Donnelly v. Kearsarge Telephone Co.

428 A.2d 888, 121 N.H. 237, 1981 N.H. LEXIS 290
CourtSupreme Court of New Hampshire
DecidedApril 3, 1981
DocketNo. 80-140
StatusPublished
Cited by7 cases

This text of 428 A.2d 888 (Donnelly v. Kearsarge Telephone Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donnelly v. Kearsarge Telephone Co., 428 A.2d 888, 121 N.H. 237, 1981 N.H. LEXIS 290 (N.H. 1981).

Opinion

Bois, J.

The sole issue presented in this appeal involving a claim for workmen’s compensation benefits (RSA ch. 281) is whether the Trial Court (Flynn, J.) erred in granting the motion for summary judgment filed by the defendant employer and its workmen’s compensation carrier and in denying the summary judgment motion filed by the plaintiff employee. We find no error and affirm.

At the time of his accident, Wayne E. Donnelly, the plaintiff, was employed as a cable man by defendant Kearsarge Telephone Company. His responsibilities consisted of the installation and maintenance of the company’s telephone cable system, and these duties required the use of special tools which were kept in a truck which the company had assigned to him. He generally reported to the defendant’s office to pick up the company truck to perform work out of doors at various work sites, and at the end of the day he returned it to the office. His usual work week consisted of the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. Because he was the only cable man that the company employed, he frequently was called at home at various times during the week outside of his regularly-scheduled work hours in the event of a cable problem. Depending on the extent of the particular after-hours problem, the plaintiff would handle it either by giving instructions over the phone or by driving to the site of the problem and doing the work himself.

Approximately one week per month, the defendant employer required the plaintiff to be officially “on-call” around the clock. [239]*239Although the duties of this official on-call status were not set forth in writing, the custom was that for an extra $20 the plaintiff would be available at all times during that week to respond to emergency calls. In responding to such calls in person, Donnelly first would have to pick up the company truck if it was not already at his home. The evidence conflicted as to whether the employer required the plaintiff to take the truck home during an official on-call week.

Prior to 8:00 a.m. on Monday, August 20, 1976, the plaintiff was riding his motorcycle to his employer’s place of business to begin a usual workday, on the same road and at approximately the same time as usual. He was injured when the motorcycle left the road and collided with a sign. Plaintiff was “on-call” that week. Although the labor commissioner found that the plaintiff’s official on-call week had already begun at the time of the injury, the defendant suggests that it did not begin until 8:00 a.m. of the day of the injury.

The plaintiff brought a claim for workmen’s compensation benefits against the Kearsarge Telephone Company and its workmen’s compensation carrier, Aetna Casualty and Surety Company, asserting that the injury arose out of and in the course of his employment. Subsequent to a hearing, the labor commissioner denied the plaintiff’s claim for benefits. Thereupon the plaintiff appealed the decision to the superior court pursuant to RSA 281:37. Both defendants then moved for summary judgment under RSA 491:8-a (Supp. 1979). The plaintiff answered this motion in a counter-affidavit and filed his own motion for summary judgment. In denying the plaintiff’s motion and granting that of the defendants, the court stated that:

“As the plaintiff was merely going to work at his usual time, his ‘on-call’ status has no relationship to his injury. Therefore, his injuries cannot be considered a hazard of his employment. As the plaintiff’s injuries did not arise out of, and in the course of his employment, the defendant’s motion for summary judgment is granted.”

The plaintiff seasonably excepted to both rulings and appealed the order to this court.

We have long recognized that the “[sjummary judgment procedure is designed to save time, effort and expense by allowing a final judgment to be entered immediately in those cases where there is no genuine issue of material fact requiring a formal trial.” Nashua Trust Co. v. Sardonis, 101 N.H. 166, 168, 136 A.2d 332, [240]*240333 (1957). According to ESA 491:8-a (Supp. 1979), “[sjummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Armand Engineering Co., Inc. v. Labrie, Inc., 121 N.H. 107, 110, 427 A.2d 15, 16 (1981); Settle v. Keene Savings Bank, 120 N.H. 827, 829, 423 A.2d 986, 987 (1980); Suojanen v. Tardif, 120 N.H. 574, 576, 419 A.2d 1088, 1089 (1980); Arsenault v. Willis, 117 N.H. 980, 983, 380 A.2d 264, 266 (1977).

The plaintiffs assignment of error is that the trial court erred as a matter of law in finding no triable issue of fact in the pleadings, depositions, and affidavits before it, when viewed in a light most favorable to the plaintiff. See New Hampshire York Co. v. Titus Constr. Co., 107 N.H. 223, 225, 219 A.2d 708, 710 (1966).

Donnelly argues that he is entitled to “portal-to-portal” coverage because the pleadings and materials before the court would show that he “was an outside employee who was continuously on-call 24 hours per day, 365 days per year, having sole responsibility for his company’s 200 odd miles of above and below ground telephone cables and that his injuries were sustained while on a dual purpose trip which benefited his employer.” (Emphasis added.)

To be compensable under our workmen’s compensation statute an injury must arise “out of and in the course of employment,” ESA 281:2 V (Supp. 1979), and result from the condition and not merely from the bare existence of the employment. E.g., Heinz v. Concord Union School Dist., 117 N.H. 214, 217, 371 A.2d 1161, 1163 (1977); LaBonte v. Nat’l Gypsum Co., 110 N.H. 314, 317, 269 A.2d 634, 636 (1970). Many states have adopted a “coming and going rule,” which generally extends coverage to employees only on the employer’s premises. We also have recognized that the ordinary perils of travel between home and the workplace are not risks of the employment and injuries arising therefrom are not ordinarily compensable.

Noting, however, the “doubtful utility” and the “various exceptions” to the “going and coming rule,” we have held that an employee’s injury is compensable if “the cause of the injury can properly be considered a hazard of the employment.” Heinz v. Concord Union School Dist., supra at 217-18, 371 A.2d at 1163-64; Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964); Brousseau v. Blackstone Mills, 100 N.H. 493, 494-95, 130 A.2d 543, 545-46 (1957).

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Bluebook (online)
428 A.2d 888, 121 N.H. 237, 1981 N.H. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnelly-v-kearsarge-telephone-co-nh-1981.