Yates v. Naylor Indus. Services, Inc., 21824-CA

Citation569 So.2d 616
Decision Date31 October 1990
Docket NumberNo. 21824-CA,21824-CA
PartiesJames H. YATES, Jr., Plaintiff/Appellant, v. NAYLOR INDUSTRIAL SERVICES, INC., and American International Group, Defendants/Appellees. 569 So.2d 616
CourtCourt of Appeal of Louisiana (US)

Rankin, Yeldell, Herring & Katz by Alex W. Rankin and Richard Bailly, Bastrop, for plaintiff/appellant.

Theus, Grisham, Davis & Leigh by Thomas G. Zentner, Jr., Monroe, for defendants/appellees.

Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

FRED W. JONES, Jr., Judge.

In this action for workers' compensation benefits, plaintiff, James Yates, Jr., appealed the judgment of the trial court in favor of defendants, Naylor Industrial Services, Inc. and American International Group, based on the ruling that plaintiff's accident did not occur within the course and scope of his employment. Finding no error, we affirm.

Issue Presented

The sole issue presented for review is whether the trial court erred in finding that the accident did not occur within the course and scope of plaintiff's employment.

Factual Context

On or about December 6, 1987 plaintiff had been employed by Naylor Industrial Services, Inc. (Naylor) for approximately two-three years. Naylor was an industrial cleaning company which primarily cleaned paper mills but also engaged in the cleaning of refineries and utility and petrochemical plants along the Gulf Coast. Plaintiff was employed at the Bastrop division of the company whose region included portions of Louisiana, Arkansas, Oklahoma and Texas. He was considered a full-time employee, employed on a 24 hour a day, 7 day a week "on call" basis. Even though plaintiff was considered a full-time employee, he was not paid any wages unless he actually worked. On occasion jobs were specifically scheduled but the company would also call in a crew when a job came up unexpectedly or another division in a different region needed a relief crew.

As part of his job duties, plaintiff performed hydroblasting, which was high pressure water cleaning of the interior and exterior of tanks, etc. The employees were required to maintain some of their own tools, such as pipe wrenches and hammers, and the company supplied tools like nozzles and tips which were used with the hydroblasting hoses. The company also provided for the employees safety equipment such as boots, slickers, gloves, wetsuits, hard hats and face shields. When required to be out of town on a job, the company paid the employees' motel expenses as well as a flat allowance of $15 per day for meals. The employees were also paid travel expenses if required to travel in their personal vehicles but were not paid such expenses when traveling to and from work.

On December 6, 1987 plaintiff had gone hunting with two co-employees near his in-laws' home when he was contacted by his wife. She informed him of a call he had received from his employer for an out-of-town job in Port Arthur, Texas. Plaintiff planned to proceed to his home in his personal vehicle, pick up his duffel bag and report to the Bastrop office for assignment. He had various items of equipment and safety gear in his vehicle. As plaintiff was driving his automobile to his home, he was involved in an accident and sustained serious injuries.

On November 23, 1988 plaintiff instituted this action for workers' compensation benefits naming as defendants, his employer, Naylor, and its insurer, American International Group. Plaintiff alleged that at the time of his automobile accident and resulting injuries, he was on a 24 hour stand-by "on call" employment basis with defendant. He contended he was called by his employer and told to report immediately to the Bastrop office for assignment to an out-of-state job. As plaintiff was proceeding in his automobile, he was injured when his vehicle left the road and overturned.

By stipulation, the trial on the merits was limited to the sole issue of whether plaintiff's accident had occurred within the course and scope of his employment with Naylor. At the trial plaintiff's manager at Naylor, DeWight Viereck, testified that plaintiff had been employed strictly on a 24 hour day "on call" basis. Viereck stated that all of the other employees of Naylor in the Bastrop area were "on call" employees. On the date of the accident, Viereck was assembling a crew of three employees to loan to the Port Arthur region of the company. The crew was required to be in Port Arthur by 7 a.m. the next morning. Viereck had been called at home to supply a crew and he telephoned in order to contact employees. Viereck testified they never knew when they were going to work and this required the employees to remain available. Employees were not paid mileage to drive from their homes to the Bastrop office and after reporting to the office the employees would have used a Naylor pick-up truck to travel to the Port Arthur job. The employees would be required to take their issued safety gear and tools and any necessary heavy equipment, such as hoses. Although lockers were provided to employees at the facility in Bastrop, many of them kept their issued safety gear and equipment, such as the required tips and nozzles, in their own vehicles to reduce response time to a job call.

Plaintiff testified that most of the jobs he was called for involved hydroblasting. When he received the call about the Port Arthur job, plaintiff got into his personal vehicle which contained his tool box, the tools to be used with the hoses and safety equipment required on the job. Plaintiff had to pick up a duffel bag at his home before proceeding to Bastrop and planned to meet his other co-employees before reporting to the office. Once there, he intended to transfer his tools and safety equipment to the pick-up truck before proceeding to Port Arthur.

After reviewing the evidence, the trial court found in favor of defendants, holding that the accident did not occur in the course and scope of plaintiff's employment. The court noted plaintiff was always considered to be an "on call" employee and was not compensated for mileage to defendant's office in Bastrop but rather was only entitled to a per diem allowance when required to travel out of the district. It further noted plaintiff took his own tool box on company jobs, which box also contained equipment such as tips and nozzles. Additionally, plaintiff had the issued safety gear which belonged to defendant. The court stated that while generally an employee is not considered to be in the course and scope of employment while traveling to and from work, if the employee was charged with a duty to transport tools, equipment or paraphernalia belonging to his employer, he might come within an exception to this general rule. Defendant allowed plaintiff to take equipment from the office and plaintiff was not required to leave all items belonging to defendant at his locker when he was not working. The court found that at the time of the accident plaintiff was carrying these items, which belonged to defendant, for his own convenience and was not carrying the equipment at his employer's direction and/or for the benefit and furtherance of his employer's business. Therefore, plaintiff failed to prove the applicability of any exception to the general rule stated above and did not prove the accident occurred during the course and scope of his employment.

Legal Principles

La.R.S. 23:1031 provides in pertinent part:

If an employee ... receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

As a general rule, accidents which occur while an employee is traveling to and from work are not considered as having occurred during the course of employment and are therefore not compensable. This rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. However, this rule has been subject to a number of jurisprudentially established exceptions. For example, these exceptions have arisen:

1) If the accident happened on the employer's premises;

2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer's business or pursuant to his employer's order;

3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;

4) If the employee was doing work for his employer under circumstances where the employer's consent could be fairly implied;

5) If the employee was hurt while traveling to and from one work site to another;

6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee, also known as the threshold doctrine; and 7) If the operation of a motor vehicle was the performance of one of the duties of the...

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    ...is suspended from the time the employee leaves his work to go home until he resumes his work." Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619 (La.App. 2 Cir.1990), writ denied, 572 So.2d 92 (La.1991). "Moreover, an employee's place of residence is a personal decision not dire......
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