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Ezequiel Lugo Obtains Defense Ruling in the Second DCA

November 6, 2020

Ezequiel Lugo obtained an appellate opinion affirming a defense summary judgment based on the “going and coming” rule in the Second District Court of Appeal.

The appeal involved an automobile negligence case where the parties disputed whether the allegedly negligent driver was in the course and scope of any employment at the time of the accident. The issue on appeal was whether the “going and coming” rule applied to a cable installer on the way to a warehouse where he would pick up that day’s work orders and return the prior day’s equipment and paperwork.

The defense argued that the “going and coming” rule controlled because the accident happened while he was on the way to work, so he was not in the course and scope of any employment. The plaintiff argued that the defense could not rely on the “going and coming” rule because the driver was carrying the prior day’s equipment and paperwork and because the driver was a traveling employee. The trial court rejected the plaintiff’s arguments and granted summary judgment for the defense.

The plaintiff appealed the summary judgment and argued on appeal that the “going and coming” rule was limited to workers’ compensation cases. Ezequiel Lugo argued that the workers’ compensation statute merely codified the common law “going and coming” rule that applies generally to all tort cases. Ezequiel also argued that the exceptions argued by the plaintiff were not triggered in this case.

The appellate court agreed with Ezequiel and issued a per curiam affirmance. 

 

The case is Benedict v. Comcast, No. 2D19-402, 2020 WL 5943963 (Fla. 2d DCA Oct. 7, 2020).

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