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Powers v. APAC-Carolina/Barrus7/19/2005
e expense form, the employee was required to fill in his work-related mileage for that month in a column labeled "Business Miles" and was required to list his personal miles for that month in a column labeled "Other Personal Miles." It was [defendant's] expectation that the mileage incurred by employees traveling to and from work be included within the personal mileage category. Plaintiff attended a meeting several years ago in which [defendant] employees were informed on this procedure.
16. At the hearing before the Deputy Commissioner, the plaintiff testified that he knew that he would be taxed for every personal mile he placed on the vehicle. According to laintiff's expense forms for 1999 and 2000 plaintiff listed his mileage to and from work in the personal miles category, based on his understanding that he was going to be taxed on these miles.
17. The competent evidence in the record establishes that the provision of the [company vehicle] was not a contractual benefit of plaintiff's employment. No contractual right to employer-provided transportation existed as the provision for transportation offered plaintiff by defendant was not an incident to plaintiff's contract of employment with defendant. Plaintiff had no contractual right to the transportation and therefore plaintiff's right to the transportation was a mere accommodation.
18. The competent evidence in the record further establishes that on February 14, 2001, plaintiff was commuting to work and was thus outside the scope of his employment with [defendant].
Based on these findings of fact, the Commission made the following conclusions of law:
1. Plaintiff must prove by the greater weight of the evidence that he sustained an injury by accident arising out of and in the course of his employment. N.C.G.S. . 97-3(6). An injury occurring while an employee is traveling to and from work does not arise in the course of employment and is not compensable. Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996); Jennings v. Backyard Burgers , 123 N.C. App. 129, 472 S.E.2d 205 (1996). In the instant case, plaintiff has not established that hesustained an injury by accident arising out of and in the course of his employment with defendant on February 14, 2000.
2. The greater weight of the competent evidence in the record establishes that plaintiff was not engaged in performing any service for his employer at the time of his accident. The "hazards of traffic" are common to the general public and therefore not incident to employment. Tew v. E.B. Davis [Elec. Co.], 142 N.C. App. 120, 541 S.E.2d 764 (2001) citing Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).
3. The vehicle provided in the present case was not incident to the contract of employment. A claim may be compensable, pursuant to the "contractual duty" exception, if a vehicle is provided as a matter of right as a result of the employment contract. If a vehicle is "provided permissively, gratuitously or as an accommodation, the employee is not within the course of employment while in transit." Hunt v. Tender Loving Care Home Care Agency, [Inc.], 153 N.C. App. 266, 569 S.E.2d 675, disc. review denied, 356 N.C. 436, 572 S.E.2d 784 (2002).
4. An exception to the "coming and going" rule states that if an employer provides a vehicle or compensation to cover the cost of transportation, injuries that occur while commuting to and from work are compensable. Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950). The facts in Puett are distinguishable from the present case since [defendant] provided plaintiff with a vehicle in which plaintiff listed all of the miles traveling to and from work as person
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