Sumner v. Meier's Ready Mix, Inc.

• Decision Date: 27 October 2006
• Docket Number: No. 93,546.,93,546.
• Citation: 144 P.3d 668
• Parties: Chris A. SUMNER, Deceased, Appellant, v. MEIER'S READY MIX, INC., and Zurich U.S. Insurance Company, Appellees.
• Court: Kansas Supreme Court

144 P.3d 668

Chris A. SUMNER, Deceased, Appellant, v. MEIER'S READY MIX, INC., and Zurich U.S. Insurance Company, Appellees.

No. 93,546.

Supreme Court of Kansas.

October 27, 2006.

COPYRIGHT MATERIAL OMITTED

Review of the judgment of the Court of Appeals in 34 Kan.App.2d 850, 126 P.3d 1127 (2006). Appeal from the Workers Compensation Board.

Lawrence M. Gurney, of Wilson, Lee, Gurney, Carmichael & Hess, of Wichita, argued the cause and was on the briefs for appellant.

Wade A. Dorothy, of The Dorothy Law Firm LLC, of Lenexa, argued the cause, and Douglas A. Dorothy, of the same firm, was with him on the briefs for appellees.

The opinion was delivered by LUCKERT, J.:

This is a workers compensation case involving an employee's death as a result of a one-vehicle accident while the employee was driving a company truck but running a personal errand. This court granted the petition for review filed by employer Meier's Ready Mix, Inc., and its insurer, Zurich U.S. Insurance Co., (collectively referred to as Meier's) in which they sought review of the Court of Appeals' decision reversing the decision of the Workers Compensation Board (Board). The Court of Appeals held that under the facts, the employee's trip home for a personal emergency fell within the traveling exception to the "going and coming" rule; therefore, the employee, by and through his surviving wife, was entitled to workers compensation benefits. Meier's argues that, in so holding, the Court of Appeals failed to properly apply the correct standard of review and impermissibly reweighed the evidence. We agree and reverse the Court of Appeals and affirm the decision of the Board.

Facts

Chris A. Sumner lived in Council Grove, Kansas, and drove a semi-truck/flatbed trailer for Meier's. For the mutual convenience of Meier's and Sumner, the employer allowed Sumner to take the truck home every night, and Sumner was then dispatched out of his home each morning. When Sumner would arrive at his residence, sometimes the truck remained loaded but generally it was empty. If his truck was full when he arrived at home, Sumner would deliver the load the next morning.

In the early morning hours of September 30, 2002, Sumner left home, picked up a load at a Meier's plant in Sugar Creek, Missouri, and made a delivery in Emporia around 7 a.m. Sumner then returned to Sugar Creek to pick up another load for delivery to Emporia. Meanwhile, Eric Schneider, the Ozawkie plant assistant manager and the dispatcher for Meier's, called Sugar Creek and left instructions for the first two Meier's drivers who arrived at the plant to call him. Schneider intended to direct those drivers to deliver loads of cement to Junction City. Sumner was the first driver to call Schneider. Before Schneider could issue instructions regarding Junction City, Sumner, sounding upset, announced that he had gotten a call from home and needed to take care of an emergency. Schneider did not ask about the nature of the emergency, and Sumner did not explain.

Schneider gave Sumner permission to go home and handle the emergency. Sumner's truck had been loaded with bagged and palletized cement for the next delivery, and Schneider explained that the load was to go to Junction City. It was Schneider's intention that Sumner make the delivery that same afternoon if time permitted. Schneider indicated in his deposition, however, that after Sumner had taken care of his emergency, Sumner was to call him for purposes of deciding whether the load would be delivered that afternoon or first thing in the morning.

Thus, with his employer's approval, Sumner deviated from the business route along I-70 from the Kansas City metropolitan area to Junction City and, instead, left I-70 and headed south toward Council Grove on K-177. Tragically, a one-vehicle accident occurred on Sumner's way home, about 15 miles south of the I-70/K-177 intersection and about 13 miles north of Council Grove. Sumner was killed. Pamela Sumner, his surviving wife (Claimant), applied for workers compensation benefits.

ALJ Award

The administrative law judge (ALJ) awarded benefits to the Claimant. The ALJ found it significant that Sumner's employer gave him permission to go home and take care of the family emergency and that Sumner was expected to advise Schneider whether he would complete the trip to Junction City that day or was going to wait and finish the trip the following morning. The ALJ observed that Meier's tried to limit its drivers' shifts to 12 hours. At the time of the accident, Sumner had been working for approximately 11 hours. The ALJ found: "[I]t is more probable than not that [Sumner] was not going to make the delivery to Junction City that day and he was on his way home to stay. Therefore, . . . the accident is compensable." Because Sumner's traveling was made in a company vehicle, the ALJ concluded that Sumner's death arose out of and in the course of his employment.

Workers Compensation Board

Meier's appealed to the Board. At oral arguments before the Board, the employer acknowledged that, if Sumner was going home to stay with no intention of returning with his truck load to Junction City until the next day, the injury would be compensable. The Board, however, found it significant that the parties stipulated that the errand undertaken by Sumner when he deviated from his delivery route was a purely personal errand with no business-related purpose. In a 3 to 2 decision, a majority of the Board reversed the ALJ's award.

The majority based its decision largely on long-standing precedent establishing that accidental injuries which occur on dual purpose excursions, where the benefit is both to the employer and the employee, are generally compensable; however, the dual purpose rule does not extend to situations where the employee would not have proceeded on the excursion if the personal errand had been abandoned or postponed. The majority of the Board found that Sumner's intended length of stay in Council Grove could not be determined by the record. In contrast to dual purpose excursions, the Board found that because Sumner's trip to Council Grove, as stipulated, was a purely personal trip, it had no proven benefit to his employer and, therefore, was not compensable.

The Board further rejected the Claimant's contention that the injury was compensable because Sumner was, in effect, on duty at all times in that he was responsible for both the truck and the load. In addition, the Board declined to apply the special hazard exception to the "going and coming" rule, finding that Kansas courts have never held that the mere act of driving a semi-truck constitutes a special risk or hazard which would fall within that exception.

The two dissenting Board members would have affirmed the ALJ's award and emphasized Meier's acknowledgment that, if Sumner was on his way home to stay overnight, the accident would be compensable under the Kansas Workers Compensation Act. The dissenters agreed with the ALJ that it was "more probably true than not that the decedent was headed home for the day when the fatal accident occurred" and that the accident was, therefore, compensable.

Court of Appeals' Decision

The Claimant appealed the Board's reversal of the ALJ's award of benefits and essentially presented two arguments whether: (1) the Board ignored the evidence establishing that Sumner was on his way home to stay at the time of the accident, and (2) the employer's permission to Sumner's going home made the accident compensable. See Sumner v. Meier's Ready Mix, Inc., & Zurich U.S. Ins. Co., 34 Kan.App.2d 850, 126 P.3d 1127 (2006). The panel rejected the Claimant's contention that Meier's permission or acquiescence in Sumner's deviation from the delivery route made the accident compensable, noting that this was a one-time event. The panel further declined to address the Claimant's contention that the semi-truck was a special risk or hazard under the special risk exception to the "going and coming" rule, observing that Sumner's injury occurred on a public highway. 34 Kan.App.2d at 855-56, 126 P.3d 1127.

The Court of Appeals, however, was persuaded by the Claimant's contention that the Board ignored evidence. As a threshold question, the panel stated that, although the standard of review required it to defer to the Board's factual findings, the case presented a question of whether the Board's decision was supported by substantial competent evidence. 34 Kan.App.2d at 854, 126 P.3d 1127. The panel determined that the Board ignored circumstantial evidence that indicated Sumner was near the end of his 12-hour shift when he started homeward; thus, the panel concluded that there would have been no time for him to make the Junction City delivery that day. 34 Kan.App.2d at 855-56, 126 P.3d 1127.

Consequently, the Court of Appeals held that Sumner's trip fell within the exception to the "going and coming" rule, which provides that one's injury is compensable when travel upon public roadways is an integral or necessary part of his or her employment. See 34 Kan.App.2d at 856, 126 P.3d 1127; Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995). The panel stated: "Going home at the end of a workday is always personal. However, when the evidence indicates that an employer's policy is to allow drivers to take company trucks home, it furthers the employer's interests and is an exception to the `going and coming' rule." 34 Kan.App.2d 850, Syl. ¶ 7, 126 P.3d 1127. The Board's decision was reversed.

ANALYSIS

Meier's contends the Court of Appeals erred in reversing the Board's finding that Sumner was not entitled to workers compensation benefits because his injuries did not arise from or during the course of his employment. As all of the parties and the Court of Appeals agree, appellate review of the question of whether an accident arises from or occurs in the course of employment is governed by the "substantial competent evidence" standard of review. Foos...