This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Semen Loyevski, et al.,



Rada Babushkina,



Anatoliy Komm,





Vladmir Yevzelman,



Miracle Cleaning Company,



Filed August 22, 2000


Peterson, Judge


Hennepin County District Court

File No. 9811697


Paul R. Rambow, Rambow Law Firm, 8040 Townline Avenue South, Bloomington, MN  55431-1253 (for respondents Semen Loyevski and Vladimir Kramarenko)


Sharon L. Van Dyck, Robert L. Lazear, Schwebel, Goetz & Sieben, 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent Anatoliy Komm)


David K. Cody, Andrew P. Sherwood, Palmer, Cody & O’Dea, L.L.C., 220 Rosedale Towers, 1700 Highway 36 West, Roseville, MN  55113 (for respondent Rada Babushkina)


Robert H. Tennant, Stringer & Rohleder, 1200 Norwest Center Tower, 55 East Fifth Street, St. Paul, MN  55101-1788 (for respondent Vladmir Yevzelman)


Charles E. Lundberg, Jennifer L. Hill, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            This appeal is from a judgment and order denying appellant’s posttrial motion to dismiss for lack of subject-matter jurisdiction.  Appellant argues that the employer-furnished-transportation provision of the Workers’ Compensation Act applies to this case and, therefore, the district court lacked subject-matter jurisdiction.  We affirm.


            Respondents were all employed by appellant Miracle Cleaning Company.  On October 2, 1997, respondent Vladmir Yevzelman was driving himself and four co-workers, the other four respondents, from a job site in Belle Plaine to his home in Eden Prairie when he lost control of his car and had a rollover accident.

            Appellant’s owner, Layzer Berkovith, obtained a contract with Young America in Belle Plaine to supply laborers to pack clothing into boxes.  Young America paid Berkovith $9.75 per hour for each laborer, and Berkovith paid his laborers $6.00 per hour.  Berkovith had hired all of the respondents to work on the Belle Plaine job, and they had been working for appellant for only a few days before the accident.

            Respondent Rada Babushkina is a Russian refugee who had arrived in the United States only nine days before the accident.  She obtained the job with appellant through her aunt, who informed her “that there was a job available” and “that they would be transporting [her].”  Babushkina did not own a car and did not have a Minnesota driver’s license.  A roommate gave her a ride to Yevzelman’s apartment, and Yevzelman drove her to the job site in Belle Plaine.

            Respondent Semen Loyevski testified that Berkovith hired him to work on the Belle Plaine job and said that the job would last from three to six months.  Loyevski had his own car but testified that when he expressed concern about finding the Belle Plaine job site, Berkovith said he did not have to worry about that because he was paying Yevzelman to provide transportation to the job site.

            Respondent Vladimir Kramarenko arrived in the United States eight days before the accident.  He obtained the job with appellant through Loyevski.  Kramarenko did not have a driver’s license or a car.  Loyevski agreed to drive Kramarenko to Yevzelman’s apartment and told Kramarenko that Yevzelman would transport everyone from his apartment to the job site.

            Respondent Anatoliy Komm obtained the job with appellant through Yevzelman.  Komm had a driver’s license but no automobile.  Komm testified that Yevzelman said that the job would last two to three months and that he was being paid money in addition to what he earned as a laborer to provide transportation to the job site.  When asked whether Yevzelman had agreed to provide transportation for the duration of the job, Komm testified:

            Well, we had been discussing that, and he mentioned that he would be taking us so far, and probably later on somebody else.


            * * * *


            * * * What he said was, so far as I will be taking you, and probably later on we will just switch, and people from this group will be switching.


            Yevzelman testified that when appellant hired him, he and Berkovith did not discuss transportation arrangements, but later, at Berkovith’s request, he agreed to transport other workers to Belle Plaine.  Yevzelman testified that Berkovith said he had directed people to call Yevzelman about transportation and that he told Berkovith that that would be no problem.  Yevzelman did not recall whether appellant paid him for providing transportation over and above what he earned as a laborer.  He claimed that he agreed to provide transportation as a courtesy, not for money.  Yevzelman did recall receiving a cash payment of $70 or $80 in addition to his pay but did not recall why he received the cash payment.

            Valeriy Neshokv was another of appellants’ employees who was assigned to the Belle Plaine job.  Neshokv testified that Berkovith asked if he would transport people to Belle Plaine and said that he would be paid for transporting people.  Neshokv testified that when he agreed to do so, Berkovith immediately raised his hourly rate from $6.50 to $7.50 per hour.  Neshokv transported people to the job site in Belle Plaine for about six or seven months.

            Loyevski, Babushkina, Kramarenko, and Komm brought this personal injury action against appellant and Yevzelman, alleging that Yevzelman’s negligence caused the car accident and that appellant was vicariously liable for Yevzelman’s negligence.  The parties stipulated to negligence and damages, so the only issue for trial was appellant’s vicarious liability for Yevzelman’s negligence.  The jury returned a special verdict finding that Yevzelman was acting within the scope of his employment with appellant when the accident occurred.  The issue of whether the other respondents were acting within the course of their employment with appellant when the accident occurred was not submitted to the jury.

            Appellant filed a motion for JNOV and dismissal of this action on the ground that the Workers’ Compensation Act applied to this case and, therefore, the district court lacked subject-matter jurisdiction.  The district court denied the motion.  The court explained:

Evidence that the employer regularly arranged for the transportation of employees by co-workers * * * does not suffice to prove that these [respondents] were entitled to such transportation as a perquisite of their employment.  There was no testimony on the issue of the [respondents’] contractual right to transportation, or [appellant’s] obligation to provide it.  Although the evidence did show that Yevzelman provided transportation for co-workers, that the employer encouraged him to do so, and that he was paid for it, this evidence does not prove the existence of a contract express or implied, between the [respondents] and [appellant].  These [respondents] had only been working for [appellant] for a matter of days, and there is insufficient evidence to show that they were even aware of any formal arrangement or expectation regarding transportation.



            When an employee suffers a personal injury arising out of and in the course of employment, the Workers’ Compensation Act provides the employee’s exclusive remedy.  Minn. Stat. § 176.031 (1996).  When the Workers’ Compensation Act provides the exclusive remedy, district courts are without subject-matter jurisdiction.  Hodel v. Gundle Lining Constr. Corp., 572 N.W.2d 764, 765 (Minn. App. 1997).  Whether a district court has subject-matter jurisdiction is a legal question subject to de novo review.  Strange v. 1997 Jeep Cherokee, New Mexico Lic. No. 630-KLD, VIN No. 1J4FJ2881VL502086, 597 N.W.2d 355, 357 (Minn. App. 1999).

            Generally, an injury sustained during the employee’s commute between home and the workplace is not compensable under the Workers’ Compensation Act.  McConville v. City of St. Paul, 528 N.W.2d 230, 231 (Minn. 1995).  But

[w]here the employer regularly furnished transportation to employees to and from the place of employment, those employees are subject to this chapter while being so transported.


Minn. Stat. § 176.011, subd. 16 (1996).

            Minn. Stat. § 176.011, subd. 16, applies when the employer regularly furnishes transportation as an incident of employment or in furtherance of his business and does not apply when the employer furnishes transportation as a mere favor.  Hardware Mut. Cas. Co. v. Ozmun, 217 Minn. 280, 284-85, 14 N.W.2d 351, 354 (1944).  Although no formal contract is required for Minn. Stat. § 176.011, subd. 16, to apply, both the employer and the employee must contemplate and understand that the employer will transport the employee to and from the workplace.  Gehrke v. Weiss, 204 Minn. 445, 448-49, 284 N.W. 434, 436 (1939).

            Whether an employer regularly furnishes transportation as an incident of employment is a question of fact.  Ozmun, 217 Minn. at 286, 14 N.W.2d at 354.  We will not reverse a district court’s factual finding unless it is clearly erroneous.  Minn. R. Civ. P. 52.01.  “A clearly erroneous finding is one that is palpably and manifestly against the weight of the evidence.”  Kral v. Boesch, 557 N.W.2d 597, 598 (Minn. App. 1996).

            The Ozmun court upheld a finding that Minn. Stat. § 176.011, subd. 16, did not apply based on the following evidence:

The time during which Viola had been employed at the time she was injured, the relationship of the parties, the manner in which the transportation was made available to her, and the frequency of the rides, when all are considered together, permit conflicting inferences as to whether Lloyd regularly furnished Viola with transportation home from her work.  At the time the accident occurred, Viola had been employed only three weeks.  On about 12 days she rode with Lloyd to a point about 1 1/2 blocks from her home; on about five or six she rode to within a half block of her home; and on about two or three she did not ride with him at all.  There were two relationships existing between the parties, namely, that of brother and sister and that of employer and employe.  A brother’s giving his sister a ride en route home is just as consistent with the relationship of brother and sister as it is with that of master and servant.  There is no evidence to show either a contract or an arrangement for regular transportation.  The proof does not affirmatively show that Lloyd furnished transportation rather than that he permitted Viola to ride with him.  The burden of proof was on the plaintiff to establish the fact that the transportation was regularly furnished as an incident of the employment.  The proof here fails to establish that fact to the exclusion of all others.  The irregularity of the rides as to occasion and destination was such as to make it a fact question whether Viola rode pursuant to an arrangement under which Lloyd regularly furnished such transportation.  Likewise, for lack of evidence one way or the other and because of the dual relationship between them, it was a question of fact whether the rides were attributable to the master and servant or to the family relationship.  In that situation, the finding that the transportation was not regularly furnished as an incident of the employment but rather as a brotherly courtesy or accommodation should be sustained.


217 Minn. at 285-86, 14 N.W.2d at 354-55; see also Lehn v. Kladt, 312 Minn. 557, 250 N.W.2d 846 (1977) (upholding factual determination that employer regularly furnished transportation when employer transported employee to and from work every day for about six weeks before accident occurred, employee had no other means of transportation to and from work, and employee understood that transportation was a condition of his job).

            Here, as in Ozmun, the evidence, considered in its entirety, permits conflicting inferences as to whether appellant regularly furnished respondents transportation to and from work.  On one hand, evidence showing that appellant paid Yevzelman to transport his co-workers to the Belle Plaine job site and that only one respondent other than Yevzelman had both a driver’s license and a vehicle indicates that providing transportation to respondents was in furtherance of appellant’s business.

            On the other hand, as the district court noted, there was no testimony on the issue of respondents’ contractual right to transportation.  Three respondents, Babushkina, Kramarenko, and Komm, learned about the Belle Plaine job through third parties, and there was no evidence that they ever communicated directly with Berkovith.  Loyevski communicated directly with Berkovith, but Loyevski’s testimony does not show that appellant agreed to provide transportation as a condition of employment.  Berkovith told Loyevski only that he did not have to worry about finding the Belle Plaine job site because Berkovith was paying Yevzelman to provide transportation.  Berkovith’s statement to Loyevski did not indicate that appellant would provide transportation for the duration of the Belle Plaine job.  There was no evidence that Yevzelman had agreed to provide transportation for the duration of the Belle Plaine job or that appellant would have arranged alternate transportation for respondents if Yevzelman or his vehicle became unavailable to provide transportation.

            The district court’s finding that the evidence failed to establish an understanding by respondents that appellant would provide transportation as a condition of employment is not clearly erroneous.   Absent such an understanding, Minn. Stat. § 176.011, subd. 16, does not apply.  Therefore, the district court properly concluded that it had subject-matter jurisdiction.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.