Court of Appeals of Texas, Houston (14th Dist.).

Marie FLORIO a/k/a Marie Florio Clinkscales and Jack Clinkscales, Appellant,

v.

TOYS “R” US-TEXAS, INC., Toys “R” Us, Inc. and Anneliese L. Brock, Appellee.

No. 14-98-00662-CV.

|

Aug. 19, 1999.

Panel consists of Justices YATES, FOWLER and LEE.¹

OPINION

LEE, Justice.

*1 Marie Florio and Jack Clinkscales, appellants, brought suit against Toys “R” Us, and Anneliese Brock, appellees, for personal injuries sustained by Florio from a fall on the store premises. Appellees filed a motion for summary judgment asserting that appellants were barred from filing suit based on the Texas Workers Compensation Act. The trial court rendered summary judgment in favor of the appellees and this appeal followed.

Background

Marie Florio (“Florio”) was an employee at a Toys “R” Us store located in Houston, Texas. Jack Clinkscales is Florio’s husband. On July 19, 1996, Florio was on vacation and not scheduled to work, but came to the store to pick up her paycheck early. It was raining outside, and as Florio was leaving the store, she observed a fellow employee, Anneliese Brock (“Brock”), returning to the store after a break and running through the parking lot to avoid the rain. As Brock entered the foyer of the building she bumped into Florio, causing her to slip and fall on the wet floor. Florio sustained a broken hip and a broken wrist as a result of the accident. Appellants filed a personal injury lawsuit against Toys “R” Us on October 7, 1996 to recover damages for her injuries. Prior to the lawsuit being filed, neither party asserted that the accident was covered by Workers Compensation.

After a period of discovery, appellants joined Brock as an additional defendant on December 12, 1997. Shortly thereafter, on February 5, 1998, Appellees filed their motion for summary judgment. The summary judgment motion asserted that because Florio was on the premises for the purpose of picking up her paycheck, she was in the course and scope of her employment, and thus her personal injury claims were barred by the Texas Workers Compensation Act. The trial court agreed, and rendered summary judgment in favor of the appellees. Now on appeal, Florio asserts that the trial court improperly granted summary judgment because a fact issue exists as to whether she was in the course and scope of her employment on the day of the accident.

Standard of Review

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co. Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. See id. at 548-49. Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in its favor. See id. at 549.

Course and Scope of Employment

In INA of Texas v. Bryant, the Texas Supreme Court discussed the issue of whether an employee returning to work to pick up a paycheck is in the course and scope of her employment. 686 S.W.2d 614 (Tex.1985). Bryant involved a terminated employee that returned to the business to pick up her last pay check. Id. at 614. The employee was injured while on the premises, and thereafter attempted to recover workers compensation benefits. See id. The employer moved for summary judgment, asserting that the employee was not entitled to workers compensation because she was not in the course and scope of her employment when she returned to the business to pick up her final paycheck. Id. at 615. In addressing this issue, the court said:

*2 The question of coverage, therefore, turns on the character of Bryant’s return to the plant. If plant practice required Bryant to return to pick up her pay, then her injury would have occurred in the course and scope of employment. We hold that when an employee is directed or reasonably believes from the circumstances she is required by the employer to return to the place of her employment to pick up her pay after termination and an otherwise compensable injury occurs, then such an injury is reasonably incident to her employment and is incurred in the furtherance of the employer’s affairs.

Id. The only significant distinction between Bryant and the present case is that the employee in Bryant had been terminated prior to returning to the plant to pick up her paycheck. We, however, do not consider this distinction of such significance to prevent the application of the holding in Bryant to a case involving a current employee such as Florio.

Appellees’ Motion For Summary Judgment

Appellees moved for summary judgment on only one ground-that there was no genuine issue of fact that Toys “R” Us had a company policy requiring all employees to pick up their paychecks in person at the store. Accordingly, they argue that because Florio was required to come to the store to pick up her pay, she was in the course and scope of her employment, and her claims are barred by workers compensation. Florio, on the other hand, asserted that Toys “R” Us had no such policy requiring her to pick up her pay in person, or at the very least, there was a fact issue as to whether such a policy existed at the time of the accident. We must examine the summary judgment proof to determine whether appellees are correct that there is no fact issue as to whether Toys “R” Us had a policy requiring employees to return to the store to pick up their paychecks, thus entitling them to judgment as a matter of law because Florio was in the scope of her employment at the time of the accident.

Appellees presented only one piece of summary judgment proof-the affidavit of Terry Hoyme, a manager at the store where appellant works. In the affidavit, Hoyme states that at the time of the accident, a store policy existed that required employees to “personally pick up there paychecks from the store.” Hoyme then concludes that, consistent with the policy, Florio was at the store on the day of the accident for the purpose of picking up her paycheck. In response, Florio presented several pieces of summary judgment proof. Her primary piece of summary judgment proof was her sworn affidavit. In her affidavit, Florio asserted that she had never expressly been required, nor did she believe that she was required to personally pick up her paycheck. She also asserted that her husband had picked up paychecks for her in the past, she had witnessed non-employees picking up checks for other employees, and that Toys “R” Us had previously mailed paychecks to her home.¹ Finally, Florio stated that immediately following the accident, while still injured on the floor, she was told by store managers that the accident would be treated as a regular liability accident, and not a workers compensation accident. In further support of her response to the summary judgment motion, Florio presented the “customer incident” report completed by Toys “R” Us personnel on the day of the accident. This report was significant because two years prior to the accident in question, Florio was injured while on duty at the same store, and in response Toys “R” Us filled out an “employee incident” report.

*3 The summary judgment evidence presented by Florio is more than sufficient to controvert the Hoyme affidavit. Thus, we find that a fact issue exists as to whether Toys “R” Us had a policy requiring its employees to return to store to pick up their paychecks, and that the trial court erred in rendering summary judgment based on that issue.

The judgment is reversed and remanded.

	Footnotes
1		Senior Justice Norman R. Lee sitting by assignment.
1		In their brief to this court appellee’s assert that the only time that they mailed paychecks to appellant was when she was injured and not able to return to the store. However, appellees never offered any such proof to the trial court, and therefore, we will not consider it in our determination of whether summary judgment was properly granted.