Winters v. Highlands Ins. Co.

• Decision Date: 09 March 1978
• Docket Number: No. 76-2368,76-2368
• Citation: 569 F.2d 297
• Parties: Mrs. Jane WINTERS, widow of Edwin J. Terrebonne, Jr., Individually and as natural tutrix of the minors Edwin J. Terrebonne and Melissa J. Terrebonne, Plaintiffs-Appellants, v. HIGHLANDS INSURANCE COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 297

569 F.2d 297

Mrs. Jane WINTERS, widow of Edwin J. Terrebonne, Jr. Individually and as natural tutrix of the minors Edwin J. Terrebonne and Melissa J Terrebonne, Plaintiffs-Appellants, v. HIGHLANDS INSURANCE COMPANY et al., Defendants-Appellees.

No. 76-2368.

United States Court of Appeals Fifth Circuit.

March 9, 1978.

Donna D. Fraiche, John R. Martzell, I. Jay Krieger, New Orleans, La., for plaintiffs-appellants.

John J. Cooper, New Orleans, La., for Brown & Root, et al.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN and FAY, Circuit Judges, and KING, ^* District Judge.

COLEMAN, Circuit Judge.

This appeal is from a summary judgment for the defendants in a wrongful death action. The diversity suit was brought by the widow, Jane Terrebonne, individually and on behalf of her two minor children, alleging the wrongful death of her husband. Mr. Terrebonne was killed on December 2, 1974, when his car collided headon with one driven by Clarence King. Named defendants were King and his automobile insurer; Brown & Root, Inc., as King's employer; and Highlands Insurance Company, the employer's general insurer.

The District Court granted summary judgment for Brown & Root and its insurer, declaring that there was no genuine issue of material fact and that as a matter of law King was not within the course and scope of his employment at the time of the fatal collision.

While the basic facts are not in dispute, the inferences which a reasonably minded jury could draw from those facts preclude, in our opinion, summary judgment for the defendants. We accordingly reverse and remand for a jury trial.

Clarence King was first employed by Brown & Root, Inc. in 1968. In 1974 he was employed by the company's power division in Woodbridge, Virginia. In November of that year King terminated his employment with the power division, but went to Houston to seek employment with the marine operators division of Brown & Root, where he had previously worked. Although without a commitment from the company, King expected to be employed by the marine operators division.

After King arrived in Houston, he got in touch with the Houston office and was offered a job beginning December 2, 1974 as timekeeper on the company work barge H. A. LINDSEY, out of Morgan City, Louisiana. He was instructed to catch the company crew bus, leaving Houston for Morgan City at 7:00 a. m., December 2. This bus transported the employees to a company crew boat in Morgan City, which would take the employees out to the work barge. King, however, overslept on the morning of the second and missed the crew bus. He notified the company by telephone that he had missed the bus and would drive his personal car to Morgan City. The company did allow employees to drive their own cars from Houston to Morgan City. Defendant finally left Houston about one o'clock, after first going to the company office to complete employment forms and thereafter conducting some personal business.

King believed from past experience with the company that the crew boat was scheduled to depart Morgan City about 1:30 o'clock. Since the drive from Houston to Morgan City normally required about six hours King expected to miss the 1:30 boat; however, he intended to catch the next available boat. Unknown to King, bad weather had delayed the boat's departure until 10:45 p. m. From about 6:30 to 7:30 King stopped in Lafayette, where he had a sandwich and three beers.

After arriving in Morgan City, King mistakenly drove several miles past the Brown & Root yard. Realizing his mistake he turned around and headed back toward the yard. Before he reached the yard, driving in the wrong traffic lane, at about 9:00 p. m., King collided headon with the car driven by Terrebonne, killing him.

Brown & Root paid its employees a travel allowance from Houston to Morgan City. This allowance was not computed on the basis of mileage, actual travel expenses, or actual travel time, but was based on a fixed period of time, six hours, at the employee's base hourly rate. The travel allowance was paid whether the employee rode the bus or drove his own car. Because his trip to the crew boat ended prematurely in the accident which killed the plaintiff's husband King was never paid the travel allowance. In fact, King did not earn any pay from the marine operators division of...