Chavez v. ABF Freight Systems, Inc.

• Decision Date: 29 May 2001
• Docket Number: No. 036., No. 000, No. 21
• Citation: 130 N.M. 524,27 P.3d 1011
• Parties: David Simon CHAVEZ, Worker-Appellee, v. ABF FREIGHT SYSTEMS, INC., Employer-Appellant. Jodee A. Sindelar, as Personal Representative Of the Estate of Allen Jenkins, The Deceased, Worker-Appellee, v. ABF Freight Systems, Inc., Employer-Appellant, v. Renee Jenkins, As Mother and Guardian of Stefanie Jenkins and Zachary Jenkins, the minor children of the deceased worker, Appellees, v. Jodee Sindelar, Widow and as Mother and Guardian of Anna Jenkins and Sara Jenkins, the minor children of the deceased worker, Appellees.
• Court: Court of Appeals of New Mexico

27 P.3d 1011

130 N.M. 524

David Simon CHAVEZ, Worker-Appellee, v. ABF FREIGHT SYSTEMS, INC., Employer-Appellant.

Jodee A. Sindelar, as Personal Representative Of the Estate of Allen Jenkins, The Deceased, Worker-Appellee, v. ABF Freight Systems, Inc., Employer-Appellant, v. Renee Jenkins, As Mother and Guardian of Stefanie Jenkins and Zachary Jenkins, the minor children of the deceased worker, Appellees, v. Jodee Sindelar, Widow and as Mother and Guardian of Anna Jenkins and Sara Jenkins, the minor children of the deceased worker, Appellees.

Nos. 21,000, 21,036.

Court of Appeals of New Mexico.

May 29, 2001.

Kelly A. Genova, Victor P. Montoya, Civerolo, Gralow & Hill, P.A., Albuquerque, NM, for Appellant.

David F. Cargo, Albuquerque, NM, for Appellee David Simon Chavez.

Gerald A. Hanrahan, Albuquerque, NM, for Appellee Jodee Sindelar.

Mark D. Jarner, Los Lunas, NM, Guardian Ad Litem for Appellees Stefanie Jenkins and Zachary Jenkins.

OPINION

ROBINSON, Judge.

{1} In these workers' compensation cases, we apply the "traveling-employee rule" announced in Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶¶ 11-20, 128 N.M. 601, 995 P.2d 1043. We consolidate these cases on our own motion because they involve similar facts and a common legal issue. Both employees are truck drivers employed by ABF Freight Systems, Inc. (ABF). Both were dispatched from Albuquerque to Weatherford, Oklahoma, and both took federally-mandated eight-hour rest breaks at a motel designated and paid for by ABF. In the first case, Mr. David Simon Chavez (Chavez) was injured during the rest break when he tried to move the phone closer to the bed for his wake-up call. The phone cord was trapped under a dresser, so he lifted the dresser to free the cord, and tore his biceps tendon.

{2} In the second case, Mr. Allen Jenkins (Jenkins) was fatally injured when he went for a walk while waiting to drive an ABF truck back to Albuquerque, and was struck by a car just over a mile from the motel.

{3} The workers' compensation judge (WCJ) awarded benefits in both cases. ABF appeals both awards claiming that neither injury is compensable under New Mexico's workers' compensation law. We hold that the traveling-employee rule requires coverage, and affirm.

Facts

{4} ABF dispatches Albuquerque drivers to Weatherford, Oklahoma, where drivers stay at a motel that also serves as a relay station. An employee at the motel coordinates the transfer of trucks and serves as a dispatcher for ABF. Albuquerque drivers transfer trucks to other ABF drivers who are usually heading east, and ABF drivers heading west transfer trucks to drivers returning to Albuquerque. After the approximately four-hundred-eighty-mile trip from Albuquerque to Weatherford, drivers are required by federal law to take an eight-hour rest break. The motel used by the drivers is designated and paid for by ABF. Because of a union contract ABF cannot require the drivers to stay in the motel and cannot dictate how the drivers spend their rest break. In these cases, however, both drivers took their rest breaks in the motel designated by ABF.

{5} Mr. Chavez was dispatched by ABF to Weatherford, Oklahoma. He left Albuquerque at approximately 6:00 p.m. on March 25, 1999, and arrived in Weatherford at about 2:45 a.m. the next day. He checked into the designated motel for his required eight-hour rest break. Chavez had requested a wake-up call for some time between 6:00 and 7:00 a.m. He awoke on his own before 6:00 a.m., and wanted to go back to bed for awhile. The phone was not next to the bed, but was on a dresser some distance away, and he wanted to have the phone by the bed. When he tried to move the phone closer, he noticed the cord was trapped by the dresser. He lifted the dresser to free the cord, tearing his biceps tendon.

{6} Mr. Jenkins was dispatched to Weatherford on September 21, 1998, and arrived about 12:45 a.m. on September 22. He checked into the designated motel for his rest break. At 8:45 a.m., he was ready to drive an ABF truck back to Albuquerque, and his rest break was over. He was informed that because there were other drivers ahead of him, he would not be assigned a truck until approximately 12:30 p.m. Jenkins had been walking to improve his health and to refresh himself for long drives, so he decided to go for a four-mile walk while waiting for his truck assignment. He walked along old Route 66, a lightly-traveled frontage road. ABF drivers regularly walked along Route 66, and ABF's line supervisor testified that walking was a reasonable activity for drivers. ABF knew drivers regularly walked the route, though ABF could not prohibit drivers from walking, because the union contract prohibited ABF from dictating what drivers could do during their rest break. Jenkins was killed about 1.3 miles from the motel when a car veered off the road and struck him.

1. Standard of Review.

{7} We review the whole record to determine whether the factual findings are supported by substantial evidence. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 126-130, 767 P.2d 363, 365-369 (Ct.App. 1988). "[W]here the historical facts of the case are undisputed, ... whether [an] accident arose out of the employment is a question of law" reviewed de novo. Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 14 (quoting Cox v. Chino Mines/Phelps Dodge, 115 N.M. 335, 337, 850 P.2d 1038, 1040 (Ct.App.1993)).

2. The Traveling Employee Rule.

{8} Under the "going-and-coming rule," workers are generally not eligible for workers' compensation if the injury occurs while traveling between home and work. NMSA 1978, § 52-1-19 (1987); Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 7. However, the traveling-employee rule is an exception to this rule. It recognizes that employees who work on the road, like the truck drivers in this case, should be treated differently. Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 9. "`The general rule is that an employee whose work entails travel away from the employer's premises is, in most circumstances, under continuous workers' compensation coverage from the time he leaves home until he returns.'" Id. ¶ 11 (quoting Voight v. Rettinger Transp., Inc., 306 N.W.2d 133, 136 (Minn. 1981)). "Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable." 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 25.01, at 25-2 (2000).

{9} Traveling employees are covered while engaged in a wide variety of activities. "The rationale behind the traveling-employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels." Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 12 (quoting Olinger Constr. Co. v. Mosbey, 427 N.E.2d 910, 915 (Ind.Ct.App.1981)). The rule recognizes that a traveling employee is subjected to "`hazards he or she would otherwise have the option of avoiding, [and that] the hazards of the route become the hazards of the employment.'" Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 12 (quoting Appeal of Griffin, 140 N.H. 650, 671 A.2d 541, 544 (N.H.1996)).

3. "Arising Out of and in the Course of" Employment.

{10} As we recognized in Ramirez, however, a traveling employee is not covered for every conceivable injury he or she might receive while traveling. The employee must demonstrate that the injury "`arose out of and in the course of employment.'" Id. ¶ 14 (quoting Jensen v. Indus. Comm'n, 305 Ill. App.3d 274, 238 Ill.Dec. 468, 711 N.E.2d 1129, 1132-33 (Ill.App.Ct.1999)). "`[I]n the course of' ... refers to the time, place, and circumstances under which the injury occurred." Id. ¶ 14 (quoting Gutierrez v. Amity Leather Prods. Co., 107 N.M. 26, 29, 751 P.2d 710, 713 (Ct.App.1988)). An injury arises out of employment if it is "`caused by a risk to which the plaintiff [was] subjected by reason of his employment.'" Id. An injury arises out of employment if the claimant "`was performing acts the employer instructed the claimant to perform, acts incidental to the claimant's assigned duties, or acts which the claimant had a common law or statutory duty to perform.'" Id. ¶ 14 (quoting Jensen, 238 Ill.Dec. 468, 711 N.E.2d at 1132). New Mexico cases have also held that an injury arises out of employment if it is "reasonably incident" to the employment. Brundage v. K.L. House Constr. Co., 74 N.M. 613, 617, 396 P.2d 731, 733 (1964); Chavez v. Mountain States Constructors, 1996-NMSC-070, ¶ 27, 122 N.M. 579, 929 P.2d 971.

{11} Ramirez establishes several other factors to be used in determining whether the injury arises out of and in the course of employment. These are whether the injury "`takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.'" Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶ 16 (quoting Kloer v. Municipality of Las Vegas, 106 N.M. 594, 597, 746 P.2d 1126, 1129 (Ct.App.1987)). Other factors to be considered are whether the activity was reasonable and foreseeable; whether the injury occurred during a distinct departure from employment for a personal errand; whether the activity was conducted in an unreasonable or unforeseeable manner; and whether the activity giving rise to the injury conferred some benefit on the employer. Ramirez, 128 N.M. 601, 995 P.2d 1043, 2000-NMCA-011, ¶¶ 15-17. "The benefit to the employer need not be pecuniary, and may be as intangible as a well-fed and well-rested employee." Id. ¶ 17.

{12} These factors are considered in order to determine whether the injury is reasonably incidental to employment so that it is fair to hold the employer responsible for the employee's injury. They represent an attempt to draw...