although there's no evidence that he was going anywhere but his parents and i just he did say he was driving home nobody knows where he was driving agreed ok it require an extraordinary transit that special or different commute then would apply to the ordinary work force and i believe we have both of those fundamental requirements in this case first of all or forego any compensation for housing so unless the barracks reached a certain level of occupancy enlisted personnel were required to live there and not obtain any housing allowance because of that condition letting a guardsman who chose that alternative was required implicitly required by the condition of employment to commute some eighteen miles on a narrow curvy two lane road in order to get to bodega bay station and that is something that clearly satisfies the second fundamental requirement of an extraordinary transit there was no point why is why is it extraordinary because he could have lived in petaluma could have chosen to and here post that he was required to have a car correct order to do in order to do his job because he had to use the car to go from one of his employer's fields to another to another during the workday so he had to have his car correct for work and therefore the argument is the incidental benefit related directly when i'm trying to focus in on is then what makes this commute any different from an ordinary mortal who has to drive fifteen or twenty equally no question he did not have to have his car for work in human and he couldn't walk or he could have ridden a bicycle or he could've done a million other things so far as the employer was concerned you know maybe as a practical matter it was travel time was compensated by the employer right and the reason was because it was some distance from the employment and presumably that was the only way the employer was able to entice that employee them that didn't happen here either so there's no there's no sort of compensation as it were for the travel time a great ok so we're back to school there back to my basic question thought but the basic exception either correct but if for for some reason the employee said don't you don't have to pay me has his commute is still going to be the same i'm talking about two different requirements and i think it's important to separate the two incidental benefit from the impact on the commute in our case the employee was required to commute from  the employer now it's true that the employee could choose to not live in petaluma and forego the housing allowance but i would submit two things with regard to that one is that's not really practical i mean it still is structured to entice the employee to live it to rock because you have to forego a very substantial portion of your compensation if you don't choose to live there and secondly just as in the other cases even if that's not the case the employer has given a choice to set up terms if the employee excepts those terms i think the employer proposed and offered to the employee so in that case it really is the case that the benefit that the government enjoys from requiring personnel either to live it to walk or to forgo their housing allowance does impact the commute it means that they are going to have employees who have to make that particular commute as a practical matter i believe you have to say that they have to make it by car yes they can walk or ride a bicycle but the question is is that really practical eighteen mile bicycle wide or an eighteen mile walk i mean i think as a practical matter they do but it's not simply the far that has to be made by car it's also the fact all of the other circumstances surrounding that commute that make it different for hundred miles so that we can get you back if we need to which is also in the rule so basically we need to barracks and all in here or you are you do you need the barracks or do you need just a kind of generalized restriction on how far somebody what to me is missing from your hypothetical is what's the purpose of the restriction because it's hard to analyze whether or what benefit the employer derives from well we don't want you're so far away that you can't get back with it and you know sort of reasonable period of how does that make it different from an ordinary commute i mean if you think most people would live near where they work the employer is simply saying we don't want you living you know x number of miles further away or further than x number of miles away that's it that's a different if the employer were for some unfathomable reason to say you must live at least eighteen miles away then that would be much more like our case and in that case i'd say yes in that case the employer has said you have to make a commute that is really somewhat different than the ordinary commute and you've got to do it for us as a condition of employment and that's basically what the government has done here a matter of it's eighteen miles or what if it was just just outside the base but outside so yeah actually had  say most people don't live on the premises where they work so that's not really a problem i think each case would you know whether it's going to be five miles ten miles fifteen or twenty could vary depending on other circumstances in the case and i certainly have there's nothing in the case law that tells me there's a bright line distance at which the court would draw will but in him and the distance was fifteen to twenty miles well and him and it was because got car fare correct any of that paid for his travel time but if you lived a mile away and it took him five minutes to get to work and so he got paid an extra you know wages for an implication to me that the benefit may have kicked in only after a certain distance but the opinion is not clear but i have a question in my mind as to by the government in its brief anderson versus p g and where the employer employee was paid not wages for travel time but a preview more like a travel allowance and i believe was twelve fifty a day and the court  if we're going to measure it in terms of the proportion their compensation to housing allowance has to be a very substantial portion of the coast guard's means of compensation so if the choice is either give that up and pay for your own housing or live in the barracks i think that's going to be a powerful incentive and the government's going to derive a great benefit from that because they're going to make sure that their housing in petaluma on a special mission for the employer where they they're doing an errand for the employer on the way to or the way home from work and they do the errand and then they instead of going home they had someplace else and there's there's a body of case law that turns on that deals with the question of when does the employee stop being within the course and scope of his or her employment i guess that raises the issue then where does the benefit to the government come in from the his choice of residence or from the commute your commute itself is no benefit to the government is it no the commute to the south is a benefit to the s government only because of the choice of residence only because you must live here and there's a commute involved but it still impacts that the guardsman's commute and that's the point and in your other that the community itself is no benefit to the government that is i think the key issue here in the case is the tort cases where the state of california has found responsive superior liability under scope of employment in cases involving a commute he can you itself it is the benefit to the employer the commute of bringing a car that can be used to go from site to site during the work an exception to the going and coming rule so the fact that there may or may not have been practical alternatives to driving his car to get from to rock to the database station that doesn't take the commute itself into the that were liability has been found for the employer in the past or issue in this case i think is very important is the distinction between the workers compensation context and the tort context the cases are very clear and stating particularly the recent cases that they are the evaluation of whether a event falls within the scope of employment under tort law is a much more restrictive standard than the more liberal view of arising out of or in the course of employment under workers compensation law for example there are cases where an employee he gets worker compensation benefits but then still does not their employer is not held liable in a related tort case for the same event there are different standards there are different goals in some crossover in the evaluation of the issues they are not the same standards and if you look at the cases under tort law that have been decided in the commute context we have the harvey case where  the employee was going from an arizona construction site to a california home for the weekend to carry tools he was bringing you back with them and he was often asked to hire other employees while he was in california he was furnished gasoline these are bring the commute itself within the benefit of the employer in the hinman case also context commute case the employer chose to the travel time within the work day by contract that is not the case here in the heart sticker case the employee worked at the office of also in the field having the car was necessary so the commute became a necessary part of the equation court found that his duties required the use of the vehicle again none of semen duties required the use of the vehicle during the workday so even if one were to say he was required to live it t rock and even if one were to say that there was no practical alternative to driving the drive itself was not something that concern case but although in the dollar hard case it also mentions in addition to bunkhouse the issue of going to collect compensation is really not clear whether the bunkhouse rule applies at all under california tort law  it is mentioned in the to ask ok however in that case there's also the returning of tools employer provided gasoline duties requiring the use of the vehicle so while there may have been a bunkhouse aspect to it it would appear that it was the combination of factors that led to the liability to determination there i think it's important looking at the california cases to look more to the facts than the labels that are used  mention that these are facts specific evaluations and sometimes a term is put out there in a case for example the bunkhouse rule is mentioned into rask oh but all these other parts are also mentioned so i think is driving possibly home we don't know how he died in the accident no one can ask him he was driving his own car not a company vehicle he was not paid for his travel time he was not paid any travel expenses he was not required to go back to the barracks at that time he was on liberty from that friday afternoon when the accident happened until the following monday morning he could have gone to visit his girlfriend for the weekend we just don't know where he was going but even if we as petaluma and there was no other means to get to work or back home from work as far as the workers comp versus third party liability cases go we have not really relied on any rule that is not him and other third party liability cases and moreover to me what the court is saying there is that it's not going to apply in an ordinary commute case it's going to apply where because of a condition imposed on the employment of some kind of extraordinary commute is required that's not a more liberal rule if anything it's a restriction on him and this case clearly there was a