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Ohio Casualty Group v. Aetna Casualty & Surety Co.

Decided: October 30, 1986.

OHIO CASUALTY GROUP, PETITIONER-RESPONDENT,
v.
AETNA CASUALTY & SURETY COMPANY, RESPONDENT-APPELLANT



On appeal from final judgment of Division of Worker's Compensation.

O'Brien, Skillman and Landau. Landau, J.s.c. (temporarily assigned).

Landau

[213 NJSuper Page 284] This is an appeal by Aetna Casualty & Surety Company from final judgment of the Division of Worker's Compensation in

favor of petitioner Ohio Casualty Group as subrogee of Victor Vittorino under personal injury protection (PIP) provisions of an automobile insurance policy.*fn1 Aetna Casualty & Surety Company provided worker's compensation insurance for Vittorino's employer Hydro-Nuclear Services (Hydro-Nuclear).

The Worker's Compensation Judge interpreted N.J.S.A. 34:15-36 to find that Vittorino's injuries occurred within the scope of his employment. We reverse.

The facts are uncontroverted.

In 1981, Vittorino was a salaried employee of Hydro-Nuclear, a New Jersey company which contracted to provide services for a nuclear power plant in Vermont. He was the day shift supervisor for a number of other Hydro-Nuclear employees who were assigned to the job site. Vittorino and the others stayed at a Holiday Inn about 12 miles from the power plant. All received a per diem allowance for room and board, and were not required to stay at the Holiday Inn. Vittorino initially travelled with a coemployee in a company van from Marlton, New Jersey to Vermont, bringing a high pressure pump to the job site, and thereafter he drove the van to and from the Holiday Inn and job site. Hydro-Nuclear permitted, and did not require employee reimbursement for, use of company vehicles for minor local personal trips. It did not discourage social activities for relaxation after work.

On October 22, 1981, Hydro-Nuclear's president and its operations manager went to Vermont in a company car to check progress. That evening Vittorino and his immediate supervisor joined with these company officials in a dinner hosting executives of the Vermont power plant. After dinner the Hydro-Nuclear group left their customers and returned to the Holiday Inn at approximately 10:30 p.m. They went into the bar, but Vittorino separated himself from the employer group and socialized with friends he had made while in Vermont. Although

sometimes required to be on "24 hour call," he was not on such call that evening.

One of Vittorino's Vermont friends in the bar was a part-time Holiday Inn cocktail waitress, who that night was a guest at an unrelated party in the next room. When her friends became intoxicated, she asked Vittorino for a ride to her home which was approximately three miles from the Holiday Inn.

Vittorino approached one of the visiting Hydro-Nuclear officials and requested permission to borrow the company car which had been driven to Vermont that day. He explained that he wished to drive the woman home, and was given the car keys. There is no question that Vittorino received proper authorization to use the company car. While driving her home, he was seriously injured in an automobile accident.

The PIP carrier made medical payments on his behalf, and now seeks subrogation recovery through the worker's compensation action. There is no dispute as to its right to so ...


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