Camburn v. Northwest School District

Cavanagh, J.

(concurring). I concur in the result. In this case, appellant requested that this Court answer whether an employee should be granted worker’s *480compensation benefits when she was injured while on a “special mission” for her employer. This was the sole issue on appeal. In our selection process, we chose to grant leave to appeal in this particular case in order to answer that question and to clarify the rule of law in this area. However, the majority has instead opted to carbon copy the Court of Appeals opinion, which fails to provide a thorough analysis of the issue at hand. I write separately to provide such analysis.

I would hold that this case does not fall within the “special mission” exception to the general rule that injuries incurred while traveling to and from work are not compensable under Michigan worker’s compensation law.

i

Whether plaintiff was on a “special mission” for her employer while driving to a work-related seminar is a question of law that this Court may resolve without infringing on the fact-finding jurisdiction of the magistrate. MCL 418.861a(14); MSA 17.237(861a)(14); Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 460; 320 NW2d 858 (1982).

The Worker’s Disability Compensation Act provides that an employee who receives an injury “arising out of and in the course of employment” shall be paid compensation as provided in the act. MCL 418.301(1); MSA 17.237(301)(1). The general rule recognized in Michigan is that injuries sustained while going to and from work are not compensable. Thomas v Certified Refrigeration, Inc, 392 Mich 623, 631, n 3; 221 NW2d 378 (1974). As noted by the majority, there are numerous exceptions to this general rule. One recog*481nized exception is the “special mission” or “special errand” doctrine. Michigan has long recognized the exception,1 but has had few occasions to review the doctrine itself. Auto Club asks us to hold that the facts of this case qualify for the “special mission” exception.

n

The “special mission” exception is judicially created. The theory is that while traveling en route to or from a “special mission,” the employee is actually in the performance of duties for the employer. Therefore, an injury then sustained arises “out of and in the course of” employment. The effect is to take an employee on a special mission out of the confines of the general rule. Professor Larson stated that the “special errand” or “special mission” doctrine provides:

When an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. [1 Larson, Workmen’s Compensation Law, § 16.11, pp 4-201 to 4-202.]

Implicit in this definition is the notion that the employee must embark on the journey at the request, direction, instruction, or requirement of his employer. An alternative reading would allow recovery of *482worker’s compensation benefits when an employee is injured on a journey of a wholly personal nature. An overview of Michigan case law, and of other jurisdictions, reveals that this reading is consistent with “special mission” jurisprudence.

This Court has held that the “special mission” exception applies in a situation where a teacher was “instructed” to attend an institute and was subjected to “hazards of travel.” Stockley v Portage Twp School Dist No 1, 231 Mich 523, 530-531; 204 NW 715 (1925). In Le Vasseur v Allen Electric Co, 338 Mich 121, 122-123; 61 NW2d 93 (1953), a special mission in the “interest and at the direction of his employer” was found when an employee was called at home by his employer and “requested” to hook up a cable at the high school. Similarly, the Court of Appeals has held that an employee is on a special mission “at the direction of and for the benefit” of his employer when he is “ordered” to report to a different job site. Ream v L E Myers Co, 72 Mich App 238, 242-243; 249 NW2d 372 (1976).

On review of other jurisdictions, a common thread appearing is that the employee is usually injured while performing some special act, assignment, mission, or errand at the direction or instruction of the employer2

*483Professor Larson also provides that “[w]hen any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensa-ble.” 2 Larson, Workmen’s Compensation Law, § 27.41, p 5-447. The focus of the “special mission” inquiry must be on whether the employee was in some way directed to make the journey that is claimed to be a special mission. Thus, when an employee is requested, directed, instructed, or required by the employer to be away from the place of employment, the employee is deemed to be in the course of employment because the employee is engaged in the direct performance of duties assigned by the employer. The employee remains within the scope of employment from the moment the employee leaves home or work until he returns either to the regular premises or to the employee’s home.

m

The majority applied Larson’s definition as an alternative analysis in determining that Ms. Camburn was *484not on a special mission. However, the analysis is incomplete.

Although the magistrate did not base her holding on the special mission doctrine, her factual findings axe sufficient for this analysis. The magistrate found that Ms. Cambum’s “attendance was not compulsory or at least definitely urged or expected . . . .” There is nothing more than mere encouragement on the part of the school. Ms. Cambum did not testify that she was requested, directed, instructed, or required to attend the seminar. In addition, the magistrate did not find that Ms. Cambum was compelled in any way to attend. The facts provided that the seminar was available to her if she chose to attend, and that she was encouraged to attend the seminar.

Auto Club relies on Bush v Parmenter, supra, for the proposition that employer encouragement to attend a work-related seminar transforms an ordinary journey into a “special mission.” This reliance is misplaced. In Bush, an attorney traveled forty miles to attend a probate seminar in another city. Id. at 446. After the seminar, he went bar hopping and then to a late night dinner before he began his journey home. Id. at 447-448. The attorney was shot and killed while en route home. Id. at 448. The sole issue in Bush was whether the attorney’s deviation was so extensive that the business character of the trip was dissolved. Id. at 450. It was uncontested that the attorney was on a special mission. The opinion discussed the special mission in dicta as a prelude to the discussion of the issue. Id. Thus, Auto Club cannot rely on Bush as a rule of law regarding the special mission exception. Furthermore, the instant case is distinguishable on its *485facts. In Bush, a partner in the firm testified that every attorney in the firm was expected to attend continuing legal education seminars and that it was the practice of the firm to pay for the entire expense involved, including furnishing a car. Id. at 450-451, n 5. In this case, no such distinguishing circumstances were found to exist by the magistrate.

IV

Nothing in this factual situation brings plaintiff’s journey into the “special mission” exception to the general rule that injuries incurred while traveling to and from work are not compensable under the Worker’s Disability Compensation Act. Because the plaintiff’s journey was not made at the request, direction, instruction, or requirement of the employer, she was not on a “special mission.” Accordingly, I would affirm the lower courts’ denial of benefits on this basis.

Brickley and Kelly, JJ., concurred with Cavanagh, J.

Stockley v Portage Twp School Dist No 1, 231 Mich 523, 531; 204 NW 715 (1925).

See Stephens by Stephens v Maxima Corp, 774 SW2d 931, 934 (Term, 1989) (employee was not performing a special errand because the employer had not “instructed, directed, required or even suggested” that the employee return home to retrieve the needed forms that day); Drake v Utah Industrial Comm, 317 Utah Adv Rep 3, _; 939 P2d 177, 183 (1997) (an employee should show that the activity was undertaken for the benefit and “under the direction” of the employer as evidence of a special mission); Schreifer v Industrial Accident Comm, 61 Cal 2d 289, 290; 391 P2d 832 (1964) (a response to a superior’s instructions “to report for duty ‘as soon as possible’ ” at a time not within his scheduled duty hours was a *483special mission); Harbin v Jamestown Village Joint Venture, 16 Va App 190, 196; 428 SE2d 754 (1993) (the special errand exception applies when an employee is “required by the employer” to be away from the employer’s place of employment); Gregg v Dorchester Co School System, 270 SC 189, 193; 241 SE2d 554 (1978) (the special errand doctrine was inapplicable when a school principal was not “required” to attend a football game, and his trip home was not part of any service for his employer); Cook v Wickson Trucking Co, Inc, 135 NH 150, 155; 600 A2d 918 (1991) (a “special employment errand normally arises ‘[w]hen any person in authority directs an employee to run some private errand or do some work outside his normal duties’ ”); Barnes v Children’s Hosp, 109 Md App 543, 562; 675 A2d 558 (1996) (an employee’s trip to her workplace at the “request” of her employer on a day when she normally was not scheduled to work was a special mission).