Court of Appeals of Texas,
Larry BATTARBEE, Appellant,
TRANSPORTATION INSURANCE COMPANY, Appellee.
Feb. 1, 2002.
*1 In this worker’s compensation suit, Larry Battarbee appeals the trial court’s grant of a no evidence summary judgment in favor of appellee, Transportation Insurance Company (“Transportation”). Appellant raises a single point of error contending the trial court erroneously granted Transportation’s no evidence motion for summary judgment because he brought forth more than a scintilla of evidence raising a genuine issue of material fact as to whether he was acting within the scope of his employment at the time he was injured. Transportation argues appellant failed to present evidence that at the time of his injury, he was within the scope of his employment. We affirm the trial court’s judgment.
Factual and Procedural Background
Appellant, an investigator, was at a bar conducting surveillance of a subject on March 19, 1993. The subject left the bar at approximately 6:30 p.m. and was followed by one investigator while appellant and his fellow investigators remained at the bar. While at the bar, appellant drank at least part of seven alcoholic beverages. Three or four hours after the surveillance subject left,1 appellant and two other investigators left the bar for appellant’s house.
Appellant claims that while he was on his way home to discuss further surveillance of the subject, he was stopped by a Dallas police officer. The facts relating to appellant’s subsequent arrest are in dispute. However, appellant contends that after refusing a breath test for intoxication, he was placed under arrest. Appellant claims that during his arrest, the handcuffs were too tight which resulted in the bruising and numbing of his left hand. Once at the police department, appellant contends he was pushed into a chair, which tipped backwards and caused a back injury. Appellant further claims he suffered mental trauma as a result of the incident.
Appellant sought recovery under the Texas Worker’s Compensation Act (“the Act”). The Worker’s Compensation Commission Appeals panel denied appellant’s claim, because, among other things, appellant was intoxicated when injured and outside the course and scope of his employment, and appellant’s injuries were the result of the actions of a third party unconnected with his employment. Subsequently, appellant filed suit in the 101st Judicial District Court of Dallas County on the fortieth day after appellant’s appeal became final. The trial court dismissed appellant’s complaint, citing a lack of jurisdiction. This court reversed and remanded for further proceedings.
Following remand, Transportation filed a no evidence and traditional motion for summary judgment. In its motion, Transportation argued appellant failed to present any evidence that he was within the scope of his employment and that, as a matter of law, appellant’s injuries were not incurred in the scope of his employment. The trial court granted Transportation’s no evidence motion for summary judgment. Appellant appeals.
Appellant complains in a single issue that the trial court erred in granting Transportation’s no evidence motion for summary judgment. Specifically, appellant complains that he presented more than a scintilla of evidence to raise a genuine issue of material fact as to (1) whether he was acting within the scope of his employment at the time he was injured, and (2) whether his injury was sustained while engaged in activities connected to or originating from his employer. Transportation contends appellant has presented no evidence on either point.
*2 A no evidence summary judgment is essentially a pretrial directed verdict. Therefore, we apply the same legal sufficiency standard of review. TEX.R. CIV. P. 166(a)(i).
Scope of Employment
An insurance carrier is liable for an employee’s injury under the Act if, at the time of the injury, the employee was subject to the act and the injury arises out of and in the course and scope of employment. Deatherage v. Int’l Ins. Co., 615 S.W.2d 181, 181-82 (Tex.1981) (interpreting definition of course of employment under prior statute).
Appellant contends he established he was within the course and scope of employment at the time he was stopped by the Dallas police officers through competent affidavit testimony Appellant asserts that at the time he was stopped by the police for allegedly driving while intoxicated, he was within the course and scope of employment, because he was returning to his home office to discuss surveillance of a subject. Appellant presented no evidence that he was following the subject of the surveillance at the time he was stopped by Dallas police or that he was continuing any type of surveillance. In fact, appellant avers that he was leaving the bar to return to his home office, not continuing surveillance of a subject, because the subject had left the bar some three hours earlier. We conclude appellant failed to present more than a scintilla of evidence that after the subject of surveillance left the bar, appellant was engaged in or furthering the business of his employer. Therefore, we conclude appellant presented no evidence he was injured in the course and scope of employment.
Appellant contends that he was injured in the course and scope of his employment, even though at the time he was stopped by the police, he was traveling from the bar to his home office for further discussion of the surveillance. Transportation to and from the place of employment do not fall within the course and scope of employment unless (1) the transportation is furnished as part of the contract of employment or is paid by the employer, (2) the means of the transportation are under the control of the employer, or (3) the employee is directed in the employee’s employment to proceed from one place to another. TEX. LAB.CODE ANN. § 401-011(12)(A) (Vernon Supp.2002). Moreover, transportation by the employee in furtherance of the affairs of the business and personal or private affairs of the employee is not within the course and scope of employment unless (1) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs to be furthered, and (2) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel. TEX. LAB.CODE ANN. § 401.011(B) (Vernon Supp.2002).
*3 Appellant presented no evidence that his transportation from the bar to his home was in furtherance of his employers affairs. The fact that appellant may have engaged transportation sponsored by his employer is not enough to bring appellant’s injuries within the course and scope of his employment. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). We affirm the trial court’s judgment.
Appellant testified in his deposition that he left the bar at approximately 9:30 p.m.; however, appellant’s affidavit testimony and the attached receipt indicate a time of 10:33 p.m.