Appellate Division Dismisses Claim Due to Personal Errand

Saturday, July 28, 2007 | 0

By John H. Geaney

Hector Valcarcel worked with FSA Management Co. FSA managed residential apartments and hired Valcarcel as a superintendent of its apartment complexes, providing him with a company vehicle and an apartment unit. He worked from 8 a.m. to 4:30 p.m. for FSA.

Valcarcel also operated a private home remodeling business, which required him to travel to various job sites. FSA's supervisor, Kevin Seltzer, was aware of Valcarcel's side business. Seltzer did allow Valcarcel at times to use the company truck for personal reasons such as getting lunch.

On March 29, 2001, Valcarcel was supposed to drive the company truck from FSA's premises in Bridgewater, New Jersey, to one of its properties in Highland Park, New Jersey. Instead of driving to Highland Park, Valcarcel stopped at a private job site in Plainfield, where he was doing remodeling work. Upon leaving that private residence, he was injured in a car accident. He brought a workers' compensation claim against FSA, which denied the claim.

The Honorable Joel Gottlieb, J.W.C., denied petitioner's claim because he was on a personal mission. He noted that petitioner admitted at trial that the personal trip was not related to his business with FSA. Valcarcel appealed and contended that he was heading to FSA's property in Highland Park when the accident occurred. The Appellate Division affirmed the reasoning of Judge Gottlieb: "Even if that is true, his intended ultimate destination does not make his unauthorized detour to Plainfield minor in nature. Although Valcarcel was driving a company vehicle, we do not read the phrase 'traveling to and from a job site' in N.J.S.A. 34:15-36 to provide him with coverage in these circumstances.'"

The Appellate Division took judicial notice of the fact that Plainfield was not on the way to Highland Park. It further observed that the employer did not know of or approve this deviation. In a trenchant observation, the court said, "Valcarcel argues, in essence, that he should have compensation coverage because the company truck he was driving was headed in the direction of Highland Park when his collision occurred. That surely is not a dispositive fact, for it would logically signify that Valcarcel would likewise be entitled to coverage if, say, he had traveled several hours away for personal business to Cape May or to Connecticut before heading to Highland Park."

This is a good case, although unreported, for practitioners and employers who need to advise clients on the proposition that once a worker has ended the deviation, he or she should be covered if intending to head to the original work site. That theory has not been generally adopted by New Jersey courts; rather, Jumpp and other cases focus on whether the deviation is major or minor.

John H. Geaney is an attorney at Capehart Scatchard. This column first appeared in the law firm's case law newsletter. The law firm's Web site is http://www.capehart.com.

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.