Kewish v. Alabama Home Builders Self Insurers Fund

• Decision Date: 03 March 1995
• Citation: 664 So.2d 917
• Parties: Edwin H. KEWISH v. ALABAMA HOME BUILDERS SELF INSURERS FUND, et al. AV93000618.
• Court: Alabama Court of Civil Appeals

Page 917

664 So.2d 917

Edwin H. KEWISH v. ALABAMA HOME BUILDERS SELF INSURERS FUND, et al.

AV93000618.

Court of Civil Appeals of Alabama.

March 3, 1995.

Rehearing Denied April 7, 1995.

Certiorari Denied June 30, 1995

Alabama Supreme Court 1941048.

Robert W. Lee, Jr. of Lee & Sullivan, P.C., Birmingham, for appellant.

Tom Burgess and Thomas S. Hale of London, Yancey, Elliott & Burgess, Birmingham, for appellees.

THIGPEN, Judge.

This is a workmen's compensation case.

In August 1992, Alabama Home Builders Self Insurers Fund, et al. (Fund), filed a complaint for declaratory judgment, seeking a declaration of its obligations in relation to an injury claimed by Edwin H. Kewish. The Fund is the insurance provider for Vulcan Plumbing & Heating Company, Inc. (Vulcan). The Fund alleged that Kewish was an employee of Vulcan, and that he gave notice of an on-the-job injury on or about July 20, 1992. The Fund asserted that a controversy existed regarding whether Kewish's injuries were sustained while acting in the line and scope of his employment. Kewish answered, denying that a controversy existed and counterclaiming for workmen's compensation benefits by alleging that he was injured on July 20, 1992, while engaged in the line and scope of his employment.

Following ore tenus proceedings, the trial court made these findings:

"[E]ven taking the evidence in the light most favorable to Mr. Kewish, the Court finds that the Defendant, Edwin H. Kewish, had deviated from the course of his employment at the time of the accident which caused his injuries. The accident occurred at a location which was neither going to nor coming from an area in which Mr. Kewish had reason to be in the course of his employment nor was it an area in which he might have been taking a short cut from one location to another."

Before denying any benefits to Kewish, the trial court concluded that the injuries sustained by Kewish "did not arise out of and were not sustained in the course of his employment." Kewish appeals from the judgment denying benefits on his workmen's compensation claim.

The only issue on appeal is whether the trial court erred in determining that Kewish's injuries did not arise out of, and were not sustained in, the course of his employment with Vulcan.

The record on appeal includes numerous and massive trial exhibits, including detailed maps, surveys, large still photographs, and video footage of the accident scene, together with significant testimony regarding or in connection with these exhibits. The record discloses that the witnesses often physically indicated to the trial court specific points on these exhibits. It is difficult for an appellate court reviewing the record to ascertain the exact points the witnesses indicated to the trial court, which had the benefit of observing firsthand all of these exhibits and hearing the related testimony.

Kewish is a quadriplegic as a result of the accident. His testimony at the trial was by deposition. Although Kewish was the president of Vulcan, his role within the company was that of an on-site supervisor. Because the Fund asserts that Kewish was present at the site of the injury for personal reasons, some background regarding a dispute between Kewish and the Jefferson County Commission (County) concerning Kewish's property is necessary to understand the controversy in this case.

In 1989, Kewish had a disagreement with the County concerning its proposed sewer line extension. A substantial part of the sewer line would extend directly across Kewish's property near where a dam and pond, the accident site, are located. Kewish refused to sell the property to the County for the sewer line because he disagreed with the proposed route, contending that it would interfere with his plans to build a dam to replace the existing one, a lake, and a residential development on his property. Although the County initiated condemnation proceedings, the parties reached an agreement regarding a major change in the proposed route to accommodate Kewish's plan regarding the lake, the dam, and future development. The sewer line, however, still extended over a portion of Kewish's property.

The County accepted bids for the sewer line project, including an unsuccessful bid from Vulcan. In the process of preparing its bid package, Vulcan dug some "test holes" along the right-of-way of the proposed sewer line site. By way of a letter dated June 12, 1992, the County notified Vulcan that it was not qualified to bid. On July 20, 1992, the successful bidder, Ellard Contracting Company (Ellard) notified Vulcan that it would be entering Kewish's property to commence work on the project. Kewish testified that after receiving this call, and without any request from Ellard, he went to the project site to assure that any test holes dug by Vulcan had been properly filled and were safe to protect Vulcan from any potential liability. He testified that this was a normal procedure in accordance with his job duties. The Fund contends that Kewish's purposes for going to the site were strictly personal; i.e., to protect his interest in his own property surrounding the sewer line project.

Test holes were located on the sewer line easement owned by the County, and approximately 150 feet from the center line of the sewer line easement were Kewish's concrete dam and pond. Kewish testified that he and his wife owned the property on which the dam and pond were located, the property on the other side of the dam, and the property where the test holes were located. Record exhibits indicate that the dam was approximately 80 feet long, 10 feet high, and less than 2 feet wide. One could reach the dam from the sewer line easement only after walking over 130 feet through a wooded area to an embankment where the dam began.

Kewish testified that after inspecting some of the test holes on the project site, he walked through the wooded area to where the dam began and then walked across the dam and down into the dry pond bed. According to Kewish, he returned to the dam and as he stepped onto the dam to cross back over, his foot slipped and he fell. Kewish stated that he did not lose consciousness after his fall, and he admitted that he often searched for arrowheads near test sites. Kewish testified that he did not recall the last time he had been to the dam before his fall, and that he did not believe there were test holes on the other side of the dam. Kewish said he could not recall why he went across the dam or what he did when he got there. The following is Kewish's explanation regarding the location of his accident and the events immediately proceeding it, when questioned by Horace O'Neal, who represented the Fund and Vulcan:

"Q [O'Neal]: But you cannot tell me why you crossed the dam and went about ten feet and turned around and came back across?

"A [Kewish]: No, sir.

"Q [O'Neal]: Or started coming back across?

"A [Kewish]: No, sir, I can't. The only thing I can say is, you know, the dam was--the pond was dry.

"....

"A [Kewish]: It had been drained down, that's the first time I had seen it dry in several years, I'll say. Normally water is running over the dam and you can't walk on it because it's slick. And it was dry--the dam was dry and there wasn't any water running over it and I just walked across it and looked, you know, looked at the dry dam--I mean the dry pond. And then when I came back, I guess my feet were wet and when I stepped on that thing, I may have had mud on my feet because I did get down into the drain section of the lake."

Kewish's nephew, Darrell Bell, found Kewish after his fall. Bell testified that Kewish was conscious, appeared coherent, and appeared to comprehend the seriousness of his accident. Bell testified that he made conversation with Kewish in an effort to keep him calm and awake until help arrived. He testified that Kewish was making random statements, including stating that he was there looking for arrowheads.

James Ellard, the vice president of Ellard, testified that there was no need to dig test holes for this project, that the only test hole he saw was filled, and that test holes posed no risk to his workers because they would be using heavy equipment to move several tons of earth. He also testified that, as a courtesy, his company notified Kewish that Ellard would be entering the property to begin the job. He further testified that Ellard had no plans to perform work on the site where Kewish was injured, and that Ellard had no reason to go near the dam during the construction of the sewer line or the preparation of the project site.

Billy Conn, a Vulcan employee, testified regarding the digging of eight test holes, and he indicated their location on an exhibit. Conn testified that to get to the dam, one must walk through the wooded area, and that performing work around the test holes did not require going down around the dam.

The testimony regarding Kewish's purpose in going to the job site was conflicting. There was testimony that an employee told Kewish to check the holes because Kewish had indicated to that employee that he did not know whether the holes had been filled. Kewish testified that he knew the holes had been filled but was concerned that sinking may have occurred. Kewish further testified that he went to check the holes as part of his normal job duties, to protect Vulcan from liability. Other testimony was that Ellard planned no work in the area of Kewish's injury and that even if tests holes were on the site, they posed no problems or risks in the project. Kewish's wife testified that Kewish had told her he was going to check the holes and "walk the line," a term which she said Kewish himself used; however, she did not indicate what that term meant. Kewish's neighbor testified that Kewish had told her that he had talked to the head of the construction job and that they had come to an agreement about putting a plastic barrier around the work site, and that he was...