Dooley v. Liberty Mut. Ins. Co.

307 F.Supp.2d 234

Thomas DOOLEY, Individually and on Behalf of all Other Persons Similarly Situated, Plaintiffs v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant

No. CIV.A. 01-11029-REK.

United States District Court, D. Massachusetts.

February 26, 2004.

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Howard E. Gottlieb, Orangeburg, NY, for Howard E. Gottlieb, Plaintiff.

Douglas Hart, Shepard, Mullin, Richter & Hampton LLP, Los Angeles, CA, for Liberty Mutual Insurance Company, Defendants.

Todd S. Heyman, Shapiro, Haber & Urmy, LLP, Boston, for Thomas Dooley, Plaintiff.

Andrew C. Pickett, Jackson, Lewis, LLP, Boston, for Liberty Mutual Insurance Company, Defendant.

Frederick Puglisi, Shepard, Mullin, Richter & Hampton LLP, Los Angeles, CA, for Liberty Mutual Insurance Company, Defendant.

Thomas V. Urmy, Jr., Shapiro Haber & Urmy LLP, Boston, for Thomas Dooley, Plaintiff.

Eric J. Winton, Jackson Lewis LLP, Boston.

Memorandum and Order

KEETON, Senior District Judge.

I. Pending Matters

Pending for decision are matters related to the following filings:

(1) Joint Stipulation for Entry of Partial Judgment (Docket No. 120, filed December 8, 2003);

(2) Plaintiffs' Motion for Partial Summary Judgment (Docket No. 121) and Memorandum in Support (Docket No. 122), Statement of Undisputed Material Facts (Docket No. 123), and Declarations of Todd S. Heyman (Docket No. 124), Tony Pisano (Docket No. 125), Holly King (Docket No. 126), and Thomas Dooley (Docket No. 127) (filed January 12, 2004), Declaration of Michael Talarico (Docket No. 130, filed January 13, 2004), and Second Declaration of Todd S. Heyman (Docket No. 147, filed February 2, 2004);

(3) Defendant's Opposition to Motion for Partial Summary Judgment (Docket No. 138), Affidavit of Douglas R. Hart in Support (Docket No. 141), and Affidavit of Brian O'Connor in Support (Docket No. 143) (filed January 26, 2004);

(4) Plaintiffs' Memorandum in Reply to Defendant's Opposition to Motion for Partial Summary Judgment (Docket No. 145, filed February 2, 2004);

(5) Defendant's Response to Plaintiffs' Statement of Undisputed Material Facts (Docket No. 139, filed January 26, 2004);

(6) Defendant's Objection to Evidence Presented in Support of Plaintiffs' Motion for Partial Summary Judgment (Docket No. 140, filed January 26, 2004);

(7) Plaintiffs' Response to Defendant's Objections to Evidence Presented in Support of Plaintiffs' Motion for Partial Summary Judgment (Docket No. 146, filed February 2, 2004);

(8) Defendant's Cross-Motion for Partial Summary Judgment (Docket No. 134), Memorandum in Support (Docket No. 135), Statement of Undisputed Material Facts (Docket No. 136), Affidavits of James L. Hunt in Support (Docket Nos. 137 and 142) (filed January 26, 2004);

(9) Plaintiffs' Response to Defendant's Statement of Undisputed Material Facts (Docket No. 148, filed February 2, 2004);

(10) Defendant's Reply to Plaintiffs' Response to Defendant's Statement of Undisputed Material Facts (Docket No. 150, filed February 2, 2004);

(11) Plaintiffs' Motion to Compel the Production of Documents Following In Camera Review (Docket No. 128) and Memorandum in Support (Docket No. 129) (filed January 12, 2004);

(12) Defendant's Opposition to Motion to Compel the Production of Documents (Docket No. 132) and Affidavit of Douglas Hart in Support (Docket No. 133) (filed January 26, 2004); and

(13) Plaintiffs' Reply Memorandum in Support of Motion to Compel (Docket No. 144, filed February 2, 2004).

II. Procedural and Factual Background

This is a collective action filed under 29 U.S.C. § 216(b), which permits a plaintiff to bring an action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), on behalf of himself and others similarly situated, if all putative plaintiffs file a Notice of Consent with the Court.

The plaintiffs here are auto damage appraisers employed by defendant Liberty Mutual Insurance Company ("Liberty"). They seek unpaid overtime compensation for certain work performed between June 15, 1998 and the present. A number of issues formerly in dispute between the parties have been resolved by the Stipulation (Docket No. 120). The pending motions address unresolved issues bearing on whether the plaintiffs are to be compensated for their time spent driving to their first duty location, and from their final duty location.

When one of Liberty's customers is involved in an accident, the customer has the option of taking his or her car to a drive-in facility, or having an appraiser come to the customer. The insured arranges a date, time, and location with Liberty's dispatcher. An appraiser is then required to travel to the location selected by the insured to perform the appraisal. Liberty's appraisers, therefore, spend substantial periods of time traveling between job locations, in addition to traveling between home and their first and last appraisals of the day.

The parties agree that appraisers will, at least sometimes, perform certain work at their homes, for which they are compensated if they properly report their work performed. For instance, before traveling to their first apprai3al, employees sometimes start their laptop computers, open necessary software, check their voice mail, check their email, respond to messages, set a new voice mail greeting on their phones, review their day's assignments, map out a geographical route for the day, and load their computer, printer, docking station, digital camera, and other supplies into their vehicles. The parties disagree about how often appraisers perform this sort of work at home.

Similarly, the parties agree that, at least sometimes, appraisers perform certain work-related tasks at the end of the day in their homes, for which they are compensated if they report the work. These tasks include checking their email and voice mail; calling Liberty employees, body shops, parts suppliers, insureds, and claimants; completing estimates or appraisals that they were unable to complete in the field; faxing paperwork to Liberty; electronically sending the day's appraisals to Liberty; electronically sending photographs documenting the day's claims to Liberty; electronically completing a time log for the day; and downloading and reviewing assignments for the following day. Again, the parties dispute the extent to which appraisers perform this work at home.

The plaintiffs have filed a motion, designated by them as a motion for partial summary judgment, requesting a ruling of law to the effect that the time they spend driving from their homes to their first appraisal site, and from their final appraisal site back to their homes, are compensable under the FLSA. The defendants have filed a document, designated by them as a cross-motion for partial summary judgment, requesting the opposite ruling.

Also pending is the plaintiffs' Motion to Compel the production of certain documents the defendant generated between 1992 and 1993. These documents relate to advice the defendant received from its attorneys as to whether the appraisers were properly classified as exempt from the overtime compensation requirements of the FLSA.

III. Disposition of the Pending Matters

A. Stipulation

I have reviewed the parties' stipulation contained in Docket No. 120. In this stipulation, the parties have agreed to rulings of law, and purport to have stipulated to partial summary judgment. The use of any term including the word "judgment" in the present context is potentially misleading. The effect of approving the stipulation would not produce a judgment, partial or otherwise. I conclude that this characterization is inaccurate. Rather than approve the stipulation in its current form, I make the requested stipulated rulings of law in the Order below.

B. Evaluation, on the Current Record, of Plaintiffs' Arguments

The plaintiffs present two arguments as to why their time spent driving to and from home should be considered compensable under the FLSA. First, they argue that the drives occur during the workday, and therefore are compensable. Second, they argue that the travel time is part of the plaintiffs' principal activities.

With respect to the plaintiffs' first argument, I rule, below, that the extent to which the plaintiffs' commute time is compensable under the FLSA turns on whether the plaintiffs' workday commences and ends at home. This, in turn, is a material question in genuine dispute between the parties. The record before me at this time does not warrant a ruling that either party has shown that no genuine dispute of material fact exists. For this reason, summary judgment is not appropriate at this time. I add, however, certain rulings of law. First, I rule that circumstances may exist in which commute time legally must be compensated under the FLSA. Thus, for example, if the plaintiffs prove at trial that their workday begins and ends at home, then they are entitled to compensation for time spent driving to their first appraisal site and from their last site.

With respect to the plaintiffs' second argument, I rule, below, that the plaintiffs' travel to the first appraisal site, and from the last appraisal site, is not a principal activity within the meaning of the Portal-to-Portal Act, 29 U.S.C. § 254, and is therefore not compensable under the FLSA.

In making the rulings explained in this Memorandum, I have relied on plaintiffs' affidavits only to the extent that the affiant made a relevant statement based on his or her personal knowledge. Specifically, I relied only on those portions of the affidavits that outlined what equipment each affiant loads into his or her vehicle at the beginning of the day, and unloads at the end of the day. To the extent the defendant has objected, in Docket No. 140, to these statements, those objections are overruled. Each of the defendant's other objections in Docket No. 140 is moot.

C. Cross-Motions

1. Terminology and Substance

Because the parties are not seeking a final disposition of...