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New Jersey Manufacturers Ins. Co. v. Public Service Electric & Gas Co.

Decided: June 28, 1989.

NEW JERSEY MANUFACTURERS INS. CO. IN EO NOMINE FOR JOHN R. SMITH, PETITIONER-APPELLANT,
v.
PUBLIC SERVICE ELECTRIC & GAS CO., RESPONDENT-RESPONDENT. JOHN R. SMITH, PETITIONER-RESPONDENT, V. PUBLIC SERVICE ELECTRIC & GAS CO., RESPONDENT-RESPONDENT



On appeal from New Jersey Department of Labor, Division of Workers' Compensation.

King and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This is a workers' compensation scope of employment case. John R. Smith (Smith) was employed by respondent Public Service Electric and Gas Company (PSE & G) at the Salem Nuclear Generating Station in Lower Alloways Creek Township. Access to the nuclear generating facility is provided by a five and a half mile access road. Although PSE & G owns the road, it is maintained by the Bechtel Corporation (Bechtel) and patrolled by the Lower Alloways Creek Police Department. The access road intersects with a township road and may be used by the general public. PSE & G controls a gate at a bridge along the road which may be closed in the event of an emergency. While driving to work on the access road approximately two miles from the nuclear facility and just before the bridge gate, Smith was injured in an automobile accident.

As a result of the accident, Smith obtained personal injury protection benefits from his automobile insurance carrier, petitioner

New Jersey Manufacturers Insurance Company (NJM).*fn1 NJM filed a compensation claim petition against PSE & G as Smith's subrogee. Subsequently, at the direction of the judge of compensation Smith also filed a claim petition, although he takes the position that the automobile accident did not occur in the course of his employment.

The parties submitted the scope of employment issue to the judge of compensation on stipulated facts. In an oral opinion, the judge of compensation concluded that the automobile accident did not occur in the course of Smith's employment and dismissed both claim petitions. We affirm.

Workers' compensation benefits must be paid for personal injuries caused by an "accident arising out of and in the course of employment." N.J.S.A. 34:15-7. A 1979 amendment to the Workers' Compensation Act provides that "[e]mployment 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. . . ." N.J.S.A. 34:15-36. The purpose of this amendment was to "[establish] relief from the far-reaching effect of the 'Going and Coming Rule' decisions by defining and limiting the scope of employment." Joint Statement of the Senate and Assembly Labor, Industry and Professions Committees (Substitute for S802 & A840) at 2 (1979) (hereinafter Joint Statement).

The Supreme Court construed the 1979 amendment to N.J.S.A. 34:15-36 in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988), which involved an employee injured in a parking lot of the shopping mall where she worked. The Court indicated that even though the employer did not own, maintain or have the exclusive right to use the parking lot, its power to designate an otherwise under-used area of the parking lot for

use by its employees made that portion of the lot the effective equivalent of an employer-owned lot. Id. at 104-105. Expressing "general agreement with the need for a flexible approach" in construing the new legislation, the Court concluded that the employee's "workday commenced when she arrived in her car at the section of the mall adjacent to [her employer's] premises, and therefore [she] was in the course of employment when the accident occurred." Id. at 104. The Court also stated that "by requiring its employees to park in a distant section of the lot, in order that customers could enjoy the convenience of parking adjacent to [its store, the employer] caused its employees to be exposed to an added hazard, on a daily basis, in order to enhance its business interests. In our view, it is entirely consistent with the fundamental purposes of workers' compensation legislation that [the employer] assume responsibility for injuries thus sustained." Id. at 105-106.

We perceive significant differences between "parking lot cases" such as Livingstone and this case. Smith's automobile accident occurred approximately two miles away from the Salem Nuclear Generating Station where he worked. Consequently, it would strain the language of the statute to find that he had "arrive[d] at the employer's place of employment to report for work" when the accident occurred, rather than still being in transit. Moreover, there is no indication that Smith was exposed to any added hazard, created to enhance the business interests of PSE & G, while traveling on the access road. The risk from driving on this roadway was no different than the risk from driving on any public roadway. And although PSE & G owned the roadway, there is no indication that it exercised any control over its use. Therefore, the place where the accident occurred was not, within the intent of N.J.S.A. 34:15-36, "under the control of the employer."

There are significant similarities between this case and Manole v. Carvellas, 229 N.J. Super. 138 (App.Div.1988). Manole and Carvellas were employed by the same employer in a shopping mall. A ...


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