Schwan Food Co. v. Frederick

          Circuit Court for Baltimore County Case No. 03-C-16-005618

          Leahy, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Leahy, J.

         "So be sure when you step, Step with care and great tact. And remember that life's A Great Balancing Act."

         Dr. Seuss "Oh, The Places You'll Go!"(1990)

         Technological innovation enables citizens of Maryland to work for companies located anywhere in the world, at any time, from any place in the State.^[1] This modern expediency drives the primary issue before us: whether an injury that an employee sustains while leaving his or her home to travel to a work-related site can be deemed to have "arise[n] out of and in the course of employment."^[2] In examining this issue, we must address a matter of first impression under Maryland workers' compensation law; namely, whether an employee's home can qualify as a work place or work site.

         Appellee, Ryan Frederick, worked as a customer service representative for appellant, Schwan Food Company ("Schwan"), ^[3] which is based in Minnesota with no local offices in Maryland. His job entailed traveling in his personal car to various grocery stores throughout Maryland to meet Schwan's delivery drivers and receive inventory deliveries for each of his accounts. On the morning of January 28, 2016, while still at home, Mr. Frederick used his employer-provided handheld computer to download his route for the day. His plan was to drop his son off at daycare on the way to his first account, the Walmart in Ellicott City. Unfortunately, he slipped on black ice on the sidewalk by his car in front of his home and suffered injury to his right leg.

         Mr. Frederick filed a claim with the Workers' Compensation Commission ("WCC"). Schwan maintained that Mr. Frederick's injury was not compensable because he was on his way to drop off his son-a personal errand. The WCC issued a summary decision denying Mr. Frederick benefits after finding that "the claimant did not sustain an accidental injury arising out of and in the course of employment[.]" Mr. Frederick petitioned for judicial review in the Circuit Court for Baltimore County on May 24, 2016, and requested a jury trial.

         Mr. Frederick's case proceeded to trial before a jury on July 25, 2017. At the close of Mr. Frederick's case, the circuit court denied Schwan's motion for judgment and, at the close of all evidence, granted Mr. Frederick's motion for judgment. The court concluded that Mr. Frederick had been working from his "home office" before he set out to travel to his first account, and consequently, the injury that he sustained "arose out of and in the course of his employment."

         Schwan timely appealed to this Court from the order reversing the WCC's decision. Schwan challenges the circuit court's determination that Mr. Frederick's injuries arose out of and in the course of his employment with Schwan.

         We hold that injuries sustained by the employee en route from the employee's home work site to another work-related site may arise out of and in the course of employment. As detailed in our discussion, in order to determine whether a home qualifies as a work site, we adopt a three-part test rooted in eminent principles of workers' compensation law. In this case, we conclude that material facts remain in dispute as to whether Mr. Frederick's home qualified as a home work site and whether he had commenced his work day and was fulfilling his work duties, or something incident thereto, at the time of his injury. Because it was for the jury to resolve these predicate factual issues, the circuit court erred in ruling, as a matter of law, that Mr. Frederick's injury arose out of and in the course of employment. Accordingly, we remand for a new trial.

         BACKGROUND

         A. The Petitioner's Case

         Mr. Frederick was the only witness to testify at his trial in the circuit court. He explained that he was employed with Schwan for about four years^[4] and described his job duties as a customer service representative:

I would travel [] from store to store, meet with decision[] making personnel in the store, store managers, department managers, decide display aspects, like the end caps in the store where [] they have stuff at the end of the aisles . . . on display, decide sales, [ascertain the] space[s] they were going to give me in the shelves. Decide, you know, quantity and inventory that the store may have wanted. Also helping replenish[] the shelves [] to make sure the shelves stayed full for customers to come in and purchase product.

         According to Mr. Frederick, he could not have held his position as a customer service representative without having his own car to travel to each of his accounts.^[5] Schwan reimbursed him for mileage incurred while traveling between his first and last accounts through a "fuel card that was pre-loaded at the beginning of each week" with funds to cover his travel expenses. Mr. Frederick admitted that Schwan did not normally reimburse him for mileage he incurred driving to his first account-although he did claim this mileage for tax purposes.

         The "Home Office"

         Mr. Frederick testified that his office was at his home in Mount Washington where he had a computer and printer set up on his dining room table for work. Although Schwan did not pay for the computer, printer, or internet at his house, Mr. Frederick did receive an employee discount on his internet service pursuant to an agreement between the internet service provider and Schwan. Mr. Frederick asserted that Schwan was aware that he received this discount. Schwan also provided him with the Intermac-a small handheld computer that he used to complete work-related tasks. The Intermac required a WiFi connection, so he would use his Intermac at home where he had WiFi to complete his daily downloads and uploads of sales information. Mr. Frederick used the Intermac to enter his reimbursable mileage for each day as well. He conceded that he could run the downloads on his Intermac after he left his home so long as he could connect to WiFi; however, he was unsure whether the Walmart in Ellicott City, or any of his accounts, had WiFi.

         Additionally, Schwan mailed certain work materials, such as big display posters and coupons for grocery stores, to Mr. Frederick's home about "once or twice a week." He kept all of these work materials at his home because there was nowhere else he could keep them; he was prohibited from storing the materials at the grocery stores, and many of the materials were "too large to even store in [his] car and still be able to use [his] car on a daily basis."

         Mr. Frederick's Typical Work day

         At trial Mr. Frederick described his typical work day around the time of his accident. He did not have set working hours; however, his typical work day began in the morning at his home "as soon as the phone started ringing really." He stated, "[p]eople would start calling you at [] 4 a.m. because that's when they were there and . . . available." Mr. Frederick related that his daily routine back in January 2016

. . . would start in the morning. . . . Before I left my home I would do my download in my hand held. That kind of gave me an idea of what stores you had to go to that day. Gave me an idea of where the truck drivers were going to be going because we did not deliver our own product.

We had to coordinate with truck drivers in the morning before we went out [in order] to figure out [] which other customer service route stores [the drivers] had on hand . . . so we knew where we were going and as to where the truck was going so you weren't kind of running around trying to chase a delivery truck.

         Mr. Frederick would then use the information from the downloads to contact the driver and other customer service representatives who had deliveries on that same truck to determine the order of the deliveries. He would complete these communications from his home before leaving to drive to his first account.

         When asked what other "work activities" he conducted at his home, Mr. Frederick replied:

[F]rom home, my day would actually start much earlier as a lot of the department managers [who work during] the receiving hours [at] grocery stores [work] overnight . . . so there were a lot of times where . . . you made contact with these people before you left your home [] to decide if they were going to give you display space, or, if they were going to give you that, you had to coordinate that with them before they left the store in case you didn't make it to the store in time[.]

         Once these preliminary communications were completed, Mr. Frederick would leave his home and travel from store to store using his personal vehicle to carry out his other work duties. He would typically hold business meetings with Schwan employees in grocery store parking lots or, for "large meetings where everyone was to be involved," Schwan would rent out a room in a public library or hotel.

         The Morning of the Accident

         On January 28, 2016, Mr. Frederick related that the weather was "crappy" and that Maryland had just experienced one of the biggest snow storms in a long time. He testified:

That day started, I don't remember exactly what time. I got up, I did my download. I get in contact with my driver[] to kind of figure out where he was going to be. Because of inclement weather the drivers tend to start a little bit later to give the road some time to get cleared up so they're not driving the big trucks out on the roads with icy conditions.

I had been in contact with my drivers. I ha[d] done some e-mails. That's . . . about it that morning.

         He left his home around 9:00 a.m. to go to his first account, the Walmart in Ellicott City. Mr. Frederick testified that he had his work materials in his hands and his five-year-old son walking beside him, "[o]ff to the left somewhere." He explained that he planned to drop off his son at daycare on his way to the Walmart.^[6]

         Mr. Frederick explained that dropping off his son at daycare was not his primary objective when he left the house, and that if he were not going to work, his son would not have been going to daycare. The daycare was a "block and a half" off-route from his house to the Walmart.

         Ultimately, Mr. Frederick "never made it to the car." He fell on black ice that was on the walkway to his car outside of his house and suffered a fracture to his right leg, which, the record reflects, required open reduction internal fixation and a subsequent surgery.

         B. Motion for Judgment

         At the close of Mr. Frederick's case, Schwan moved for a motion for judgment. Schwan argued that "it's clearly uncontradicted that [Mr. Frederick] was on his way to his son's daycare at the time that this injury occurred[.]" When the trial judge asked why this made a difference, Schwan pressed that Mr. Frederick's intent to drive his child to daycare established that Mr. Frederick was not in the course of his employment at that time. Further, Schwan continued, even if the court were to find that he was in the course of his employment, Mr. Frederick "deviated once he left the threshold of his house and continued to his son's daycare and any injuries during that trip . . . don't arise out of and in the course of his employment[.]" Schwan had to concede that obviously, regardless of whether Mr. Frederick had to take his child to daycare, it anticipated Mr. Frederick would be walking out to his car to go to his first account that morning. Schwan clarified, however, that it was not arguing that the "going and coming rule" precluded Mr. Frederick's recovery of benefits.

         Counsel for Mr. Frederick responded that the injury occurred "during a time and place where [Schwan] would expect him to be" because his workday began in his home when he completed his downloads and spoke with his drivers. Counsel argued that the injury was also compensable under the dual-purpose doctrine because "the daycare is two-thirds of the way to where his first stop is, you can't argue that . . . two-thirds of the trip is not providing a benefit to the employer."

         After hearing Schwan's rebuttal, the trial judge denied Schwan's motion for judgment. Following a brief recess, Schwan rested its case and both parties moved for judgment. The court, again, denied Schwan's motion for judgment but granted Mr. Frederick's motion for judgment as a matter of law, ruling that his injury arose out of and in the course of his employment. The court explained:

In this case here the employer effectively requires the employee to be where the accident occurred because it did not have an office in Maryland making it necessary for the employee to establish an office of some type to perform work for his employer.

Although Mr. Frederick did testify that he was going to make a stop at his child's daycare, he did have to leave his home office to [] go get to a customer's location. And this was [] not only a location where the employee may be working for the employer, [] effectively it happened at the place where he was working for the employer because he had established a presence at his home office. And also going to the customer's location is not only consistent with his work, it is essential based on the nature of Mr. Frederick's job that he provided testimony regarding.

         The trial judge also ruled, in the alternative,

that the exceptions to the going and coming rule, that . . . at least two of them apply - that the employee's mode of transportation was required by the employer and that the employee was injured during a trip that served both a personal and business purpose.

         The court entered an order on August 2, 2017, reversing the decision of the WCC and remanding the matter for entry of an order stating that Mr. Frederick sustained an accidental injury arising out of and in the course of employment. Schwan ...