Fox v. National Carrier

• Decision Date: 12 November 1985
• Docket Number: No. 61358,61358
• Citation: 1985 OK 91,709 P.2d 1050
• Parties: Marvin FOX, Appellant/Petitioner v. NATIONAL CARRIER, Appellee/Respondent and Hartford Insurance Company, Appellee/Insurance Carrier.
• Court: Oklahoma Supreme Court

Page 1050

709 P.2d 1050

1985 OK 91

Marvin FOX, Appellant/Petitioner v. NATIONAL CARRIER, Appellee/Respondent and Hartford Insurance Company, Appellee/Insurance Carrier.

No. 61358.

Supreme Court of Oklahoma.

Nov. 12, 1985.

As Corrected Dec. 3, 1985.

Rehearing Denied Dec. 17, 1985.

Frank A. Greer, Greer and Greer, Tulsa, for appellant/petitioner.

Paul V. McGivern, Jr., Michael W. McGivern, McGivern, Scott, Gilliard & McGivern, Tulsa, for appellees/respondents.

DOOLIN, Vice Chief Justice.

The claimant, Marvin Fox, was hired by James Anderson (an independent contractor) as a relief truck driver to assist him in Claimant sought compensation benefits from National for the injury sustained to his neck. National and its insurance carrier, Hartford Insurance Company (Hartford), denied an employer-employee relationship existed between National and the claimant. The trial judge found (1) the claimant was not an employee of National; (2) the claim was barred by the statute of limitations; and (3) the accident did not arise out of and in the course of employment. The Court of Appeals affirmed the trial judge's order on the sole ground that claimant was not an employee of National.

driving a truck. Anderson leased the truck to National Carrier (National) a transportation company, to haul National's trailers to various locations across the United States. Anderson and the claimant hauled a trailer to Liberal, Kansas, where they dropped it off. They stayed overnight in Liberal because they were to pick up another trailer the following day. The next morning claimant choked on a piece of sausage and started gagging. He then began vomiting so violently he ruptured a cervical disk. He later underwent surgery for these injuries.

We hold that the Court of Appeals and the trial judge's opinions were in error for the following reasons.

Title 85 O.S. 1981, § 11(2) provides that the principal employer is liable for benefits to the employee of an independent contractor or sub-contractor, if such sub-contractor has not provided Workers' Compensation insurance. Under this provision it is irrelevant whether or not claimant was in fact an employee of National. The relevant inquiry, in this case, is whether or not the independent contractor provided the requisite Workers' Compensation coverage. ¹ The record reveals that Anderson did not provide Workers' Compensation coverage.

The record reflects that National provided the Workers' Compensation coverage because Anderson did not. The record also shows that National paid the premiums and deducted the amount of the premiums from the remuneration National paid Anderson. The fact that National charged Anderson for the amount of the premiums does not allow National to escape liability. To allow National and Hartford (who accepted premiums) to escape liability in this case would violate both the spirit and the letter of § 11(2) of the Workers' Compensation Act.

An earlier order of the Workers' Compensation Court sitting en banc declared Hartford estopped from denying coverage to the claimant. It determined that the claimant though an immediate employee of Anderson, was covered by Hartford because National paid premiums to Hartford based on claimant's wages. ² We agree with this finding and affirm the court's en banc holding.

Section 11(2) allows the claimant to proceed directly against such principal employer without regard to the liability of the independent contractor when it appears that the independent contractor did not provide Workers' Compensation coverage.

The second issue is whether or not the claim is barred by the Statute of Limitations. We hold that the Statute of Limitations was tolled by the application of 85 O.S. 1981, § 8. Section 8 requires the employer to advise the injured employee of the right to file a claim under the Workers' Compensation Act. In the event that the employer neglects to give notice the statute of limitations is tolled. ³ There is no question that no § 8 notice was given, and on the contrary, National informed the claimant that he was not entitled to Workers' The final issue on appeal is whether the claimant's injuries arose out of and during the course of his employment. This Court follows the rule as set down by A. Larson, Workmen's Compensation Law, Vol. 1A, § 25.21:

Compensation benefits. For this reason we hold that the claim was timely filed.

Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.

Work-connected activity reaches beyond direct services performed and includes ministration to personal comfort and needs of employees. ⁴

In Bayless v. Sparkman Livestock Sales ⁵ this Court said:

As a general rule, a commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer's business. His acts in traveling, procuring food (emphasis added) and shelter are all incidents of the employment, and where injuries are sustained during the course of such activities, the Workers' Compensation Act applies.

We hold that since eating is necessarily incidental to the work of a traveling employee, injuries arising thereof are compensable. ⁶

Opinion of the Court of Appeals VACATED, CAUSE REMANDED to Workers' Compensation Court to fix the amount of award.

HODGES, WILSON and KAUGER, JJ., concur.

SUMMERS, J., concurs specially; I concur in that part of the opinion dealing with tolling of the statute of limitations and 85 O.S. 1981, § 8 by reason of stare decisis only. In other respects I concur with the majority opinion.

SIMMS, C.J., and LAVENDER, OPALA and HARGRAVE, JJ., concur in part, dissent in part.

OPALA, Justice, with whom SIMMS, C.J., and LAVENDER and HARGRAVE, JJ., join, concurring in part and dissenting in part.

The issue dispositive of this appeal is whether the choking-induced harm, suffered by an on-the-road truck driver while eating breakfast, may be regarded--on the record adduced--as an injury that "arises out of" his employment. The court holds today that [a] the principal employer, National Carrier [National], is secondarily answerable to the driver under the Workers' Compensation Act, [b] the limitations period for bringing his claim was tolled by the employer's failure to advise him of his right to file a compensation claim and, lastly, [c] because an employee who is in travel status remains in the course of employment throughout the trip--except during a departure on some purely personal errand--every injury that occurs in travel, whether attributable to service performance or to ministrations to one's personal comfort or needs, is legally compensable. While I concur in that part of the opinion which holds that National, as the driver's "statutory employer," is secondarily liable to the claimant for compensation, I recede The claimant, a truck driver who had delivered a trailer to its destination and had stayed overnight in order to pick up another load the next day, sustained an injury from choking when he stopped the following morning at a restaurant for breakfast. The trial judge, who acceded to National's contention that it did not stand in an employer status vis-a-vis the claimant, also found that (a) the accident did not arise out of claimant's employment and (b) the claim was barred by a one-year limitation. The Court of Appeals affirmed the trial judge's order, resting its decision solely on the conclusion that National was not the claimant's statutory employer. Because the trial judge's dispositive finding--by which the choking episode was determined not to have arisen out of employment--is supported by competent evidence and hence sufficient as a basis for the claim's denial, I would affirm the order denying compensation.

from those parts of today's pronouncement in which the court addresses the limitations issue and the choking episode's compensability.

I THE LIMITATIONS ISSUE

I cannot countenance this court's imposition on this statutory employer of the tolling sanction in the third paragraph of 85 O.S. 1981 § 8 ¹ because there is here no showing in the record that the employer had in fact failed to comply with the notice-posting command in the first paragraph of that section. My unwillingness to join in the court's treatment of the limitations issue is rested on an analysis that is set out in several of my separate opinions. It will not be repeated here. See, Loffland Brothers Equipment v. White, Okl., 689 P.2d 311, 314-315 [1984] (Opala, J., concurring in judgment); Armco, Inc. v. Holcomb, Okl., 694 P.2d 937, 940 [1985] (Opala, J., dissenting); Derryberry v. City of McAlester, Okl., 695 P.2d 853, 856 [1985] (Opala, J., dissenting) and York Mfg. Co. v. Fields, Okl., 705 P.2d 688, 691 [1985] (Opala, J., dissenting).

II THE DICHOTOMOUS DIVISION OF THE STATUTORILY-MANDATED JOB

NEXUS INTO THE "IN THE COURSE OF" AND "ARISING OUT

OF" COMPONENTS

Today's pronouncement ignores and obfuscates the statutory distinction between two critical elements of an employer's liability in compensation. A compensable accidental injury must both occur "in the course of" as well as "arise out of" the worker's employment. While a worker on travel assignment is indeed throughout its duration--both day and night--in the course of his employment, it does not follow that every injury suffered by a traveling worker eo ipso arises out of employment. When unrelated causally to the efforts of employment, a harm-dealing episode of choking must be attributable to a purely personal risk. It may not be viewed differently from some spontaneous internal systemic failure, rupture or breakdown, an idiopathic injury, or a simple attack of appendicitis.

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