      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                    )
                                      )
            Employer/Appellant,       )
                                      )     C.A. No. N17A-02-007 ALR
            v.                        )
                                      )
MARK DESANTIS,                        )
                                      )
            Employee/Appellee.        )

                          Submitted: September 8, 2017
                           Decided: October 17, 2017

                 On Appeal from the Industrial Accident Board
                      REVERSED and REMANDED

                         MEMORANDUM OPINION




Jessica L. Julian, Esquire, Benjamin K. Durstein, Esquire, Marshall Dennehey
Warner Coleman & Goggin, Attorneys for Appellant

Frederick S. Freibott, Esquire, The Freibott Law Firm, P.A., Attorney for Appellee

Rocanelli, J.
      This is an appeal from a decision of the Industrial Accident Board (“Board”)

which awarded compensation for injuries sustained in an automobile accident while

an employee was commuting home from work.

                                Factual Background

      Mark DeSantis was employed as a Construction Manager for DelDOT and

was responsible for the inspection, execution, and administration of the construction

activities for DelDot’s Paving and Rehabilitation Program. DeSantis had an office

in Bear, Delaware. His core hours of employment were either 8:00 A.M. to 4:00

P.M. or 7:00 A.M. to 3:00 P.M. Nevertheless, DeSantis’s position required him to

visit various roadway construction sites for inspections.        It was common for

DeSantis to work overtime and visit roadway construction sites after his core hours

because many roadway construction projects take place at night. When being

compensated for overtime, DeSantis submitted a time sheet for hours spent at

jobsites, but he was not compensated for any time commuting to or from his home,

either during core hours or when working overtime. DeSantis had the option of

using a State vehicle, but he was not permitted to drive the State vehicle to his home.

      After his core hours on October 16, 2014, DeSantis attended a professional

association function for the American Society of Highway Engineers (“ASHE”) in

the evening.    Attendance at the AHSE function was not part of DeSantis’

employment responsibilities at DelDOT.         DeSantis left the ASHE function at

                                          1
approximately 10:30 P.M. and drove to a construction site on Kirkwood Highway,

where DeSantis had plans to meet with Robert Pierson, whose company had been

retained by DelDOT to mill and pave a stretch of Kirkwood Highway, to address a

“rideability” issue. When DeSantis arrived at the worksite, Pierson had already left

for the evening. DeSantis stayed on site until approximately 11:30/11:45 P.M. and

then left the jobsite to drive home. During his commute home, at approximately

12:03 A.M. on October 17, 2014, DeSantis was involved in a motor vehicle accident

and suffered extensive injuries.

                             Procedural Background

      DeSantis sought compensation for injuries he sustained in the motor vehicle

accident that occurred on October 17, 2014 when DeSantis was commuting to his

home from the jobsite. Pursuant to 19 Del. C. § 2301(B), the parties stipulated to

having the matter decided by a hearing officer (“Hearing Officer”). The Hearing

Officer issued the Board’s decision on December 29, 2016 (“Board Decision”),

concluding that DeSantis’s injuries arose out of and in the course of his employment

for the State of Delaware and were therefore compensable under 19 Del C. § 2304.

The State appeals the Board Decision.




                                         2
                                  Board Decision

      The Board stated that, under Spellman v. Christiana Care Health Services,1

the inquiry must focus first on whether the employment contract at issue

contemplates that the employee’s activity at the time of the accident was work-

related. The Board found that DelDot did not compensate DeSantis for commuting

time. Nevertheless, the Board found that DeSantis could recover based on a finding

that DeSantis was an employee with a semi-fixed place of business, which is an

exception to the “going and coming” rule. In addition, the Board found in the

alternative that DeSantis’s injuries were compensable because his travel activity was

“unusual, urgent or risky.”2

                                   Standard of Review

      The Court has statutorily conferred jurisdiction over appeals from

administrative agencies, including appeals from the Board.3 On appeal from a Board

decision, the Court’s role is limited to determining whether the Board’s conclusions

are supported by substantial evidence and free from legal error.4        Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate



1
  74 A.3d 619 (Del. 2013).
2
  Gondek v. Easy Money Group, 2013 WL 7095816, at *2 (Del. Super. Dec. 27,
2013).
3
  29 Del. C. § 10142(a).
4
  Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler
Corp., 213 A.2d 64, 66 (Del. 1965).
                                         3
to support a conclusion.”5 The Court reviews the Board’s legal determinations de

novo,6     which “requires the Court to determine whether the Board erred in

formulating or applying legal principles.”7

                                         Discussion

         The Delaware Worker’s Compensation Act (“Act”) provides that an employee

is entitled to receive compensation for injuries sustained in accidents “arising out of

and in the course of employment.”8 Whether an injury arises out of and in the course

of employment is a mixed question of law and fact.9 The Act provides that an injury

does not arise out of and in the course of employment unless:

         [T]he employee is engaged in, on or about the premises where the
         employee’s services are being performed, which are occupied by, or
         under the control of, the employer (the employee’s presence being
         required by the nature of the employee’s employment), or while the
         employee is engaged elsewhere in or about the employer’s business
         where the employee’s services require the employee’s presence as part
         of such service at the time of the injury . . . .10




5
  Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
6
  Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d
133, 136 (Del. 2006).
7
  Estate of Fawcett v. Verizon Delaware, Inc., 2007 WL 2142849 (Del. Super. July
25, 2007).
8
  19 Del. C. § 2304.
9
  Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
10
   19 Del. C. § 2301(19)(a).
                                         4
      Delaware courts historically interpreted that statutory language to create what

is referred to as the “going and coming” rule.11 The “going and coming” rule

provides that “injuries resulting from accidents during an employee’s regular travel

to and from work are noncompensable.”12 However, the courts also developed “a

veritable potpourri” of exceptions to the “going and coming” rule.13

      In Spellman, the Delaware Supreme Court considered the “going and coming”

rule and its various exceptions and expressed concerns that the “going and coming”

rule and the exceptions thereto were being incorrectly treated as “statutorily derived,

freestanding rules of law.”14 The Court emphasized that the rule and its exceptions

“are only aspects or elements of a more fundamental inquiry, namely, whether under

the totality of the circumstances, the employment contract between employer and

employee contemplated that the employee’s activity at the time of the injury should

be regarded as work-related and therefore compensable.”15 Therefore, the Court

established a framework for analyzing whether an accident arose out of and in the

course of employment.




11
   Histed, 621 A.2d at 343.
12
   Id.
13
    Spellman, 74 A.3d at 623 (referring to the “special errand” exception, the
“compensation” exception, the “premises” exception, and the “semi-fixed place of
employment” exception).
14
   Id. at 625.
15
   Id.
                                      5
         Under the Spellman framework, the Board is directed to first focus on the

employment agreement itself to determine if the terms of the employment contract

contemplate that the employee’s travel time is compensable.16 If the terms of the

employment agreement resolve the issue, the Board’s inquiry must end.17 According

to Spellman, the Board may only consider “secondary default presumptions and rules

of construction,” like the “going and coming rule” and its various exceptions, where

the evidence of the employment contract is insufficient to end the inquiry.18 Thus,

the “going and coming rule” and its exceptions “are not primary, first-resort, rules

of decision.”19

         Therefore, under Spellman, the Board was first required to consider evidence

of the employment contract to determine if DeSantis’ drive home from the

construction site was compensable.        To that end, the Board considered the

testimonial evidence regarding the terms of the employment contract, which

included the fact that DeSantis was not paid for travel time or mileage between his

home and work. This should have ended the inquiry.

         However, the Board then utilized the “semi-fixed place of employment”

exception to the “going and coming” rule as part of the purported contractual



16
   Id.
17
   Id.
18
   Id.
19
   Id.
                                           6
analysis. The Board concluded that the “going and coming rule” did not bar

DeSantis’ recovery even though he was driving home at the time of the accident

because DeSantis was an employee with a “semi-fixed place of employment.” The

Board committed legal error in applying the “going and coming” rule and the “semi-

fixed place of employment” exception.

        Because DeSantis’ employment contract specified that he would not be

compensated for travel from work to home, Spellman required a ruling that the injury

incurred while driving home from work did not arise out of and in the course of

employment. The Board should not have considered the “going and coming” rule

or any exceptions thereto unless there was insufficient evidence about the

employment contract to resolve the inquiry into whether the accident arose out of

and in the course of DeSantis’ employment. Nevertheless, the Hearing Officer

considered the rule and the exception as part of the contractual analysis, even though

there was ample evidence about the terms of the employment contract to resolve the

inquiry without resorting to the “going and coming” rule.          Thus, the Board

committed legal error inconsistent with the decisional law as set forth in Spellman

by applying the “going and coming” rule.

        The Board found in the alternative that DeSantis’ injuries were compensable

because his travel activity was “unusual, urgent or risky.” 20 Similarly, this


20
     Gondek, 2013 WL 7095816, at *2.
                                          7
conclusion flowed from a legal error. The Delaware Supreme Court in Spellman

did not provide that the Board could award compensation if the circumstances of the

employee’s travel were “unusual, urgent, or risky.” Thus, to the extent that the

Hearing Officer applied an “unusual, urgent, or risky” analysis, the Board committed

legal error.21

       Therefore, even though the Board correctly stated the legal standard, it was

not correctly applied. In the analysis set forth in the Board Decision, the Board first

considered the terms of the employment contract and found that DeSantis was not

compensated for time commuting to and from his home. Under Spellman, the

inquiry should have ended upon the ruling that the terms of DeSantis’ compensation

by DelDot did not include compensation for time spent commuting. Nevertheless,

the Board found DeSantis’ injuries were compensable by applying an exception to

the “going and coming” rule and by ruling, in the alternative, that another exception

applied in that, according to the Board, DeSantis’ travel was “unusual, urgent, or

risky.”   Accordingly, the Board’s Decision that DeSantis sustained compensable

injuries in a work accident arising out of and in the course of employment, was the




21
  Where, as here, the first step of the contractual analysis resolves the issue of
compensability, then the inquiry ends under Spellman. To the extent that Gondek
provides an alternative analysis, this Court declines to follow Gondek.
                                          8
result of legal error. Therefore, this matter must be remanded to the Board for

proceedings consistent with this decision.22

                                    Conclusion

      For the reasons stated, the Court hereby finds that the Board committed legal

error in its award of workers’ compensation for injuries that occurred when an

employee was commuting home from work under circumstances where his

employment contract did not provide compensation for time spent commuting.

      NOW, THEREFORE, this 17th day of October, 2017, the decision of the

Industrial Accident Board is REVERSED and REMANDED for further

proceedings consistent with this opinion.

      IT IS SO ORDERED.

                                       Andrea L. Rocanelli
                                       ______________________________
                                       The Honorable Andrea L. Rocanelli




22
  See e.g., Fawcett, 2007 WL 2142849, at *5 (citing Future Ford Sales, Inc. v.
Public Service Commission of the State of Delaware, 654 A.2d 837, 846 (Del. 1995).
                                         9
