Kraus v. Jones Automotive, Inc.

• Decision Date: 21 March 1995
• Docket Number: No. A-94-602,A-94-602
• Citation: 3 Neb.App. 577,529 N.W.2d 108
• Parties: Karen J. KRAUS, as Personal Representative of the Estate of Joseph Felix Kraus, deceased, and personally and as guardian and next friend of Nicholas Joseph Kraus et al., Appellee and Cross-Appellant, v. JONES AUTOMOTIVE, INC., Appellant and Cross-Appellee.
• Court: Nebraska Court of Appeals

Page 108

529 N.W.2d 108

3 Neb.App. 577

Karen J. KRAUS, as Personal Representative of the Estate of Joseph Felix Kraus, deceased, and personally and as guardian and next friend of Nicholas Joseph Kraus et al., Appellee and Cross-Appellant, v. JONES AUTOMOTIVE, INC., Appellant and Cross-Appellee.

No. A-94-602.

Court of Appeals of Nebraska.

March 21, 1995.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court trial judge are not to be disturbed upon appeal to the review panel unless they are clearly wrong, and if the record contains evidence which substantiates the factual conclusions reached by the trial judge, the review panel should not substitute its view of the facts for that of the trial judge. It naturally follows that a higher appellate court does not substitute its view of the facts for that of the trial judge.

2. Workers' Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party, and the successful party will have the benefit of every inference reasonably deducible from the evidence.

3. Workers' Compensation: Appeal and Error. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

4. Workers' Compensation. When an employee is injured on a trip that has both a business and a personal element, the first step in determining compensability is to determine whether the trip, as a whole, was taken for business or for personal reasons.

5. Workers' Compensation. If an employee is injured in an accident while on a trip which serves both a business and a personal purpose, the injuries are compensable as arising out of the course and scope of employment, provided the trip involves some service to be performed on the employer's behalf which would have occasioned the trip, even if it had not coincided with the personal journey.

6. Workers' Compensation. Where an employee deviates from the scope of his employment for purposes of his own, he is regarded as being outside the scope of his employment until he has returned either to the point of deviation from the path of duty or to a point where in the performance of duty he is required to be.

7. Workers' Compensation. Where an employee has returned to the point of deviation and engages in the duties of his employment, or engages in acts reasonably incidental to his employment, which, but for the deviation, would have been performed, although at an earlier time, he is within his employment and the coverage of the Workers' Compensation Act.

8. Workers' Compensation. The return trip from a dual purpose journey, at any point where it constitutes a return from places that had to be reached for business reasons, is within the course of employment.

9. Appeal and Error. An appellate court will not consider assignments of error which are not discussed in the brief.

10. Workers' Compensation: Time. Neb.Rev.Stat. § 48-125 (Reissue 1993) authorizes a 50-percent payment for waiting time where an employer is delinquent in paying compensation and where there is no reasonable controversy regarding the employee's claim for workers' compensation benefits.

11. Workers' Compensation: Time. Whether a reasonable controversy exists regarding Neb.Rev.Stat. § 48-125 (Reissue 1993) is a question of fact.

12. Workers' Compensation: Time. Under Neb.Rev.Stat. § 48-125 (Reissue 1993), a reasonable controversy may exist: (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or part.

13. Workers' Compensation: Time. To avoid the payments assessable under Neb.Rev.Stat. § 48-125 (Reissue 1993), an employer need not prevail in opposition to an employee's claim for compensation, but must have an actual basis, in law or fact, for disputing the employee's claim and refraining from payment of compensation.

Mark J. Peterson, of Erickson & Sederstrom, P.C., Omaha, for appellant.

James F. Kasher and Robert S. Lannin, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, P.C., Omaha, for appellee.

IRWIN and MILLER-LERMAN, JJ., and MORAN, District Judge, Retired.

IRWIN, Judge.

Jones Automotive, Inc., appeals from a decision of the Workers' Compensation Court review panel affirming an award of benefits to the widow and minor children of Joseph Felix Kraus, who died in an automobile accident on February 1, 1993. Jones Automotive claims that the review panel erred in affirming the trial court's determination that Kraus was within the course and scope of his employment when the accident occurred. For the reasons discussed below, we affirm.

FACTUAL BACKGROUND

Joseph Felix Kraus was the president of Jones Automotive, Inc., an automotive parts wholesaler located in Omaha, Nebraska. As president, Kraus' duties included servicing distributors of Jones Automotive's parts and traveling to the distributors' places of business to inventory their stock and solicit orders for parts. On February 1, 1993, Kraus had plans to travel to North Platte, Nebraska, to meet with distributors that sold products for Jones Automotive. Upon arriving at Jones Automotive that morning, he discovered that the van he had planned to drive to North Platte was inoperable. He then changed his plans, deciding to take a different, company-owned vehicle to Lincoln, Nebraska; meet with Jones Automotive's largest distributor; and then travel to Grand Island, Nebraska, to pick up his mother's car and drive it to Omaha for repairs.

Kraus left Omaha and drove to Lincoln, which is approximately 60 miles southwest of Omaha. The trial court's written order does not contain a finding determining Kraus' route from Omaha to Lincoln. No witness had firsthand knowledge of what route Kraus took from Omaha to Lincoln. In Lincoln, Kraus met with the owner of Progressive Automotive, Daniel Hicks, for approximately 2 hours. While at Progressive Automotive, Kraus went over price sheets with Hicks and did a brief check of Progressive Automotive's inventory. Kraus told Hicks of his plans to travel on to Grand Island and also stated that because he was having car troubles, he was considering driving directly back to Omaha.

When Kraus left Lincoln, testimony revealed, he traveled west on Highway 34 toward Grand Island. When Kraus reached On June 8, 1993, Kraus' widow, Karen J. Kraus, filed a petition in the Workers' Compensation Court, alleging that Kraus died within the course and scope of his employment, and seeking to recover benefits under the Workers' Compensation Act. See Neb.Rev.Stat. § 48-122 (Reissue 1993). Jones Automotive's answer generally denied the allegations in the petition. A hearing was held on December 7, 1993, and on January 10, 1994, the trial judge issued an award to Kraus' widow and minor children.

Aurora, Nebraska, which is approximately 75 miles west of Lincoln and approximately 20 miles east of Grand Island, he phoned his brother, Thomas Kraus, who was the parts manager at Jones Automotive. Kraus told Thomas Kraus that he was having car troubles and that he was going to travel north to Highway 92, then east to Omaha. At approximately 8:15 p.m., Kraus died in a one-car accident near the intersection of Highways 275 and 92, just outside of Omaha.

In its award, the trial judge found that Kraus' trip to Lincoln and toward Grand Island served a legitimate business purpose and that Kraus was therefore in the course and scope of his employment when he died. The award listed three different bases for its conclusion. The trial judge reasoned that the trip to Grand Island had a legitimate business purpose because Kraus' mother was a stockholder, former creditor, and employee of Jones Automotive. The trial judge went on to hold that, even if the trip from Lincoln toward Grand Island had been personal, Kraus would have completed this personal deviation and returned to his regular route, and thus returned to being within the course of employment, when the accident occurred. Finally, the trial court found that liability would also have attached to Jones Automotive because the vehicle which Kraus had been driving at the time of the accident belonged to Jones Automotive.

On review, the compensation court review panel affirmed. The review panel found that the trial judge's finding that Kraus' trip to Lincoln was for business purposes was not clearly wrong. The review panel went on to hold that the trial judge was not clearly wrong in finding that any personal deviation had ended prior to the accident and that at the time of the accident, Kraus was returning from Progressive Automotive and was in the course of his employment. The review panel did not address the trial judge's finding that Kraus was in the course of his employment because he was driving a vehicle owned by Jones Automotive at the time of the accident. Jones Automotive thereafter appealed to this court, and Karen Kraus filed a cross-appeal relating to the question of whether a penalty should be imposed on Jones Automotive as provided by the Workers' Compensation Act.

ASSIGNMENTS OF ERROR

Jones Automotive has assigned eight errors on this appeal, which we have consolidated into four assigned errors for purposes of discussion. Jones Automotive claims that the review panel erred in affirming the trial judge's determination that (1) Kraus' trip was in the course and scope of his employment under the dual purpose...