                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 04-3530
                                ___________

Thomas Cahalan,                      *
                                     *
       Plaintiff-Appellant,          *
                                     *
     v.                              *
                                     * Appeals From the United States
Donald Michael Rohan,                * District Court for the
                                     * District of Minnesota.
      Defendant-Appellee,            *
                                     *
Daniel Joseph VonRuden,              *
United Parcel Service,               *
                                     *
                Defendants.          *
                                ___________

                                  04-3533


Thomas Cahalan,                      *
                                     *
          Plaintiff-Appellee,        *
                                     *
     v.                              *
                                     *
Donald Michael Rohan,                *
                                     *
     Defendant-Appellant,            *
                                     *
Daniel Joseph VonRuden,              *
United Parcel Service,               *
                                          *
                 Defendants.              *
                                     ___________

                               Submitted: June 20, 2005
                                  Filed: September 9, 2005
                                   ___________

Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.

       Thomas Cahalan, the injured passenger in a motor vehicle accident, appeals the
district court’s1 dismissal of his claim, arguing that the court erred in finding the suit
barred by the New Jersey Workers’ Compensation Act (NJWCA). Donald Michael
Rohan, the driver of the vehicle, cross-appeals, claiming that the court abused its
discretion by not dismissing Cahalan’s claim with prejudice. We affirm.

                                   BACKGROUND

       Rohan and Cahalan were both employed by the New Jersey law firm McCarter
and English. In October of 1999, the firm was helping to administer a nationwide
class action settlement. Cahalan and Rohan were sent to Minnesota to instruct and
supervise telephone operators answering settlement-related questions. They were
scheduled to remain in Fairbault, Minnesota, supervising the call center from
October 25th through October 29th and had no specific work responsibility outside
of the call center. On October 25, 1999, Rohan and Cahalan were driving back to
their hotel in the evening in Rohan’s rented vehicle. Rohan attempted to make a left
turn when his view of oncoming traffic was partially obscured by a semi-tractor

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

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trailer in the oncoming left turn lane. Rohan pulled out into the path of a United
Parcel Service (UPS) van, which struck the passenger side of Rohan’s vehicle,
severely injuring Cahalan.

       Following the accident, Cahalan sued UPS, the driver of the van, and Rohan,
alleging that UPS and the driver of the van were directly and vicariously liable for his
injuries, and that Rohan was negligent or grossly negligent in turning without
observing approaching traffic. The district court granted UPS and the van driver’s
motion for summary judgment, holding that Cahalan failed as a matter of law to show
that the van driver was negligent, and dismissed without prejudice the complaint
against Rohan, finding that it was barred by the NJWCA. Cahalan appeals the
dismissal of his claim against Rohan, asserting that the district court incorrectly
interpreted New Jersey law. Rohan cross appeals, contending that the dismissal
should have been with prejudice.

                                     ANALYSIS

       In this diversity case, we review the district court’s interpretation of New
Jersey law de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991); Gosnell
v. Mullenix, 11 F.3d 780, 781 (8th Cir. 1993). Workers’ compensation provides an
employee the exclusive remedy against an employer for injuries arising out of and
during the course of employment. N.J. Stat. Ann. § 34:15-8. If an injury is
compensable under workers’ compensation in New Jersey, the injured employee may
only recover from a fellow employee for intentional torts. N.J. Stat. Ann. § 34:15-8.
New Jersey defines employment in its workers’ compensation statute and addresses
the scope of employment outside of the usual workplace:

      [W]hen the employee is required by the employer to be away from the
      employer's place of employment, the employee shall be deemed to be in
      the course of employment when the employee is engaged in the direct
      performance of duties assigned or directed by the employer; but the

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      employment of employee paid travel time by an employer for time spent
      traveling to and from a job site or of any employee who utilizes an
      employer authorized vehicle shall commence and terminate with the
      time spent traveling to and from a job site or the authorized operation of
      a vehicle on business authorized by the employer.

N.J. Stat. Ann. § 34:15-36. The statute therefore creates three possible exceptions to
the general rule that off-site injuries are not covered by workers’ compensation: the
“special mission,” “travel time,” and authorized vehicle exceptions. Zelasko v.
Refrigerated Food Exp., 608 A.2d 231, 234 (N. J. Sup. Ct. 1992). We focus our
attention on the special mission exception.2

        The “special mission” exception applies to an employee required to work away
from the normal place of employment and engaged in direct performance of the duties
assigned by the employer. Id. Travel to and from a remote job site is “direct
performance” of the job duties when the travel is an indispensable part of the mission.
Id.; Ehrgott v. Jones, 506 A.2d 40, 43 (N.J. Super. Ct. App. Div. 1986) (holding that
travel to an out-of-state professional meeting was integral to attending the meeting
itself; thus travel to the airport was in the course of employment); Nemchick v.
Thatcher Glass Mfg. Co., 495 A.2d 1372, 1375 (N.J. Super. Ct. App. Div. 1985)
(employee’s return home after overnight emergency assignment was an integral part
of the assignment). Employees are not engaged in direct performance of their
assigned duties, however, when they engage in personal errands in a remote location.
E.g., Walsh v. Ultimate Corp., 555 A.2d 731 (N.J. Super. Ct. App. Div. 1989)
(employee, injured on personal day trip while on assignment in Australia, was not
engaged in direct performance of assignment, though he brought work that he
intended to complete when he reached his destination); Mangigian v. Franz Warner

      2
        While the travel time and automobile exceptions may also apply, the record
is not entirely clear regarding the firm’s reimbursement policy and the control of the
rented automobile. The issue on appeal is sufficiently resolved without determining
whether these exceptions are applicable.

                                         -4-
Assoc., Inc., 501 A.2d 179, 180 (N.J. Super. Ct. App. Div. 1985) (employee on
temporary assignment to another city was not performing job duties when leaving her
motel to get dinner).

       New Jersey has not addressed the precise situation presented by Cahalan:
whether an employee’s return trip from a remote work site to his hotel is covered by
workers’ compensation. Cahalan concedes that travel to an airport and flight to
another city are indispensable to the assignment and therefore direct performance, but
argues that the daily travel from a hotel to a remote location is more akin to a daily
commute. We are not persuaded that the New Jersey legislature and New Jersey
courts would apply a version of the general “coming and going” rule to situations in
which an employee is temporarily assigned to a remote location. Rather, the special
mission exception applies any time an employee is engaged in the direct performance
of an assignment at a remote location. N.J. Stat. Ann. § 34:15-36. In our view, this
includes the trip to and from their temporary homes. Accord Nemchick, 495 A.2d at
1375.

       When leaving the call center, Cahalan argues that he and Rohan would have
been free to travel elsewhere in the city for dinner or entertainment after leaving the
call center; their return to the hotel, while foreseeable, was not integral to their
assignment. This argument might be persuasive in the absence of contrary authority,
but it is inconsistent with the New Jersey court’s conclusion that the return home
from a special mission is sufficiently inconvenient, disruptive, and substantial “to be
viewed as an integral part” of the mission for the employer. Nemchick, 495 A.2d at
1375 (citation omitted) (noting that the disruption and inconvenience inherent in
traveling unfamiliar routes in a remote location appears integral to the out-of-state
mission); See also Mangigian, 501 A.2d at 182 (concluding that employee was not
engaged in direct performance of her duties when leaving to get dinner after she had
“fully completed her work assignment and was safely ensconced in the motel”).
Rohan and Cahalan had not yet returned to their hotel, and although they were free

                                         -5-
to pursue other activities, they did not choose to do so. We conclude that Cahalan
and Rohan were still engaged in the direct performance of their duties under New
Jersey law at the time of the accident. Therefore, the accident, and Cahalan’s injuries,
are covered by the NJWCA and Cahalan’s suit is barred.

       The district court dismissed Cahalan’s claims without prejudice, apparently to
allow him to pursue a claim based on the theory that the Minnesota Workers’
Compensation Act, Minn. Stat. §§ 176.001- .86, applies to his injuries. The decision
to grant a voluntary dismissal is left to the discretion of the district court, Bodecker
v. Local Union No. P-46, 640 F.2d 182, 186 n.5 (8th Cir. 1981), based on its
evaluation of factors such as the reasons for seeking the dismissal, whether the result
would be a waste of judicial time and effort, and whether the dismissal will prejudice
the defendants. A party may not dismiss simply to avoid an adverse decision or seek
a more favorable forum. Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941,
950 (8th Cir. 1999). In this case, Cahalan is not seeking to avoid an adverse
judgment or bring the same claim in a more favorable forum; he is attempting to
preserve a similar, but distinct claim under the Minnesota Workers’ Compensation
Act.3

      Cahalan has received benefits under the New Jersey Workers’ Compensation
Act; however, Minnesota law provides Cahalan the option of filing claim for benefits
under the Minnesota Workers’ Compensation Act even after he has received benefits
pursuant to the laws of another state.4 Cahalan’s claim is not barred by the applicable

      3
      The court did not make any ruling determining whether New Jersey or
Minnesota law applied to Cahalan’s claim; the parties apparently proceeded on the
assumption that New Jersey law applied.
      4
       Minnesota recognizes that

      an injured employee may secure workmen’s compensation benefits in
      one of several forums, including the state . . . where the employment

                                          -6-
time limitations within the statute. See Minn. Stat. § 176.151. Because Cahalan
retains the option of electing Minnesota workers’ compensation benefits, and because
the district court did not reach a judgment on the merits or decide the choice of law
question, we conclude that the court did not abuse its discretion in dismissing the
claim against Rohan without prejudice.

                                   CONCLUSION

      We find no error in the district court’s conclusion that Cahalan’s claim was
barred by the NJWCA. As to the defendant’s cross appeal, claiming that the court



      relation existed by reason of localization of the employer’s business, and
      the state where the contract was made, since any of these states has a
      sufficient interest in the work injury to justify application of its own law.

 Houle v. Stearns-Rogers Mfg. Co., 157 N.W.2d 362, 365 (Minn. 1968) (holding that
employee injured in South Dakota while employed by a Minnesota company could
claim Minnesota workers’ compensation benefits, even though he had collected
benefits in South Dakota and signed an agreement releasing the company from all
future claims). Under current Minnesota law, an employee who is normally employed
out of state by an out-of-state employer will be covered by Minnesota workers’
compensation if he is injured within the state and “chooses to forgo any workers’
compensation claim resulting from the injury” that the employee might be entitled to
in another state. Minn. Stat. § 176.041, subd. 4. The Minnesota Supreme Court,
interpreting this language, held that “[m]ere acceptance of the [other state’s] benefits
is not equivalent to a choice of that law on the part of the employee or to his pursuing
a claim for benefits in that state.” Stolpa v. Swanson Heavy Moving Co., 315
N.W.2d 615, 617 (Minn. 1982). The court held that the statute “permits an injured
employee, in spite of his acceptance of compensation voluntarily paid . . . pursuant
to the laws of another state, to make an affirmative election of Minnesota coverage
by filing a claim petition in this state after obtaining legal advice concerning his
rights.” Id. An employee will not obtain an excessive recovery because “any benefits
voluntarily paid him pursuant to the laws of another state can be deducted from the
compensation awarded in a proceeding in Minnesota.” Id. at 618.

                                          -7-
should have dismissed Cahalan’s claim with prejudice, the court was within its
discretion in allowing Cahalan to pursue his theory that Minnesota, rather than New
Jersey Workers’ Compensation law applied to the case. Therefore, we affirm.
                       ______________________________




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