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Bartolomucci v. Federal Insurance Co.

August 5, 2020

The Virginia Supreme Court confirmed recently that simply because technological advancements make it possible to always be “on the clock,” the law recognizes clear lines between “on” and “off” the clock.  The case involved a Virginia lawyer who checked his work email and called his office voicemail before leaving home to head to his office.  The Plaintiff kept his business cellular phone (provided and paid for by his employer) on during his commute.  On the ride to his office, the Plaintiff was involved in a motor vehicle accident.  To recover for his injuries, the Plaintiff filed a declaratory judgment action, claiming that his use of his personal vehicle fell within the scope of his law firm’s automobile liability policy.  At the trial for the matter, the jury agreed with the Plaintiff that he was using his vehicle for the firm’s affairs at the time of the accident.  Despite the jury’s finding, however, the trial court granted a motion by the insurance carrier to set aside the jury’s finding for not being supported by the evidence.  

The Plaintiff appealed and the Supreme Court of Virginia upheld the trial court’s ruling.  The Supreme Court found that the Plaintiff’s use of the vehicle to commute from his house to his law office was not a “use” that fell within the law firm’s automobile policy provision covering non-owned vehicles.  To arrive at this conclusion, the Supreme Court considered that (a) the evidence reflected that Plaintiff merely checked his work email rather than indicated that he read or responded to any emails; (b) the evidence failed to reflect that the Plaintiff billed for any of the time he spent at home checking emails and the voicemail from home; and (c) the Plaintiff did not use the work phone during the commute.  The Court continued that the evidence presented failed to establish the lawyer’s home as a law firm work location, despite the fact that he occasionally or even frequently worked from home.

Simply put, the fact that the Plaintiff’s testimony revealed that he frequently worked at home and frequently thought about work-related issues during his commute did not persuade the Supreme Court of Virginia that Plaintiff’s commute rose above that of an ordinary commute to fall within the firm’s insurance policy.

Bartolomucci v. Federal Ins. Co. (Millette) No. 140275, April 16, 2015; Loudoun County Cir.Ct.