IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) Employer/Appellant, ) ) C.A. No. N17A-02-007 ALR v. ) ) MARK DESANTIS, ) ) Employee/Appellee. )
Submitted: September 8, 2017 Decided: October 17, 2017
On Appeal from the Industrial Accident Board REVERSED and REMANDED
MEMORANDUM OPINION
Jessica L. Julian, Esquire, Benjamin K. Durstein, Esquire, Marshall Dennehey Warner Coleman & Goggin, Attorneys for Appellant
Frederick S. Freibott, Esquire, The Freibott Law Firm, P.A., Attorney for Appellee
Rocanelli, J. This is an appeal from a decision of the Industrial Accident Board (“Board”)
which awarded compensation for injuries sustained in an automobile accident while
an employee was commuting home from work.
Factual Background
Mark DeSantis was employed as a Construction Manager for DelDOT and
was responsible for the inspection, execution, and administration of the construction
activities for DelDot’s Paving and Rehabilitation Program. DeSantis had an office
in Bear, Delaware. His core hours of employment were either 8:00 A.M. to 4:00
P.M. or 7:00 A.M. to 3:00 P.M. Nevertheless, DeSantis’s position required him to
visit various roadway construction sites for inspections. It was common for
DeSantis to work overtime and visit roadway construction sites after his core hours
because many roadway construction projects take place at night. When being
compensated for overtime, DeSantis submitted a time sheet for hours spent at
jobsites, but he was not compensated for any time commuting to or from his home,
either during core hours or when working overtime. DeSantis had the option of
using a State vehicle, but he was not permitted to drive the State vehicle to his home.
After his core hours on October 16, 2014, DeSantis attended a professional
association function for the American Society of Highway Engineers (“ASHE”) in
the evening. Attendance at the AHSE function was not part of DeSantis’
employment responsibilities at DelDOT. DeSantis left the ASHE function at
1 approximately 10:30 P.M. and drove to a construction site on Kirkwood Highway,
where DeSantis had plans to meet with Robert Pierson, whose company had been
retained by DelDOT to mill and pave a stretch of Kirkwood Highway, to address a
“rideability” issue. When DeSantis arrived at the worksite, Pierson had already left
for the evening. DeSantis stayed on site until approximately 11:30/11:45 P.M. and
then left the jobsite to drive home. During his commute home, at approximately
12:03 A.M. on October 17, 2014, DeSantis was involved in a motor vehicle accident
and suffered extensive injuries.
Procedural Background
DeSantis sought compensation for injuries he sustained in the motor vehicle
accident that occurred on October 17, 2014 when DeSantis was commuting to his
home from the jobsite. Pursuant to 19 Del. C. § 2301(B), the parties stipulated to
having the matter decided by a hearing officer (“Hearing Officer”). The Hearing
Officer issued the Board’s decision on December 29, 2016 (“Board Decision”),
concluding that DeSantis’s injuries arose out of and in the course of his employment
for the State of Delaware and were therefore compensable under 19 Del C. § 2304.
The State appeals the Board Decision.
2 Board Decision
The Board stated that, under Spellman v. Christiana Care Health Services,1
the inquiry must focus first on whether the employment contract at issue
contemplates that the employee’s activity at the time of the accident was work-
related. The Board found that DelDot did not compensate DeSantis for commuting
time. Nevertheless, the Board found that DeSantis could recover based on a finding
that DeSantis was an employee with a semi-fixed place of business, which is an
exception to the “going and coming” rule. In addition, the Board found in the
alternative that DeSantis’s injuries were compensable because his travel activity was
“unusual, urgent or risky.”2
Standard of Review
The Court has statutorily conferred jurisdiction over appeals from
administrative agencies, including appeals from the Board.3 On appeal from a Board
decision, the Court’s role is limited to determining whether the Board’s conclusions
are supported by substantial evidence and free from legal error.4 Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
1 74 A.3d 619 (Del. 2013). 2 Gondek v. Easy Money Group, 2013 WL 7095816, at *2 (Del. Super. Dec. 27, 2013). 3 29 Del. C. § 10142(a). 4 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 3 to support a conclusion.”5 The Court reviews the Board’s legal determinations de
novo,6 which “requires the Court to determine whether the Board erred in
formulating or applying legal principles.”7
Discussion
The Delaware Worker’s Compensation Act (“Act”) provides that an employee
is entitled to receive compensation for injuries sustained in accidents “arising out of
and in the course of employment.”8 Whether an injury arises out of and in the course
of employment is a mixed question of law and fact.9 The Act provides that an injury
does not arise out of and in the course of employment unless:
[T]he employee is engaged in, on or about the premises where the employee’s services are being performed, which are occupied by, or under the control of, the employer (the employee’s presence being required by the nature of the employee’s employment), or while the employee is engaged elsewhere in or about the employer’s business where the employee’s services require the employee’s presence as part of such service at the time of the injury . . . .10
5 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 6 Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006). 7 Estate of Fawcett v. Verizon Delaware, Inc., 2007 WL 2142849 (Del. Super. July 25, 2007). 8 19 Del. C. § 2304. 9 Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993). 10 19 Del. C. § 2301(19)(a). 4 Delaware courts historically interpreted that statutory language to create what
is referred to as the “going and coming” rule.11 The “going and coming” rule
provides that “injuries resulting from accidents during an employee’s regular travel
to and from work are noncompensable.”12 However, the courts also developed “a
veritable potpourri” of exceptions to the “going and coming” rule.13
In Spellman, the Delaware Supreme Court considered the “going and coming”
rule and its various exceptions and expressed concerns that the “going and coming”
rule and the exceptions thereto were being incorrectly treated as “statutorily derived,
freestanding rules of law.”14 The Court emphasized that the rule and its exceptions
“are only aspects or elements of a more fundamental inquiry, namely, whether under
the totality of the circumstances, the employment contract between employer and
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) Employer/Appellant, ) ) C.A. No. N17A-02-007 ALR v. ) ) MARK DESANTIS, ) ) Employee/Appellee. )
Submitted: September 8, 2017 Decided: October 17, 2017
On Appeal from the Industrial Accident Board REVERSED and REMANDED
MEMORANDUM OPINION
Jessica L. Julian, Esquire, Benjamin K. Durstein, Esquire, Marshall Dennehey Warner Coleman & Goggin, Attorneys for Appellant
Frederick S. Freibott, Esquire, The Freibott Law Firm, P.A., Attorney for Appellee
Rocanelli, J. This is an appeal from a decision of the Industrial Accident Board (“Board”)
which awarded compensation for injuries sustained in an automobile accident while
an employee was commuting home from work.
Factual Background
Mark DeSantis was employed as a Construction Manager for DelDOT and
was responsible for the inspection, execution, and administration of the construction
activities for DelDot’s Paving and Rehabilitation Program. DeSantis had an office
in Bear, Delaware. His core hours of employment were either 8:00 A.M. to 4:00
P.M. or 7:00 A.M. to 3:00 P.M. Nevertheless, DeSantis’s position required him to
visit various roadway construction sites for inspections. It was common for
DeSantis to work overtime and visit roadway construction sites after his core hours
because many roadway construction projects take place at night. When being
compensated for overtime, DeSantis submitted a time sheet for hours spent at
jobsites, but he was not compensated for any time commuting to or from his home,
either during core hours or when working overtime. DeSantis had the option of
using a State vehicle, but he was not permitted to drive the State vehicle to his home.
After his core hours on October 16, 2014, DeSantis attended a professional
association function for the American Society of Highway Engineers (“ASHE”) in
the evening. Attendance at the AHSE function was not part of DeSantis’
employment responsibilities at DelDOT. DeSantis left the ASHE function at
1 approximately 10:30 P.M. and drove to a construction site on Kirkwood Highway,
where DeSantis had plans to meet with Robert Pierson, whose company had been
retained by DelDOT to mill and pave a stretch of Kirkwood Highway, to address a
“rideability” issue. When DeSantis arrived at the worksite, Pierson had already left
for the evening. DeSantis stayed on site until approximately 11:30/11:45 P.M. and
then left the jobsite to drive home. During his commute home, at approximately
12:03 A.M. on October 17, 2014, DeSantis was involved in a motor vehicle accident
and suffered extensive injuries.
Procedural Background
DeSantis sought compensation for injuries he sustained in the motor vehicle
accident that occurred on October 17, 2014 when DeSantis was commuting to his
home from the jobsite. Pursuant to 19 Del. C. § 2301(B), the parties stipulated to
having the matter decided by a hearing officer (“Hearing Officer”). The Hearing
Officer issued the Board’s decision on December 29, 2016 (“Board Decision”),
concluding that DeSantis’s injuries arose out of and in the course of his employment
for the State of Delaware and were therefore compensable under 19 Del C. § 2304.
The State appeals the Board Decision.
2 Board Decision
The Board stated that, under Spellman v. Christiana Care Health Services,1
the inquiry must focus first on whether the employment contract at issue
contemplates that the employee’s activity at the time of the accident was work-
related. The Board found that DelDot did not compensate DeSantis for commuting
time. Nevertheless, the Board found that DeSantis could recover based on a finding
that DeSantis was an employee with a semi-fixed place of business, which is an
exception to the “going and coming” rule. In addition, the Board found in the
alternative that DeSantis’s injuries were compensable because his travel activity was
“unusual, urgent or risky.”2
Standard of Review
The Court has statutorily conferred jurisdiction over appeals from
administrative agencies, including appeals from the Board.3 On appeal from a Board
decision, the Court’s role is limited to determining whether the Board’s conclusions
are supported by substantial evidence and free from legal error.4 Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
1 74 A.3d 619 (Del. 2013). 2 Gondek v. Easy Money Group, 2013 WL 7095816, at *2 (Del. Super. Dec. 27, 2013). 3 29 Del. C. § 10142(a). 4 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 3 to support a conclusion.”5 The Court reviews the Board’s legal determinations de
novo,6 which “requires the Court to determine whether the Board erred in
formulating or applying legal principles.”7
Discussion
The Delaware Worker’s Compensation Act (“Act”) provides that an employee
is entitled to receive compensation for injuries sustained in accidents “arising out of
and in the course of employment.”8 Whether an injury arises out of and in the course
of employment is a mixed question of law and fact.9 The Act provides that an injury
does not arise out of and in the course of employment unless:
[T]he employee is engaged in, on or about the premises where the employee’s services are being performed, which are occupied by, or under the control of, the employer (the employee’s presence being required by the nature of the employee’s employment), or while the employee is engaged elsewhere in or about the employer’s business where the employee’s services require the employee’s presence as part of such service at the time of the injury . . . .10
5 Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v. Cooch, 42 A.2d 610, 614 (Del. 1981). 6 Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006). 7 Estate of Fawcett v. Verizon Delaware, Inc., 2007 WL 2142849 (Del. Super. July 25, 2007). 8 19 Del. C. § 2304. 9 Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993). 10 19 Del. C. § 2301(19)(a). 4 Delaware courts historically interpreted that statutory language to create what
is referred to as the “going and coming” rule.11 The “going and coming” rule
provides that “injuries resulting from accidents during an employee’s regular travel
to and from work are noncompensable.”12 However, the courts also developed “a
veritable potpourri” of exceptions to the “going and coming” rule.13
In Spellman, the Delaware Supreme Court considered the “going and coming”
rule and its various exceptions and expressed concerns that the “going and coming”
rule and the exceptions thereto were being incorrectly treated as “statutorily derived,
freestanding rules of law.”14 The Court emphasized that the rule and its exceptions
“are only aspects or elements of a more fundamental inquiry, namely, whether under
the totality of the circumstances, the employment contract between employer and
employee contemplated that the employee’s activity at the time of the injury should
be regarded as work-related and therefore compensable.”15 Therefore, the Court
established a framework for analyzing whether an accident arose out of and in the
course of employment.
11 Histed, 621 A.2d at 343. 12 Id. 13 Spellman, 74 A.3d at 623 (referring to the “special errand” exception, the “compensation” exception, the “premises” exception, and the “semi-fixed place of employment” exception). 14 Id. at 625. 15 Id. 5 Under the Spellman framework, the Board is directed to first focus on the
employment agreement itself to determine if the terms of the employment contract
contemplate that the employee’s travel time is compensable.16 If the terms of the
employment agreement resolve the issue, the Board’s inquiry must end.17 According
to Spellman, the Board may only consider “secondary default presumptions and rules
of construction,” like the “going and coming rule” and its various exceptions, where
the evidence of the employment contract is insufficient to end the inquiry.18 Thus,
the “going and coming rule” and its exceptions “are not primary, first-resort, rules
of decision.”19
Therefore, under Spellman, the Board was first required to consider evidence
of the employment contract to determine if DeSantis’ drive home from the
construction site was compensable. To that end, the Board considered the
testimonial evidence regarding the terms of the employment contract, which
included the fact that DeSantis was not paid for travel time or mileage between his
home and work. This should have ended the inquiry.
However, the Board then utilized the “semi-fixed place of employment”
exception to the “going and coming” rule as part of the purported contractual
16 Id. 17 Id. 18 Id. 19 Id. 6 analysis. The Board concluded that the “going and coming rule” did not bar
DeSantis’ recovery even though he was driving home at the time of the accident
because DeSantis was an employee with a “semi-fixed place of employment.” The
Board committed legal error in applying the “going and coming” rule and the “semi-
fixed place of employment” exception.
Because DeSantis’ employment contract specified that he would not be
compensated for travel from work to home, Spellman required a ruling that the injury
incurred while driving home from work did not arise out of and in the course of
employment. The Board should not have considered the “going and coming” rule
or any exceptions thereto unless there was insufficient evidence about the
employment contract to resolve the inquiry into whether the accident arose out of
and in the course of DeSantis’ employment. Nevertheless, the Hearing Officer
considered the rule and the exception as part of the contractual analysis, even though
there was ample evidence about the terms of the employment contract to resolve the
inquiry without resorting to the “going and coming” rule. Thus, the Board
committed legal error inconsistent with the decisional law as set forth in Spellman
by applying the “going and coming” rule.
The Board found in the alternative that DeSantis’ injuries were compensable
because his travel activity was “unusual, urgent or risky.” 20 Similarly, this
20 Gondek, 2013 WL 7095816, at *2. 7 conclusion flowed from a legal error. The Delaware Supreme Court in Spellman
did not provide that the Board could award compensation if the circumstances of the
employee’s travel were “unusual, urgent, or risky.” Thus, to the extent that the
Hearing Officer applied an “unusual, urgent, or risky” analysis, the Board committed
legal error.21
Therefore, even though the Board correctly stated the legal standard, it was
not correctly applied. In the analysis set forth in the Board Decision, the Board first
considered the terms of the employment contract and found that DeSantis was not
compensated for time commuting to and from his home. Under Spellman, the
inquiry should have ended upon the ruling that the terms of DeSantis’ compensation
by DelDot did not include compensation for time spent commuting. Nevertheless,
the Board found DeSantis’ injuries were compensable by applying an exception to
the “going and coming” rule and by ruling, in the alternative, that another exception
applied in that, according to the Board, DeSantis’ travel was “unusual, urgent, or
risky.” Accordingly, the Board’s Decision that DeSantis sustained compensable
injuries in a work accident arising out of and in the course of employment, was the
21 Where, as here, the first step of the contractual analysis resolves the issue of compensability, then the inquiry ends under Spellman. To the extent that Gondek provides an alternative analysis, this Court declines to follow Gondek. 8 result of legal error. Therefore, this matter must be remanded to the Board for
proceedings consistent with this decision.22
Conclusion
For the reasons stated, the Court hereby finds that the Board committed legal
error in its award of workers’ compensation for injuries that occurred when an
employee was commuting home from work under circumstances where his
employment contract did not provide compensation for time spent commuting.
NOW, THEREFORE, this 17th day of October, 2017, the decision of the
Industrial Accident Board is REVERSED and REMANDED for further
proceedings consistent with this opinion.
IT IS SO ORDERED.
Andrea L. Rocanelli ______________________________ The Honorable Andrea L. Rocanelli
22 See e.g., Fawcett, 2007 WL 2142849, at *5 (citing Future Ford Sales, Inc. v. Public Service Commission of the State of Delaware, 654 A.2d 837, 846 (Del. 1995). 9