Lawyer Thinking About Work, On the Way To The Office, Is Not Working

Coverage Opinions Gets A Mention In The Wall Street Journal Law Blog

Cases involving coverage under automobile policies do not usually get a lot of play in Coverage Opinions (what is “use of an auto” cases are sometimes an exception; see infra). But the Supreme Court of Virginia’s decision in Bartolomucci v. Federal Insurance Co., Nos. 140275, 140297 (Va. April 16, 2015), [enhanced version available to lexis.com subscribers], not only finds a home here, but it also made the mainstream media. Sadly, unfairly and cruelly, that just doesn’t happen too often.

Bartolomucci involved a lawyer who was in a car accident on his way to the office. He didn’t have enough insurance so he sought to be covered under his law firm’s auto policy. His argument, based on policy language, was that, while his personal vehicle was not owned by his law firm, it was being used in the firm’s business or personal affairs. Thus, the lawyer argued that his vehicle was covered under the firm’s policy.

In general, the lawyer’s arguments were as follows:

• Since he also works from a home office, he was traveling between work locations and not commuting.
• He habitually thought about work related issues on his commute to work.
• He had a Blackberry, issued and paid for by his law firm, turned on and within his physical reach.

The Virginia Supreme Court rejected the lawyer’s arguments:

“Contrary to these arguments, the facts of this case do not amount to anything more than a typical commute from home to work, which was not covered under the terms of the Federal Policy. The only work related activity that Bartolomucci accomplished before leaving home was to check his work email and call his office voicemail. But the record does not indicate that Bartolomucci read or responded to any work related emails, that the voicemail itself was work related, or that Bartolomucci billed his time for these activities. In addition, beyond the fact that Bartolomucci occasionally worked at home, the record fails to show any relationship between Hogan Lovells and Bartolomucci’s home to establish that place as a Hogan Lovells work location. Moreover, Bartolomucci’s use of his vehicle to commute from home to work was not a ‘use[ ] in’ Hogan Lovells’s business or personal affairs. Bartolomucci did not use his Blackberry during the commute. Merely having access to modern technology such as a Blackberry, which would allow Bartolomucci to conduct work activity if that device was used, ‘does not transform’ an employee’s ‘private activity into company business.’ And merely thinking about work does not make a commute ‘in’ the business, as contemplated by the policy language. The record does not indicate that Bartolomucci billed for any activity or otherwise performed any work during his commute. Also, Bartolomucci was not reimbursed by Hogan Lovells for his commute.”

This decision is hardly surprising. If thinking about work and having a smart phone provided by your employer nearby, even when not in the office, qualified as acting within your employer’s business, there would almost be no end to an employee’s status as an insured under a liability policy.

As for the mainstream media, The Wall Street Journal Law Blog did a post on the Bartolomucci case. On a personal note, it was exciting that your friendly neighborhood insurance coverage newsletter was called upon by The Journal for comment on the case. Here is The Wall Street Journal post:

http://www.coverageopinions.info/WallStreetJournalAPRIL2015.html

Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.

The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.

   Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.

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