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Maryland Casualty Co. v. Lorkovic6/1/1994
as to material fact." Bond v. NIBCO, Inc., 96 Md. App. 127, 135, 623 A.2d 731 (1993) (quoting Seaboard Surety, 91 Md. App. at 243) (emphasis omitted). A party opposing a motion for summary judgment "cannot rely on formal denials or general allegations." Bond, 96 Md. App. at 135. The party opposing summary judgment must offer "evidence upon which the jury could reasonably find [in his favor]." Beatty, 330 Md. at 738-39.
The Court of Appeals has also recognized that ordinarily summary judgment is inappropriate when intent or motive are critical to the proof of a case. Gross, 332 Md. at 256. Thus, the trial court would improperly usurp the fact finder's power if it resolved an issue of credibility
on summary judgment. Id. (citing Coffey v. Derby Steel Co., 291 Md. 241, 247, 434 A.2d 564 (1981)).
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In the instant context, the Court of Appeals has stated that "each case involving the coming and going rule and its exceptions must turn on its own particular facts." Alitalia, 329 Md. at 46. This does not mean, however, that a trial judge hearing a motion for summary judgment cannot determine as a matter of law that a case falls within an exception to the coming and going rule. On this point, the Court of Appeals stated in Harrison, 135 Md. at 180:
The question as to whether an injury arose out of or in the course of the employment is ordinarily, like negligence or want of probable cause, a mixed question of law and fact; but when the facts have been ascertained and agreed upon by the parties, or are undisputed and there is no dispute as to the inferences to be drawn from the facts, the question becomes one of law and may be decided by the Court.
Id. See also Tavel, 242 Md. at 307 ("On the undisputed facts and any inference which may be drawn from them, we find, as a matter of law, that Tavel's injuries did not arise out of and in the course of his employment, but were sustained as a result of a common peril, to which all persons are exposed").
Based on the foregoing statements of the pertinent summary judgment standard, we conclude that as a matter of law the free transportation exception is applicable. Lorkovic's injuries arose out of and in the course of his employment.
Appellants assert summarily in their brief that the free transportation exception would not apply in this case because "no evidence has been offered by Lorkovic and no contention has been made by Lorkovic that Maryland Casualty was required to provide free transportation for Lorkovic. The undisputed facts of this case also show that no free transportation was provided by Maryland Casualty to Lorkovic."
The record in this case clearly reflects that Maryland Casualty had obligated itself to provide for Lorkovic's transportation during his business trips, from the time he left his home until the time he returned to his home or place of business. It is undisputed that Maryland Casualty always reimbursed Lorkovic for the expenses of his business travel, including the cost of transportation to and from the airport. Indeed, the trial court found (in comparing the instant case to Alitalia), "The relevant point is that in both situations it was the agreed company policy that the employee make his own vehicle available for work-related use, for which the employer would then reimburse him." Appellants have not alleged that the amount Maryland Casualty reimbursed to Lorkovic was not related to his reasonable travel expenses.
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