Wilcox v. Ag Mart Produce

942 So. 2d 959, 2006 WL 3408054
CourtDistrict Court of Appeal of Florida
DecidedNovember 28, 2006
Docket1D06-1280
StatusPublished
Cited by2 cases

This text of 942 So. 2d 959 (Wilcox v. Ag Mart Produce) 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
Wilcox v. Ag Mart Produce, 942 So. 2d 959, 2006 WL 3408054 (Fla. Ct. App. 2006).

Opinion

942 So.2d 959 (2006)

Timothy D. WILCOX, Appellant,
v.
AG MART PRODUCE d/b/a Santa Sweets and St. Paul Travelers, Appellees.

No. 1D06-1280.

District Court of Appeal of Florida, First District.

November 28, 2006.

*960 Bill McCabe, Longwood, for Appellant.

C. Brad Drummond, Law Office of Jack D. Evans, Tampa, for Appellees.

PER CURIAM.

Claimant was injured in a motor vehicle accident while driving a company vehicle home from work on March 2, 2005. After a hearing, the Judge of Compensation Claims (JCC) denied benefits to claimant based on the going and coming rule, section 440.092(2), Florida Statutes (2005).[1] On appeal, claimant argues that the JCC erred in denying him compensation benefits for the following reasons: (1) the traveling employee exception to the going and coming rule, section 440.092(4), Florida Statutes (2005), precludes application of the going and coming rule on the facts of this case; (2) there is no competent substantial evidence in the record to support the JCC's finding that claimant was operating an employer provided vehicle available for his exclusive personal use, and therefore, the going and coming rule does not apply; (3) there is no competent substantial evidence in the record to support the JCC's finding that the dual purpose doctrine, an exception to the going and coming rule, is not applicable in this case. We affirm the JCC's compensation order, which denied benefits to claimant.

BACKGROUND

Claimant worked as a farm supervisor for Ag Mart Produce. When he was hired by the employer, claimant was given a company vehicle as part of his compensation package to drive to and from work, and for business purposes. Additionally, claimant was allowed to use the vehicle for personal use, except that claimant would have to get approval if he used the vehicle for "excessive personal use." The written personal use policy for the company vehicles provided the following: "While our vehicles are purchased solely for business purposes, we do allow employees to garage their company-owned vehicles at home. It has long been felt that this reduces our exposure to vandalism and provides better *961 access for our employees to their various work assignments."

Claimant's trial summary and memorandum of law, provided before the hearing, argued that the company vehicle was not for his exclusive personal use, and also that the dual purpose doctrine applied to preclude application of the going and coming rule. The dual purpose argument was based on claimant's allegations that the company received a benefit when he parked the vehicle at home.

Testimony was presented at the merits hearing relevant to the dual purpose doctrine. The president of the employer, Don Long, acknowledged the employer's written personal use policy for the company vehicles. However, Long also testified that the vehicle was given to claimant as part of his compensation package, and that there was no benefit to the employer by having the claimant take the vehicle home.

Additionally, testimony was presented regarding claimant's argument that he did not have exclusive personal use of the company vehicle. Claimant testified that he had the vehicle continually, and that the keys were in his possession 24 hours a day. However, he also testified that he did not drive the vehicle for personal use, except to and from home, and that other employees would drive the vehicle occasionally. Long testified that the employees could use the vehicles for incidental personal use, but that the employees must ask permission and fill out log forms for excessive personal use, such as vacations. Other evidence was admitted at the hearing that these logs did not exist and were never used.[2]

Claimant also presented testimony that, as part of his duties, he completed paperwork daily at home because he had no office on the farm. The paperwork had to be delivered to Fort Lonesome daily at 9 a.m. No other testimony was admitted at the hearing to controvert claimant's testimony regarding this required paperwork.

After the hearing, the JCC entered his compensation order, denying benefits. The JCC found that there was no business purpose to claimant's travel at the time of the accident, and therefore, the dual purpose doctrine was not applicable. The JCC also found that the employer's vehicle was available for the exclusive personal use of claimant. The JCC ultimately found that "[t]he claimant was in no different position on 3/2/05 than any other employee driving his own vehicle to or from work, therefore recovery of workers' compensation benefits is barred by F.S. 440.092(2), otherwise known as the going and coming rule."

ANALYSIS

Claimant's first argument is that the traveling employee exception, section 440.092(4)[3], should apply in this case to preclude application of the going and coming rule. This argument is based on facts established at the hearing that claimant had to complete paperwork at home on a daily basis, because the employer did not *962 provide him with a place to complete the paperwork at the farm. However, claimant failed to preserve this argument below.

Although claimant mentioned factually that he had to complete part of his work at home on a daily basis, he never connected this fact with the legal argument that the traveling employees exception applies in this case. In his trial summary and memorandum of law, claimant specifically argues the other two issues on appeal, that the company vehicle was not for claimant's exclusive personal use, and that the dual purposes doctrine applies in this case. However, claimant did not argue that the traveling employee exception barred application of the going and coming rule. Additionally, claimant failed to make this argument at the final hearing. Accordingly, claimant has failed to preserve this issue for appellate review. See Alpizar v. Total Image Beauty Salon, 650 So.2d 109, 110 (Fla. 1st DCA 1995) (providing that where an argument is not presented to the JCC, it is not preserved for appeal); Robinson v. Shands Teaching Hosp., 625 So.2d 21, 23 (Fla. 1st DCA 1993) (providing "[i]n workers' compensation appeals, as in appeals generally, issues which have not been raised below are treated as not preserved, and will not be addressed").

Claimant's second argument on appeal is that the going and coming rule does not apply in this case because there was no competent substantial evidence that the claimant had exclusive personal use of the company vehicle. The going and coming rule applies only where a claimant maintains exclusive personal use of the vehicle. See Securex, Inc. v. Couto, 627 So.2d 595, 597 (Fla. 1st DCA 1993). However, the JCC specifically found that claimant had exclusive personal use of the vehicle. Based on the evidence admitted at the hearing, the JCC specifically found that "personal use of the vehicle was allowed and was intended to be part of claimant's compensation." Additionally, the JCC found that there were "no practical restrictions on claimant's use of the vehicle" and that the employer "has made no effort to enforce [its personal use policy] or to monitor personal use of its vehicles in any meaningful way." Because these findings are supported by competent substantial evidence in the record, we will not disturb them on appeal.[4]

Claimant's third argument on appeal is that there is no competent substantial evidence to support the JCC's finding that the dual purpose doctrine is not applicable in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
942 So. 2d 959, 2006 WL 3408054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-ag-mart-produce-fladistctapp-2006.