Lee v. BSI Temporaries, Inc.

688 A.2d 968, 114 Md. App. 1, 1997 Md. App. LEXIS 23
CourtCourt of Special Appeals of Maryland
DecidedFebruary 7, 1997
DocketNo. 813
StatusPublished

This text of 688 A.2d 968 (Lee v. BSI Temporaries, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. BSI Temporaries, Inc., 688 A.2d 968, 114 Md. App. 1, 1997 Md. App. LEXIS 23 (Md. Ct. App. 1997).

Opinion

CATHELL, Judge.

Once again, the issue facing us is whether a worker’s accidental injuries arose out of and in the course of her employment. In this case, the employee sustained her injuries while riding on a bus that was provided by her employer. The Workers’ Compensation Commission decided that issue against Peggy Lee, appellant, the employee, and in favor of BSI Temporaries, Inc., appellee, the employer, and that determination was confirmed by the Circuit Court for Baltimore City. Appellant filed a timely appeal therefrom; she presents three issues:

A. If an employer hires a third party to transport employees to and from the workplace, and the cost of this service is met by a fee deducted from each employee’s paycheck, are injuries suffered by an employee while using this service compensable under Marylandfs] worker[s’] compensation statutes?
B. Under the “employer conveyance” exception to the coming and going rule, must a claimant demonstrate that the employer was “obligated” to provide transportation?
C. Given the agreed-upon facts of this case, did the employee suffer a compensable work-related injury?

In actuality, we need only speak to appellant’s first issue. In order to address that issue, we will need to analyze the scope of the employer conveyance exception to the coming and going rule, thereby answering appellant’s second issue. Appellant’s third issue is little more than a restatement of the first.

[4]*4The Relevant Facts

We shall begin by setting forth the facts of this case, which are neither complicated nor in dispute. Peggy Lee, appellant, was an employee of BSI Temporaries, Inc. (BSI), appellee,1 a temporary services agency. On July 19,1995, appellant, while employed by BSI, was working at a Proctor & Gamble plant in Baltimore. BSI contracted with the Woodlawn Bus Co. (Woodlawn) to transport its employees to and from the Proctor & Gamble plant on a daily basis. BSI designated various locations and times throughout the Baltimore area where the Woodlawn buses stopped to pick up and discharge the employees; only BSI employees were allowed to ride the buses. BSI employees were neither obligated nor required to use the bus service. The employees, including appellant, were free to arrange their own transportation to the plant. Those who chose to make use of the bus service had five dollars deducted from their paychecks for each day they utilized the bus service. The funds that BSI collected from the employees roughly equaled the amount that BSI paid to Woodlawn under the contract. Furthermore, BSI directed its employees to. bring any complaints about the bus service to its attention.

On July 19, 1995, appellant was injured while riding on one of the buses when that bus struck a curb. As a result of the injury, appellant filed a claim with the Workers’ Compensation Commission. A hearing was held on November 15, 1995, and appellant’s claim for benefits was denied. The Commission found that appellant had not sústained an accidental injury arising out of and in the course of her employment with BSI.2 Thereafter, appellant appealed to the Circuit Court for Baltimore City, and that court, on March 28, 1996, confirmed the [5]*5Commission’s determination.3 Appellant filed a timely notice of appeal therefrom.

The Law

It is a well settled principle that injuries sustained by an employee while he or she is commuting to or from work are generally not considered to arise out of and in the course of employment and, therefore, are not compensable under our workers’ compensation statute. Morris v. Board of Educ., 339 Md. 374, 379, 663 A.2d 578 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44, 617 A.2d 572 (1993); see also Board of Trustees v. Novik, 326 Md. 450, 453, 605 A.2d 145 (1992); Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 345, 641 A.2d 924 (1994). This is commonly referred to as the “coming and going” rule. In Morris, former Court of Appeals Chief Judge Murphy explained the rationale behind the noncompensability of injuries sustained while an employee is commuting:

This is because getting to work is considered to be an employee’s own responsibility and ordinarily does not involve advancing the employer’s interests. Moreover, the hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and, hence, such risks cannot be directly attributable to a person’s particular employment.

339 Md. at 380, 663 A.2d 578 (citation omitted); see also Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S.Ct. 801, 807, 91 L.Ed. 1028 (1947) (injuries incurred while commuting “arise out of the ordinary hazards of the journey, hazards which are faced by all travelers and which are unrelated to the employer’s business”); Wiley Mfg. Co. v. Wilson, [6]*6280 Md. 200, 206, 373 A.2d 613 (1977); Salomon v. Springfield Hosp., 250 Md. 150, 154, 242 A.2d 126 (1968). Stated otherwise,

[i]njuries sustained while an employee is traveling to or from the workplace ordinarily are not compensable ... because the hazards which employees face during daily commuting trips are common to the public at large. The risks to which an employee is exposed while going to or coming from work are no different from the ones which confront workers while they are traveling on personal excursions.

Richard P. Gilbert & Robert L. Humphreys Jr., Maryland Workers’ Compensation Handbook § 6.6 (2d ed.1993) (footnotes omitted).

As with many general principles of law, the coming and going rule is subject to several exceptions. Among them are two related and somewhat overlapping exceptions: the free transportation exception and the employer conveyance exception. The distinctions between the two, as we shall explain, are the degree of control exercised by the employer over the mode of transportation and to what extent the employer was under an obligation to furnish the employee with the transportation.

Appellant contends that her workers’ compensation claim comes under the employer conveyance exception. Appellant has, however, cited many cases decided under the free transportation exception in her brief as support for her position. Therefore, we shall address both. In doing so, we are mindful that “[e]ach case involving the going and coming rule and its exceptions must turn on its own particular facts.” Alitalia, 329 Md. at 46, 617 A.2d 572; Morris, 339 Md. at 381, 663 A.2d 578; Lorkovic, 100 Md.App. at 355, 641 A.2d 924; see also Cardillo, 330 U.S. at 479, 67 S.Ct.

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Bluebook (online)
688 A.2d 968, 114 Md. App. 1, 1997 Md. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-bsi-temporaries-inc-mdctspecapp-1997.