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Powers v. APAC-Carolina/Barrus7/19/2005
al miles and paid taxes for these miles. The competent evidence in the record establishes plaintiff was traveling alone on February 14, 2000 and [defendant] never paid plaintiff a travel allowance for the miles he traveled to workand back home. Therefore, plaintiff's injury on February 14, 2000 does not fall under the paid travel exception to the "coming and going" rule.
5. Based on the totality of the circumstances in the present case, plaintiff did not sustain an injury by accident arising out of and in the course of his employment with defendant employer on February 14, 2000. Plaintiff's claim, therefore, is not compensable under the provisions of the North Carolina Workers' Compensation Act. N.C.G.S. . 97-2(6).
In many cases involving facts analogous to those in the present action, North Carolina appellate courts have applied the "coming and going" rule in holding that the claims at issue were not covered under the Act. In Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221 S.E.2d 75, disc. review denied, 289 N.C. 615, 223 S.E.2d 396 (1976), the decedent employee was allowed to use a vehicle owned by his employer to transport himself and two other employees to and from work. This transportation was a part of the employee's job , for which he was compensated. While driving to the employer's place of business, he was involved in a collision in which he was killed. The pertinent facts as found by the trial court and affirmed by this Court in Curry were as follows: (1) the employee was not performing any duty or labor for his employer on the date of the accident while traveling to and from work in the vehicle furnished by the employer; (2) the actual commencement of the daily employment of the decedent and the other two employeesriding in his vehicle occurred when they arrived at their place of employment and terminated when they departed said place of employment; (3) the employees had no entitlement to transportation furnished by the employer; (4) the employees were not required by the employer to use such transportation in traveling to and from work; and (5) the transportation to and from work furnished to the employees by the employer was gratuitous and merely an accommodation. Id. at 290, 221 S.E.2d at 78. Holding that the accident did not occur within the course and scope of the employee's employment, the Court of Appeals noted that employers do "not expose [themselves] to liability for workmen's compensation purposes by gratuitously furnishing transportation for [their] employees." Id.; See Tew v. E.B. Davis Elec. Co., 142 N.C. App. 120, 541 S.E.2d 764 (2001) (holding employee injured in collision while riding home in employer's car was claim barred by the "coming and going" rule and concluding employer-provided transportation was a mere accommodation rather than evidence of a contractual right); See also Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 207-08, 229 S.E.2d 45, 47 (1976) (holding employer-provided transportation was not incident to employees' contract, therefore the resulting accident was not compensable).
It is clear the "coming and going" rule applies to plaintiff in the present action. Defendant was under no contractual duty toprovide transportation to plaintiff. The provision of the company vehicle to plaintiff was merely permissive and gratuitous, not obligatory. Plaintiff was not performing duties for defendant at the time of the accident but rather was merely en route to work. Plaintiff had the option of driving his personal vehicle to work but chose to drive the company vehicle instead, with the knowledge he would be taxed on the value of his miles commuting to and from work as personal income. Defendant could have taken the company vehicle from plaintiff at
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