Tex. Mut. Ins. Co. v. Jerrols

• Decision Date: 11 October 2012
• Docket Number: Nos. 14–11–00131–CV, 14–11–00496–CV.,s. 14–11–00131–CV, 14–11–00496–CV.
• Citation: 385 S.W.3d 619
• Parties: TEXAS MUTUAL INSURANCE COMPANY, Appellant, v. Ronald JERROLS, Appellee. Cedric Williams and Jaime Luna, Appellants, v. Texas Mutual Insurance Company, Appellee.
• Court: Texas Court of Appeals

385 S.W.3d 619

TEXAS MUTUAL INSURANCE COMPANY, Appellant,

v.Ronald JERROLS, Appellee.

Cedric Williams and Jaime Luna, Appellants,

v.Texas Mutual Insurance Company, Appellee.

Nos. 14–11–00131–CV, 14–11–00496–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Oct. 11, 2012.

Matthew Birk Baumgartner, James A. Hemphill, Austin, TX, for appellant in No. 14–11–00131–CV.

Alan B. Daughtry, Houston, TX, for appellee in No. 14–11–00131–CV.

Alan B. Daughtry, Patrick Mason Dennis, Houston, TX, for appellants in No. 14–11–00496–CV.

David P. Boyce, Houston, TX, for appellee in No. 14–11–00496–CV.

Panel consists of Justices SEYMORE and BOYCE and Senior Justice MIRABAL.^*

SUBSTITUTE OPINION

WILLIAM J. BOYCE, Justice.

We overrule the motions for rehearing, withdraw our opinion dated September 6, 2012, and issue the following substitute opinion.

Ronald Jerrols, Cedric Williams, and Jaime Luna sustained serious injuries in a traffic accident while they were returning to work from a restaurant after eating lunch. This appeal focuses on whether Jerrols, Williams, and Luna (also referred to collectively as the “claimants”) were in the course and scope of their employment under the Texas Labor Code when these injuries occurred.

Material fact issues preclude an as-a-matter-of-law determination that the claimants were or were not in the course and scope of their employment when these injuries occurred. Accordingly, we reverse the summary judgments granted below and remand for further proceedings.

Background

I. The Tank Cleaning Job in Jal, New Mexico

Jerrols, Williams, and Luna lived in the Houston area and worked for Midwestern Services, Inc. as part of a crew cleaning above-ground oil storage tanks. Midwestern provides cleaning services for crude oil tank farms in thirteen states.

In fall 2008, Midwestern sent Jerrols, Williams, and Luna to work at a tank farm outside of Jal, New Mexico near the Texas–New Mexico border. The job was anticipated to last between three and six months. The claimants were expected to work approximately 50 days on the job; come home to Houston for four days or so; and then return to the job.

Williams and Luna had been in Jal for at least six weeks when the accident occurred. Jerrols joined the crew in Jal three days before the accident.

Midwestern provided a Midwestern-owned crew cab truck driven by a Midwestern employee to transport its crew members. Midwestern required the claimants to use this mode of transportation while they were working in Jal. The claimants were not permitted to bring personal vehicles to New Mexico. They were permitted to use the company truck in the evenings and on Sundays for personal errands.

At the time of the accident, the claimants were staying at a motel located in Kermit, Texas about 20 miles from the tank farm outside Jal. Each work day, the cleaning crew rode together in the Midwestern crew cab truck from the motel to the tank farm and back again. The claimantswere paid on an hourly basis for 10 hours each day Monday through Saturday with Sundays off. While they were away from home, they received a $25 per diem each day including Sundays for meals and personal items.

The claimants had one hour for lunch. They bought and ate lunch each day Monday through Saturday at the Town & Country, a retail location about two miles from the tank farm that included a gas station, convenience store, and restaurant.¹ In addition to buying and eating lunch, the claimants participated in other activities over the lunch hour including making personal calls; engaging in personal and work-related discussions; and buying snacks and drinks for personal consumption. They rode together during the one-hour lunch break from the tank farm to the Town & Country and back again in the Midwestern crew cab truck driven by a Midwestern employee.

The accident occurred on October 22, 2008, while the claimants were returning from the Town & Country to the tank farm after eating lunch; as required, they were riding together in the Midwestern truck with a fellow employee at the wheel. The claimants were injured when the Midwestern truck left the Town & Country, pulled onto the highway, and collided with an 18–wheel tractor-trailer.

II. Legal Proceedings

Following a contested case hearing, a hearing officer for the Division of Workers' Compensation determined that the claimants were on a “special mission” at the time of the accident and were injured in the course and scope of their employment with Midwestern. An appeals panel affirmed the hearing officer's decision. Midwestern's workers' compensation insurer, Texas Mutual Insurance Company, filed multiple suits in district court seeking judicial review of the administrative compensability determination.

One suit addressing Williams's claim was filed as Cause No. 2009–41875 in the 333rd District Court of Harris County; that court later consolidated a separate suit addressing Luna's claim with Williams's claim under Cause No. 2009–41875. Another suit addressing Jerrols's claim was filed as Cause No. 2009–41876 in the 129th District Court. In both Cause Nos. 2009–41875 and 2009–41876, Texas Mutual and the claimants filed cross-motions seeking traditional summary judgment with respect to the compensability determination.

In Cause No. 2009–41875, the 333rd District Court determined as a matter of law that Williams and Luna were not in the course and scope of employment at the time of the accident and their injuries were not compensable; the court granted summary judgment in favor of Texas Mutual and against Williams and Luna. In Cause No. 2009–41876, the 129th District Court determined as a matter of law that Jerrols was in the course and scope of employment at the time of the accident and his injuries were compensable; the court granted summary judgment in favor of Jerrols and against Texas Mutual.

Texas Mutual filed a notice of appeal in Cause No. 2009–41876, which was docketed in the Fourteenth Court of Appeals. Williams and Luna subsequently filed a notice of appeal in Cause No. 2009–41875, which was docketed in the First Court of Appeals. We consolidated the subsequent appeal with the first-filed appeal in this court.

Standard of Review

We review the summary judgment rulings below de novo, applying the same standard that the trial courts applied in the first instance. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment under Rule 166a(c)'s traditional standard is appropriate when (1) there are no genuine issues of material fact, and (2) the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). We indulge every reasonable inference in favor of the non-movant and resolve any doubts in the non-movant's favor. Nixon, 690 S.W.2d at 548–49.

The Labor Code provides for modified de novo review in the trial court of an administrative decision on compensability. Tex. Lab.Code Ann. §§ 410.301–.308 (Vernon 2006); Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 528 (Tex.2000). The factfinder is informed of the underlying determination, but is not required to accord that decision any particular weight. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 528 (Tex.1995). The party appealing the underlying compensability determination bears the burden of proof by a preponderance of the evidence. Tex. Lab.Code Ann. § 410.303.

Analysis

We begin with a detailed discussion of the key statutory provisions at issue in this case. This discussion will put the parties' arguments in context.

I. Standards Governing Course and Scope of Employment

An injury is compensable when it “arises out of and in the course and scope of employment for which compensation is payable” under the Workers' Compensation Act. Tex. Lab.Code Ann. § 401.011(10) (Vernon Supp.2012).

Section 401.011(12) defines “[c]ourse and scope of employment” as “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” Id. at § 401.011(12). This definition encompasses “an activity conducted on the premises of the employer or at other locations.” Id.

Origination and furtherance are separate components. Both must be satisfied to bring an activity within the “course and scope of employment.” See Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 243–44 & n. 18 (Tex.2010).

The statute's underlying policy goal is to allocate “to the employer and insurance carrier the risks inherent in an employee's job while leaving to the employee risks that are ‘shared by society as a whole and do not arise as a result of the work of the employer.’ ” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex.App.-Austin 2011, pet. denied) (quoting Evans v. Ill. Emp'rs Ins. of Wausau, 790 S.W.2d 302, 305 (Tex.1990)). The Workers' Compensation Act “should be given a liberal construction to effect its purpose of compensating injured workers and their dependents.” Id. (citing Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961–62 (Tex.1999)).

Even when both the origination and furtherance requirements are satisfied, subsections (A) and (B) of section 401.001(12) nonetheless exclude two distinct circumstances from the “course and scope of employment.” Id. at § 401.011(12)(A), (B).

Under subsection (A)'s exclusion, “course and scope of employment” does not include “transportation to and from the place of employment” unless one of three exceptions to the exclusion applies.

Transportation to and from the place of employment is not excluded under subsection (A) if

• “the transportation is furnished as part of the contract of employment or is paid for by the employer;”

• “the means of the transportation are under the control of the employer;” or

• “the employee is directed in the employee's employment to proceed from one place to another...