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Defense Digest

When Favors Feel Like Obligations: A Closer Look at the Special-Mission Exemption to the Going-and-Coming Rule

Defense Digest, Vol. 29, No. 1, March 2023

March 1, 2023

by Lela N. Eke

Key Points:

  • An employee’s off-site accident may be compensable under the New Jersey Workers’ Compensation Act, pursuant to the “special-mission” exception to the going-and-coming rule, even if the employee is doing a favor for the employer.
  • When determining an employee’s job duties and scope of employment, indirect pressure on an employee can be as powerful as an explicit order.
  • A workers’ compensation claim may still be compensable even if the employee fails to follow the employer’s work guidelines.

To determine whether an injury is compensable under the New Jersey Workers’ Compensation Act, the court must find that the injury arose out of and occurred in the course of employment, among other factors. In New Jersey, the “going-and-coming” rule governs and generally states that compensable accidents occur at the place of employment. There are few exceptions to this rule which allow for an employee’s off-site injury to be compensable, and they are extremely fact-specific.

In Gregory Van Sciver v. Jersey Mech. Contractors, Inc., 2022 WL 16936881 (N.J. Super. Ct. App. Div. Nov. 15, 2022), the Appellate Division held that an employee met the “special-mission” exception to the going-and-coming rule when he was injured by an explosion in his personal vehicle. Mr. Van Sciver was a pipe fitter and truck driver for his employer. On September 29, 2020, Van Scriver was instructed to exchange two empty tanks that hold acetylene gas (B-Tanks) for full ones, deliver one of the full B-Tanks to a jobsite in Livingston, and deliver paychecks to a jobsite located in Bordentown.

While in Bordentown, a jobsite foreman asked Van Sciver about his B-Tank delivery, but it was not on the employee’s list of tasks, so he returned to the main jobsite to ask his supervisor. Later that day, Van Sciver (acting on his own initiative) decided to deliver a full B-Tank to Bordentown using his personal vehicle since he would pass by Bordentown on his way home. However, the employee did not stop at the Bordentown jobsite that night because it was too late in the day.

The next morning, the employee forgot to drop off the B-Tank in Bordentown. As he was driving his personal vehicle to work, the company’s project manager/estimator asked him for a ride to work. Van Sciver agreed. However, he heard a hissing noise from his vehicle while driving to the company executive’s house. When Van Sciver opened the rear hatch of his vehicle to investigate the sound, the B-Tank exploded and significantly injured him. He required numerous surgeries and extensive medical treatment after an eight-day coma, traumatic brain injuries, and the loss of use of one eye.

At trial, all parties agreed that Van Sciver was not instructed to use his personal vehicle to deliver the B-Tank. In fact, the employer and the union agreement both instructed Van Sciver to NOT use personal vehicles for company business. Furthermore, the parties agreed that Van Sciver was trained to not store B-Tanks in confined places, such as his vehicle’s hatchback.

Nonetheless, the trial judge found that: (1) the employee placed the B-Tank in his personal vehicle with the sole intent and motive to deliver it to the Bordentown jobsite; (2) the tank was a “workplace instrumentality” of the employer; (3) the employee’s work responsibilities required him to be away from the main facility; (4) before the accident, the company’s executive asked the employee to pick him up for work; (5) the employee was en route to pick up the company’s executive when the accident occurred; and (6) the employee had an “objectively reasonable basis in fact for believing that… he was in essence ‘compelled’ to say yes to picking up” the project manager/estimator because of his high-level position at the company.

Thus, the trial judge found that Van Sciver was completing work-related duties when the injury occurred. It held that he was entitled to compensation under the “special-mission” exception of the going-and-coming rule on two grounds: (1) the employee was on a special mission delivering the B-Tank to Bordentown and the mission had not ended before the accident, and (2) the employee was engaged in a special mission for the company when he was driving to pick up the executive.

The company appealed the trial judge’s decision. The Appellate Division affirmed the trial judge’s decision, stating that Van Sciver met the special-mission exception when he attempted to pick up the company’s high-level officer. The Appellate Division noted that the Workers’ Compensation Act requires employers to compensate employees for accidental injuries arising out of and in the course of employment and occurring away from the place of employment if the employee is engaged in duties directed by the employer (i.e. the special-mission exception).

The company argued that Van Sciver was not directed by the employer to pick up the company’s executive because he could have declined. However, the Appellate Division reiterated that indirect pressure on an employee can be as powerful as an explicit order, indicating that implied direction from high-level officers can expand an employee’s job duties.

Finally, the company argued that the trial court’s legal determinations were not supported by the facts. In its review, the Appellate Division noted that they do not re-determine the factual findings of the trial judge, but they determine whether the trial judge’s findings had sufficient credible evidence. Thus, once a trial judge makes a factual determination, it can be quite difficult to change such a finding on appeal.

It is clear that “special-mission” cases are heavily fact-specific. Employers must quickly investigate how an accident occurred, what the employee was asked to do, and the employee’s job responsibilities. Just as the court considered an executive’s request for a ride to work as an extension of the employee’s job duties, other requests could impact an employee in the same manner. Thus, employers must be careful not to blur the line between an employee’s professional responsibilities and personal favors.

To determine whether an injury is compensable under the New Jersey Workers’ Compensation Act, the court must find that the injury arose out of and occurred in the course of employment, among other factors. In New Jersey, the “going-and-coming” rule governs and generally states that compensable accidents occur at the place of employment. There are few exceptions to this rule which allow for an employee’s off-site injury to be compensable, and they are extremely fact-specific.

In Gregory Van Sciver v. Jersey Mech. Contractors, Inc., 2022 WL 16936881 (N.J. Super. Ct. App. Div. Nov. 15, 2022), the Appellate Division held that an employee met the “special-mission” exception to the going-and-coming rule when he was injured by an explosion in his personal vehicle. Mr. Van Sciver was a pipe fitter and truck driver for his employer. On September 29, 2020, Van Scriver was instructed to exchange two empty tanks that hold acetylene gas (B-Tanks) for full ones, deliver one of the full B-Tanks to a jobsite in Livingston, and deliver paychecks to a jobsite located in Bordentown.

While in Bordentown, a jobsite foreman asked Van Sciver about his B-Tank delivery, but it was not on the employee’s list of tasks, so he returned to the main jobsite to ask his supervisor. Later that day, Van Sciver (acting on his own initiative) decided to deliver a full B-Tank to Bordentown using his personal vehicle since he would pass by Bordentown on his way home. However, the employee did not stop at the Bordentown jobsite that night because it was too late in the day.

The next morning, the employee forgot to drop off the B-Tank in Bordentown. As he was driving his personal vehicle to work, the company’s project manager/estimator asked him for a ride to work. Van Sciver agreed. However, he heard a hissing noise from his vehicle while driving to the company executive’s house. When Van Sciver opened the rear hatch of his vehicle to investigate the sound, the B-Tank exploded and significantly injured him. He required numerous surgeries and extensive medical treatment after an eight-day coma, traumatic brain injuries, and the loss of use of one eye.

At trial, all parties agreed that Van Sciver was not instructed to use his personal vehicle to deliver the B-Tank. In fact, the employer and the union agreement both instructed Van Sciver to NOT use personal vehicles for company business. Furthermore, the parties agreed that Van Sciver was trained to not store B-Tanks in confined places, such as his vehicle’s hatchback.

Nonetheless, the trial judge found that: (1) the employee placed the B-Tank in his personal vehicle with the sole intent and motive to deliver it to the Bordentown jobsite; (2) the tank was a “workplace instrumentality” of the employer; (3) the employee’s work responsibilities required him to be away from the main facility; (4) before the accident, the company’s executive asked the employee to pick him up for work; (5) the employee was en route to pick up the company’s executive when the accident occurred; and (6) the employee had an “objectively reasonable basis in fact for believing that… he was in essence ‘compelled’ to say yes to picking up” the project manager/estimator because of his high-level position at the company.

Thus, the trial judge found that Van Sciver was completing work-related duties when the injury occurred. It held that he was entitled to compensation under the “special-mission” exception of the going-and-coming rule on two grounds: (1) the employee was on a special mission delivering the B-Tank to Bordentown and the mission had not ended before the accident, and (2) the employee was engaged in a special mission for the company when he was driving to pick up the executive.

The company appealed the trial judge’s decision. The Appellate Division affirmed the trial judge’s decision, stating that Van Sciver met the special-mission exception when he attempted to pick up the company’s high-level officer. The Appellate Division noted that the Workers’ Compensation Act requires employers to compensate employees for accidental injuries arising out of and in the course of employment and occurring away from the place of employment if the employee is engaged in duties directed by the employer (i.e. the special-mission exception).

The company argued that Van Sciver was not directed by the employer to pick up the company’s executive because he could have declined. However, the Appellate Division reiterated that indirect pressure on an employee can be as powerful as an explicit order, indicating that implied direction from high-level officers can expand an employee’s job duties.

Finally, the company argued that the trial court’s legal determinations were not supported by the facts. In its review, the Appellate Division noted that they do not re-determine the factual findings of the trial judge, but they determine whether the trial judge’s findings had sufficient credible evidence. Thus, once a trial judge makes a factual determination, it can be quite difficult to change such a finding on appeal.

It is clear that “special-mission” cases are heavily fact-specific. Employers must quickly investigate how an accident occurred, what the employee was asked to do, and the employee’s job responsibilities. Just as the court considered an executive’s request for a ride to work as an extension of the employee’s job duties, other requests could impact an employee in the same manner. Thus, employers must be careful not to blur the line between an employee’s professional responsibilities and personal favors.

Firm Highlights

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.