Warning As of: August 24, 2018 1:17 PM Z
Monterey Ins. Co. v. Peerless Indem. Ins. Co.
Court of Appeal of California, Fourth Appellate District, Division One
July 27, 2018, Opinion Filed
D072539

Reporter
2018 Cal. App. Unpub. LEXIS 5124 *; 2018 WL 3598848
MONTEREY INSURANCE COMPANY, Plaintiff and Appellant, v. PEERLESS INDEMNITY INSURANCE COMPANY, Defendant and Respondent.
Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
Prior History: [*1] APPEAL from a judgment of the Superior Court of Imperial County, No. ECU09231, L. Brooks Anderholt, Judge.
Disposition: Affirmed.

Monterey Insurance Company (Monterey) appeals a judgment entered in favor of Peerless Indemnity Insurance Company (Peerless) following Peerless’s successful motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Peerless provided a business auto insurance policy (Peerless Policy) that covered M. David Fish and Joe Martinez Hay Farming (Fish/Martinez). As relevant here, Fish/Martinez owned a tractor-trailer, which was insured under the Peerless Policy.
Monterey provided a commercial auto policy (Monterey Policy), which insured David Shafer, doing business as Shafer Hay Company (Shafer Hay). Shafer Hay owned and operated a hay squeeze vehicle (squeeze) that was covered under the Monterey Policy.
B. The Injury
Fish/Martinez hired Robert Deleon to pick up a load of hay at Jack Seiler Farms and transport it, driving a tractor-trailer [*2] owned by Fish/Martinez and insured under the Peerless Policy. Deleon arranged to meet a Shafer Hay representative with the squeeze at Jack Seiler Farms on February 24, 2014.
On the morning of February 24, 2014, Deleon drove the tractor-trailer to Jack Seiler Farms. He brought his friend, Cory Miller, with him to help load the hay onto the tractor-trailer. Larry Shafer (Larry), who was operating the squeeze, met Deleon and Miller at Jack Seiler Farms as well. Larry identified the stack of hay Deleon was picking up and told Deleon that he would need to untarp the stack before any hay could be loaded.
With Larry operating the squeeze, Deleon stood on one of the squeeze’s forks and then was lifted to the top of the stack.1 There, he untarped the stack and was then lowered, by the squeeze, back to the ground. After he returned to the ground, Deleon returned to the tractor-trailer, got into the cab, and made a couple telephone calls. At that point, Miller was watching the hay being loaded on the tractor-trailer so he could tie it down. After the hay was loaded on the trailer, Miller tied down the hay, which took about 10 to 15 minutes. Once the hay was loaded and tied to the trailer, Deleon [*3] completed his paperwork and started to drive off in the tractor-trailer. Larry stopped him and told him he had to retarp the haystack. Deleon responded to Larry’s direction with an expletive, but eventually agreed to return so he could retarp the haystack when Larry threatened that Deleon would not be permitted to return to Jack Seiler Farms unless he covered the haystack with the tarp. Before that day, Deleon had never retarped haystacks at Jack Seiler Farms.
Deleon parked the truck about 50 to 75 feet from the haystack and returned to retarp it. Deleon again stood on the squeeze’s fork and was lifted to the top of the haystack. After retarping the stack, Deleon was being lowered by the squeeze when the squeeze was moved too close to the stack and Deleon was “brushed off” of the fork and injured himself.
C. DeLeon’s Lawsuit
On June 2, 2014, Deleon and his wife sued Shafer Hay and Jack Seiler Farms based on his injuries caused by falling off the squeeze’s fork. Monterey defended and indemnified Shafer Hay in response to Deleon’s lawsuit. However, Shafer Hay also tendered the defense and indemnification of Deleon’s lawsuit to Peerless as the insurer of the tractor-trailer driven by Deleon. [*4] On October 6, 2015, Peerless refused Shafer Hay’s tender, arguing that Shafer Hay was not potentially insured under the Peerless Policy. Over a month later, Monterey responded to Peerless’s denial, explaining the alleged facts of the Deleon lawsuit as well as informing Peerless of a statutory offer to compromise in the amount of $849,999. Monterey requested Peerless’s assistance and participation in the defense and indemnification of Shafer Hay.
On January 4, 2016, Monterey contacted Peerless, requesting a response to its November 2015 communication about defending and indemnifying Shafer Hay. Monterey eventually settled the claims against Shafer Hay for $75,000. On February 8, 2016, Peerless again refused to indemnify Shafer Hay for the claims alleged in Deleon’s lawsuit.
D. Monterey’s Lawsuit Against Peerless
On June 2, 2016, Monterey filed suit against Peerless for equitable contribution, indemnity, declaratory relief, and breach of the covenant of good faith and fair dealing. Monterey alleged that Peerless had an obligation to defend and indemnify Shafer Hay under the Peerless Policy. Specifically, Monterey claimed Shafer Hay was co-insured under the Peerless Policy because Deleon [*5] was injured from the “ownership, maintenance, use or loading of a covered auto. The tractor-trailer was owned and operated by [Fish/Martinez] for use by and under Deleon’s direction and was a covered auto under the Peerless Policy.”
Peerless answered the complaint then filed a motion for summary judgment. In that motion, Peerless maintained that Shafer Hay was only covered under the Peerless Policy if Shafer Hay was a permissive user under the subject policy. Based on the undisputed facts, Peerless argued that Deleon’s injury did not arise from the loading or unloading of the hay on the tractor-trailer, but after the loading was completed. Thus, according to Peerless, at the time Deleon was injured, Shafer Hay was not a permissive user of the tractor-trailer under the Peerless Policy.
Monterey opposed the motion for summary judgment, arguing a disputed issue of material fact existed: “Was Deleon injured while Shafer Hay was involved in the loading operation of the Peerless-insured trailer?” Further, Monterey claimed this factual dispute established Peerless’s duty to defend Shafer Hay as a matter of law. In support of its position, Monterey asserted that the retarping of the haystack [*6] after the hay was loaded on the tractor-trailer is part of the loading and unloading process. Alternatively stated, when Deleon used the squeeze’s fork to travel to the top of the haystack to retarp the hay, Shafer Hay remained a permissive user of the Peerless insured tractor-trailer.
The superior court found that summary judgment was warranted because no disputed issue of material fact existed. Specifically, the court determined that Deleon’s accident was not the result of the use of the tractor-trailer. The court further concluded that the undisputed facts showed that the loading and unloading of the hay onto the tractor-trailer had ceased by the time Deleon started to drive away in the truck, but before he was lifted by the squeeze to the top of the haystack to retarp.
Monterey timely appealed the ensuing judgment.
DISCUSSION
I

THE MOTION FOR SUMMARY JUDGMENT
A. Monterey’s Contentions
Monterey contends the superior court erred in granting Peerless’s motion for summary judgment. Monterey argues that there exists a disputed issue of material fact, namely whether Deleon was injured while loading the Peerless insured tractor-trailer. As such, Monterey asserts summary judgment was improper. [*7] In addition, it maintains that Peerless had a duty to defend Shafer Hay based on the allegations of Deleon’s complaint and the extrinsic facts known at the time of tender. Thus, even if Peerless did not ultimately have to provide insurance coverage for Shafer Hay, it nevertheless had a duty to defend and breached that duty by denying the tender of defense. For this reason as well, Monterey claims that the superior court should not have granted the summary judgment motion. As we explain below, we reject these contentions.
B. Background
Here, the facts are undisputed. Peerless insured a tractor-trailer owned by Fish/Martinez. Fish/Martinez hired Deleon to drive the tractor-trailer to pick up hay from Jack Seiler Farms and transport it to another location. Deleon contacted Shafer Hay to load the hay. Deleon with his friend, Miller, drove the Peerless insured tractor-trailer to Jack Seiler Farms. Larry of Shafer Hay met Deleon at Jack Seiler Farms. Larry was operating the squeeze, which Monterey insured. With Larry at the controls, the squeeze lifted Deleon to the top of the haystack so he could untie the tarp. After untying the tarp, Larry lowered Deleon back to the ground. Larry then used [*8] the squeeze to load the hay onto the tractor-trailer. Miller tied down the hay to the trailer. Deleon completed some paperwork and then started to drive away. Larry stopped him and told him he had to retarp the haystack. Deleon did not want to do so, but agreed after Larry said that he would not be allowed back to Jack Seiler Farms unless he retarped the haystack. Deleon parked the truck and walked 50 to 75 feet to the haystack. Larry, using the squeeze, lifted Deleon to the top of the haystack. After Deleon finished retarping it, while he was being lowered by the squeeze, Deleon fell off the squeeze’s fork, injuring himself.
It was “common practice” to retarp haystacks. It was Jack Seiler Farms’ expectation that if a tarp was moved to obtain hay then it would be placed back to cover the haystack. However, Deleon had never retarped any haystack at Jack Seiler Farms before the date in question.
Under the Peerless Policy, Peerless promises to “pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ . . . caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ It is undisputed that the subject tractor-trailer [*9] is a covered auto under the policy. Further, the Peerless Policy states that an “insured” includes “[a]nyone else . . . using with [Fish/Martinez’s] permission a covered ‘auto’ . . . .”
In addition, use of a covered auto includes the loading and unloading of that auto. (See Ins. Code, § 11580.06, subd. (g).)
C. Legal Principles and Standard of Review
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In the context of an insurance dispute, “[a]n ‘insurer is entitled to summary [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage.'” (Great Western Drywall, Inc. v. Interstate Fire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1039, 74 Cal. Rptr. 3d 657.) “‘”We apply a de novo standard of review to an order granting summary judgment when, on undisputed facts, the order is based on the interpretation or application of the terms of an insurance policy.” [Citations.] In reviewing de novo a superior court’s summary [judgment] order in a dispute over the interpretation of the provisions of a policy of insurance, the reviewing court applies settled rules governing the interpretation of insurance contacts.'” (Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App.4th 1498, 1503, 69 Cal. Rptr. 3d 350.) An “insurer is entitled to summary [*10] [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage.” (Smith Kandal Real Estate v. Continental Casualty Co. (1998) 67 Cal.App.4th 406, 414, 79 Cal. Rptr. 2d 52.)
“‘”While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.” [Citations.] “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.” [Citation.] “Such intent is to be inferred, if possible, solely from the written provisions of the contract.”‘” (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390, 33 Cal. Rptr. 3d 562, 118 P.3d 589.) “Whether a clause is ambiguous and whether [an insured] has an objectively reasonable expectation of coverage in light of the insuring language are questions of law.” (Windsor Food Quality Co., Ltd. v. Underwriters of Lloyds of London (2015) 234 Cal.App.4th 1178, 1185, 184 Cal. Rptr. 3d 477.) “Courts do not engage in forced construction of insuring clauses to find coverage, nor will they strain to create an ambiguity where none exists.” (Ray v. Valley Forge Ins. Co. (1999) 77 Cal.App.4th 1039, 1044, 92 Cal. Rptr. 2d 473.)
“An insurer’s duty to indemnify and its duty to defend an insured ‘lie at the core of the standard [insurance] policy.’ [Citation.] The duty to defend is broader than the duty to indemnify. [Citation.] ‘Unlike the obligation to indemnify, which is only determined when the insured’s liability is established, the duty to defend must be [*11] assessed at the very outset of a case.'” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286-287, 172 Cal. Rptr. 3d 653, 326 P.3d 253.) When determining whether a duty to defend exists, the insurer must compare the allegations of the complaint and the terms of the insurance policy. (Id. at p. 287.) Furthermore, the insurer must consider “‘extrinsic facts known to the insurer suggest[ing] that the claim may be covered.'” (Ibid.) “[W]here the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint may suggest potential liability. [Citations.] This is because the duty to defend, although broad, is not unlimited; it is measured by the nature and risks covered by the policy.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19, 44 Cal. Rptr. 2d 370, 900 P.2d 619 (Waller).)
D. Analysis
The instant action is somewhat unique because the parties are not offering dueling interpretations of the subject insurance policy. Instead, for purposes of the issues before us, the parties do not disagree that Shafer Hay could be covered under the Peerless Policy as a permissive user if Deleon was injured while loading or unloading the tractor-trailer. As such, this case does not turn on the interpretation of the Peerless Policy, but the application of that policy to undisputed facts.
Monterey asserts that it has raised a triable issue [*12] of material fact because it is disputed whether Deleon was injured during the loading and unloading of the tractor-trailer. In support of its position, Monterey cites Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058 at page 1068, 34 Cal. Rptr. 3d 136: “If coverage depends on an unresolved dispute over a factual question, the very existence of that dispute would establish a possibility of coverage and thus a duty to defend.” Although we do not quibble with the general legal principle espoused by the court in Mirpad, that rule does not apply here. Monterey correctly frames the primary disagreement between the parties, but it glosses over the fact that underlying that quarrel, the facts are undisputed. Thus, we do not have to resolve any factual issue, but instead, we must decide a legal issue based on undisputed facts. (See Waller, supra, 11 Cal.4th at pp. 25-26.) “If the facts are undisputed . . . then summary judgment may be entered on issues that otherwise would have been submitted to the jury. That is the function of summary judgment proceedings.” (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 366, 34 Cal. Rptr. 2d 438.) Put differently, the instant matter is one that can be properly resolved by us as a matter of law. We thus can determine, based on the undisputed facts, whether Deleon was injured during the loading of the tractor-trailer.
Here, the subject tractor-trailer [*13] was loaded with hay. Miller tied down the load to the trailer. Deleon completed his paperwork and began to drive off with the hay. Larry stopped him and told him that he had to retarp the haystack. Deleon then exited the tractor-trailer, walked 50 to 75 feet to the haystack where Larry operated the squeeze to lift Deleon to the top of the haystack so he could retarp it. On the way down, Deleon fell off the fork of the hay squeeze and was injured. Monterey argues that it is unimportant that Deleon was injured after the hay was loaded and tied down because the untarping and retarping is part of the loading procedure. Further, Monterey points out it was custom for a trucker, who was picking up a load of hay, to untarp and retarp a haystack.
In support of its position, Monterey relies on Argonaut Ins. Co. v. Transport Indemnity Co. (1972) 6 Cal.3d 496, 99 Cal. Rptr. 617, 492 P.2d 673 (Argonaut), Encompass Ins. Co. v. Coast National Ins. Co. (9th Cir. 2014) 764 F.3d 981 (Encompass), American Auto. Ins. Co. v. American Fidelity & Casualty Co. (1951) 106 Cal.App.2d 630, 235 P.2d 645 (American Fidelity), and American Auto. Ins. Co. v. Transport Indemnity Co. (1962) 200 Cal.App.2d 543, 19 Cal. Rptr. 558 (Transport Indemnity). None of these cases are instructive here.
In Argonaut, supra, 6 Cal.3d 496, a truck driver was injured when he was assisting in the unloading of a semitrailer and a portion of the load fell from the semitrailer onto him. (Id. at pp. 500-501.) There was no issue whether the truck driver was injured during the loading or unloading process. Indeed, the court stated the “vehicle was therefore clearly being ‘used’ by those engaged [*14] in the loading process.” (Id. at p. 506.) Thus, the court concluded the trial court correctly prorated both liability and costs of defense to include contribution from the semitrailer’s insurer. (Id. at p. 507.)
Argonaut, supra, 6 Cal.3d 496 is not helpful here. It does not aid us in determining whether Deleon was injured during the load or unloading process. Instead, it merely stands for the unremarkable principle that loading and unloading of a vehicle constitutes use of that vehicle. In other words, Argonaut does not answer the question presented in the instant action.
Nor does Encompass, supra, 764 F.3d 981. In that case, Anthony Watson lost control of his vehicle, ran off the road, and crashed into a light pole. Alexandra Van Horn was a passenger in that car. A second car, not involved in the accident, stopped at the scene of the accident to render aid. A passenger in this second car, Lisa Torti, saw Van Horn inside the wrecked car and allegedly feared that Van Horn might be in danger. Thus, Torti grabbed Van Horn and pulled her out of the car. Van Horn suffered severe injuries and sued Torti. (Id. at pp. 982-983.) Torti tendered her defense to the insurer of her car, home, and personal excess liability, Encompass Insurance Company (EIC). She also tendered her defense to Mid-Century [*15] Insurance Company, which also insured her car. Finally, Torti tendered her defense to Coast National Insurance Company, which had insured Watson’s car. Both those insurance companies denied Torti’s tenders. (Id. at p. 983.)
After settling Van Horn’s suit against Torti, EIC sued Mid-Century and Coast National, seeking contribution or subrogation for the expenses EIC incurred in its defense and indemnification of Torti. The district court entered judgment in favor of Mid-Century and Coast National. (Encompass, supra, 764 F.3d at pp. 983-984.) On appeal, the Ninth Circuit reversed, concluding the unloading of an injured passenger from a vehicle constitutes “use” of that vehicle under California law. (Id. at p. 987.)
Here, it is undisputed that Deleon was not injured loading anything onto the tractor-trailer or unloading anything from the tractor-trailer. Thus, Torti’s removal of Van Horn from the vehicle in Encompass is not analogous to any of the facts in the instant matter. Here, the subject tractor-trailer was fully loaded, and Deleon was driving away when Larry stopped him and told him that he needed to retarp the stack. He then was injured in the process of retarping the haystack.
In American Fidelity, supra, 106 Cal.App.2d 630, the Second District considered whether an oil spill arose out of [*16] the unloading of a tanker truck and trailer carrying diesel oil. Ultimately, the court held that, “the accident falls within the coverage of the ‘loading and unloading’ provision of defendant’s policy since the accident occurred while unloading was in progress and before the oil had come to . . . its ultimate destination.” (Id. at p. 638.) Thus, American Fidelity does not offer any guidance to decide the issue before us, but instead, is simply another case supporting the principle that Peerless would have had to defend and/or indemnify Deleon if he was injured while loading the tractor-trailer.
Transport Indemnity, supra, 200 Cal.App.2d 543 suffers from the same shortcomings as the three previously discussed cases on which Monterey relies. There, Culy Transportation Company, by its driver Guerrero, drove its truck containing four steel blocks, each weighing 400 to 600 pounds, to General Grinding Company’s yard. Ordinarily, General would have removed the blocks with a crane, but the crane was out of order. Grinding’s foreman, Bardon, directed Guerrero to place the truck out in the street so that the blocks could be thrown into some dirt that was a part of the street. (If the blocks were thrown off in the yard, they would have broken the cement [*17] paving of the yard and the blocks would have been dented.) Bardon directed Rea, another employee of Grinding, to help Guerrero unload and then left the scene. The truck was placed in the street and Guerrero and Rea pushed a block off the truck, striking and injuring a little girl. Pertinent here is the fact that American Automobile Insurance Company (American) insured the Culy truck, giving coverage to any person for injuries arising out of the use of any automobile, including the loading and unloading thereof. The court held, as an alternative basis for holding that the American policy covered Bardon, that Bardon was “in substance a user of the truck.” (Id. at p. 551.) “Bardon’s liability arises from his own conduct, not from vicarious liability for the acts of Rea, whom he assigned to assist Guerrero in the unloading. The parties agree that American would not be liable for Bardon’s amenability as respondeat superior. But Bardon’s own, or independent, negligence lay in his failure to post a guard to warn persons using the street to watch for the danger.” (Ibid.) The court then held that Bardon was responsible for the “particular usage of the Culy truck” and hence was covered by the policy which [*18] insured a person “using the truck.” (Id. at p. 552.) Again, we observe the injury giving rise to insurance coverage in Transport Indemnity occurred during the unloading of the subject truck.
In short, all four cases on which Monterey relies simply stand for the proposition that Shafer Hay would be a permissive user of the Peerless insured tractor-trailer if Deleon was injured while loading the tractor-trailer. These cases, however, do not provide guidance regarding the undisputed facts before us, namely the tractor-trailer was fully loaded and was being driven away when Deleon was stopped, parked the tractor-trailer, walked 50 to 75 feet to the haystack, where he was injured when he fell off the hay squeeze’s fork after retarping the haystack. None of the cases cited by Monterey address a similar factual issue. They do not address whether Deleon was loading the tractor-trailer when he was retarping the haystack. In this sense, Monterey has not provided us with any authority to support its position, but instead, is asking us to expand what California law considers “use” of a vehicle.
Our high court has discussed the phrase “use” in the context of an automobile insurance policy. (See State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100-101, 109 Cal. Rptr. 811, 514 P.2d 123 (Partridge).) [*19] It is “established beyond contention that this language of ‘arising out of the use,’ when utilized in a coverage or insuring clause of an insurance policy, has a broad and comprehensive application, and affords coverage for injuries bearing almost any causal relation with the vehicle.” (Id. at p. 100, italics omitted; Prince v. United National Ins. Co. (2006) 142 Cal.App.4th 233, 238-239, 47 Cal. Rptr. 3d 727.) However, “some minimal causal connection” between the use of the vehicle and the accident is “required.” (Partridge, supra, at p. 100, fn. 7; State Farm Mutual Automobile Ins. Co. v. Grisham (2004) 122 Cal.App.4th 563, 566-567, 18 Cal. Rptr. 3d 809 (Grisham).)
After Partridge, supra, 10 Cal.3d 94 a majority of California decisions have applied the “predominating cause/substantial factor test” to determine whether the “minimal causal connection” requirement has been met. (R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 802, 66 Cal. Rptr. 3d 80 (Stuchbery); Grisham, supra, 122 Cal.App.4th at pp. 566-567.) “Under this test, a mere ‘but for’ connection between the use of the vehicle and the alleged injuries is insufficient to bring the claim within the scope of coverage” because to “hold otherwise would convert auto liability policies into general liability policies.” (Stuchbery, supra, at p. 802; Grisham, supra, at p. 567.) “Coverage based on ‘use’ must encompass an event that reasonably could have been contemplated as falling within the insurance policy.” (Ibid.) Neither where the vehicle merely provides the situs of the tort nor where the vehicle serves simply as the transportation of a tortfeasor to a site where [*20] he commits a tort after departing from the vehicle is sufficient for causation to be found between the injury and the vehicle’s “use.” (Ibid.; American National Property & Cas. Co. v. Julie R. (1999) 76 Cal.App.4th 134, 139-140, 90 Cal. Rptr. 2d 119 (Julie R.).)
Here, the tractor-trailer played no role in Deleon’s injuries. The tractor-trailer was completely loaded without Deleon suffering his injury. Further, Deleon was driving away before he was stopped to return some 50 to 75 feet to the haystack to retarp it. Therefore, the tractor-trailer had completed its purpose on the farm, i.e., to pick up hay and transport it away. It played no role in Deleon’s injuries. Indeed, Deleon was injured during the retarping process. That process did not involve the use of the tractor-trailer. It involved the squeeze only. As such, Shafer Hay, as operator of the squeeze, was not loading the Peerless insured tractor-trailer at that time. Because Deleon was injured after the tractor-trailer was fully loaded and was beginning to drive away, Shafer Hay was not a permissive user under the Peerless Policy when Deleon’s injury occurred.
Because we conclude as a matter of law, based on the undisputed facts before us, that Shafer Hay was not covered under the Peerless Policy when Deleon was injured, Peerless had [*21] no duty to defend or indemnify Shafer Hay based on Deleon’s lawsuit. (See Grisham, supra, 122 Cal.App.4th at pp. 567-568 [concluding no coverage under the auto policy where a dog escaped from a parked vehicle and bit a man walking on the street about 25 yards away from the vehicle]; Stuchbery, supra, 154 Cal.App.4th at p. 803 [determining no coverage under the auto policy because the subject vehicle was merely used to transport victim to the locale of the sexual assault]; Julie R., supra, 76 Cal.App.4th at p. 140 [finding no coverage under the auto policy because the use of the subject car as transportation to the scene of the injury did “not establish a sufficient causal connection between the ‘use’ and the injury.”].)
Additionally, we reject Monterey’s claim that even if we determine Peerless did not have to indemnify Shafer Hay under the Peerless Policy, Peerless still owed a duty to defend based on the allegations in Deleon’s complaint and the extrinsic facts. There is no allegation in Deleon’s complaint that he was injured while using the tractor-trailer. Further, the undisputed extrinsic facts show that Deleon was injured after the tractor-trailer was completely loaded. As such, Peerless owed no duty to defend. (Waller, supra, 11 Cal.4th at p. 19.)2
DISPOSITION
The judgment is affirmed. Peerless is awarded its costs on appeal.
HUFFMAN, J.
WE [*22] CONCUR:
McCONNELL, P. J.
BENKE, J.

Kamenetti v. Sangillo & Sons, LLC
Superior Court of New Jersey, Appellate Division
December 19, 2017, Argued; August 8, 2018, Decided
DOCKET NO. A-0394-16T3

Reporter
2018 N.J. Super. Unpub. LEXIS 1883 *; 2018 WL 3747901
SAMUEL KAMENETTI, Petitioner-Respondent, v. SANGILLO & SONS, LLC, Respondent-Appellant.
Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
Prior History: [*1] On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers’ Compensation, Claim Petition No.2015-030953.

PER CURIAM
Respondent Sangillo & Sons, LLC (Sangillo) appeals from an August 10, 2016 order of the Judge of Workers’ Compensation (JWC). The JWC found petitioner Samuel Kamenetti’s injuries arose out of and in the course of his employment. We reverse and remand.
I.
The following facts are taken from the JWC’s August 16, 2016 oral opinion, and the testimony of Kamenetti whom the JWC credited.
Sangillo is a trucking company headquartered in Manalapan that has five trucks used for over-the-road truck driving. Kamenetti has been exclusively employed [*2] by Sangillo for over four years as an interstate truck driver carrying loads throughout the United States. The tractor-trailer he drove was owned and insured by Sangillo, and bore Sangillo’s name and DOT number.
Kamenetti used Sangillo’s fleet credit card to pay for fuel, and he was reimbursed for tolls. Kamenetti was paid 25% of the “load base,” the fee Sangillo received for transporting the load. Sangillo’s appellate Statement of Facts (SOF), which Kamenetti “accepts and adopts,” states Kamenetti was not paid by the hour or the mile.
In October 2015, Kamenetti was hauling a time-sensitive load of produce from California to New Jersey. On October 8, he stopped for the night at a small “mom and pop” truck stop in Wyoming. Such stops have parking but do not have other amenities such as showers. Kamenetti slept in the truck that night.
After waking up on October 9, Kamenetti needed a shower. He drove for an hour to a Flying J, a larger, full-service truck stop and part of the Pilot Flying J nationwide chain. It offered a free shower to commercial drivers purchasing fifty gallons of fuel. He purchased over fifty gallons of fuel, parked the truck, went into the Flying J, and took a shower. [*3] Kamenetti then dressed in the shower area. He sat on a bench to put on his boots. Unfortunately, the bench collapsed, causing him to fall and be injured, about thirty minutes after he arrived at the Flying J.
Kamenetti alerted Sangillo. He drove to a clinic several miles away where he was given pain medication. He then proceeded on the journey to drop off the cargo in New Jersey. He later accepted Pilot Flying J’s settlement offer of $40,000.
Kamenetti filed a claim petition for workers’ compensation. He filed a motion seeking medical treatment and temporary benefits. The JWC heard testimony from Kamenetti and Sangillo’s owner Jeffrey Sangillo. On August 10, 2016, the JWC granted the motion. On August 16, the JWC issued its oral opinion finding Kamenetti’s injuries “arose out of and in the course of his employment.” On August 22, the JWC amended its order.
Sangillo appeals. We permitted the New Jersey Advisory Council on Safety and Health (COSH) to appear as amicus curiae.
II.
“Appellate review of [factual findings in] workers’ compensation cases is ‘limited to whether the findings made could have been reached on sufficient credible evidence present in the record . . . with due regard also [*4] to the agency’s expertise[.]'” Hersh v. Cty. of Morris, 217 N.J. 236, 242, 86 A.3d 140 (2014) (quoting Sager v. O.A. Peterson Constr., 182 N.J. 156, 164, 862 A.2d 1119 (2004)). Nonetheless, “the judge of compensation’s legal findings are not entitled to any deference and, thus, are reviewed de novo.” Id. at 243. Sangillo does not challenge the JWC’s factual findings but only his legal conclusions from those findings. Thus, we must hew to our de novo standard of review.
III.
The Workers’ Compensation Act, N.J.S.A. 34:15-1 to -128, provides that “[w]hen employer and employee shall . . . accept the provisions of this article compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer[.]” N.J.S.A. 34:15-7 (emphasis added). This “‘broad statutory language'” led to decisions upholding “countless awards of workers’ compensation benefits.” Hersh, 217 N.J. at 243 (citation omitted). It also resulted in “unjustified workers’ compensation costs that [in the late 1970s were] among the highest in the nation.” Jumpp v. City of Ventnor, 177 N.J. 470, 476-77, 828 A.2d 905 (2003) (quoting Sen. Labor, Indust. and Professions Committee, Joint Statement to Senate Comm. Substitute for S. No. 802 and Assemb. Comm. Substitute for A. No. 840, 1 (Nov. 13, 1979)) (Joint Statement).
“As a result, in 1979, the Legislature amended [*5] the Workers’ Compensation Act, updating the definition of ’employment’ to be more restrictive.” Hersh, 217 N.J. at 244. The amendments provided “relief from the far-reaching effect of the [pre-1979] decisions by defining and limiting the scope of employment.” Ibid. (quoting Joint Statement at 2). Specifically, “the Legislature for the first time defined on-premises and off-premises employment.” Jumpp, 177 N.J. at 480.
Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation [*6] of a vehicle on business authorized by the employer.
[N.J.S.A. 34:15-36 (emphasis added).]
Thus, “[o]n-premises employment (as its terminology directly implies), begins when the employee gets to the place where he or she works (to the premises), and ends when the employee leaves that place; off-premises employment, however, relates to the doing of the work ‘assigned or directed by the employer.'” Jumpp, 177 N.J. at 480 (quoting N.J.S.A. 34:15-36). “The employee who is ‘required by the employer to be away from the employer’s place of employment [is] in the course of employment,’ when he or she is actually carrying out the work assignment and is therefore eligible for benefits if injured at the point.” Ibid. (quoting N.J.S.A. 34:15-36).
By the new statutory language, “the Legislature sought to reduce costs by, among other things, ‘sharply curtail[ing compensability for] off-premises accidents,'” including ending compensability for “‘off-premises injuries sustained during lunch hour and injuries sustained while traveling at the employer’s direction but deviating from a direct line of travel to pursue a purely personal activity.'” Jumpp, 177 N.J. at 477 (quoting Hon. Alfred J. Napier, Impact of the Reform Act of 1980, 96 N.J. Lawyer 17, 18 (Summer 1981)) (Napier). “In furtherance of [*7] that ‘clear legislative mandate sharply curtailing compensability for off-premises accidents,'” New Jersey decisions have “recognized the legislative intent to focus on the performance of the work, thereby limiting the reach of the workers’ compensation statute,” and “barred recovery because the activities were personal in nature.” Id. at 482 (quoting Jumpp v. City of Ventnor, 351 N.J. Super. 44, 52, 796 A.2d 945 (2001), aff’d, 177 N.J. 470, 828 A.2d 905 (2003)).
In Jumpp, our Supreme Court approved those decisions. Id. at 480-83. The Court “h[e]ld that when an employee is assigned to work at locations away from ‘the employer’s place of employment,’ eligibility for workers’ compensation benefits generally should be based on a finding that the employee is performing his or her prescribed job duties at the time of the injury.” 177 N.J. at 482.
The Court applied that holding to bar compensation to an employee whom the city required to drive from site to site throughout a city performing his duties, using a city-owned vehicle. Id. at 473-74. The city “permitted [him] to make brief stops at local establishments for food and beverages or to use the restroom,” and “to retrieve his personal mail from a local post office.” Id. at 474. One day, leaving his city vehicle running, he went to the post office to check his mail, and slipped while walking back [*8] to his city vehicle. Ibid. The Supreme Court found his injury was not compensable, because “‘an employee who deviates from the temporal and spacial limits of his . . . employment tasks for the sole purpose of engaging in a personal errand or activity is simply not “engaged in the direct performance of duties”‘ as required by the statute.” Id. at 475 (quoting Jumpp, 351 N.J. Super. at 52).
Straightforward application of the definition of off-premises “employment” in N.J.S.A. 34:15-36 and Jumpp indicates Kamenetti cannot claim workers’ compensation. When he was injured, he was putting on his boots after showering. He was not “performing his . . . prescribed job duties at the time of the injury.” Jumpp, 177 N.J. at 482. Thus, he was not engaged in the direct performance of duties assigned or directed by the employer,” and was not “in the course of employment” when he injured himself while putting on his shoes. N.J.S.A. 34:15-36. His injury was non-compensable because “the statute provides that [off-premises employees] are to be compensated only for accidents occurring in the direct performance of their duties.” Jumpp, 177 N.J. at 483.
Nonetheless, in his testimony, Kamenetti offered two rationales why “[a] shower is most important.” First, “[i]t refreshes us, helps us be more alert.” Second, “if I’m [*9] delivering that afternoon or even early that morning, it’s an appearance issue because not only do I represent myself as an individual, but I’m also representing the company,” which could lose contracts if he was “stinking” when he made a delivery.
First, the “alertness” rationale did not support the award because there was no testimony that Kamenetti took the shower because he was getting drowsy behind the wheel. Rather, Kamenetti testified that he slept the night at the “mom and pop” truck stop, awoke, needed a shower, and drove to the Flying J to shower.
The JWC generally stated he “believe[d] that a truck driver who stops to fuel and to shower is doing so so that he can continue the safe and efficient performance of his duties.” However, the JWC made no finding that Kamenetti was drowsy or otherwise unable to efficiently perform his duties without the shower, nor was there was any such testimony.
Second, the “delivering” rationale did not apply because Kamenetti was not making a delivery that day, or early the next morning. He was in Wyoming, and had several days before he had to make the delivery in New Jersey.
Given the inapplicability of those rationales, Kamenetti’s showering was [*10] indistinguishable from the showering of countless on-premises employees in their homes every day before going to work. Many of those employees shower so they will be refreshed and clean, and so they will not have body odor when they represent themselves and their company. Such employees are not “in the course of their employment” if they slip in the shower or fall while putting on their clothes or shoes. N.J.S.A. 34:15-7. Rather, they are engaged in personal hygiene and personal grooming, each a quintessentially “personal errand or activity” excluded from coverage by the statute and Jumpp. 177 N.J. at 475. Nothing in the statute indicates “off-premises employees are to be treated differently from on-premises employees.” Id. at 483.
It would not be consonant with the language or intent of the 1979 amendments to extend workers’ compensation to cover employees engaging in pre-work activities that will make them more refreshed, efficient, alert, fragrant, or attractive during the work day, such as bathing, eating breakfast, drinking coffee, exercising, or dressing. Treating these pre-work activities as covered would contravene the requirement that the employee “engaged in the direct performance of duties assigned or directed by the employer.” [*11] N.J.S.A. 34:15-36. It would also ignore the “‘clear legislative mandate sharply curtailing compensability for off-premises accidents.'” Jumpp, 177 N.J. at 482 (citation omitted).
Thus, had Kamenetti stayed in a motel or truck stop with a shower, showered there, and injured himself while dressing, he would be equally ineligible for compensation as an on-premises employee who slept, showered, and dressed at home. However, he chose to stay at a “mom and pop” truck stop that had no showers, and therefore had to go elsewhere to shower. His choice does not change the result.
In Mangigian v. Franz Warner Assoc., Inc., 205 N.J. Super. 422, 501 A.2d 179 (App. Div. 1985), an off-premises employee was travelling through New Jersey to survey stores for her employer; after she returned to her motel and prepared reports, she walked to get food and was struck by a car. Id. at 424. Despite the obvious importance of food to sustain the employee, and its apparent unavailability at her motel, we ruled she was engaged in “a purely personal errand.” Id. at 428. We opined: “the statute means exactly what it says. In order to obtain compensation for an off-premises accident, the employee must demonstrate that his injuries were sustained in the ‘direct performance of [the] duties assigned [to him] or directed by the employer.'” Id. at 427 (alteration in original) [*12] (quoting N.J.S.A. 34:15-36). We held the employee “was properly denied compensation because she was not engaged in the direct performance of [assigned] duties.” Id. at 423.
In Jumpp, both we and the Supreme Court relied on Mangigian. 177 N.J. at 475, 481. Even though the off-premises employee had to go out to get “supper,” the Court agreed N.J.S.A. 34:15-36 “barred recovery because the activities were personal in nature and concerned neither ‘duties assigned nor directed,’ nor ‘business authorized,’ by the employer.” Jumpp, 177 N.J. at 481-82 (quoting Mangigian, 205 N.J. Super. at 427-28). The statute similarly bars recovery for Kamenetti’s shower, even though he had to drive to get it.
In driving to get his shower, Kamenetti also drove Sangillo’s truck and its cargo toward their destination, but that did not convert either his shower or his dressing afterwards into “the direct performance of duties assigned or directed by the employer.” N.J.S.A. 34:15-36. Taking his morning shower remained “‘a personal errand or activity.'” Jumpp, 177 N.J. at 475 (citation omitted). When he was driving the truck toward the destination, and fueling the truck, he was “performing his or her prescribed job duties,” but “at the time of the injury” he had stopped performing those duties “‘to pursue a purely personal activity.'” Jumpp, 177 N.J. at 477, 482 (citation omitted).
The JWC noted that “Kamenetti [*13] did not pull into the Flying J to have a drink at the bar or play recreational video games,” and that any injury during those activities would have been “clearly personal to the driver, and therefore, not compensable.” However, Kamenetti’s morning shower was equally personal to the driver and his injury as a result was likewise not compensable.
The JWC emphasized Kamenetti chose to take his shower at the Flying J. The JWC found “[t]he very nature of the employment dictates that the facilities offered by interstate truck stops be used by interstate truckers.” The JWC “believe[d] that owners of interstate trucking companies are fully aware of the degree to which both their trucks and their drivers are dependent on the frequent and efficient use of truck stops to facilitate the movement of the goods they are transporting.” We do not dispute the need to fuel and service such trucks at interstate truck stops. But just as it would have been a personal activity if Kamenetti had used the bar and video games also offered by such truck stops, his use of the shower at the truck stop remained a personal activity, and not a duty “assigned or directed by the employer.” N.J.S.A. 34:15-36.
The JWC ruled “Kamenetti’s [*14] actions in this case were easily foreseeable and in many ways directed by Sangillo Trucking, who ‘the Court finds,’ directed [him] to utilize the services of the major interstate truck stops.” The JWC cited Kamenetti’s testimony that Sangillo wanted its trucks to be parked for the night at well-lit large truck stops with security cameras, and that Sangillo preferred he buy his fuel at a Love’s truck stop if one was available, because Sangillo had a contract with Love’s to receive a discount on fuel. If a Love’s was not available, then Sangillo wanted the truck driver to fuel at a Flying J or a few other nationwide truck stop chains.
Accepting Sangillo directed Kamenetti to park and fuel the truck at a large nationwide truck stop, Sangillo did not instruct Kamenetti where or when to shower. Kamenetti testified he made the choices when to stop for fuel “[b]ased on the truck needs or my personal needs, if I needed a shower.” He agreed “when you decide to shower, when not to shower, those are your personal choices along your trip.” Regarding his stop to take his morning shower at the Flying J, he admitted he was “not under orders to pull into that truck stop.” There was no evidence he was [*15] directed to shower at the Flying J. See Chisholm-Cohen v. Cty. of Ocean, 231 N.J. Super. 348, 352, 555 A.2d 713 (App. Div. 1989) (finding an employee, encouraged by her supervisor to drive a company vehicle home to eat and change before an off-premises assignment, was not directed to do so); cf. Sager, 182 N.J. at 163-68 (finding the employer directed the employee to go get dinner and return to work).
Any argument Sangillo directed Kamenetti’s choice to shower is further weakened by the fact that he was not following Sangillo’s directions where to park or fuel. He chose to park for the night not at a large truck stop with cameras as Sangillo wanted, but at a “mom and pop” truck stop. He chose to fuel not at a Love’s as Sangillo preferred, but at a Flying J.
The JWC also ruled that “[t]ruck driving by its very nature is a very unique endeavor. There are very few types of employment that demand an employee virtually reside in his or her place of employment, namely the truck.” The JWC found compelling Kamenetti’s testimony that he was responsible for the truck and the cargo from the time he left Sangillo’s yard in New Jersey until he returned, including “[i]f a tire blows,” “if I get into an accident,” if “there is an issue with the load,” and even “[i]f I get hit” when asleep while the truck was [*16] parked at the truck stop. The JWC concluded “that the injuries sustained by Mr. Kamenetti were distinctly associated with being an interstate trucker and are therefore compensable.”
However, Kamenetti was not in his truck when he was injured. Nor was he dealing with a problem with the truck, such as a blown tire, an accident, a load problem, or being hit while parked for the night. He was taking his morning shower, not “performing his . . . work responsibilities at the time of the injury,” as Jumpp and the statute require. 177 N.J. at 473.
Nothing in our statute suggests or permits the creation of a special rule for truck drivers that converts personal activities into work responsibilities. Our Legislature has limited compensation for all off-premises employees to injuries which occur “when the employee is engaged in the direct performance of duties assigned or directed by the employer.” N.J.S.A. 34:15-36. Kamenetti was required to meet that off-premises standard in order to be eligible for workers’ compensation. See Zelasko v. Refrigerated Food Express, 128 N.J. 329, 339, 608 A.2d 231 (1992) (reversing the grant of benefits to the driver of a tractor-trailer because, “[a]lthough the employer had required that petitioner be off the premises, . . . he was in no sense engaged in the “direct [*17] performance of duties assigned or directed by the employer.”).
IV.
The JWC cited cases under the “minor deviation” exception, which Kamenetti also invokes. Before 1979, the minor deviation rule was “broadly formulated.” Jumpp, 177 N.J. at 479. “[D]uring that period, the Court recognized that an on-premises employee might not be ‘actually working’ at the time he or she was injured but that in certain circumstances compensation nonetheless should be available,” such as if the employee stopped working “‘to have a smoke, or to get some fresh air, or to use the telephone, or to satisfy other human needs incidental to his being at his place of employment[, or] . . . . to satisfy their interest in a passing parade or in a strange object or their curiosity generally.'” Id. at 478-79 (quoting Secor v. Penn Serv. Garage, 19 N.J. 315, 321, 117 A.2d 12 (1955)).
That broad rule “in effect considered personal habits or errands, such as smoking or making a phone call, to be in the ‘course of employment’ even though, unlike the indispensable human functions of eating and using the lavatory, employees need not engage in such activities to perform their work duties adequately.” Id. at 479. It also resulted in compensation for injuries occurring during “personal activities . . . off the employer’s premises, even [*18] though the injury was unconnected or only tenuously related to the employee’s job duties.” Ibid. (citing, e.g., Hornyak v. Great Atl. & Pac. Tea Co., 63 N.J. 99, 102, 305 A.2d 65 (1973) (allowing “compensation for injuries sustained during voluntary, off-premises lunch breaks”)). The JWC mistakenly cited the broadly-formulated pre-1979 version of the minor deviation rule.
However, the Legislature in 1979 required the employee only “be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.” N.J.S.A. 34:15-36. “Consonant with that language, and aware of the Legislature’s desire to limit the availability of benefits for off-premises injuries, our courts have since interpreted the statute to bar compensation for injuries sustained in certain activities that prior to the 1979 amendments were deemed within the scope of employment.” Jumpp, 177 N.J. at 480-82 (describing Ward v. Davidowitz, 191 N.J. Super. 518, 468 A.2d 250 (App. Div. 1983), Mangigian, and Chisholm-Cohen). For example, we held that “off-premises ‘lunch break accidents’ are no longer compensable ‘as a matter of law.'” Ibid. (quoting Ward, 191 N.J. Super. at 524).
In Jumpp, our Supreme Court described and approved those post-1979 cases, recognizing that their rationale “represents a significant departure from our pre 1979 jurisprudence wherein the [*19] minor deviation rule was applied broadly in off-premises cases.” Id. at 480-83. The Court made clear that though “the minor deviation rule was [not] eliminated by the 1979 amendments,” it was given a narrow new formulation to ensure coverage for off-premises employees would be no greater than the narrowed coverage for on-premises employees. Id. at 483.
The Supreme Court held: “In cases involving an alleged minor deviation, the question is . . . whether that employee has embarked on a personal errand that would have been compensable if carried out by an on-premises employee.” Id. at 484.
Off-premises employees enjoy the same ability to deal with certain basic needs enjoyed by on-premises employees such as phone calls to babysitters and physicians as well as coffee and lunch breaks. Although the line is difficult to draw, those minor deviations are different in kind from shopping excursions during lunch hour or a visit to a travel agent to plan a vacation, even when the agent works in the same building as the employee seeking benefits.
[Id. at 483.]
Addressing Jumpp’s brief stop to check his mail while he was on the road working, the Court ruled his “‘deviation was no different from the office worker who takes an afternoon break [*20] and crosses the street to pick up his personal mail at the local post office.’ Neither deviation would be compensable.” Id. at 484 (quoting Jumpp, 351 N.J. Super. at 52).
When Kamenetti left Sangillo’s truck to go to take his morning shower at the Flying J, he was engaged during the work day in a personal errand normally occurring outside of working hours, like “shopping excursions during lunch hour.” Id. at 483. Kamenetti spent approximately thirty minutes away from the truck taking his morning shower and dressing. That was not comparable to “phone calls to babysitters and physicians” – brief but necessary interruptions that do not physically remove the employee from his place of work. Ibid. It was also not comparable to “coffee and lunch breaks,” which by definition are breaks for food and drink which must occur during the workday. Ibid. Rather, it was the postponed performance of a pre-work personal activity.
Under the new, narrow formulation in Jumpp, Kamenetti’s showering was not a minor deviation because it “would [not] have been compensable if carried out by an on-premises employee.” Id. at 484. If an on-premises employee had started his work day without showering, and later left the work premises and gone into a nearby building to take [*21] his morning shower, any injury there would not be compensable.
Kamenetti relies on a 1936 opinion in which a hotel dishwasher finished his work and was injured after taking a shower in the hotel washroom. Taylor v. 110 S. Penna. Ave. Corp., 117 N.J.L. 346, 346, 188 A. 689 (Sup. Ct. 1936). Taylor is distinguishable because the dishwasher was “taking a shower bath on the premises of his employer,” because the work “cause[d] the accumulation of dirt and perspiration” from which he was cleaning up, and because “[i]t was customary for the employees to take the shower when leaving at night and occasionally in the middle of the day, as cleanliness was essential for their work in the kitchen.” Id. at 346-47.1 Thus, the court in Taylor ruled showering on the premises was “a natural incident of the employment.” Id. at 347.2
More fundamentally, the issue in Taylor was whether “cleaning up, including the use of the shower, could fairly be said to be an incident of the employment.” Id. at 347. “[I]ncident of the employment” is the standard for the “arising out of” portion of N.J.S.A. 34:15-7’s “arising out of and in the course of employment” requirements. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 289-90, 520 A.2d 1341 (1986). “[T]he ‘arising out of’ portion [is] construed to refer to causal origin, and the ‘course of employment’ portion to the time, place, and circumstances of the [*22] accident in relation to the employment.” Id. at 288 (quoting 1 A. Larson, Workmen’s Compensation Law, § 6.10 (1985)) (Larson). “[E]ach test must be ‘independently applied and met.'” Id. at 289 (quoting 1 Larson § 6.10(a)).
Here, we need not decide whether the “arising out of” test was met, because Kamenetti failed to meet the “in the course of” requirement. As he was not “engaged in the direct performance of duties assigned or directed by the employer,” N.J.S.A. 34:15-36, we need not consider whether “the risk of the occurrence was reasonably incident to the employment,” Coleman, 105 N.J. at 290. Similarly, in considering Kamenetti’s claim this was
an alleged minor deviation, the question is not whether the off-premises employee was “satisfying a personal need, the completion of which is neither incidental to his . . . employment . . . nor beneficial to the employer,” but rather, whether that employee has embarked on a personal errand that would have been compensable if carried out by an on-premises employee.
[Jumpp, 177 N.J. at 484 (emphasis added) (quoting Jumpp, 351 N.J. Super. at 52).].
The JWC also cited Cooper v. Barnickel Enters., 411 N.J. Super. 343, 986 A.2d 38 (App. Div. 2010). In Cooper, when a company’s plumbing foreman went to the union hall to discuss a new job with a union instructor, the instructor was busy, so the foreman took his coffee break. As there was no coffee at the union [*23] hall, he drove to get coffee elsewhere and was in an accident. Id. at 344-45. Cooper noted that “‘[o]ff-premises employees enjoy the same ability to deal with certain basic needs enjoyed by on-premises employees such as . . . coffee and lunch breaks.” Id. at 347 (quoting Jumpp, 177 N.J. at 483). Because the foreman “was on “his authorized ‘coffee break,'” Cooper ruled that “under Jumpp, accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit recovery of workers’ compensation benefits.” Id. at 348. Moreover, we stated it was appropriate for the foreman to take his coffee break then because he was “facing an extended wait to consult with an expert concerning a work-related issue.” Ibid.
We find Cooper is inapposite.3 Unlike Cooper, Kamenetti was not taking an authorized coffee break. Instead, he was shifting into the work day a purely personal pre-work activity, his morning shower. This was a personal errand, or activity, not a minor deviation.
V.
The amicus curiae, COSH, attempts to justify compensation under the “paid travel time,” “employer-authorized vehicle,” “special mission,” “personal comfort,” and “mutual benefit” exceptions. [*24] However, COSH acknowledges those exceptions were not argued before the JWC. New Jersey courts “do[] not consider arguments that have not been asserted by a party, and are raised for the first time by an amicus curiae.” State v. J.R., 227 N.J. 393, 421, 152 A.3d 180 (2017). Thus, we “decline to address these issues because they were not argued by the parties or considered by the trial court and are therefore not properly before this [c]ourt.” Nicholas v. Mynster, 213 N.J. 463, 477 n.13, 64 A.3d 536 (2013).4
VI.
We recognize the Workers’ Compensation Act “‘is humane social legislation.'” Hersh, 217 N.J. at 243 (citations omitted). Moreover, “we are mindful of the general rule that the Workers’ Compensation Act is to be liberally construed in favor of workers. But we must remember that it is to be so construed in order to effectuate the legislative purpose,” including “the legislative purpose in enacting N.J.S.A. 34:15-36.” Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 419, 508 A.2d 1095 (1986). “‘[W]e may not impute a meaning to the statutory perimeters of employment contrary to the plain language and intent of the [1979] legislation.'” Chisholm-Cohen, 231 N.J. Super. at 350 (citation omitted).
Kamenetti failed to meet the more restrictive standard set by the 1979 legislation. Therefore, “[t]o award disability benefits in cases like these would flout the Legislature’s attempt to solve . . . through the 1979 amendments” the excessive costs [*25] caused by over-broad compensation for off-premises injuries only tenuously connected to the employee’s job duties. See Saunderlin, 102 N.J. at 419-20; see also Jumpp, 177 N.J. at 476-479.
We are also aware that some other states provide coverage for traveling employee’s bathing and dressing injuries. 2 Larson S 25.04 (2018). However, bathing and dressing cases had caused “[t]he greatest difficulty,” and coverage has often been provided, “not on the abstract merits of covering falls by traveling employees in bath tubs, but solely on the issue of achieving consistent treatment for classes of employees.” Id. at 1-2. Our Legislature and Jumpp have provided us with a clear and binding standard that avoids such difficulties and that requires off-premises employees personal activities not be covered if not covered for on-premises employees.
Reversed and remanded. We do not retain jurisdiction.