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Ehrgott v. Jones

Decided: February 28, 1986.

FREDERICK J. EHRGOTT, JR., PLAINTIFF-APPELLANT,
v.
HERBERT W. JONES, ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MICHAEL C. JONES, DECEASED, AND GEORGE S. PEARSON, DEFENDANTS-RESPONDENTS. FREDERICK EHRGOTT, JR. AND JANE EHRGOTT, PLAINTIFFS-RESPONDENTS, V. GEORGE S. PEARSON, JOHN DOE AND JOHN DOE CORPORATION, DEFENDANTS, THIRD-PARTY PLAINTIFFS-RESPONDENTS, V. HERBERT W. JONES OF ESTATE OF MICHAEL C. JONES, THIRD-PARTY DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Somerset County.

Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

The narrow issue raised by this appeal is whether an employee is within the course of his employment pursuant to the intendment of N.J.S.A. 34:15-36 while traveling to an out-of-state professional meeting. Under the facts of this case, we hold that he is.

Plaintiff Frederick Ehrgott, a research chemist then employed by Hoechst-Roussel Pharmaceuticals, Inc., was grievously injured in an automobile accident on March 28, 1982. At the time, plaintiff was on his way to Newark Airport for a flight to Las Vegas, where he was planning to attend the annual meeting of the American Chemical Society. He was a passenger in an automobile driven by his coemployee Michael C. Jones, who was also to attend the meeting. A second passenger in the car was going to drive it back from the airport. While on their way to pick up a third employee who was joining them on the trip to Las Vegas, their car was struck by an automobile driven by George Pearson. Both Jones and the other passenger in his car were killed and plaintiff was seriously and permanently disabled. Hoechst-Roussel viewed the accident as occurring during the course of employment and assumed its workers' compensation obligations to plaintiff.

Plaintiff's claims against Pearson were settled for the policy limits, and plaintiff proceeded against Jones' estate. Following a pretrial evidentiary hearing, the complaint was dismissed on the ground that since the accident occurred during the course of both Jones' and plaintiff's employment, workers' compensation

coverage provided plaintiff's exclusive recourse for the consequences of a coemployee's negligence. Plaintiff appeals.

The trial judge found that Hoechst-Roussel, as part of its effort to provide its technical employees with continuing education, offered them a variety of on and off premises professional activities, including the opportunity, at its expense, to attend one scientific convention each year. The employer prepared an annual list of those professional meetings to which it encouraged attendance and circulated the list among those of its employees who were eligible for the program. Each employee would then state which two or three meetings he would prefer to attend, and an administrator then assigned each employee to one meeting, attempting to accommodate individual preferences. The employer paid all business-related expenses incurred in attending the meetings, including airfare, ground transportation, hotel bills and meals. Travel arrangements were made directly by the employer, but employees using their own automobiles for any part of the transportation were reimbursed for that expense. Regular salary was paid during meeting attendance, all of the employees apparently being paid on an annual rather than hourly basis. Upon return from the meeting, the attending employee was required to prepare a report for circulation to the technical staff and to make available to it whatever technical and scientific material had been distributed.

Plaintiff and Jones were among the five chemists selected for the American Chemical Society annual meeting. It was their plan to fly from Newark Airport on the Sunday morning prior to the Monday start of the meeting in order to have a day of leisure in Las Vegas before the meetings commenced.

The issue before the trial judge was whether, in view of this factual complex, the trip to Las Vegas, including the drive to the airport, was within the definition of the so-called "going and coming" rule which was added to N.J.S.A. 34:15-36 by L. 1979, c. 283, ยง 12 and states:

Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.

The trial judge concluded that travel to the meeting was comprehended by the so-called special-mission provision of the definition pursuant to which an employee is deemed to be in the course of his employment when he is both required by the employer to be away from its place of employment and is then actually engaged ...


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