You Be the Judge

Does Exclusive Remedy Block Supervisor’s Suit Against Coworker?

A court must decide whether post- bar-hopping injury occurred within the course of employment.
By: | August 22, 2016

A sales supervisor for General Beer-Northwest, a beverage distributor, called on customers in a territory of seven counties about four days per week. He was assigned a company vehicle, which he could also use for personal purposes.

The supervisor completed his regular shift and went home. Later, he was contacted by a coworker because a restaurant had requested beer, but the owner was unavailable when the coworker had attempted a delivery earlier that day.

The restaurant had called again and requested beer after the coworker returned home for the day. The supervisor and coworker decided to deliver the beer together. The supervisor anticipated that he and the coworker would visit bars after the delivery.

As the coworker’s vehicle was not authorized for personal use, they transferred the beer to the supervisor’s vehicle. They agreed that the supervisor would drive to the restaurant, but the coworker would then take over driving. The supervisor did not want to drive because he had been cited for operating while intoxicated.

The supervisor and coworker delivered the beer and decided to stay for two drinks. They left the restaurant and drove to an area with three bars in close proximity. They drank at all three bars and then left to head toward their homes.

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While driving, the coworker missed a curve, and the vehicle entered a ditch. The accident left the supervisor paralyzed.

The supervisor sued the coworker and the coworker’s personal automobile insurer. The Circuit Court granted summary judgment to the coworker, finding that workers’ compensation held the supervisor’s exclusive remedy because he was within the course of employment at the time of the injury. The supervisor appealed.

Was the Circuit Court correct in finding that the exclusive remedy provision applied?

  • A. No. The supervisor deviated from his employment when he went to bars with the coworker.
  • B. Yes. The supervisor’s deviation from his employment had ended when the accident occurred.
  • C. No. Workers’ compensation does not cover an accident that occurs when the worker is intoxicated.

How the Court Ruled

A is incorrect. The court explained that while the supervisor and coworker deviated from their employment when they visited the bars, when the accident occurred, the deviation had ended. The bars were along a reasonable route to return home.

C is incorrect. The court pointed out that under the law in effect at the time of the accident, intoxication does not negate workers’ compensation coverage.

B is correct. In Ninedorf v. Joyal, et al., No. 2014AP2762 (Wis. Ct. App. 05/17/16, unpublished), the Wisconsin Court of Appeals held that the Circuit Court properly granted summary judgment to the coworker and determined that workers’ compensation was the supervisor’s exclusive remedy.

The court explained that when a salesman commences travel in the course of his employment, subsequently deviates from that employment, but later resumes his route which he would have to follow in the pursuance of his employer’s business, the deviation has ceased and he is performing services incidental to and growing out of his employment. Here, the court found that the supervisor and coworker terminated their deviation when they resumed their trip home along a reasonable route.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]