Bryan v. Aetna Casualty and Surety Company

• Decision Date: 06 September 1967
• Docket Number: No. 18692.,18692.
• Citation: 381 F.2d 872
• Parties: James Q. BRYAN and Gratha Bryan, Appellants, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

381 F.2d 872 (1967)

James Q. BRYAN and Gratha Bryan, Appellants, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.

No. 18692.

United States Court of Appeals Eighth Circuit.

September 6, 1967.

Bernard Whetstone, El Dorado, Ark., for appellants; William Powell Thompson, Little Rock, Ark., and James E. Stein, El Dorado, Ark., were with him on the brief.

John M. Shackleford, Jr., El Dorado, Ark., for appellee; Shackleford & Shackleford, El Dorado, Ark., were with him on the brief.

Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.

BLACKMUN, Circuit Judge.

James Q. Bryan of El Dorado, Arkansas, was injured when a bus in which he was a passenger turned over on the morning of November 24, 1964. Mr. Bryan and his wife obtained a default judgment, based on negligence, against Herman Reid, the bus driver, in the amount of $75,000 for Bryan and $10,000 consortium loss for Mrs. Bryan, in the Circuit Court of Union County, Arkansas.

The Bryans then instituted this omnibus clause suit in Arkansas directly against Aetna, under Ark.Stat.Ann. § 66-4001 (1966 Repl.), for the amounts of the judgment against Reid and, under § 66-3238, for the statutory penalty and attorney's fees. After the submission of interrogatories to Aetna, its answers thereto, and affidavits and offers of proof, Aetna moved for summary judgment. Judge Harris granted that motion. The Bryans appeal.

The facts, as so developed, are:

Aetna issued to Ford, Bacon & Davis Construction Corp., hereinafter called Ford, its Comprehensive Liability Policy for the calendar year 1964. This afforded protection for bodily injury liability with respect to an owned vehicle, including, in particular, the bus hereinafter described, but with specific definitional exclusions.^* The policy was issued, executed and countersigned in the State of Louisiana and delivered to Ford at its office there.

Ford had entered into a contract with Arkansas Louisiana Gas Company for the construction of a pipeline entirely within Arkansas and running from Driggs to Erwin, a distance of more than 100 miles. This work required the employment of pipefitters. At the time of the accident there was in existence a National Pipe Line Agreement between the Pipe Line Contractors Association, as employer, and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, as a union. Ford was a member of the Pipe Line Contractors Association. This National Pipe Line Agreement provided working rules. One of these was:

"Employer shall select a warehouse in or near a city, town or community where living accommodations are available. Employer shall make suitable and prompt transportation available from the warehouse to the work site and back to the warehouse. The time of men shall start when the men leave the warehouse for the job site and shall end at quitting time on the job site; however, the lunch period shall be excluded. Employer shall return the men to the warehouse in the shortest possible time."

In line with this working rule Ford selected a warehouse at Russellville, Arkansas, in the general area where it was then laying pipe. Transportation was made available by Ford for pipefitters from that warehouse to the jobsite and return. This was afforded by a bus leaving at seven a. m. The bus was owned by Ford. Its driver was Reid who was employed by Ford. Pipefitters, as the working rule provided, were paid from seven a. m. even though the jobsite was over 30 miles from the warehouse and even though it was some time after seven before the bus reached that site.

Plaintiff Bryan was a pipefitter, a union member and thus a beneficiary of the National Pipe Line Agreement. He had been dispatched to the job by the union. He began his employment with Ford in October 1964. On November 24, the day of the accident, Bryan boarded the bus either at the Russellville warehouse or at a point between the warehouse and the jobsite. The bus made a stop where one or more riders got off. The others, including Bryan, remained in the vehicle. The bus proceeded on its way. The accident occurred when it was about 400 yards from the place where pipe was being laid.

The plaintiffs offered to show that it was not mandatory for pipefitters to ride the bus; that it is common practice on jobs of this kind for workers not to avail themselves of the transportation provided; that some come to the jobsite in privately owned vehicles or by other means and join the transported workers as the latter unload from the bus; that although a non-rider would draw time from seven a. m., it was conceivable that he could be asleep in bed in quarters close to the site and could get up after that hour and still be there when the bus arrived; that the bus reached the site about an hour after seven; that Bryan was a member of a highly specialized craft; that his work was confined to that craft and he was forbidden to do anything else; and that there was nothing the employer could order him to do on the bus or at the warehouse.

Aetna's position, on the motion for summary judgment, was that at the time of the accident both plaintiff Bryan and driver Reid were employees of Ford and liability was therefore excluded under the policy's Definitions paragraph III(2) (c) set forth in the footnote. In response, the plaintiffs argued that, although a pipefitter such as Bryan, who was hired to do only pipefitting, did draw pay from seven a. m., his work day did not begin until he arrived at the site, picked up his tools and went to work, and that, in any event, for any moment prior to that point the question whether Bryan was "in the course of such employment" was one of fact for the jury.

This court on many occasions has enunciated the familiar rules which apply to a motion for summary judgment made by the defending party under Fed. R.Civ.P. 56. The moving party has the burden of demonstrating the absence of any genuine issue as to any material fact. The evidence is to be viewed in the light most favorable to the plaintiff against whom the motion is directed and the plaintiff is entitled to all favorable inferences which may be reasonably drawn from the evidence. The supporting affidavits are to be carefully scrutinized. On appeal from an order granting the defendant's motion the court must give the plaintiff the benefit of every doubt. Caylor v. Virden, 217 F.2d 739, 741 (8 Cir. 1955); United Pac. Ins. Co. v. United States, 296 F.2d 160, 165 (8 Cir. 1961); Allied Mut. Ins. Co. v. Lysne, 324 F.2d 290, 293 (8 Cir. 1963); Jacobson v. Maryland Cas. Co., 336 F.2d 72, 74 (8 Cir. 1964), cert. denied 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558.

We are seemingly confronted at the outset with a conflicts question. Are we to apply the Arkansas conflict of laws rule or the Louisiana rule? Is the insurance policy to be construed in the light of the substantive law of Louisiana, where it was made, or of that of Arkansas, where Ford was performing?

We find that we need not resolve this issue, for we conclude that the same result ensues for this diversity case under the substantive law of either Louisiana or Arkansas and that the respective conflicts rules, whatever they may be, consequently have no significance.

The substantive law of Louisiana, as the plaintiffs conceded at oral argument, is clearly unfavorable to the Bryans. There, when an employee is injured while being transported to work in a vehicle furnished by the employer, the injury is considered to have occurred in the course of his employment, under either compensation laws or liability policy exclusions, irrespective of whether the employee was or was not on pay status at the moment of the injury. Griffin v. Catherine Sugar Co., 219 La. 846, 54 So.2d 121, p. 124 (1951), where it was said that "the work in the instant case began when the plaintiff reached the cane fields * * * but the employment began when he boarded the trailer at his home * * * and continued during the trip and during the work and on the return trip to his home"; Neyland v. Maryland Cas. Co., 28 So.2d 351 (La.App. 1946), even though "many employees used other means of transportation"; Estaves v. Faucheux, 111 So.2d 802, 806-808 (La.App.1959); Davis v. Travelers Ins. Co., 295 F.2d 205, p. 206 (5 Cir. 1961), where it was said, "Even though an injured employee is not on a pay status at the time of the accident, he is within the scope of his employment if he is being transported to work by his employer".

We turn to the law of Arkansas. Judge Harris stated that no Arkansas case positively linking employment to employer-furnished transportation, irrespective of momentary pay status, has been found. He felt that if a question had arisen as to whether Bryan or Reid were co-employees, that issue might have been one for the jury. But he phrased the issue before the court as follows:

"The question, however, is did he become an employee of the company and on duty at the time the bus left with the employees * * * or whether * * * his employment actually started when he got to the particular point and place where he was going to commence work with the wrench, bolts and pipes".

His conclusion was that Bryan "was an employee of the company under the agreement referred to and that his course of employment started at the time the bus left with the employees".

We agree with Judge Harris that the Arkansas cases are not so positive as those of Louisiana in affording clearly controlling precedent here. Four Arkansas decisions deserve special comment, for in all of them the court concluded that a question for the finder of fact was presented.

In Commercial Cas. Ins. Co. v. Cherry, 190 Ark. 422, 79 S.W.2d 270 (1935), the exclusion was as to employees engaged in the insured's business. The claimants were cotton pickers injured when a truck overturned. The insured used the truck to transport pickers from nearby towns to his plantation. Each was paid for what he picked. On...