Levy County Sheriff's Office v. Allen

140 So. 3d 1150, 2014 WL 2925253, 2014 Fla. App. LEXIS 9970
CourtDistrict Court of Appeal of Florida
DecidedJune 30, 2014
DocketNo. 1D13-5020
StatusPublished

This text of 140 So. 3d 1150 (Levy County Sheriff's Office v. Allen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levy County Sheriff's Office v. Allen, 140 So. 3d 1150, 2014 WL 2925253, 2014 Fla. App. LEXIS 9970 (Fla. Ct. App. 2014).

Opinion

MAKAR, J.

While driving his personal car to work, Deputy Herman Allen came upon a tractor-trailer parked in the right-of-way and jutting into his lane. He decided to take steps to protect other motorists from the hazard, but ran into the tractor-trailer before he could do so. The question we address is whether Deputy Allen’s injuries are compensable because he was “acting within the course of employment” under section 440.091(1), Florida Statutes, or non-compensable because he was “going to or coming from” work under 440.092(2), Florida Statutes.

I.

Deputy Allen is a 41-year veteran of the Levy County Sheriffs Department. On February 11, 2013, he left his Cedar Key home in the early morning hours, driving eastbound on Highway 24 en route to his job of providing security at the county courthouse in Bronson, Florida. He was in his personal vehicle, wore his uniform, and carried his assigned badge and gun. It was about 6 a.m. and “real dark” when he saw a tractor-trailer stopped and jutting out four to five feet into the roadway, partially blocking his lane. He testified that he instantaneously became concerned about the safety of other motorists and intended to stop, call a road deputy, try to [1151]*1151get the vehicle off the roadway, and direct traffic. Before he could accomplish any of those plans, Deputy Allen was unable to avoid hitting the tractor-trailer, which caused him significant injuries (charges against both the tractor-trailer driver and Deputy Allen were later dropped).

The employer-carrier disputed that Deputy Allen’s accident arose out of his employment, arguing that it arose during his personal time while going to work. It also argued that Deputy Allen’s primary responsibility was to provide courthouse security services, and that these more limited obligations govern whether he was acting within his course of employment in deciding to intervene when he spotted the tractor-trailer. At the evidentiary hearing, Deputy Allen and other Levy County Sheriffs Office employees testified that the office has a policy that requires off-duty officers to conduct themselves as if they were on-duty to resolve hazards they observe. Based on this testimony, the trial court concluded that Deputy Allen’s “duty assignment as courthouse security does not relieve him of his obligation to resolve hazards when he sees them while off-duty. [Deputy Allen’s] fundamental, primary obligation is to safeguard the citizens of Levy County and Florida.... By protecting motorists from road hazards [Deputy Allen] is discharging one of his primary obligations.”

Based upon her factual findings, the judge of compensation claims (JCC) analyzed the applicability of two statutory provisions. The first, entitled “Going and coming,” states the general rule that “[a]n injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.” § 440.092(2), Fla. Stat.

Noting that the section’s two exceptions did not apply (the injury did not occur “during the officer’s work period or while going to or coming from work in an official law enforcement vehicle”), the JCC turned to the provisions of section 440.091(1), which provides that an “employee is considered to have been acting within the course of employment” if the employee:

(a) Is elected, appointed, or employed full time by a municipality, the state, or any political subdivision and is vested with authority to bear arms and make arrests and the employee’s primary responsibility is the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state;
(b) Was discharging that primary responsibility within the state in a place and under circumstances reasonably consistent with that primary responsibility; and
(c) Was not engaged in services for which he or she was paid by a private employer, and the employee and his or her public employer had no agreement providing for workers’ compensation coverage for that private employment^]

§ 440.09(l)(a)-(c), Fla. Stat. Finding that Deputy Allen met the requirements of being a “full time” employee who had the “authority to bear arms and make arrests,” the JCC analyzed whether an off-duty police officer who is “suddenly thrust” into the “performance of an official duty” meets the statutory test. In reviewing the statute’s language and caselaw on the topic, the JCC concluded that section 440.091(1) applies where an “officer’s duty status” changes due to intervening events that require the performance of the “employee’s primary responsibility,” which statutorily must be “the prevention or de[1152]*1152tection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state[.]” Id. § 440.091(l)(a).

Based on the facts presented, the JCC concluded that “regardless of his assigned duties involving courthouse security, [Deputy Allen] was required by the Levy County Sheriffs Office standards of conduct to automatically go on-duty and safeguard the drivers on the road.” Moreover, at the time of the accident, Deputy Allen “was discharging his primary responsibility of enforcing traffic and highway laws, under circumstances reasonably consistent with that primary responsibility, by making a conscious decision to safeguard the drivers on the road and resolve the hazard as required by the Levy County Sheriffs Office standards of conduct.” For these reasons, the JCC concluded that Deputy Allen established he was “acting within the course of employment” under section 440.091(1) because he was discharging his primary responsibility at the time of the accident.

The employer/carrier argued that that section 440.092(2) applies because it is an exception to and more specific than 440.091(1), but the JCC determined that both sections contain “exceptions to the going and coming rule as it relates to law enforcement officers, and each provides criteria that must be met before an accident is deemed to have occurred in the course and scope of employment.” The JCC thereby concluded that Deputy Allen’s accident was compensable, which the employer/carrier now appeals.

II.

The employer-carrier raises three issues, two of which are inter-related and involve the scope and purpose of sections 440.091(1) and 440.092(2); the third involves a claim that Deputy Allen was not a “full time” employee, but competent substantial evidence supports that he was.

On the main issues, the employer-carrier asserts that because Deputy Allen was off-duty and on his way to work, section 440.092(2) applies to the exclusion of section 440.091(1). Stated differently, it views section 440.092(2) as precluding a finding of compensability if an officer suffers an injury while going to or coming from work, the only two exceptions being those in 440.092(2) itself, which create a presumption of compensability: if an injury occurs (a) “during the officer’s work period” (i.e., normal working hours) or (b) “while going to or coming from work in an official law enforcement vehicle,” neither of which apply in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
140 So. 3d 1150, 2014 WL 2925253, 2014 Fla. App. LEXIS 9970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-county-sheriffs-office-v-allen-fladistctapp-2014.