Harness v. Southern Copyroll, Inc.

• Decision Date: 29 June 2009
• Docket Number: No. SD 29309.,SD 29309.
• Parties: Ronald A. HARNESS, Jr., Deceased, Robin Yvonne Harness, Ronald Arthur Harness, III, and Elizabeth Harness, Claimants-Respondents, v. SOUTHERN COPYROLL, INC., Employer-Appellant, and FirstComp Insurance Company, Insurer-Appellant.
• Court: Missouri Court of Appeals

291 S.W.3d 299

Ronald A. HARNESS, Jr., Deceased, Robin Yvonne Harness, Ronald Arthur Harness, III, and Elizabeth Harness, Claimants-Respondents, v. SOUTHERN COPYROLL, INC., Employer-Appellant, and FirstComp Insurance Company, Insurer-Appellant.

No. SD 29309.

Missouri Court of Appeals, Southern District, Division One.

June 29, 2009.

Kevin Hays Dunaway, Springfield, MO, for Appellant.

William W. Francis, Jr., Springfield, MO, for Respondents.

JEFFREY W. BATES, Judge.

Ronald Harness, Jr. (Employee) died in a car accident while in the employ of Southern Copyroll, Inc. (Employer), whose worker's compensation coverage was insured by FirstComp Insurance Company (Insurer). The Labor and Industrial Relations Commission (Commission) found that Employee's car accident arose out of and in the course of employment and awarded compensation. Employer and Insurer (collectively, Appellants) appealed. This Court affirms.

Employee worked for Employer in Fair Grove and lived with his wife and two children in Pleasant Hope. Fair Grove is south and east of Pleasant Hope. Occasionally, Employee's supervisor, Richard Gourley (Gourley), would instruct Employee to travel further south from Employer's place of business in Fair Grove to work at Custom Tool Crafters, LLC (CTC), another business in Ozark. Both businesses were owned by Gary English (English), who was the sole stockholder of each one. When Employee traveled from Fair Grove to Ozark, he drove his own vehicle. He was reimbursed by Employer for the round-trip mileage between the businesses, which totalled 66 miles. Employee also was paid his wages during his travel time.¹ After finishing work at CTC in the late afternoon, Employee was not required to travel back to Employer to clock out. Nevertheless, Employee often checked in with Employer before going home.²

On August 8, 2006, Gourley instructed Employee to travel to CTC around noon and work there until 3:30 p.m. Employee was supposed to take over for a CTC employee who had to leave work early. Employee followed Gourley's instructions. At 4:00 p.m., Employee left CTC at the same time as another CTC employee, Tim Church (Church). Because Employee was almost out of gas, he asked Church to follow Employee's vehicle to a nearby convenience store. Church did so. As Employee was filling his vehicle with gas, Church went into the convenience store. According to Church, when he exited the store, Employee said he was going home.

Employee then headed north on Highway 65. Just beyond the intersection of Highway 65 and I-44, Employee was killed in an automobile accident. At the time of the accident, Employee was following a northerly route that Employer would expect Employee to use if he were returning to Employer's business in Fair Grove. Employee also would follow the same route if he were going to his home in Pleasant Hope.

In October 2006, Employee's wife and two children (collectively, Respondents) filed their worker's compensation claim for dependent benefits as a result of Employee's death. Employer disputed the claim and alleged that Employee's accident was not in the scope and course of employment.

In November 2007, a hearing was held before an administrative law judge (ALJ). The witnesses testifying on behalf of Respondents included Employee's adult stepson, Shawn Keen (Keen), and Employee's wife, Yvonne Harness (Wife). At the time of Employee's accident, Keen worked for CTC. He testified that, around 3:40 p.m. on the day of the accident, Employee told Keen that "after a quick stop by the Fair Grove plant, he would be headed home." Keen, who lived in Fair Grove, also testified that he had ridden with Employee from Fair Grove to CTC on four or five occasions. On each such occasion, it was Employee's consistent practice on the return trip to go back to the Fair Grove plant, "check on a few things, and then he would take [Keen] home." Wife also testified that she knew of no reason why Employee would need to come directly home on the day of the accident.

Several witnesses for Employer testified by deposition, including English. He was Employer's sole shareholder. English testified that Employee was employed and paid by Employer, even though Employee was at times directed to work elsewhere. According to English, Employer's principal place of business is in Fair Grove. English explained that Employer's business was conducted at two physical locations in Fair Grove, but English identified the location where his office was located as Employer's principal place of business. He described it as "our headquarters ... where the financials are done."³ English admitted that Employer does not have a business location in Ozark.⁴ Likewise, Gourley testified that Employer's principal place of business was in Fair Grove. According to Gourley, he did not go to Employer's Fair Grove plant on the day of the accident because he had to travel by airplane to Michigan on a business trip. Before Gourley left, he had called Employee and asked him to go to CTC around noon on the 8th of August. Gourley recalled that Employee had asked to leave CTC at around 3:30 p.m., which was when the work day for other CTC employees ended. According to Gourley, Employee "wanted to go home as soon as he got off work." Gourley's wife, Heather Gourley (Heather) also testified.⁵ She worked as the general manager for both Employer and CTC, but her wages were paid only by Employer. Heather's job responsibilities were financial in nature. She was responsible for payroll, taxes, insurance and submitting required filings to the Missouri Secretary of State. Heather testified that, in all of those areas, Employer and CTC maintained separate and distinct operations. Heather described Employee as Gourley's "right-hand man[.]" She conceded that it would not be unusual for Employee to check in at the Fair Grove plant to see if anything needed to be done, particularly since Gourley was out of town.

In February 2008, the ALJ issued an award finding that Employee died as a result of injury arising out of and in the course of his employment. The ALJ made a factual finding that: (1) Employee was to be paid roundtrip mileage for the trip between Employer's principal place of business in Fair Grove and CTC in Ozark; (2) when Employee left CTC, he was traveling on a route that led to the Employer's principal place of business in Fair Grove; and (3) Employee was killed before reaching Fair Grove. Therefore, the ALJ rejected Employer's assertion that § 287.020.5 precluded compensation.⁶ The ALJ decided this statutory subsection did not apply because Employee was not traveling from Employer's principal place of business to his home or from his home to his Employer's principal place of business at the time of the accident. Respondents were awarded death benefits and burial expenses. In July 2008, the Commission unanimously adopted and affirmed the ALJ's award. Appellants appealed from the award.

Because the Commission adopted the ALJ's findings and conclusions, this Court will review them in this appeal from the Commission's final award of compensation. Hawthorne v. Lester E. Cox Medical Centers, 165 S.W.3d 587, 592 (Mo.App. 2005); Birdsong v. Waste Management, 147 S.W.3d 132, 137 (Mo.App.2004). This Court reviews the award of the Commission pursuant to § 287.495.1 RSMo (2000). Under that statute, we may modify, reverse, remand for hearing, or set aside the award only if: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient, competent evidence in the record to warrant the making of the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). An appellate court must examine the whole record to determine if it contains sufficient, competent and substantial evidence to support the award. Id. at 222-23. We will set aside the Commission's award if it is contrary to the overwhelming weight of the evidence. Id. "Only in rare cases will we find an award by the Commission to be contrary to the overwhelming weight of the evidence." Roberts v. Missouri Highway and Transp. Comm'n, 222 S.W.3d 322, 331 (Mo.App.2007).

On appeal, "no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding." § 287.495.1 RSMo (2000). Therefore, this Court defers to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony. Birdsong, 147 S.W.3d at 137. "Commission decisions that are interpretations or applications of law, on the other hand, are reviewed for correctness without deference to the Commission's judgment." Id. at 138; Hawthorne, 165 S.W.3d at 592. We independently review questions of law. Johnson v. Denton Constr. Co., 911 S.W.2d 286, 287 (Mo. banc 1995).

In Appellants' first point, they contend the Commission's finding that Employee's car accident arose out of and in the course of employment was erroneous as a matter of law because the Commission misapplied § 287.020.5. That subsection of the statute, which was amended in 2005, states in relevant part:

Injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employer's principal place of business or from the employer's principal place of business to the employee's home are not compensable.

Id. As Appellants correctly note, this Court is required to strictly construe this exclusionary provision. § 287.800.1. Therefore, this statute can be given no broader application than is warranted by its plain and unambiguous terms. State ex rel. Wright v. Carter, 319 S.W.2d 596, 598 (Mo. banc 1958); Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823, 829 (Mo.App.2009) (when strict construction is required, a court should not enlarge or extend the law; only the clear, plain,...