P.B. Bell & Associates v. Industrial Commission , 142 Ariz. 501 ( 1984 )

OPINION

OGG, Judge.

The issue presented in this special action review of an Industrial Commission award is whether claimant’s injury arose out of or in the course of her employment. We hold that the administrative law judge correctly concluded that it did and affirm the award.

The necessary facts are relatively simple and not in dispute. Respondent employee Jean Sandrone (claimant) was employed as an accounts payable clerk by petitioner employer P.B. Bell & Associates (Bell). Claimant did not drive to work but was dropped off by her daughter at the front of the building.

Bell was one of several tenants that leased office space in the Colonial Square Building. To the south of the building, uncovered parking was available for the tenants’ employees who drove to work. In addition, there were some covered parking spaces. It is uncontroverted that Bell leased three of these covered parking spaces, paying an additional fee for their use. These spaces were for the use of specified persons. All other Bell employees who drove could park their cars in the uncovered spaces in the southern lot. One of the covered spaces leased by Bell was allotted to the administrative manager, Mary Carol Rogers.

On December 23,1982, pursuant to previous discussion, claimant, Rogers and two others had plans for a luncheon. The administrative law judge found as a fact that the occasion was a purely social event, and that finding is adequately supported by the evidence. The four were to ride in Rogers’ car, which was parked in her usual covered space. To reach the car, the employees exited the building by a door on the south side of the building. The concrete platform directly outside of the door was one step above the sidewalk running along the side of the building. The sidewalk was one step above the parking lot. This was the exclusive ingress and egress used by Rogers. The claimant missed a step, fell, and broke her left hip.

Following the compensability hearing, the administrative law judge issued his findings and award for compensable claim. As noted above, he found that the luncheon was a social, rather than a business function. His other key finding was Number 5, which reads as follows:

Mary Carol Rogers was the administrative office manager of the defendant employer and she invited the three other women in the employer’s office to go to a pre-Christmas lunch party at the Double-tree Inn on December 23, 1982. The arrangements were made sometime before that date. About noon of December 23, 1982, the four women went out the back door of the building in which the employer’s offices were situated along with other tenants of the office complex. Applicant thought two of four were ahead of her. In any event, applicant managed to step down from the door threshold onto the sidewalk, but she fell at the sidewalk step down to the parking lot surface. The four were headed for Mary Carol Roger’s car, which was parked in one of three parking slots provided by the employer. Applicant testified that she had never used that particular exit from the building before and was unfamiliar with it. The case of Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973) is generally considered to have adopted for Arizona the “on premises rule” whereby an injury while going to or from work is considered as arising out of and in the course of work and therefore compensable. It is interesting to note that this case did not hold for the rule because it was not shown that the injury took place on the premises. Nevertheless, the opinion states that the case overrules prior inconsistent cases. See Gaughan v. Industrial Commission, 21 Ariz.App. 137, 516 P.2d 1232 (1974) applying the new rule of law. In Knoop v. Industrial Commission, 121 Ariz. 293 (App.), 589 P.2d 1325 (1979) the opinion of the Court denied the applicability of the Paulley [sic] rule, but carved a new exception to the non-liability while going to and from work. There it is said (p. 297 [589 P.2d 1325]):

“[1] After careful consideration, we believe that the exception to the going and coming rule for travel across a public road between two portions of the employer’s premises is a reasonable exception, at least where, as here, the employee was told to park in the lot where she parked on the day she was injured. In this situation, petitioner was subjected to the risks involved in crossing 14th Street as a result of her employment. By locating the lot where it did so that petitioner had to cross 14th Street, and by telling petitioner to park there, respondent employer helped create the situation which caused her accident and injury. Therefore, an ‘origin or cause of the injury’ was her employment, and, thus, her injury was one ‘arising out of’ the employment.”

Here the spot provided to Mary Carol Rogers to park her car is analogous to another premise of the employer’s premises provided for her use. It makes no difference that the spot was not for applicant’s use. The need for travel across the lot was the same for both.

Bell and the carrier filed their request for review one day late, alleging secretarial error as an excuse. The claimant objected to the late filing. The administrative law judge excused the untimely filing, but his decision upon review affirmed the decision upon hearing. A timely petition for special action review was then filed by the petitioner employer and carrier.

We first address the issue of petitioners’ late filing of their request for review. This matter was the subject of a motion to dismiss the petition, which was denied by this court by order dated May 4, 1984. To any extent that the claimant’s argument was not determined by that order, we explicitly reject claimant's argument that Cook v. Industrial Commission, 133 Ariz. 310, 651 P.2d 365 (1982), only allows the excusing of late requests for review by claimants, but not of late requests for review by employers and carriers. Cook makes no such singular qualification and is equally applicable to claimants, employers and carriers. Therefore, we find that the administrative law judge did not err by excusing the late filing and considering the request for review.

As to the issue of compensability, the petitioners argue that this is a case falling within the going and coming rule, and not subject to any of the exceptions thereto. Claimant argues that the administrative law judge’s analysis was correct, or alternatively that claimant’s injury is compensable under other exceptions to the going and coming rule.

Generally, of course, the employee's injury by accident must arise out of and in the course of employment. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970). The going and coming rule states that an injury sustained by an employee in an accident while going to or coming from work does not arise out of and in the course of employment. E.g., Ebasco Services, Inc. v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955). The major exception to the rule is that there is coverage where an employee injures himself while going to or coming from work while he is on the employer’s premises. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973). A trip away from and back to the work premises for the purpose of lunch is indistinguishable from the coming and going at the beginning and end of the work day. 1 Larson, Workmen’s Compensation Law, § 15.50 at 4-91 (1983). Therefore, an injury incurred during the journey to and from lunch is generally compensable only if sustained on the employer’s premises.

Here, however, there was no finding that the injury was incurred on the premises. Rather, the finding was that the injury was sustained while claimant was traveling from one part of the work premises to another, i.e., from the office to the parking lot. Based upon this finding, the administrative law judge found the holding of Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App.1978), dispositive. See also, Larson, supra, at § 15.14. Knoop held that an employee injury sustained on a public thoroughfare lying between the work premises and the employer’s parking lot was compensable.

Petitioners argue that the application of Knoop to the present case was error because the leased parking spaces were not a part of the premises since Bell did not control the parking spaces. Therefore, petitioners argue that the “travel between two parts of the premises” rule does not apply. The majority disagrees.

In Knoop, the employer leased a lot across a public street from its premises. It was uncontroverted that the claimant and other employees had orders to park in the leased lot. The street was owned and maintained by the City of Phoenix. The court first found Pauley, supra, inapplicable because the claimant was obviously not injured on the premises. The court then stated:

In this case, it is clear that petitioner was injured while walking from the leased parking lot to the employer’s buildings. The leased parking lot is considered the employer’s premises. Gaughan v. Industrial Commission, 21 Ariz.App. 137, 138, 516 P.2d 1232, 1233 (1973); 1 Larson’s Workmen’s Compensation Law § 15.41 (1978). Since petitioner was injured between two parcels of the employer’s premises while going to work, the going and coming rule itself would prevent her from receiving compensation

unless some relevant exception to that rule applies.

Professor Larson has described an exception to the going and coming rule which precisely fits the facts of this case:

§ 15.14 — Travel between two parts of premises

One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing his active duties.

Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises.

1 Larson’s Workmen’s Compensation Law § 15.14, at 4-34, 4-36____

121 Ariz. at 296-297, 589 P.2d 1325.

In Knoop, the court applied the two premises rule, noting that the employee’s orders to use the lot subjected her to the risk involved in crossing the public street. The court held:

... that there is an exception to the going and coming rule for accidents and injuries occurring on public roads while the employee is traveling between an employer controlled parking lot and the employer’s workplace, where, as here, the employee was told to park in the lot where she parked on the day she was injured.

121 Ariz. at 298, 589 P.2d 1325.

Petitioners’ major argument is that the above holding requires that the claimant show that the parking “lot” is employer controlled. Petitioner points out that the portion of the form lease requiring the lessee to pay additional amounts for the maintenance of common areas, including the parking area, is deleted from the Bell lease. There is no other evidence suggesting Bell had control over either the three leased spaces or the uncovered portions of the lot. It is not clear from the record whether the fact that Bell paid extra for the use of the three covered spaces gave Bell any rights of control over those spaces.

We conclude that actual control or maintenance by Bell is not necessary to make the spaces a part of the employer premises. Knoop quotes § 15.14 of Larson: “Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises____” The “later” referred to is § 15.41 of Larson, wherein Larson states that:

The doctrine has been applied when the- lot, although not owned by the employer, was ... just used, by the employees of this employer. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all of his tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the rule [that the parking lot is considered part of the premises] is applicable____ (emphasis added)

Larson, supra, § 15.41 at 4-69 to 70. In the present case, we have the additional fact that the lessor not only provided parking for use by the tenants, but also leased the three covered parking spaces upon the payment of an additional fee by Bell.

We find our recent opinion in Hansen v. Industrial Commission, 141 Ariz. 190, 685 P.2d 1342 (App.1984) to be analogous. In Hansen, the injured employee, Foster, was employed by Hansen, dba Ala Carte Players. Hansen was under contract to Ramada Inn to stage evening dinner plays in an on-premises theatre. Ramada provided the Ala Carte Players with one or two rooms for use as a dressing room. Normally, room 155 was assigned as the dressing room, but occasionally room 157 would instead be assigned, without prior notice to Hansen or any of the play participants. Apparently the rooms set aside for use as dressing rooms were located in a building to the north of the main building and were conveniently accessible from the northern portion of the parking lot. On the date she was injured, Foster was dropped off on the south side of the main building just in front of the cocktail lounge approximately one hour before the performance was to begin. Foster did not go directly to the dressing room; instead, she went into the cocktail lounge where she knew Hansen could be found. After walking to Hansen’s table and confirming that the dressing room was open, Foster proceeded toward the north doors of the lounge, on her way to the dressing room, when she slipped and fell, suffering a knee injury.

Hansen argued that Foster’s injury did not arise out of and in the course of her employment because she was not injured upon physical premises controlled by the employer. We held that control of the premises was not the issue,

[rjather the question to be answered is: was the claimant injured on the employer’s physical premises or if not was there a distinct ... causal connection between the conditions under which claimant must approach and leave the premises and the occurrence of the injury ... (emphasis in original)

685 P.2d at 1347. We then held that:

although Foster was not on the physical premises controlled by her employer, she was nonetheless within the range of risk causally related to her employment that would justify a compensable award for her injury. In short, Foster was where she might reasonably be expected to be in connection with the employer’s work, Pauley v. Industrial Commission, 109 Ariz. at 302, 508 P.2d at 1164, using a customary or permissible route to her actual workplace.

685 P.2d at 1347. Similarly, in the case at bar, claimant was injured while using a route she might reasonably be expected to utilize in .entering or exiting her employer’s premises.

Moreover, just as in Knoop, we have the exposure of employees to a known risk. In Knoop, the known risk was the risk of crossing a city street. Here, it is the risk of using an egress with two steps down to the parking lot. All of the Bell employees who drove evidently used this egress, whether they parked in covered or uncovered parking spaces. It is clear, at any rate, that Rogers exclusively used this avenue to come from and go to her parking space. Certainly the employer expected her to use the parking space provided for her and could foresee that she would use the most convenient route thereto.

In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo.App. 92, 554 P.2d 705 (1976), the employer argued that a previous Colorado opinion which had adopted the “travel between two parts of the premises” rule, was not applicable because the parking lot was not owned, maintained by, or subject to the control of the employer. The court disagreed:

While the Court in that case approved an award of benefits to an employee injured while crossing a public street to reach the employer’s parking lot after working hours, we do not construe the holding in that case as limited to cases where an employee is injured near or on a parking lot owned, maintained, or controlled by the employer. Rather, that case established an exception to the general rule regarding off-premises injuries to the effect that if special circumstances surrounding the employee’s injury reflect a causal connection between the conditions under which the work is to be performed and the resulting off-premises injury, compensation is proper. This exception has been applied by the appellate courts in this jurisdiction in various factual situations.

In the case at bar, we agree with the Commission that there are special circumstances which reflect a causal connection between claimant’s employment and her injury. Space in the parking lot was afforded Woodruff for the use of its employees, and Woodruff was aware that its employees used the lot. Parking privileges constituted an obvious fringe benefit to claimant. Claimant was injured while in the act of enjoying that benefit. Hence, the necessary causal connection appears, (citations omitted)

554 P.2d at 707.

Of the cases supporting the position set forth in § 15.41 of Larson, the strongest in rejecting the requirement of employer control over the parking area is Frishkorn v. Flowers, 26 Ohio App.2d 165, 270 N.E.2d 366 (1971). There, the employer was located in a shopping center, along with many other retail stores. The parking area was operated, controlled and maintained by the owner of the shopping center. The employer had no ownership or control over the parking area. The lot was used by the employees and customers of the stores. There was no charge for the parking and the employees were free to park anywhere in the area zoned for parking. The appellee argued that because the parking lot was not under its control or maintenance, it should have no responsibility for any injury suffered by an employee therein. The court disagreed:

It would be impractical and illogical to apply this principle to a shopping plaza consisting of multiple independent businesses, each of which would have to be an owner in common with all the other tenants in order to share a nebulous control over its geographical confines and simulate a joint zone of employment. Such concept is too narrow and restrictive ...

270 N.E.2d at 368.

Several other jurisdictions have rejected the employer control requirement. See, e.g., Max E. Landry, Inc. v. Treadway, 421 P.2d 829 (Okla.1966) (compensable claim where employee injured in parking lot provided by owner to the several businesses located in the building); Berry v. B. Gertz, Inc., 21 A.D.2d 708, 249 N.Y.S.2d 285 (App.Div.1964) (compensable claim by injured employee of business in shopping center where lot not owned or controlled by employer); Merrill v. J.C. Penney, 256 N.W.2d 518 (Minn.1977) (compensable injury sustained by employee of tenant of shopping center with lot maintained and controlled by owner, but tenant paid pro rata fee for maintaining lot).

We recognize that there is authority contrary to our holding, however we do not find it persuasive. Two of the stronger cases cited by petitioners, K-Mart Discount Stores v. Schroeder, 623 S.W.2d 900 (Ky.1981), and Pacific Employers Insurance Company v. Booker, 553 S.W.2d 586 (Tenn.1977), come from jurisdictions which have consistently applied a very narrow application to the premises rule. As noted by Larson, “Two jurisdictions, Kentucky and Tennessee have narrowed the going- and-coming premises rule judicially____” Larson, supra, § 15.42 at 4-78. Larson, in § 15-14, which as noted above specifically discusses the “travel between two parts of the premises” rule, states that: “As to the specific rule of law involved here, the Kentucky, Tennessee, and Wisconsin decisions are of limited applicability outside those states, the former because Kentucky and Tennessee do not consider parking lots themselves to be ‘premises,’ and the latter because of the limiting effect of the statutory language.” Id. at 4-40, n. 55. For the above reason, we also reject the applicability of Jaeger Baking Company v. Kretschmann, 96 Wis.2d 590, 292 N.W.2d 622 (1980).

Becton, Dickinson & Company v. Industrial Commission, 54 Ohio App.2d 186, 376 N.E.2d 961 (1977), cited by appellee and factually on all fours with Knoop, rejected compensability because there was no employer control over the public street. To rely on Becton here would be to repudiate our holding in Knoop, which we shall not do.

Even the case of Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676 (1980), is distinguishable from the present case. There, the shopping center parking lot was used by the employees and customers of various stores. An injury to the employee in the parking lot was found noncompensable because of the employer’s lack of control. Here, however, the three covered spaces were specifically leased for Bell employees for an additional price. Also, although the effect the lease had on Bell’s control is not clear in the record, it is a reasonable inference that the parking space lease gave Bell additional rights over the covered spaces as compared to the non-covered spaces. See Montgomery Ward v. Cutter, 64 Or.App. 759, 669 P.2d 1181 (1983).

The only further wrinkle in this case is the fact that the claimant was not the regular user of the space. Petitioners argue that only the person actually parking in the space, i.e., Rogers, could recover for an injury sustained between the office and parking space.

We find this argument unpersuasive. Under petitioners’ proposed rule, a claim would not be compensable if a different employee parking her car in Rogers’ space was injured or if an employee who regularly rode to work with Rogers was injured. The focus, under the travel between two parts of the premises rule, is not on who was the injured employee, but rather on the nature of the parking area. If the parking area is a part of the premises, any employee traveling between the office and a car located in the parking area is clearly traveling between the two parts of the premises and falls within the rule as enunciated in Larson, supra. Further, the cases have drawn no distinction between injured passenger employees and driver employees. See, e.g., Brooks v. New York Telephone Company, 448 N.Y.S.2d 859, 87 A.D.2d 701 (App.Div.1982); Buerkle v. United Parcel Service, 26 N.J.Super. 404, 98 A.2d 327 (1953).

Petitioners’ argument that an affirmance would ignore Knoop’s expressed concern about the deleterious effects of unwarranted exceptions to the going and coming rule is unfounded. Knoop refers to § 15.12 of Larson. This section is concerned with various states’ attempts to abandon the premises rule adopted by this state in Pauley, supra. Larson therein criticizes various proximity exceptions to the premises rule as unworkable. Larson has no such criticism for the “traveling between the two parts of the premises” rule and furthermore clearly endorses the result reached here in § 15.41.

We find that petitioner’s accident and injury arose out of and in the course of her employment. We hold that where an employer, leasing space in a multiple-lessee building, leases specific parking spaces for which the employer pays an additional charge, an employee injured while traveling from the leased work premises to an automobile parked in a leased parking space has sustained a compensable injury under the “traveling between two parts of the premises” rule adopted in Knoop. We need not go further.

The award is affirmed.

MEYERSON, P.J., concurs.