work of the time his routine commute for the of sanctioned performing activity by, to, beneficial is sufficient to under bring trip the. Moreover, mission” rule. “special exception “going coming” “ we have held in the reasonable doubt as to whether the past ‘[a]ny act is in view this state’s contemplated by employment, policy liberal construction in favor of the should be resolved favor employee, ” Indem. Co. v. Ind. Acc. Com. employee.’ {Pacific v. Workmen’s 625]; Cal.2d Appeals Dimmig Comp. *10 Bd., 6 Cal.3d case; this
Thus, the award overturns recovery majority granting rule; it into a it converts a mission distends the routine commute.
I would affirm award.
Mosk, J., concurred.