Torres v. Aulick Leasing, Inc., No. S-99-594.

CourtSupreme Court of Nebraska
Writing for the CourtMcCORMACK, J.
Citation258 Neb. 859,606 N.W.2d 98
PartiesJose L. TORRES, Appellant, v. AULICK LEASING, INC., and St. Paul Fire and Marine Insurance Company, its workers' compensation insurance carrier, Appellees.
Decision Date18 February 2000
Docket NumberNo. S-99-594.

606 N.W.2d 98
258 Neb. 859

Jose L. TORRES, Appellant,
v.
AULICK LEASING, INC., and St. Paul Fire and Marine Insurance Company, its workers' compensation insurance carrier, Appellees

No. S-99-594.

Supreme Court of Nebraska.

February 18, 2000.


606 N.W.2d 100
Samuel W. Segrist, of Meister & Segrist, Scottsbluff, for appellant

Marvin O. Kieckhafer, of Kay & Kay, North Platte, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

FACTUAL BACKGROUND

Appellee Aulick Leasing, Inc. (Aulick), is a trucking company engaged in the business of hauling aggregate to highway construction projects. Although Aulick's home office is located in Scottsbluff, Nebraska, the nature of Aulick's business requires that it move its operations from one location to another on a regular basis.

Appellant, Jose L. Torres, began working for Aulick in April 1996 as an over-the-road driver. Torres lived in Scottsbluff but worked for Aulick on several projects at various locations throughout Nebraska, South Dakota, and Wyoming. Torres, like Aulick's other drivers, was assigned a truck for each job. These trucks have sleeper units, and employees were allowed to take a truck to return to their homes for the weekends, but if the job was to last more than 30 days, the employees wishing to return home on weekends would need to use their personal vehicles.

In August 1996, Torres was assigned to a project in the area of Sundance and

606 N.W.2d 101
Gillette, Wyoming. The job was expected to last 4 to 5 months, so employees traveling home on weekends were required to use their personal vehicles. At approximately 3 a.m. on Monday, September 23, Torres was returning to Sundance from Scottsbluff in his personal vehicle when he swerved to miss a deer and rolled his vehicle into a ditch. As a result of the accident, Torres suffered severe injuries, and has not been employed since that time

PROCEDURAL HISTORY

Torres filed a petition seeking workers' compensation benefits. The trial judge of the Workers' Compensation Court dismissed Torres' petition with prejudice, stating:

In this case, the plaintiff had numerous places of employment during the period of time he was employed by the defendant. This is a question of law of whether or not the plaintiff's assignment for three to four months to a specific job site in Wyoming constitutes a fixed place of employment.... I leave it to the appellate courts to decide whether or not a job site, which lasts three to four months, constitutes a fixed place of employment. If it does constitute a fixed place of employment then the plaintiff would not be entitled to workers' compensation benefits. If it does not constitute a fixed place of employment then plaintiff would be entitled to workers' compensation benefits.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiff's petition be, and hereby is, dismissed with prejudice.

The Workers' Compensation Court review panel found that it was "implicit in the order of dismissal" that the trial judge did not find that Torres had a fixed place of employment and that sufficient evidence existed in the record to support the trial judge's conclusions. Consequently, the review panel affirmed the dismissal of Torres' petition. Torres appeals.

ASSIGNMENTS OF ERROR

Torres assigns, consolidated and restated, that the compensation court erred in finding that Torres had a fixed place of employment, that...

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20 practice notes
  • Dawes v. Wittrock Sandblasting & Painting, No. S-02-889.
    • United States
    • Supreme Court of Nebraska
    • August 1, 2003
    ...judge with directions to enter an order complying with the requirements of rule 11. Owen, supra. See, also, Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000); Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 The situation is somewhat analogous to those faced by the appellat......
  • Skinner v. OGALLALA PUBLIC SCH. DIST. NO. 1, No. S-99-1287.
    • United States
    • Supreme Court of Nebraska
    • August 10, 2001
    ...injury is one "arising out of and in the course of" employment. Neb. Rev. Stat. § 48-101 (Reissue 1998); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). The two phrases "arising out of" and "in the course of" in § 48-101 are conjunctive; in order to recover, a claimant must es......
  • Dossett v. First State Bank, Loomis, No. S-00-245.
    • United States
    • Supreme Court of Nebraska
    • June 8, 2001
    ...on appeal that was not passed upon by the trial court. Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). Accordingly, we do not consider this argument further on 2. GRANT OF BANK'S MOTION FOR SUMMARY JUDGMENT Dossett claim......
  • Logsdon v. ISCO CO., No. S-00-035.
    • United States
    • Supreme Court of Nebraska
    • October 27, 2000
    ...compensates injury caused an employee by an accident arising out of and in the course of his or her employment. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for ......
  • Request a trial to view additional results
20 cases
  • Dawes v. Wittrock Sandblasting & Painting, No. S-02-889.
    • United States
    • Supreme Court of Nebraska
    • August 1, 2003
    ...judge with directions to enter an order complying with the requirements of rule 11. Owen, supra. See, also, Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000); Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 The situation is somewhat analogous to those faced by the appellat......
  • Skinner v. OGALLALA PUBLIC SCH. DIST. NO. 1, No. S-99-1287.
    • United States
    • Supreme Court of Nebraska
    • August 10, 2001
    ...injury is one "arising out of and in the course of" employment. Neb. Rev. Stat. § 48-101 (Reissue 1998); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). The two phrases "arising out of" and "in the course of" in § 48-101 are conjunctive; in order to recover, a claimant must es......
  • Dossett v. First State Bank, Loomis, No. S-00-245.
    • United States
    • Supreme Court of Nebraska
    • June 8, 2001
    ...on appeal that was not passed upon by the trial court. Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). Accordingly, we do not consider this argument further on 2. GRANT OF BANK'S MOTION FOR SUMMARY JUDGMENT Dossett claim......
  • Logsdon v. ISCO CO., No. S-00-035.
    • United States
    • Supreme Court of Nebraska
    • October 27, 2000
    ...compensates injury caused an employee by an accident arising out of and in the course of his or her employment. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for ......
  • Request a trial to view additional results

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