Frank Furtaw worked as a police officer for the City of Tulare, California in its community-policing unit. As part of the City’s “Personal Car Program,” Furtaw received the use of a marked police-issued sport utility vehicle.
According to the City’s Police Operations Manual, officers in the Program “are permitted and encouraged to use their vehicles off duty for any normal domestic business while off duty.” Family members may ride in the vehicle and the officer may take the vehicle outside the City with prior approval from the Chief of Police. The Program is “designed to give the police omnipresence” and “is not a fringe benefit or employment right.”
As a condition of using a police vehicle for personal use, officers must listen to the police radio and advise the dispatcher if they are able to respond to an emergency call. Under Department policies, an off-duty officer “operating a departmental vehicle should be appropriately attired to effectively perform a police function while at the same time presenting a favorable image.”
On November 26, 2001, Furtaw was involved in an automobile accident on his way to work for the City while driving his children to school in his police vehicle. The accident occurred outside of Furtaw’s direct commute to work; however, Furtaw had prior approval from a supervising lieutenant to drive his children to school outside the city.
Following an April 2003 disability hearing, a workers’ compensation administrative law judge (ALJ) found Furtaw’s automobile accident arose out of and in the course of his employment causing injury to his right lower extremity, head, low back, ribs, and internal system. When California’s Workers’ Compensation Appeals Board adopted the ALJ’s opinion, the City appealed to the California Court of Appeals.
The Court’s opinion revolved around the judicially-created “going and coming” rule, which generally precludes workers’ compensation recovery for injuries sustained during a local commute en route to a fixed place of business at fixed hours. Under the “going and coming rule,” exceptions exist allowing workers’ compensation coverage if a trip involves an incidental benefit to the employer that is not common to commute trips by ordinary members of the work force. The question for the Court was whether the City received such an “incidental benefit” from its take-home program to make Furtaw’s accident compensable.
The Court found such a benefit in the Personal Car Program: “Furtaw was driving a marked police vehicle with the radio turned on and could respond to emergency calls if needed. Under the stated purpose of the Program, Furtaw’s use of the vehicle while off duty was designed to provide an increased police presence and reduce crime. As such, the Board logically found Furtaw’s conduct reasonably directed toward the fulfillment of his employer’s requirements for the benefit and advantage of the employer falling outside the ambit of the going and coming rule.
“Here, Furtaw’s off-duty conduct of driving a marked police vehicle throughout the community while listening to the police radio benefited the City as stated in its own Police Operations Manual. Accordingly, his injury arose out of and in the course of his employment with the City.”
City of Tulare v. Workers’ Compensation Appeals Board, 2004 WL 1103025 (Cal.App. 2004).