Court of Appeals of Texas,

Corpus Christi-Edinburg.

Jim GROSSMAN

v.

EMPLOYERS INSURANCE OF WAUSAU, A Mutual Company.

No. 13-95-302-CV.

|

March 20, 1997.

Attorneys & Firms

Fred Lykes, Jr. and Carter C. White, for Jim Grossman.

Lori Pritchett, for Employers Insurance of Wausau.

Before Chief Justice SEERDEN and Justices HINOJOSA and YANEZ.

OPINION

Opinion by Chief Justice SEERDEN.

*1 Jim Grossman appeals from a final summary judgment denying his “old law” workers’ compensation claim against Employers Insurance of Wausau. We reverse and remand.

On April 12, 1990, after Grossman had completed the night shift at International Muffler Company, in Schulenburg, Texas, a fellow employee instructed him to drop off some work-related parts at Kaspar Wire Works, in Shiner, Texas, adding three or four miles to Grossman’s normal route home to Yoakum, Texas. International Muffler Company did not pay Grossman an hourly wage for delivering the parts, but reimbursed him for vehicle mileage. While on route to Shiner this particular morning, Grossman fell asleep at the wheel, collided with a culvert, and sustained injuries that ultimately resulted in the amputation of his left foot. Grossman filed health insurance claims pursuant to the accident shortly thereafter, but did not file a workers’ compensation claim until January 28, 1994, upon learning that his injury may be compensable. The Texas Worker’s Compensation Commission denied Grossman’s claim, which he then appealed to the trial court. Employers Insurance filed a motion for summary judgment on the grounds that (1) Grossman was not in the course and scope of his employment at the time of the accident, (2) Grossman did not timely file a notice of injury and claim for compensation, and (3) in seeking and acquiring benefits under his employer’s group policy, Grossman made an inconsistent election of remedies that bars recovery on his workers’ compensation claim. The trial court granted a final take-nothing summary judgment in favor of Employers Insurance.

By his sole point of error, Grossman claims the trial court erred in granting summary judgment against him. The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment is proper when the movant shows by uncontroverted or conclusive summary judgment evidence that no issue of material fact exists and that he is entitled to judgment as a matter of law. In deciding whether a disputed material fact issue precludes summary judgment, a reviewing court will take as true all evidence favorable to the nonmovant and will indulge all reasonable inferences and resolve all doubts in the nonmovant’s favor. Id. When a defendant moves for summary judgment, he must show that no genuine issue of fact exists as to one or more of the essential elements of the plaintiff’s cause of action, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or that he has established an affirmative defense as a matter of law. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex.1984) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)).

Moreover, as in the present case, when the order granting a summary judgment does not specify the particular grounds sustained, the summary judgment will be affirmed if any of the theories advanced by the movant are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Accordingly, Grossman must negate at least one element of each of the three grounds for summary judgment urged by Employers Insurance.

Course and Scope of Employment

*2 Grossman argues that he was in the course and scope of employment when the injury occurred. As a general rule, a compensable employment injury must have originated in, or pertained to, the employer’s work and must have occurred while the employee was engaged in furtherance of the employer’s business and affairs. Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981).

Specifically, that part of the old workers’ compensation act regarding claims for injury sustained during travel provided as follows:

Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.

Tex.Rev.Civ. Stat. Ann. art. 8309 § 1b (repealed) (See Vernon Pamph.1997 for text of the repealed statute).¹

Accordingly, the general rule is that injuries suffered by employees while traveling on public streets and highways in going to and returning from work are not compensable. Johnson v. Pacific Employers Indemnity Company, 439 S.W.2d 824, 828-29 (Tex.1969); American General Ins. Co. v. Coleman, 303 S.W.2d 370 (Tex.1957). The rationale of the rule is that such injuries do not grow out of the employment inasmuch as the risks of the travel do not differ from those to which the general public is exposed. Johnson, 439 S.W.2d at 828-29; Texas General Indemnity Co. v. Bottom, 365 S.W .2d 350 (Tex.1963).

However, an injury received while using the public streets is compensable when the employee has undertaken a special mission at the direction of the employer or is performing a service in furtherance of the employer’s business with the express or implied approval of the employer. American General, 303 S.W.2d at 375-76; Employers Cas. Co. v. Hutchinson, 814 S.W.2d 539, 542-43 (Tex.App.-Austin 1991, no writ). A “special mission” is one in which the employee is directed to travel from one work site to another. Tramel v. State Farm Fire and Cas. Co., 830 S.W.2d 754, 756-57 (Tex.App.-Fort Worth 1992, writ denied); Freeman v. Texas Compensation Ins. Co., 586 S.W.2d 172 (Tex.Civ.App.-Fort Worth 1979), aff’d, 603 S.W.2d 186, 192 (Tex.1980).²

*3 In addition, akin to the “special mission” rule, an exception exists to the general rule disallowing compensation for injuries suffered while traveling to and from work, when injury is sustained by an employee during a deviation from his regular or more convenient route of travel to perform a service in furtherance of the affairs or business of his employer. Johnson, 439 S.W.2d at 828-29; Janak v. Texas Employers’ Insurance Association, 381 S.W .2d 176, 179-82 (Tex.1964); Employers Cas. Co. v. Hutchinson, 814 S.W.2d 539, 542-43 (Tex.App.-Austin 1991, no writ). Such travel is not considered to be in “furtherance” of the employee’s personal or private affair of getting to or from work. Johnson, 439 S.W.2d at 828-29.

In the present case, the summary judgment evidence shows that, absent the request that he deliver work-related parts to Kaspar Wire Works, Grossman would not normally have deviated to Shiner from the more direct route home to Yoakum. Moreover, the present accident occurred on the first leg of the journey, between Grossman’s regular work site and Shiner, rather than on the final leg home from work, between Shiner and Yoakum. Accordingly, the present deviation, which involved in effect a special mission from his work site to Shiner, at the least, creates a fact issue as to whether appellant was within the course and scope of Grossman’s employment. Summary judgment could not have been granted on the ground that Grossman was acting outside the course and scope of his employment when he was injured.

Limitations

With regard to the filing of Grossman’s claim for compensation, article 8307 § 4a generally requires that a claim be made within one year after the injury. However, section 4a is qualified by article 8307 § 7a, which provides that, if the Association or subscriber [International Muffler Company] has notice or knowledge of the injury, but fails to file the required report to the Industrial Accident Board under section 7, limitations is tolled until the report is actually filed. See Tex.Rev.Civ. Stat. Ann. art. 8307 §§ 4a, 7a (repealed) (See Vernon Pamph.1997 for text of the repealed statute); Masuccio v. Standard Fire Ins. Co., 770 S .W.2d 854, 855-56 (Tex.App.-San Antonio 1989, no writ); Houston General Ins. Co. v. Vera, 638 S.W.2d 102, 106 (Tex.App.-Corpus Christi 1982, writ ref’d n.r.e.). Grossman argues that he falls within this exception, since International Muffler Company had notice of the injury on the day it occurred, but failed to file a report with the Industrial Accident Board until March of 1994, several months after Grossman had filed his claim for compensation.

Employers Insurance argues that, because the injury was not in the course and scope of Grossman’s employment, it was not a covered injury that International Muffler Company was required to report. However, as we have already determined, there is at least a fact question as to whether the injury occurred in the course and scope of Grossman’s employment. The employer, moreover, is not at liberty to decide for itself which claims are potentially compensable with regard to whether or not it will submit a report to the Board. See Masuccio, 770 S.W.2d at 856-57. Because the absence of a report on a covered injury would toll limitations on the filing of Grossman’s claim, we conclude that summary judgment was improperly granted on the ground that limitations bars the present claim.

Election of Remedies

*4 Employers Insurance contends that Grossman is estopped from claiming workers’ compensation benefits by his prior acceptance of group health insurance benefits to pay for the medical expenses of his injuries.

The “election of remedies” doctrine may constitute a bar to relief when a party exercises an informed choice between two or more remedies, rights, or states of facts that are so inconsistent as to constitute manifest injustice. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980); Allstate Ins. Co. v. Perez, 783 S.W.2d 779, 781 (Tex.App.-Corpus Christi 1990, no writ). However, the choice between inconsistent remedies or rights does not amount to an election which will bar further action unless the choice is made with a full and clear understanding of the problems, facts, and remedies essential to the exercise of an intelligent choice. Bocanegra, 605 S.W.2d at 852.

Specifically, when a worker fully understands the distinction between workers’ compensation and health insurance, the nature of his injury, and which coverage should apply to it, he will be held to his election if he classifies his injury in a certain manner to obtain either health insurance or workers’ compensation benefits. See Smith v. Home Indem. Co., 683 S.W.2d 559, 563-64 (Tex.App.-Fort Worth 1985, no writ). However, when the worker is confused either about the nature or cause of his injuries, see Bocanegra, or about the distinction between, or the application of, workers’ compensation or health insurance to his injuries, he will not have made an “informed” election by applying for one in ignorance of his rights under the other. See Overstreet v. Home Indem. Co., 678 S.W.2d 916 (Tex.1984); but cf. Medina v. Herrera, 927 S.W.2d 597, 603 (Tex.1996) (acceptance of benefits for two-year period while represented by an attorney was sufficient to establish informed election as a matter of law).

In the present case, Grossman was aware of the facts of the accident, as was his employer. Grossman also stated in his deposition testimony that he was aware generally that workers’ compensation insurance covers work-related injuries, while group health insurance covers non-work-related injuries. He also had made prior workers’ compensation claims, though he had not personally initiated them or filled out the paperwork. However, Grossman was not aware that the present injury could be considered a “work-related” accident that would be covered by workers’ compensation insurance.

We conclude that the summary judgment evidence does not conclusively show that Grossman made an “informed choice” to accept health insurance benefits in lieu of workers’ compensation benefits. The mere fact that Grossman could recite the general distinction between the coverages for work-related and non-work-related injuries, does not mean that he understood the definition of a “work-related” injury or how to apply this concept to his own case. Accordingly, summary judgment should not have been granted on the ground of election of remedies. We sustain appellant’s point of error.

*5 We reverse the judgment of the trial court and remand for trial.

	Footnotes
1		The new workers’ compensation act has retained generally the same provision regarding employee travel under the definition of “course and scope of employment.” See Tex. Labor Code Ann. § 401.011(12) (Vernon 1996).
2		A more complicated situation arises when the purpose of travel includes both business and personal interests. These “dual purpose” trips are subjected to the following test: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has [had] no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk. Janak v. Texas Employers’ Ins. Ass’n, 381 S.W.2d 176, 180 (Tex.1964) (quoting Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183 (N.Y.1929) (citations omitted)); see also Thomas v. Service Lloyds Ins. Co., 860 S.W.2d 245, 248-50 (Tex.App.-Austin), reversed pursuant to settlement, 866 S.W.2d 606 (Tex.1993).