CHARLES L. TIGHE, JR. v. JACK TREBOUR MOTORCYCLES, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0205-04T5205-04T5

CHARLES L. TIGHE, JR.,

Petitioner-Respondent,

v.

JACK TREBOUR MOTORCYCLES, LLC,

Respondent-Appellant.

____________________________________

 
Telephonically argued September 29, 2005 -

Decided

Before Judges Skillman and Axelrad.

On appeal from Division of Workers' Compensation.

David P. Kendall argued the cause for appellant (Francis T. Giuliano, attorney; Mr. Giuliano, of counsel and on the brief; Mr. Kendall, on the brief).

Peter C. Ioannou argued the cause for respondent (Maskaleris & Associates, attorneys; Mr. Ioannou, on the brief).

PER CURIAM

Petitioner Charles L. Tighe, Jr. was employed by respondent Jack Trebour Motorcycles, LLC as a motorcycle technician. At the time of that employment, petitioner lived near Route 206 in Flanders. Petitioner's regular work site was a motorcycle repair shop operated by respondent on Route 10 in Randolph. Respondent also had a motorcycle showroom at premises located on Route 46 in Kenvil.

The accident for which petitioner seeks workers' compensation benefits occurred on April 2, 2000, which was a Sunday. Although petitioner did not ordinarily work Sundays, he was participating on the day of the accident in a 200-mile promotional motorcycle ride sponsored by Ducati motorcycles and conducted by respondent. The persons who signed up for the ride, who were prospective purchasers of Ducati motorcycles and some of respondent's employees, were supposed to assemble at respondent's Kenvil premises around 9:30 a.m.

According to petitioner's version of the relevant events, which the Judge of Compensation found to be credible and which respondent does not challenge on appeal, respondent's general manager encouraged him to participate in the ride and lent petitioner, who did own a motorcycle, a Ducati motorcycle to use for this purpose. Petitioner picked up the motorcycle the day before the ride and drove it to his home in Flanders.

On the morning of the ride, petitioner did not drive directly from his home to respondent's premises. Instead, he drove the motorcycle past the exit from Route 80 that would have taken him directly to Kenvil in order to meet another one of respondent's employees, Terence Martone, who also intended to participate in the ride, at the Rockaway Mall. As petitioner and Martone were driving their motorcycles back to respondent's premises, petitioner was involved in the accident that is the subject of his workers' compensation claim.

Following an evidentiary hearing, the judge of compensation concluded in an oral opinion that petitioner's accident occurred in the course of his employment and therefore was compensable. The court found that this case fell within the "special mission" exception to the "going and coming" rule. The court rejected respondent's contention that, even assuming the Ducati promotional motorcycle ride constituted a special mission and petitioner would have qualified for compensation benefits for injuries suffered during the course of that ride, petitioner's trip to the Rockaway Mall constituted a deviation from this special mission that disqualified him from receiving benefits. The judge stated: "[I]t would be unconscionable to penalize the petitioner for deviating one or two miles in order to pick up a partner to go to the Ducati 'ride.'" After hearing testimony and reviewing medical reports relating to petitioner's injuries, the judge of compensation entered judgment awarding petitioner temporary disability benefits, medical expenses, and 35% permanent, partial disability.

The Workers' Compensation Act (the Act) requires employers to compensate employees for accidental injuries "arising out of and in the course of employment." N.J.S.A. 34:15-7. The 1979 amendments to the Act added a definition of "employment," which states in part:

[W]hen 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[.]

[N.J.S.A. 34:15-36]

The objective of this amendment was to "sharply curtail [compensability for] off-premises accidents" by, among other things, "remov[ing] from compensability certain cases heretofore held compensable where . . . injuries [are] sustained [by an employee] while traveling at the employer's direction but deviating from a direct line of travel to pursue a purely personal activity." Jumpp v. City of Ventnor, 177 N.J. 470, 477 (2003) (quoting Hon. Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J. Lawyer 17, 18 (Summer 1981). Although this amendment did not eliminate the "minor deviation" rule, under which an employee may obtain workers compensation benefits for an injury suffered during a period the employee has "stopped work to have a smoke, or to get some fresh air, or to use the telephone, or to satisfy other human needs incidental to his being at his place of employment[,]" id. at 479 (quoting Secor v. Penn Serv. Garage, 19 N.J. 315, 321 (1955)), it represented "a significant departure from [the Supreme Court's] pre-1979 jurisprudence wherein the minor deviation rule was applied broadly in off-premises cases as a means of enlarging the scope of the statute." Id. at 483.

Under the definition of employment contained in the 1979 amendments:

Off-premises employees enjoy the same ability to deal with certain basic needs enjoyed by on-premises employees such as phone calls to babysitters and physicians as well as coffee and lunch breaks. Although the line is difficult to draw, those minor deviations are different in kind from shopping excursions during lunch hour or a visit to a travel agent to plan a vacation, even when the agent works in the same building as the employee seeking benefits.

[Ibid.]

Applying this circumscribed view of the minor deviation rule, the Court concluded in Jumpp that an employee who slipped and fell when he stopped at a local post office to retrieve his personal mail was not entitled to workers' compensation benefits, even though the post office was on the route to one of the job sites to which he was assigned and his employer allowed him to make such personal stops during the work day. Id. at 475, 484.

Based on the judge of compensation's finding that respondent "ordered" petitioner to participate in the 200-mile Ducati promotional ride, petitioner would have been "engaged in the direct performance of duties assigned or directed by the employer," N.J.S.A. 34:15-36, during that ride, performing what is referred to in the case law as a "special mission" for the employer. Therefore, petitioner would have been entitled to workers' compensation benefits for an injury suffered in the course of that ride. See Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163 (2004). Moreover, because respondent's Kenvil facility was not petitioner's usual place of employment and petitioner did not ordinarily work on Sundays, any injury petitioner may have suffered while traveling directly from his home to the Kenvil location also would have been compensable. See Ehrgott v. Jones, 208 N.J. Super. 393, 397-99 (App. Div. 1986); see also Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336-37 (1992).

However, we conclude that, as in Jumpp, petitioner's trip to the Rockaway Mall to meet his co-worker, Martone, before driving his motorcycle to the Kenvil location to participate in the Ducati ride, constituted a personal activity, and thus petitioner was not "engaged in the direct performance of duties assigned or directed by the employer" at the time of his accident. It is undisputed that respondent did not require or authorize petitioner's trip to the Rockaway Mall to meet Martone. Petitioner made the decision to go to the mall wholly on his own. Moreover, it is even clearer in this case than in Jumpp that the trip to the mall was not merely a minor deviation from the performance of petitioner's assigned duties. In Jumpp, the post office at which the petitioner stopped to retrieve his personal mail was located on the route to one of his job sites. 177 N.J. at 474. In this case, petitioner had to deviate substantially from a direct route to respondent's Kenvil location to get to the Rockaway Mall. Petitioner gave the following testimony concerning that deviation:

Q. So in February of 2000 you moved into an address which was in Oakland Village in Netcong, New Jersey?

A. Yes, sir. Oakwood.

Q. About how far was that from the Jack Trebour Motorcycles on Route 46?

A. Say approximately 15 miles.

Q. And what route would you follow to go?

A. Either 80 to 46, or I would take a back road, and I'm not sure of the name.

Q. All right. So that in order to go to the Rockaway Mall, you would in fact have to go past the exit that you would take off Route 80 for Jack Trebour?

A. Yes, sir.

Q. That's what you did that day on April 2nd of 2000? You went past Jack Trebour to go to the Rockaway Mall?

A. Yes.

. . . .

Q. So it's several miles past Jack Trebour to get to the Rockaway Mall, correct?

A. Not many, no.

Q. Well, it's more than one or two?

A. Yes.

Thus, petitioner acknowledged he had to drive at least two miles beyond respondent's Kenvil location to reach the Rockaway Mall. Since petitioner would have to have driven that same additional distance to return to Kenvil from the mall, his decision to meet Martone at the mall before traveling to the assembly place for the Ducati ride required him to travel at least four additional miles. Under Jumpp, this cannot be viewed as only a minor deviation from a direct travel route between petitioner's home and respondent's Kenvil location.

The judge of compensation characterized petitioner's trip to the Rockaway Mall as a "safety diversion." This characterization was apparently based on Martone's testimony that "[w]hen you're on motorcycles it's always good to ride with a partner." However, there is no reasonable basis for concluding that petitioner's decision to meet Martone at the mall, which required petitioner to ride further by himself than if he had gone directly to Kenvil, made his trip safer than if he had met Martone at Kenvil. Moreover, petitioner did not testify that he had any safety reason for meeting Martone at the mall. When asked why he decided to meet Martone at the mall rather than at Kenvil, petitioner testified:

THE COURT: Why didn't you both just meet at Jack Trebour [Kenvil]?

THE WITNESS: I don't know.

THE COURT: Did you want breakfast or something? Is that what's going on?

THE WITNESS: Just I don't know. Some people were meeting together, and I was just meeting him and going there.

. . . .

Q. And I know the Judge asked you this before, but I'm having a little trouble understanding myself. Why were you meeting him there instead of at the location where the event was supposed to start?

A. I guess no real reason. Just we were just going to meet and ride there together.

As an alternative ground for affirmance of the Judge of Compensation's decision, respondent argues that his accident was compensable because he was using an employer-authorized vehicle engaged in business authorized by the employer. This argument is based on the part of the definition of "employment" contained in N.J.S.A. 34:15-36, which states:

[T]he employment . . . 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 employer.

For an accident to be compensable under this exception to the going and coming rule, the petitioner must show not only that the "operation of the vehicle owned by [the employer] was authorized[,]" but also that "the vehicle was being operated 'on business authorized by the employer.'" Chisholm-Cohen v. County of Ocean, 231 N.J. Super. 348, 352 (App. Div. 1989) (quoting N.J.S.A. 34:15-36); see also Zelasko, supra, 128 N.J. at 337-38. Thus, an accident does not qualify for workers' compensation benefits if "the employee was not performing a work-related task at the time of the accident, although he was operating a company owned vehicle with the specific authorization of the employer." Chisholm-Cohen, supra, 231 N.J. Super. at 352.

Petitioner's argument based on his use at the time of the accident of one of respondent's vehicles is rejected for substantially the same reasons as his argument based on the special mission exception to the going and coming rule. A petitioner seeking workers' compensation benefits under either exception must show that he or she was engaged in a work-related task. See Jumpp, supra, 177 N.J. at 481-82; Chisholm-Cohen, supra, 231 N.J. Super. at 352. For the reasons previously discussed, petitioner was not engaged in a work-related task at the time of his accident because he was not participating in the Ducati promotional ride or traveling directly from his house to the Kenvil location where the ride was to start but instead engaged in a detour to meet a coworker at a shopping mall.

Accordingly, the judgment of the Division of Workers Compensation granting petitioner workers' compensation benefits for his injuries suffered in the accident is reversed.

 

Respondent's general manager testified that petitioner was in possession of the Ducati motorcycle he was riding on the day of the accident because he was considering purchasing that motorcycle and because, as an employee, he was allowed to take it on an "extended test drive." The general manager also testified that he did not know petitioner would participate in the Ducati rid and did not lend him the bike to use in the ride. The judge of compensation found that this testimony was not credible, and respondent does not challenge this credibility finding on appeal.

(continued)

(continued)

11

A-0205-04T5

October 18, 2005