Kindel v. Ferco Rental, Inc.

• Decision Date: 04 August 1995
• Docket Number: No. 72501,72501
• Citation: 899 P.2d 1058,258 Kan. 272
• Parties: Donald Leo KINDEL (Deceased), Appellee, v. FERCO RENTAL, INC., and Wausau Insurance Companies, Appellants.
• Court: Kansas Supreme Court

Page 1058

899 P.2d 1058

258 Kan. 272

Donald Leo KINDEL (Deceased), Appellee, v. FERCO RENTAL, INC., and Wausau Insurance Companies, Appellants.

No. 72501.

Supreme Court of Kansas.

Aug. 4, 1995.

Syllabus by the Court

1. K.S.A.1991 Supp. 44-556(a), defining the standard of review of the district court under the pre-Workers Compensation Board system, states that such review shall be upon questions of law and fact. Review of the Board's decision is now by the appellate courts in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. Under current law, appellate review is explicitly limited to questions of law. K.S.A. 77-621(c); L.1995, ch. 1, § 3.

2. In any employment to which workers compensation laws apply, an employer is liable to pay compensation to an employee where the employee incurs personal injury by accident arising out of and in the course of employment. K.S.A.1991 Supp. 44-501(a).

3. The two phrases arising "out of" and "in the course of" employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable.

4. The phrase "out of" employment points to the cause or origin of the worker's accident and requires some causal connection between the accidental injury and the employment. An injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises out of employment if it arises out of the nature, conditions, obligations, and incidents of the employment.

5. The phrase "in the course of" employment relates to the time, place, and circumstances under which the worker's accident occurred and means the injury happened while the worker was at work in the employer's service.

6. Although K.S.A.1991 Supp. 44-508(f), a codification of the longstanding "going and coming" rule, provides that injuries occurring while traveling to and from employment are generally not compensable, there is an exception that applies when travel upon the public roadways is an integral or necessary part of the employment.

7. A deviation by an employee from the employer's work generally consists of a personal or nonbusiness-related activity. The longer the deviation exists in time or the greater it varies from the normal business route or in purpose from the normal business objectives, the more likely the deviation will be characterized as major.

8. The workers compensation law does not set an arbitrary limit as to the number of hours of deviation required to terminate coverage. Whether there was a deviation and if that deviation had terminated is a question of fact to be determined by the administrative law judge or the Workers Compensation Board.

9. To defeat a workers compensation claim based on the worker's intoxication, an employer must prove not only that the worker was intoxicated, but also that such intoxication was the substantial cause of the injury.

10. Where an employee has elected not to come within the provisions of the Workers Compensation Act, common-law defenses to the tort theories of negligence ( [a] that the employee either expressly or impliedly assumed the risk of the hazard complained of; [b] that the employee's injury or death was caused in whole or in part by the want of due care of a fellow servant; or [c] that the employee was guilty of contributory negligence) do not apply to workers compensation claims. K.S.A. 44-545.

John W. Mize, of Clark, Mize & Linville, Chartered, Salina, argued the cause and was on the brief, for appellants.

Robert G. German, Salina, argued the cause, and James D. Sweet, Sweet & Sheahon, Salina, was with him on the brief, for appellee.

LOCKETT, Judge:

A worker was killed on his return trip home from work. The worker's surviving spouse and minor children claimed death benefits. The Administrative Law Judge (ALJ) denied their claim, finding that the worker had abandoned his employment and therefore the accident did not arise out of and in the course of his employment. On review, the Workers Compensation Board (the Board) reversed the ALJ, finding that the worker's death arose out of and in the course of his employment. The employer appealed. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).

Donald L. Kindel was employed by Ferco Rental, Inc. (Ferco). On October 11, 1991, Kindel was transported in a company pickup truck from his home in Salina, Kansas, to a construction job site in Sabetha, Kansas. James Graham, Kindel's supervisor, was the driver of the truck. The company truck had been checked out to Graham to transport Kindel and other employees to and from the job site.

On the way to Sabetha, Graham and Kindel passed a former employee of Ferco. Kindel held up a note inviting the former co-worker to join them at the Outer Limits, a "striptease" bar adjacent to Interstate 70 on the west side of Topeka. At approximately 3:30 p.m., after completing the day's work at the job site in Sabetha, Graham and Kindel proceeded back toward Salina. On the way, the two men stopped at the Outer Limits for approximately four hours, where they became inebriated.

Graham suffers from amnesia and cannot recall any of the events occurring after they stopped at the Outer Limits. Graham testified, however, that it was Kindel's idea to stop at the Outer Limits; that Kindel made the arrangements to meet the former co-worker at the Outer Limits after work that day; and that if Kindel would have wanted to proceed straight home, Graham would have done so.

At approximately 8:50 p.m., the Kansas Highway Patrol received a call of a motor vehicle accident on Interstate 70 near mile marker 337. When Trooper McCool arrived at the accident scene, he observed the Ferco truck overturned and lying in the south ditch of the westbound lane near an entrance to a rest area. Graham, who was driving, and Kindel had been partially ejected out of the truck's windshield. Kindel was deceased. Subsequent tests determined that Graham and Kindel had blood alcohol levels of .225 and .26, respectively.

Prior to the accident, Graham and Kindel were aware that Ferco had a policy that, except to obtain food or fuel, company vehicles were to be used only to go directly from the shop to the job site. Company vehicles were not to be used for personal pleasure or business. Ferco had a comprehensive drug and alcohol policy in place at the time of the accident which, among other things, prohibited workers from using the company equipment while under the influence of alcohol. Employees were not authorized to use a company vehicle to stop at a bar to consume alcohol. Kindel signed off on this policy on December 8, 1990. The employer asserted that when the employees stopped at the bar, authorization to use the company vehicle ceased and any further use of the company vehicle was not part of their employment.

At the time of the accident on October 11, 1991, Graham possessed a valid Kansas driver's license. Ferco was aware of Graham's propensity for drinking and driving. Graham had been charged with DUI some six days prior to this incident and had a previous conviction for which he had had his driver's license suspended. Graham understood that he was prohibited from drinking while using company equipment. Graham testified that the reason for stopping at the Outer Limits was to pursue pleasure and to have a good time. He said it was his understanding that when he pulled up at the Outer Limits, his work was over for the day.

Kindel's surviving spouse and minor children filed a workers compensation claim, seeking death benefits pursuant to K.S.A.1991 Supp. 44-510b. The ALJ found

"that the deviation was so substantial and there is not a causal connection between the deviation and the purpose of employment, nor a causal nexus between the resulting accident and death as to say that the claimant had ever returned to the scope of his employment.... The subsequent death, therefore, did not arise out of and in the course of his employment."

The ALJ made no findings as to whether Kindel's death resulted substantially from his intoxication. The claimants appealed.

After reviewing the record, the Board reached the opposite conclusion, finding that Kindel's death arose out of and in the course of his employment. The Board acknowledged case law from other jurisdictions supporting the ALJ's decision, but found case law supporting a finding of compensability to be more persuasive. The Board first noted that Kindel's trip to and from Sabetha, absent the detour, would have been considered a part of his employment. The Board stated that even if it assumed that the deviation from employment increased the risk of injury, the injury and resulting death resulted from the combined personal and work-related risks. The Board concluded that, under Kansas law, the increased risk attributable to the deviation did not, by itself, bar recovery. The Board observed:

"The [Kansas Workers Compensation] Act is to be liberally construed to bring both employees and employers within the coverage of the act. K.S.A. 44-501(g). The fact that claimant had been drinking and even the type of bar may be emotionally charged factors. This is especially so in this case where respondent had a clear policy against drinking while driving company vehicles. Nevertheless, the activities of claimant during the deviation from employment do not have any real relevance to whether the accident which occurred after claimant returned to the route home in the company vehicle occurred in the course of employment. Had claimant and his supervisor stopped for the evening, spent the night at a motel and returned the next morning, an accident on the route home would...