St. Paul Fire & Marine Ins. Co. v. Confer

• Decision Date: 26 November 1997
• Docket Number: No. 04-97-00062-CV,04-97-00062-CV
• Citation: 956 S.W.2d 825
• Parties: ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Patricia CONFER, Appellee.
• Court: Texas Court of Appeals

Page 825

956 S.W.2d 825

ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Patricia CONFER, Appellee.

No. 04-97-00062-CV.

Court of Appeals of Texas San Antonio.

Nov. 26, 1997.

Rehearing Overruled Dec. 16, 1997.

Gary A. Scarzafava, Annelie Menke, Scarzafava, Smith, Menke & Suchma, P.L.L.C., Houston, for Appellant.

Brent A. Biggs, Lane, Gannon & Taliaferro, L.L.P., San Antonio, for Appellee.

Before HARDBERGER, C.J., and LPEZ and ANGELINI, JJ.

ANGELINI, Justice.

Appellant, St. Paul Fire & Marine Insurance Company, appeals a jury verdict in favor of appellee, Patricia Confer, in this workers' compensation death benefits case. In four points of error, St. Paul contends (1) that the evidence is both legally and factually insufficient to support the jury's verdict; (2) that the trial court erred in refusing to admit evidence offered by St. Paul at trial; and (3) that the trial court's order awarding attorney's fees to Patricia Confer should be set aside. The pivotal issue in this case is whether Ronald Confer was in the course and scope of his employment when he was involved in a fatal automobile accident. We find that he was and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Ronald Confer worked at the Texas Educational Foundation (TEF) in San Marcos, Texas. He lived in San Antonio, Texas, south of Loop 1604 off of Highway 281 near the Brookhollow exit. Dr. Confer's normal route of travel from his work to his home was Interstate 35 South from San Marcos, west on Loop 1604, south on Highway 281, until he exited at Brookhollow. He normally left work at approximately 4:30 p.m. and arrived home at approximately 5:30 p.m.

On March 15, 1994, at approximately 4:00 p.m., Dr. Confer left his office in San Marcos. He left work early so that he could travel to Altex Electronics, a computer supply store in San Antonio, to pick up diskette cleaners that were needed at his office and still arrive home at his regular time. Altex is located on Interstate 35, past the Loop 1604 exit. Therefore, in order to travel to Altex, it would have been necessary for Dr. Confer to deviate from his normal route home. At approximately 4:20 p.m., before Dr. Confer reached the Loop 1604 exit, his car careened off the road and struck another car which was parked on the right shoulder of the road. Dr. Confer's car then flipped over and traveled back into the highway where it was hit by oncoming traffic. Dr. Confer died in the accident.

Dr. Confer's widow, Patricia Confer, sought workers' compensation benefits for the death of Dr. Confer, alleging that, at the time of his death, he was acting in furtherance of the affairs of his employer because he was on his way to purchase computer supplies for use at his office. The case was initially heard by the Texas Workers' Compensation Commission at a contested case hearing. The hearing examiner determined that Dr. Confer was, in fact, in the course and scope of his employment at the time of the accident because he would not have been on the road at the time the accident occurred had he not left his office early in order to pick up computer supplies for his employer. A Texas Workers' Compensation Appeals Panel reversed the hearing examiner's decision, finding that Dr. Confer's fatal trip had two purposes: (1) to pick up computer supplies and (2) to go home. The panel noted that the accident occurred before Dr. Confer had made any deviation from his normal route home. Therefore, the appeals panel determined that Mrs. Confer's claim was not compensable because Dr. Confer was not in the course and scope of his employment as contemplated by the Texas Labor Code when the accident occurred.

Mrs. Confer filed suit in district court to set aside the decision of the appeals panel. The case was tried to a jury, which determined that Dr. Confer was in the course and scope of his employment at the time of the accident. The trial court entered judgment awarding Mrs. Confer death benefits and attorney's fees under the Workers' Compensation Act.

ARGUMENT AND AUTHORITY

A. Sufficiency of the Evidence

In its first and second points of error, St. Paul contends that the evidence is both legally and factually insufficient to support the jury's finding that Dr. Confer was in the course and scope of his employment at the time of his fatal accident. In considering a legal insufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992); Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). In considering a factual sufficiency point, we must assess all the evidence and reverse for a new trial only if the challenged finding shocks the conscience, clearly demonstrates bias, or is so against the great weight and preponderance of the evidence that it is manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Under this analysis, we are not fact finders, we do not pass upon the credibility of witnesses, nor do we substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

Workers' compensation benefits are recoverable only where the death or injury in question occurs in the course and scope of the employee's employment. Deatherage v. International Ins. Co., 615 S.W.2d 181, 182 (Tex.1981). Generally, an injury which occurs in the use of public streets or highways in going to and returning from the place of employment is not compensable because such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with the work or business of the employer. Evans v. Illinois Employers Ins. of Wausau, 790 S.W.2d 302, 304 (Tex.1990); Texas Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.1963).

Section 401.011(12)(B) of the Texas Labor Code addresses situations in which an employee is injured while traveling for both personal and business reasons. See TEX. LAB.CODE ANN. § 401.011(12)(B) (Vernon 1996). This is known as the "dual purpose rule." The rule provides that injuries incurred during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee's personal or private affairs shall not be deemed in the course of employment unless (1) the trip to the place of the accident would have been made even had there been no personal or private affairs of the employee to be furthered by the trip, and (2) the trip would not have been made had there been no affairs or business of the employer to be furthered by the trip. Id.; Janak v. Texas Employers' Ins. Assoc., 381 S.W.2d 176, 179 (Tex.1964). In order to be entitled to workers' compensation benefits in dual purpose situations, the employee or his survivors must satisfy both prongs of the dual purpose rule. Janak, 381 S.W.2d at 180; Tramel v. State Farm Fire & Cas. Co., 830 S.W.2d 754, 756 (Tex.App.--Fort Worth 1992, writ denied).

The evidence presented to the jury in this case consists of the following: Patricia Confer testified that her husband always arrived home at 5:30 p.m. and that, in order to do so, he left his office at 4:30 p.m. If he was going to be late, he always phoned her to let her know. Dr. Confer rarely arrived home early. On March 14, 1994, Mrs. Confer was ill. She spoke with her husband several times throughout the day regarding her condition. She called Dr. Confer at his office to let him know that her family doctor had referred her to a specialist. Dr. Confer asked Mrs. Confer if she wanted him to come home to take her to her appointment with the specialist, but she declined. Mrs. Confer never asked Dr. Confer to come home early on March 14, 1994, and he never told her that he would. Mrs. Confer returned home from her doctor's appointment at approximately 4:30 p.m. after having been told that she would need to check into the hospital for observation. When she arrived home, she retrieved an answering machine message from Dr. Confer informing her that he would be home at his normal time. The message was left at approximately 3:50 p.m.

Given the answering machine message indicating that Dr. Confer planned to be home by 5:30 p.m., Mrs. Confer testified that Dr. Confer could not have intended to leave his office at 4:00 p.m., go to Altex to pick up diskette cleaners, and return to his office. Clearly, he intended to go by Altex and then go home. Accordingly, Mrs. Confer testified that the purpose of Dr. Confer's travel at the time of the accident was "in part" to come home.

Dr. Confer was Jack Keebler's immediate supervisor at TEF. Keebler testified that on March 14, 1994, he and Dr. Confer discussed their need for diskette cleaners for use in an upcoming proposal on which they planned to be working. At 4:00 p.m., Dr. Confer told Keebler that he was going to Altex to pick up some diskette cleaners and then go home. Keebler testified that Dr. Confer was very ethical about his time, and always worked an entire day. Keebler testified that, based upon Dr. Confer's usual route home, he would have been at the point where the accident occurred whether he was traveling to Altex or to his home.

Carl Anderson was Dr. Confer's immediate supervisor at TEF. Anderson testified that he did not instruct Dr. Confer to go to Altex, but that Dr. Confer had the authority to pick up needed supplies without approval. Anderson testified that Dr. Confer was a professional and did not account to Anderson for his time. Accordingly, Dr. Confer would not...