Boyko v. Parker

• Decision Date: 02 May 2013
• Docket Number: Case No. 2:10CV1191 DS.
• Citation: 960 F.Supp.2d 1270
• Parties: Anna BOYKO, Plaintiff, v. Nicholas J. PARKER, Defendant.
• Court: U.S. District Court — District of Utah

960 F.Supp.2d 1270

Anna BOYKO, Plaintiff,

v.Nicholas J. PARKER, Defendant.

Case No. 2:10CV1191 DS.

United States District Court,

D. Utah,

Central Division.

May 2, 2013.

Brian C. Stewart, Siegfried & Jensen, Joseph W. Steele, Michael A. Katz, Steele & Biggs, Murray, UT, Bradley H. Parker, Parker & McConkie, Salt Lake City, UT, for Plaintiff.

John R. Lund, Melinda K. Bowen, Snow Christensen & Martineau, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION

DAVID SAM, Senior District Judge.

I. INTRODUCTION

This case arises from a motor vehicle accident that occurred on July 3, 2006, near Blanding, Utah on State Route 191. Defendant Nicholas Parker, an employee of Defendant Aramark Sports and Entertainment Services, LLC, was driving a van with four other passengers, including Ms. Boyko, who were also off-duty Aramark employees on a shopping trip, when he lost control of the vehicle, left the roadway and rolled the vehicle. Ms. Boyko was ejected from the vehicle and suffered serious injuries as a result. Aramark, through its workers' compensation insurer, has paid all of Ms. Boyko's past medical expenses related to the accident. In their Answer to the Amended Complaint, Aramark and Parker have asserted as an affirmative defense that “Ms. Boyko's claims are barred by the exclusive remedy provision of the Utah Workers' Compensation Act, Utah Code Ann. § 34A–2–105(1).” ¹ Ms. Boyko now moves the Court for an order of partial summary judgment with respect to this affirmative defense. Defendants Parker and Aramark have filed a cross-motion for summary judgment, arguing that as a matter of law, Ms. Boyko's claims are barred by the exclusive remedy provision.

II. SUMMARY JUDGMENT STANDARD

A party may move for partial summary judgment as to an affirmative defense by identifying the defense on which summary judgment is sought.² Such a motion for “partial summary judgment may be used by the Court to dispose of affirmative defenses.” ³ “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” ⁴ The material facts of this case are straightforward and are undisputed. What is disputed is how those facts should be characterized relative to whether the accident occurred in the course and scope of Mr. Boyko's employment, and thus whether Aramark's Exclusive Remedy Defense is appropriate. The court agrees with Ms. Boyko that there is no genuine issue of fact for the jury, and whether or not Ms. Boyko's injuries arose in the course and scope of her employment is purely a legal question to be determined by the Court.

Ms. Boyko has asserted repeatedly in her briefing that this court regards Defendant's exclusive remedy defense as not persuasive and has held that Ms. Boyko's proposed claims are not barred by the exclusive remedy provision of the Act. However, Ms. Boyko misrepresents the court's prior order. The order to which she refers, Order Granting Plaintiff's Motion for Leave to File an Amended Complaint, states: “ Accepting these allegations as true for the purposes of this motion, the court finds that Ms. Boyko's injuries may have been non-work related, so her claims against Aramark would not be limited by the exclusive remedy provision of the Act” (emphasis added). Clearly that order applied only to the court's decision to allow Ms. Boyko to amend her complaint, and has nothing to do with the current motions for summary judgment.

III. ANALYSIS

A. Workers' Compensation Exclusive Remedy Provision and the Coming–and–Going Rule

Under the Utah Worker's Compensation Act (“WCA”), the right to recover workers' compensation benefits “is the exclusive remedy against the employer and ... against any ... employee of the employer” for any injury “incurred by the employee in the course of or because of or arising out of the employee's employment.” ⁵ However, Utah case law has made it clear that for the exclusive remedy provision to apply, the injuries must be suffered within the course and scope of employment.⁶ The Utah Supreme Court has often expressed support for the “coming-and-going” rule, which is that injuries that occur in transit to or from work are not typically covered by the Act: “As a general rule, injuries sustained by an employee while traveling to and from the place of employment do not arise out of and in the course of employment and are, therefore, not covered by workers' compensation.” ⁷ Ms. Boyko argues that because she was injured while traveling from her work location on a recreational shopping trip, and because it was her day off and she performed no duty or task related to her employment, she was not acting within the scope of her employment.

B. Exceptions to the Coming–and–Going Rule

i. The Bunkhouse Rule

Because of the unique conditions of Ms. Boyko's employment, however, several exceptions to the coming-and-going rule apply. Several states have recognized an exception to the coming-and-going rule, called the bunkhouse rule, which provides that when an employee is required to reside on the employer's premises and the employee sustains injuries while reasonably using the premises, those injuries are compensable under the bunkhouse rule. Courts have also applied the bunkhouse rule to injuries sustained off the employer's premises, taking into consideration factors such as the remoteness of the location, the amount of control the employer exercised over the activity, and whether the errand was reasonable.

In Hamilton v. W. C.A.B., an employee living onsite at a remote location, was injured while traveling after work hours from his remote work site to purchase cigarettes. The court held that “it was within the contemplation of the parties that employees would leave the center after work hours to purchase [personal] items,” making the employee's injuries compensable under the bunkhouse rule.⁸ In another case, an employee was injured while working in Guam. The company provided vehicles for its employees to travel around the island, because there was no public transportation. While traveling from a nearby air base, the employee and her supervisor made a purely recreational detour, during which they were involved in an accident. The court held that the accident occurred within the course of the employee's employment. ⁹ The court held that although the employee was not performing her duties and not being paid, she was using company transportation because she had no reasonable alternative. Even if the detour was purely recreational, recreation was necessary for employees living on a remote island and the company facilitated it by providing vehicles and indicating where the employees could go.¹⁰

In this case, Ms. Boyko was required to live at her remote location. She testified that there was no other option for housing. She did not have a means of transportation, and although there was a small store onsite, it did not offer groceries or basic personal supplies. If Ms. Boyko and other similarly situated employees wanted to leave their remote location for shopping or recreation, or any other reason, they depended entirely on Aramark to make the necessary arrangements. So even if the nature of the trip was purely recreational, the conditions of Ms. Boyko's employment would bring the accident within the scope of the bunkhouse rule.

This court recognizes that Utah has not adopted the bunkhouse rule, and that the cases applying the bunkhouse rule do not have precedential authority in this case. However, Utah courts have not rejected the bunkhouse rule either. They have simply not addressed the issue. The 10th Circuit has stated, “Where the state's highest court has not addressed the issue presented, the federal court must determine what decision the state court would make if faced with the same facts and issue.” ¹¹ Under the unique factual circumstances of this case, the court finds the reasoning behind the bunkhouse rule to be persuasive, especially in light of the following Utah cases.

ii. Transportation furnished by the employer to the benefit of the employer

The Utah Supreme Court has specifically recognized an exception to the coming-and-going rule in cases “where transportation is furnished by the employer to the benefit of the employer.” ¹² In several cases, when articulating the coming-and-going rule, the Utah Supreme Court has used language that at least suggests that the rule is limited to situations in which the employee provides his or her own transportation. In Whitehead v. Variable Annuity Life Ins. Co., the court held that, “As a general rule, an employee is not acting within the course and scope of his employment when he is traveling in his own automobile to and from work.” ¹³ Another case held that generally an employee is not in the course and scope of his employment for purposes of workmen's compensation “ when he furnishes his own transportation and is injured while going to or coming from his place of employment.” ¹⁴ When deciding coming-and-going cases, Utah courts have specifically considered whether the employer provided the transportation. In Cross v. Board of Review, the court decided that the accident did not occur in the course and scope of the employee's employment, in part because the employer “did not undertake the responsibility of providing transportation for [the employee].” ¹⁵ The court also considered the fact that the employer in that case did not “commit to paying [the employee's] transportation expenses to and from the ... project.¹⁶

In this case, Aramark did “undertake the responsibility of providing transportation” for Ms. Boyko. Ms. Boyko was not driving to or from her place of employment in her own vehicle. She did not even have a car or a license to drive. Aramark provided a van that it owned and insured for the trip, assigned and paid Mr. Parker to drive the van, and covered the costs of the trip.

Ms. Boyko argues that the defendants have not offered any...