Hodgson v. Flippo Construction Co.9/15/2005
]," which would have granted him "covered employee" status under L.E. § 9-203(a)(3), appellant insists that he was a covered employee under § 9-203(a)(2). That subsection provides coverage for employees "`regularly' employed in Maryland while working outside of Maryland on a `casual, incidental, or occasional basis.'" Fitzgerald v. R&R Trucking, Inc., 154 Md. App. 86, 92 (2003).
In determining whether an employee is "regularly employed" in Maryland for § 9-203(a)(2) purposes, factors such as where the claimant was hired, Pohopek, 375 Md. at 594; whether the employment "arrangement contemplat a regular presence" in the particular jurisdiction, id. at 592; the "nature of the employer's work," id. at 586; the "scope and purpose of the hiring," id. at 587 ; the "duration of the employment," id.; the "consistency" of the claimant's work in the particular jurisdiction, Fitzgerald, 154 Md. App. at 96; and representations made by the employer as to where the claimant would be working, L.R. Wilson & Sons v. Garrett, 76 Md. App. 120, 127 (1988), may be relevant. Two are not. Neither the claimant's residence, Dixon v. Able Equipment Company, Inc., 107 Md. App. 541, 548 (1995), nor the site of the accident, see Pohopek, 375 Md. 574; Fitzgerald, 154 Md. App. 86, is ipso facto relevant to that decision. With that in mind, we turn to the question of what authority does appellant cite, beyond the broad and inclusive language of the statute itself, in support of his claim.
The answer is one case. He relies exclusively on Pohopek, 375 Md. 574. And so does Flippo. Given that Pohopek presents one of the most recent and comprehensive discussions of the scope of § 9-203(a) in multi-jurisdictional cases and that its language, when selectively culled, can be placed in the service of either party's stance, their common choice of authority for their conflicting positions is understandable.
The Pohopek case received its first appellate review in McElroy Truck Lines, Inc. v. Pohopek, 140 Md. App. 235 (2001). The issue before this Court was whether Pohopek, "a Maryland resident, employed as a truck driver by a trucking company based out of state, who was required to keep and maintain the company owned tractor-trailer truck in Maryland on weekends, but whose employment involved traveling, during the week, to various states along the Eastern seaboard, including sometimes Maryland, for regular pickups and deliveries, a `covered employee'" under §9-203. Pohopek, 375 Md. at 577. We found that he was "regularly employed" in Maryland, explaining:
This Court has stated that " he word `regular' implies a uniform course of conduct." Dixon v. Able Equipment Co., Inc., 107 Md.App. 541, 547, 668 A.2d 1009 (1995). Because of Pohopek's weekend duties and responsibilities, he essentially worked a seven-day work week, spending every Friday through Monday in Maryland, and on the road every Tuesday through Thursday, as well as parts of Monday and Friday. There is "no particular formula for establishing `regular' employment," id., and we must evaluate each set of circumstances on a case-by-case basis. Here, the consistency of Pohopek's schedule and the employment responsibilities he carried out within the State persuade us to find regularity in Pohopek's Maryland employment. Pohopek was not commuting to work in another state on a daily or regular basis, but, instead, he was based out of Maryland and traveled regularly, albeit extensively, as part of his routine employment.
Pohopek, 140 Md. App. at 240-41.
But we also found that he was as "regularly employed outside of Maryland as he was within Maryland." Id. at 241. To resolve this dilemma, we cited language from our decision in
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