Compensability and the Coming and Going Rule

This Utah Court of Appeals case involves an employee involved in accident while driving a company truck and touches on the instrumentality exception. He was allowed to drive a pickup truck owned by employer back and forth each day from his home to various worksites, and employee was allowed to choose the route he took to the worksites each day. The employer paid the cost of fuel for the truck as well as all maintenance costs. The employee was sometimes accompanied by another employee while commuting to work, and would sometimes use the truck to pick up materials and equipment from supply vendors or from the employer’s office on his way to the worksites. Employee was not paid for the time he spent commuting to and from work in the truck, but was paid for time spent picking up materials and equipment.

Employee left home to commute to a jobsite and chose to travel over Guardsman Pass. Employee went off the side of a road on a sharp curve and rolled. Employee was ejected and fatally injured.

When analyzing whether a vehicle is an instrumentality of an employer’s business, the Court of Appeals noted that the Utah Supreme Court has identified two critical factors: (1) the degree of control the employer exercises over the employee’s use of the vehicle; and (2) the benefit the employer derives from the employee’s use of the vehicle.

In upholding the denial of the claim, the Court of Appeals noted that the employer had a hands-off approach in comparison to more restrictive approaches taken by other employers. The control it exercised over the employee was “no greater than its control over any other employee traveling to and from work.” The only specific restriction to which the Petitioner could point was the fact that the employee was not free to drive the truck wherever he wanted; rather, the employer only allowed the employee to use the truck to travel between his home, jobsites, employer’s offices, and various locations to pick up materials. There were other restrictions employer could have imposed, but did not. For instance, employer placed no restrictions on what employee had to wear when operating the truck, or on what employee had to take with him in the truck when driving it. Likewise, the employer placed no restrictions on employee’s ability to invite passengers to ride with him in the truck, and did not ever mandate that employee transport other employees to worksites. See Jex, 2013 UT 40, ¶¶ 42–43, 306 P.3d 799 (stating that “providing a ride for [other employees] was … not a requirement of [worker’s] employment, but a mere request”). The employer placed no restrictions on when employee had to begin or end his commute. Moreover, employer made no effort to dictate to employee what route he had to take when traveling to and from his home in the truck.

Therefore the claim’s facts did not take it outside of the coming and going rule and was not compensable.

Davis v. Labor Commission, 424 P.3d 1105 (Utah App 2018)

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From the May 2019 Newsletter