Torres v. Aulick Leasing, Inc., No. S-00-1187.

CourtSupreme Court of Nebraska
Writing for the CourtHENDRY, CHIEF JUSTICE.
Citation261 Neb. 1016,628 N.W.2d 212
PartiesJose L. TORRES, Appellant, v. AULICK LEASING, INC., and St. Paul Fire and Marine Insurance Company, its workers' compensation insurance carrier, Appellees.
Decision Date15 June 2001
Docket NumberNo. S-00-1187.

628 N.W.2d 212
261 Neb. 1016

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

No. S-00-1187.

Supreme Court of Nebraska.

June 15, 2001.


628 N.W.2d 215
Samuel W. Segrist, of Meister & Segrist, Scottsbluff, for appellant

Marvin O. Kieckhafer, of Smith Peterson Law Firm, North Platte, for appellees.

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

HENDRY, CHIEF JUSTICE.

INTRODUCTION

Jose L. Torres brought a workers' compensation claim against his employer, Aulick Leasing, Inc. (Aulick), for injuries he received as the result of an automobile accident which occurred while Torres was

628 N.W.2d 216
traveling from his home to the jobsite at which he was working. The trial judge of the Workers' Compensation Court dismissed Torres' claim, and the Workers' Compensation Court review panel affirmed. Torres now appeals

FACTUAL BACKGROUND

Aulick is a trucking company engaged in the business of hauling aggregate materials, including rock, sand, and dirt, to highway construction projects. The trucks used in Aulick's operations are owned by Aulick. Aulick's drivers are paid a percentage of the gross amount hauled by the driver. 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.

Torres began working as a driver for Aulick in April 1996. Torres lived in Scottsbluff but worked for Aulick on several projects at various locations throughout Nebraska, South Dakota, and Wyoming. Torres drove a truck owned by Aulick while working on each job.

Aulick's drivers generally worked Monday through Friday, with occasional work on Saturdays. Drivers were not required to stay at the jobsite on weekends and could go home if they chose to do so. Aulick's general policy regarding such travel was that for jobs lasting less than 30 days, employees were allowed to take an Aulick truck to return to their homes for the weekends. If the job was to last more than 30 days, employees were required to use their personal vehicles to return home on weekends. Generally, employees were allowed to use Aulick trucks to return home on weekends during the first 2 weeks of any new job.

In August 1996, Torres was assigned to a project in the area of Sundance and Gillette, Wyoming. The job was expected to last 4 to 5 months. Aulick established a "hub" facility at a location in Gillette consisting of fuel tanks, a maintenance van, and a mailbox in which drivers deposited their paperwork. The trucks were usually parked at this hub facility overnight and on weekends. For the first 2 weeks of this job, Torres used an Aulick truck to go home on the weekends. Torres was not paid any mileage during these trips. Thereafter, Torres used his personal vehicle to travel home on weekends as he was instructed to do by the project foreman.

In August and September 1996, while working on the Sundance-Gillette project, Torres began experiencing certain mechanical problems with the truck he was driving. He informed the project foreman of these problems. The foreman told Torres that upon returning to work on Monday, September 23, Torres should haul one load that morning and thereafter take his truck to Newcastle, Wyoming, to have the truck repaired. On Friday, September 20, Torres parked the Aulick truck in Gillette. He then traveled to his home in Scottsbluff in his personal vehicle. Torres was not being paid by Aulick during this time. During this weekend, Torres had no contact with anyone from Aulick, did not do any work for Aulick, and was not being paid by Aulick. Torres engaged in personal activities over the weekend, including helping his brother move into a new home, attending church, visiting his sister, and spending time with his family. Torres was to report back to his truck in Gillette at 6 a.m. Monday.

On Monday, September 23, 1996, at approximately 12:30 a.m., Torres began the return trip to Gillette, Wyoming, from Scottsbluff. At approximately 3 a.m., while driving his personal vehicle back to the jobsite, Torres swerved to avoid a deer and rolled his vehicle into a ditch. Torres

628 N.W.2d 217
suffered severe injuries as a result of the accident

On October 6, 1997, Torres filed a petition seeking workers' compensation benefits. Trial was held on August 4, 1998. One issue presented at trial was whether Torres had a fixed place of employment such that the "going to and from work rule" applied. Other issues presented at trial were whether Torres was a commercial traveler and whether Torres was on a "special errand" for his employer at the time of the injury.

On August 27, 1998, the trial judge of the Workers' Compensation Court dismissed Torres' petition with prejudice without making any findings of fact or conclusions of law with respect to whether Torres had a fixed place of employment such that the going to and from work rule applied, or whether Torres was a commercial traveler or on a special errand at the time of his injury. On May 3, 1999, the Workers' Compensation Court review panel affirmed the dismissal of Torres' petition, finding 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. Torres appealed.

On appeal, this court determined that because the trial court failed to make explicit findings of fact and conclusions of law on the issues presented as required by Workers' Comp. Ct. R. of Proc. 11 (1998), there could be no meaningful appellate review. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000) (Torres I). We remanded the cause to the trial court with directions to "enter an order which complies with the requirements of rule 11, taking into consideration how the going to and from work rule applies to the facts of the instant case and whether Torres was a commercial traveler or on a special errand at the time of his injury." Id. at 864, 606 N.W.2d at 103.

On remand, the trial court found that Torres had a fixed place of employment, the Sundance-Gillette jobsite, and that the going to and from work rule applied. The trial court then found that there was no causal connection between an employer-created condition and Torres' injury which would entitle Torres to recover workers' compensation benefits for injuries which occurred while on his way to work. The court further determined that Torres was not a commercial traveler, and he was not on a special errand at the time of the injury. The court then denied Torres' claim for workers' compensation benefits for the injuries sustained in the September 23, 1996, accident. An order dismissing Torres' claim was entered by the trial court on May 3, 2000. On October 20, the review panel affirmed the decision of the trial court. Torres appealed and filed a petition to bypass, which this court granted.

ASSIGNMENTS OF ERROR

Torres claims, restated, that the trial court erred in (1) applying the going to and from work rule, (2) finding that Torres was not a commercial traveler, and (3) finding that Torres was not on a special errand at the time of his injury.

STANDARD OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Cum.Supp.2000), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation

628 N.W.2d 218
court do not support the order or award. Gebhard v. Dixie Carbonic, ante p. 715, 625 N.W.2d 207 (2001); Hagelstein v. Swift-Eckrich, ante p. 305, 622 N.W.2d 663 (2001). Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. In connection with questions of law, a reviewing...

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6 practice notes
  • Frauendorfer v. Lindsay Mfg. Co., Inc., No. S-01-778.
    • United States
    • Supreme Court of Nebraska
    • February 15, 2002
    ...of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensa......
  • Zoucha v. Touch of Class Lounge, No. S-03-971.
    • United States
    • Supreme Court of Nebraska
    • January 14, 2005
    ...that a distinct causal connection exists between an employer-created condition and the cause of the injury. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). Prior to our adoption of this rule, we adhered to a "bright-line" rule, pursuant to which an employee could r......
  • Parks v. Marsden Bldg. Maint., L.L.C., No. A–11–610.
    • United States
    • Court of Appeals of Nebraska
    • April 17, 2012
    ...that the trial court was not clearly wrong in making this determination. See, Misek v. CNG Financial, supra; Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001).2. Remaining Assignments of Error In its brief, Marsden consolidates the remaining assignments of error regarding tempo......
  • Misek v. CNG FINANCIAL, No. S-02-876.
    • United States
    • Supreme Court of Nebraska
    • May 2, 2003
    ...Whether an injury arose out of and in the course of employment must be determined from the facts of each case. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). Factual determinations made by the trial judge of the compensation court have the effect of a jury verdict and will ......
  • Request a trial to view additional results
6 cases
  • Frauendorfer v. Lindsay Mfg. Co., Inc., No. S-01-778.
    • United States
    • Supreme Court of Nebraska
    • February 15, 2002
    ...of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensa......
  • Zoucha v. Touch of Class Lounge, No. S-03-971.
    • United States
    • Supreme Court of Nebraska
    • January 14, 2005
    ...that a distinct causal connection exists between an employer-created condition and the cause of the injury. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). Prior to our adoption of this rule, we adhered to a "bright-line" rule, pursuant to which an employee could r......
  • Parks v. Marsden Bldg. Maint., L.L.C., No. A–11–610.
    • United States
    • Court of Appeals of Nebraska
    • April 17, 2012
    ...that the trial court was not clearly wrong in making this determination. See, Misek v. CNG Financial, supra; Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001).2. Remaining Assignments of Error In its brief, Marsden consolidates the remaining assignments of error regarding tempo......
  • Misek v. CNG FINANCIAL, No. S-02-876.
    • United States
    • Supreme Court of Nebraska
    • May 2, 2003
    ...Whether an injury arose out of and in the course of employment must be determined from the facts of each case. Torres v. Aulick Leasing, 261 Neb. 1016, 628 N.W.2d 212 (2001). Factual determinations made by the trial judge of the compensation court have the effect of a jury verdict and will ......
  • Request a trial to view additional results

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