Custer v. Hartford Ins. Co.

• Decision Date: 22 November 2005
• Docket Number: No. WD 62874.,WD 62874.
• Citation: 174 S.W.3d 602
• Parties: Mark CUSTER, Respondent, v. HARTFORD INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

174 S.W.3d 602

Mark CUSTER, Respondent, v. HARTFORD INSURANCE COMPANY, Appellant.

No. WD 62874.

Missouri Court of Appeals, Western District, En Banc.

August 23, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 4, 2005.

Application for Transfer Denied November 22, 2005.

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Michael P. Bandre, Overland Park, KS, for appellant.

Steven C. Alberg, Olathe, KS, for respondent.

Before EDWIN H. SMITH, Chief Judge, HAROLD H. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA BRECKENRIDGE, PAUL M. SPINDEN, JAMES M. SMART, JR., JOSEPH M. ELLIS, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, and LISA WHITE HARDWICK, Judges.

JOSEPH M. ELLIS, Judge.

Hartford Insurance Company appeals from an award entered by the Labor and Industrial Relations Commission finding that Mark Custer was entitled to workers' compensation benefits for injuries he sustained in an automobile accident. Specifically, Hartford challenges the Commission's findings that Custer was acting in the course and scope of his employment when the accident occurred and that he was permanently and totally disabled as a result of the injuries he sustained. For the following reasons, we affirm the Commission's award.

In 1985, Hartford hired Custer as a claims adjuster in Springfield, Missouri. After about two and a half years, Custer was transferred to Hartford's office in Overland Park, Kansas. By September 22, 1997, Custer had worked his way up the corporate ladder and was working for Hartford as a claims coordinator. In that capacity, he was charged with working with the underwriting department to write new business with corporate clients and to retain current business. An important part of his job was entertaining clients and agents. He also served as a liaison between the underwriting and the claims departments in an effort to keep the bigger insureds and the agents happy. Custer's job involved extensive travel away from the office, and Hartford provided him with a company car for which Hartford paid all expenses. As part of his duties, Custer would go out and visit with an insured about once every two weeks and would go out and visit an outside agent once a week. In his job capacity, Custer also participated in golf games with insureds, agents and/or underwriters on at least a weekly basis. These activities were approved of and encouraged by Hartford and constituted an important part of Custer's job.

On September 22, 1997, Custer drove his company car 30-40 miles from his office to a golf tournament organized by Hartford at the Dubs Dred Golf Course in Wyandotte County, Kansas. The e-mail sent to Custer and two other individuals by the main underwriter at Hartford told Custer to arrive at noon for lunch and stated that the tournament was to start at 1 p.m. The e-mail provided instructions on how to get to the course. The e-mail further indicated that they would be having hors d'oeuvres and drinks after the round and "suggested" that he be available for dinner with agents after the event.

During the tournament, Hartford provided free beer to the participants, and Custer drank at least four beers on the course. Several rain delays occurred, and the participants consumed more alcohol in the clubhouse on these occasions.

When Custer left the golf club to head home at about 7:30 p.m., it was dark and foggy out. About one mile from the golf club, as he was attempting to cross U.S. 73 highway, Custer's company car was struck by a car traveling on the highway.

Custer was severely injured in the accident, sustaining a closed head injury, a lacerated spleen, left pneumothorax, a retroperitoneal hematoma, a nasal fracture, a fractured left clavicle, fractured ribs, a sciatic nerve injury, a pelvic fracture, and posterior urethral injuries. He was taken by ambulance to KU Medical Center for treatment. Custer underwent several surgical procedures for his injuries. He was comatose and remained on a ventilator almost two months after the accident. During his stay in the hospital, Custer also experienced sepsis and contracted pneumonia several times. He was eventually discharged from the intensive care unit on December 16, 1997. On December 30, 1997, Custer was deemed medically stable and was transferred from KU Medical Center to the Rehabilitation Institute. He left the Rehabilitation Institute on May 8, 1998, and went to Duke University to have his urethra repaired and rerouted. Subsequently, Custer received further medical treatment and therapy.

On October 23, 2000, Hartford sent Custer a letter indicating that they could not identify a position for him and that they were, therefore, terminating his employment. On November 2, 2000, Custer filed a claim for compensation with the Division of Workers' Compensation. Custer filed an amended claim on December 26, 2000. Hartford timely filed answers to both pleadings.

An administrative law judge ("ALJ") heard the claim on March 25, March 26, and April 8, 2002. On June 25, 2002, the ALJ issued her opinion finding that Custer's accident had occurred in the scope and course of his employment and that he was permanently and totally disabled as a result of the injuries he sustained.¹

On July 12, 2002, Hartford filed its application for review by the Commission. Subsequently, the Commission ruled that the ALJ's award was supported by competent and substantial evidence and adopted that award and decision as its own. Hartford brings two points on appeal.

Our standard of review requires us to "affirm the Commission's final decision unless it acted without or beyond its power, the decision was procured by fraud, the facts found do not support the decision, or the decision is not supported by sufficient competent evidence in the record." Higgins v. Treasurer of State of Missouri, 140 S.W.3d 94, 96 (Mo.App. W.D.2004) (citing § 287.495.1). "When the Commission affirms or adopts the findings of an ALJ (as it has done here), we review the decision and finding of the ALJ as adopted by the Commission." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D.2004). "All doubts as to the right of an employee to compensation must be resolved in favor of the injured employee." Hilton v. Pizza Hut, 892 S.W.2d 625, 630 (Mo.App. W.D.1994).²

In arguing for the reversal of the Commission's award, the Dissent deviates from the latter rule, which is firmly entrenched in our case law. While the Dissent offers a thoughtful analysis of the issues involved in the manner in which the provisions of the Workers' Compensation Act are interpreted, the approach suggested by the Dissent would require this court to overrule numerous prior decisions of our Supreme Court and Court of Appeals spanning several decades. See e.g. Morrow v. City of Kansas City, 788 S.W.2d 278, 279 (Mo. banc 1990) ("[I]n a workers' compensation case all doubts are to be resolved in favor of the employee."); Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 783 (Mo.1983) ("Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee."); Kelley v. Sohio Chemical Co., 392 S.W.2d 255, 259 (Mo.1965) (noting that the provision of § 287.800 providing that the Workers' Compensation Act "`shall be liberally construed with a view to the public welfare' ... has been held to mean that a doubt as to the right of compensation should be resolved in favor of the employee"); Orr v. City of Springfield, 118 S.W.3d 215, 217 (Mo.App. S.D.2003); Bunker v. Rural Elec. Co-op., 46 S.W.3d 641, 649 (Mo.App. W.D.2001) ("[T]he compensation law `is to be broadly and liberally construed and interpreted to extend benefits to the largest possible class and any doubt as to the right of compensation is to be resolved in favor of the employee.'"); Schuster v. State Div. of Employment Sec., 972 S.W.2d 377, 384 (Mo.App. E.D.1998).

"This court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court." Kinder v. Missouri Dep't of Corrections, 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2). As the approach suggested by the Dissent would deviate from and, in fact, would require the overruling of the most recent controlling decisions of the Missouri Supreme Court, this court cannot entertain the changes to the existing case law proposed by the Dissent.

Moreover, on appeal, Hartford makes no claim that the cases requiring that any doubts as to the right of an employee to compensation should be resolved in favor of the injured employee should be overruled. Accordingly, any claim of error related to the Commission's application of that rule and its continued viability and application to this Court's review has not been raised by the appellant, is not preserved for appeal, and need not be addressed by this Court. Eckhoff v. Eckhoff, 71 S.W.3d 619, 624 n. 1 (Mo.App. W.D.2002).

In its first point on appeal, Hartford merely contends that the evidence does not support the Commission's finding that Custer sustained his injuries in the course and scope of his employment because the going to and coming from work rule applies to preclude an award of benefits, claiming that none of the exceptions to that rule are applicable. Hartford specifically contends that Custer was not on a special errand for the employer and that there was no mutual benefit to the employer in Custer's journey home.

"We determine whether the award is supported by competent and substantial evidence `by examining the evidence in the context of the whole record.'" Moriarty v. Treasurer of State of Missouri, 141 S.W.3d 69, 72 (Mo.App. E.D.2004) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). We must ascertain "whether the Commission could have reasonably made its findings and reached its result upon consideration of all of the evidence before it." Henley v. Tan Co., 140 S.W.3d 195, 198 (Mo.App. S.D.2...