Texas Property & Cas. Ins. Guar. Ass'n For Petrosurance Cas. Co. v. Brooks

Court of Appeals of Texas,

Austin.

TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION FOR PETROSURANCE CASUALTY COMPANY, Impaired Insurer, Appellant,

v.

Randy BROOKS, Appellee.

No. 03–06–00312–CV.

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Aug. 8, 2008.

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Rehearing Overruled Nov. 19, 2008.

Attorneys & Firms

*647 David L. Swanson, Stone Loughlin & Swanson, L.L.P., Austin, for appellant.

Scott A. Stewart, Horsley & Stewart, Dallas, for appellee.

Before Justices WALDROP.

OPINION

G. ALAN WALDROP, Justice.

Appellee Randy Brooks was injured in an automobile accident while driving home from his job as a driller on an oil rig. After the Texas Department of Insurance Workers’ Compensation Division determined that Brooks’s injury was not compensable because he was not “in the course and scope of employment” at the time of his injury, Brooks brought suit against appellant Texas Property and Casualty Insurance Guaranty Association (“TPCIGA”) for workers’ compensation benefits in the district court. See Tex. Lab.Code Ann. § 406.031 (West 2006). After considering cross motions for summary judgment, the district court found that Brooks was in the course and scope of employment at the time of his injury and granted summary judgment in his favor.

On appeal, TPCIGA contends that (1) the summary judgment granted in favor of Brooks is void and must be set aside due to Brooks’s failure to file a proposed judgment with the Division pursuant to section 410.258 of the labor code before the trial court entered its summary judgment; and (2) the trial court erred by granting summary judgment in favor of Brooks because Brooks was not in the course and scope of employment at the time of his injury as a matter of law or, alternatively, that a material question of fact exists with respect to that issue.

We conclude that the trial court’s summary judgment is not void. However, we find that a genuine issue of material fact exists with respect to whether Brooks was in the course and scope of employment at the time of his injury. Accordingly, we reverse the summary judgment and remand this cause to the trial court.

Factual and Procedural Background

Brooks worked for Patterson Drilling Company as a driller on various oil rigs. From time to time, the location of Brooks’s job site would change depending on production levels of various rigs. At the time of the accident, Brooks worked the night shift on “Rig 17” near Garden City with three other Patterson employees serving as his crew. Brooks and his crew members lived in Odessa, and Brooks transported his crew between Odessa and Rig *648 17 in his personal truck.¹

Brooks and his crew were paid an hourly wage for the time they spent working at the rig site. They were not paid an hourly wage for the time spent traveling to and from the rig site. In addition to the hourly wage, Patterson paid Brooks a fixed daily amount of $50. His crew members did not receive this additional pay.

On February 21, 2001, Brooks was injured in an automobile accident while returning to Odessa from Rig 17. He was transporting his crew members at the time of the accident. Petrosurance Casualty Company, the workers’ compensation carrier for Patterson, denied Brooks’s claim for compensation on the basis that he was not “in the course and scope of employment” at the time of the accident as required by the Texas Workers’ Compensation Act. See Tex. Lab.Code Ann. § 406.031. Brooks then submitted the dispute to the Texas Department of Insurance Workers’ Compensation Division. The Division held a contested case hearing and determined that Brooks did not have a compensable claim. An appeals panel of the Division affirmed.

Brooks sought judicial review of the agency decision. While the district court action was pending, Petrosurance was declared an impaired insurer and TPCIGA became the real party in interest. See Tex. Ins.Code Ann. § 462.004(5) (West 2008) (defining “impaired insurer”). TPCIGA and Brooks filed cross motions for summary judgment. The central issue presented by their motions was whether the $50 per diem received by Brooks was compensation for transporting his crew to and from work such that his injury occurred in the course and scope of employment. The trial court found that “no genuine issues of material fact exist as to whether [Brooks] was within the course and scope of his employment” and granted summary judgment in favor of Brooks.

Section 410.258

In its first issue, TPCIGA contends that the summary judgment granted in favor of Brooks is void and must be set aside due to Brooks’s failure to file a proposed judgment with the Division before the trial court entered its summary judgment. Section 410.258 of the labor code, entitled “Notification of Division of Proposed Judgments and Settlements; Right to Intervene,” provides in relevant part:

(a) The party who initiated a proceeding under this subchapter or Subchapter G must file any proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment, with the division not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement. The proposed judgment or settlement must be mailed to the division by certified mail, return receipt requested.

....

(f) A judgment entered or settlement approved without complying with the requirements of this section is void.

Tex. Lab.Code Ann. § 410.258 (West 2006).

The dispute on this point concerns the type of judgment that must be submitted to the Division for approval under id. § 410.258(a). TPCIGA argues that “made by the parties” modifies only the term “settlement.” Under this theory, the party who initiated the proceeding must file with the Division any settlement “made by the parties” and any proposed judgment whether “made by the parties” or not. Brooks argues that “made by the parties” modifies both “settlement” and “proposed judgment.” Under his theory, the party who initiated the proceeding must file with the Division any proposed judgment “made by the parties” and any settlement “made by the parties.” This reading would require the submission only of judgments “made” or proposed to the court by the parties, such as proposed judgments that have been agreed to by the parties. It would exclude from the submission requirement all other judgments such as those entered by the court without the agreement of the parties.

Both parties contend that subsection (f) supports their view. Subsection (f) provides that “a judgment” entered without complying with the requirements of the statute is void. Id. § 410.258(f). TPCIGA contends that because “a judgment” does not distinguish between proposed judgments “made by the parties” and judgments entered by the trial court that have not been submitted by the parties by agreement, the legislature intended for the statute to apply to any judgments regardless of whether they are the result of agreement or the adversarial process. Brooks responds that, when reading the statute as a whole, the reference to “a judgment” in subsection (f) is limited by subsection (a) of the statute. He contends that the general language of subsection (f) cannot apply to a broader range of judgments than those contemplated by subsection (a), which—according to Brooks—applies only to proposed judgments “made by the parties.”

Our primary objective in statutory construction is to give effect to the legislature’s intent. (5) (West 2005).

The practical implications of both parties’ interpretations persuade us that the legislature did not intend that the statute apply to judgments entered by the trial court that were not submitted or proposed to the court by agreement of the parties or the result of a default by the defendant. The statute was intended to prevent the parties from colluding to overturn appeals *650 panel decisions.² It accomplishes this purpose by requiring submission of judgments “made” by the parties—i.e. judgments proposed to the court by agreement of the parties rather than judgments entered as a result of adversarial proceedings. If, however, the statute were to apply to any judgment, a strict reading of the statute would require a trial court to figure out a way to get the party who initiated the action to submit the judgment the court is preparing to enter to the Division for approval thirty days in advance of entry in every case.³ This would be true regardless of whether the judgment is the result of noncollusive, adversarial proceedings or the result of an agreement between the parties. If this were the procedure, a party who initiated an action for judicial review of an agency decision could avoid or delay entry of an adverse judgment by refusing, delaying, or otherwise failing to submit the judgment to the Division. In addition, judgments entered after a failure to appear by the plaintiff or after a failure to prosecute or on the court’s motion on jurisdictional grounds would have to be submitted to the Division before entry even if “the party who initiated the proceeding” is not available or is not interested in making the submission. Section 410.258 does not address these types of situations, where the entry of judgment may be appropriate but the judgment has not been proposed or “made” by the parties. Nor does the statute provide a procedure for addressing such situations or specify who is responsible for making the submission to the Division if the “party who initiated the proceeding” is not available or no longer actively involved in the litigation.

We are of the view that the statute does not address such situations because it was not designed to address them. It was designed to address judgments prepared and proposed by the parties—i.e. “made by the parties”—to avoid collusion between them without the Division’s knowledge. Such collusion could distort the litigation process. If the parties are not proposing a judgment or settlement by agreement, the litigation process is running its course without threat of collusion or distortion. The statute’s placing the burden of submitting a proposed judgment on the party who initiated the proceeding makes sense in the context of an agreed proposed judgment that the party has an interest in seeing entered. This burden does not make sense in the context of a judgment entered after fully adversarial proceedings or proceedings in which the party who initiated the proceeding has failed to appear or failed to prosecute.

We conclude that section 410.258 does not require the Division to receive advance notice of every judgment in a proceeding initiated under subchapter F or G of the labor code. Instead, we are of the opinion that the statute requires the Division to receive notice of proposed judgments “made by the parties”—i.e. without judicial oversight or without fully adversarial proceedings—and settlement agreements made by the parties. This interpretation ensures that the trial court *651 does not sign off on a proposed judgment made or agreed to by the parties before the Division has been notified and given an opportunity to intervene. Additionally, this interpretation does not place impractical procedural burdens on the trial court or permit a party who initiated the proceeding to avoid or delay entry of an adverse judgment by refusing to submit the judgment to the Division. This interpretation also gives meaning to the phrase “made by the parties” that is consistent with the purpose of the statute.

We recognize that our holding in this case is inconsistent with the El Paso Court of Appeals’ opinion in Martinez.

Our holding does not, however, conflict with the Houston court of appeals’ opinion in section 410.258 renders the judgment void.

In this case, however, there is no evidence in the record that the trial court based its summary judgment on any kind of agreement or resolution of the case made or proposed by the parties. There was no proposed judgment “made by the parties” that Brooks could have filed with the Division. The trial court prepared and entered a judgment based on its evaluation of the merits of the case and the cross motions for summary judgment filed by the parties. The judgment was entered after fully adversarial proceedings and without threat of collusion between the parties that could potentially distort the result. Such a judgment is not “made by the parties” as contemplated by section 410.258. We hold that the summary judgment granted in favor of Brooks is not void.

Summary Judgment

In its second issue, TPCIGA contends that the trial court erred by granting summary judgment in favor of Brooks because Brooks was not acting in the course and scope of employment at the time of his injury as a matter of law or, alternatively, that a genuine issue of material fact exists with respect to that issue.

*652 We review the summary judgment de novo. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000).

Under the Workers’ Compensation Act, an insurance carrier is liable for compensation for an employee’s injury if the injury arises out of and in the course and scope of employment. Tex. Lab.Code Ann. § 401.011(12) (West Supp.2008).

In this case, the parties dispute whether the additional $50 Brooks received on a daily basis was payment for transportation that would place his drive to and from oil rig sites within the “course and scope of employment.” Some of the evidence in the record suggests that Patterson paid Brooks $50 per day to transport his crew to and from work. Brooks testified at the contested case hearing that the $50 daily payment was “regularly referred to as driving pay on the rig” and “[t]hat 50 dollars a day is so you’ll show up with a full crew.” Additionally, the “Drilling Rig Safety Orientation” manual provided by Patterson to Brooks and admitted into evidence stated: “[t]he [d]riller on each tour is directly responsible to insure that his personnel arrive at the worksite prepared to work.” The record also contains the affidavit of Ron Simonds, a tool pusher at Patterson who hired Brooks to work on a rig in Fort Stockton, which stated:

Patterson referred to the additional $50.00 payment as “per diem” pay. However, at the time, more than five years after Mr. Brooks’ hire, I do not specifically recall if I referred to this additional amount as “per diem” when I hired Mr. Brooks. I may have referred to it as “driving pay” because that was a term frequently used by workers in the field.

On the other hand, the record also contains evidence suggesting that Patterson did not pay Brooks $50 per day to transport his crew to and from the rig site. When asked at the contested case hearing *653 whether “anybody at Patterson ever instruct[ed] you or t[old] you that you had to carry crew,” Brooks responded “no.” Additionally, Mark Cullifer, vice president of operations at Patterson, testified that Patterson paid every driller $50 regardless of whether that driller drove himself to the rig, transported members of his crew to the rig, or even walked to the rig. He explained the reason for the $50 daily payment as follows: “[w]e were losing drillers to our competition, and Mr. Patterson thought [the drillers] were making as much as they should make hourly. And to be honest with you we—when we raise wages it costs us a lot of money in other ways, so expense was the way that they raised their wages.” Lastly, Simonds stated in his affidavit, “I did not tell Mr. Brooks that the additional $50 per day was for transporting Patterson’s employees, or his crew, to the rig. I also did not tell Mr. Brooks that the payment was to reimburse him for the expense of operating his vehicle.”

On this record, we conclude that a fact issue exists with respect to whether the $50 daily payment provided to Brooks was compensation for transporting his crew to and from work and, therefore, transportation furnished or paid for by the employer, or some other type of additional compensation. We reverse the summary judgment and remand this cause for further proceedings consistent with this opinion.

Concurring and Dissenting Opinion by Justice PATTERSON.

JAN P. PATTERSON, Justice, concurring and dissenting.

In this workers’ compensation case, the majority misapplies the standard of review and creates a fact issue where none exists. The undisputed facts show that appellee Randy Brooks was paid $50 per day by his employer, Patterson Drilling Company, to transport his drilling crew to and from work, thereby excepting his travel home from the “coming and going” rule and rendering his injury in an automobile accident compensable under the statute. See Tex. Lab.Code Ann. § 401.011(12)(A) (West 2006). Because the majority concludes otherwise, I respectfully dissent.¹

Patterson employed Brooks as an oil rig driller, and he was injured in an automobile accident while transporting himself and his crew from the well site, located in a remote area near Garden City, to their homes in Odessa, fifty-two miles away. Brooks testified that he and his crew generally worked seven days a week from 11:00 p.m. to 7:00 a.m. and that he would only get a day off when the well was finished and Patterson would move the oil rig from one drilling site to another, sometimes as frequently as every five or six days. Brooks testified that, once Patterson moved the oil rig to a new drilling site, he would have to drive himself and his crew members to the new location. According to Brooks, he would pick up his crew members in Odessa each evening and transport them to the drilling site for work and then transport them home afterwards. Brooks further testified that, on the day before the accident, Patterson called him and instructed him to return to work after two days off because the rig had been moved and would be running again the next day.

The evidence showed that Patterson paid Brooks an hourly wage, plus a $50 per diem to cover expenses. The crux of the dispute was whether the $50 per diem *654 was for travel reimbursement. The evidence showed that, prior to hiring Brooks, Patterson reimbursed its drillers for mileage traveled to and from work. Patterson stopped its practice of mileage reimbursement in favor of a $50 per day payment to each of its employees. Patterson’s witnesses testified that this $50 payment was for “expenses.” Brooks testified that he understood the $50 payment to be “[d]riving pay, driver reimbursement.” Brooks explained that his former employer Key Energy paid him $35 as “driver reimbursement” and that when he was hired by Patterson, his hiring supervisor, Ron Simonds, told him, “Drillers make $17.00 an hour, [and] you get $50.00 a day driving, [to] bring your crew to the work site.” Brooks also stated that he would not have taken the job if Patterson had not agreed to pay for the expense of driving his crew.

According to Mark Cullifer, Patterson’s Vice President of Operations, “It was the driller’s [responsibility] to make sure he has a full crew.” Cullifer testified that if a driller continually showed up at the drilling site without a full crew “[h]e’d probably be replaced.” Cullifer also testified that it was general industry practice in the region where Brooks worked for the driller to transport his crew to and from the oil rig. The evidence also showed that Patterson paid the $50 per diem only to drillers; it did not give this per diem to the driller’s crew members. According to Patterson, it was paying the $50 per diem to drillers “because it’s competitive out there” and “we were losing drillers to our competition.” Cullifer testified that Patterson did not want to raise wages because “when we raise wages, it costs us a lot of money in other ways.” The evidence also showed that Patterson made no deduction for social security or withholding taxes from the $50 per diem paid to Brooks and the other drillers.

Presented with these facts, the district court rendered judgment for Brooks after both parties filed cross-motions for summary judgment. The majority correctly states that we review the district court’s grant of summary judgment de novo, see SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). But, in light of the undisputed facts, the majority misapplies this standard of review.

The question before us is whether Brooks’s injury in an automobile accident on the way home from work occurred within the course and scope of his employment with Patterson. If so, then it is a compensable injury, and he is entitled to receive workers’ compensation benefits. See Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 735–36 (Tex.App.-San Antonio 1998, no pet.).

As a general rule, an employee is not within the course and scope of his employment when he is injured going to and coming from work. Rose v. Odiorne, 795 S.W.2d 210, 214–15 (Tex.App.-Austin 1990, writ denied) (oil rig employee entitled to compensation if employer’s transportation plan (1) was essential for transporting employees to remote job site, (2) benefited employer, and (3) was needed to operate rig).

The facts of Id.

On these facts, the supreme court held as a matter of law that Inge was acting within the course and scope of his employment because his employer furnished the transportation as part of Inge’s contract of employment. Id.

The undisputed facts are no different here. The evidence showed that the drilling site was located in a remote area near Garden City that made it essential for Patterson to furnish transportation to its employees in order to induce them to work on this job. The substance of Brooks’s employment arrangement required him to transport his crew to and from the drilling site or face the possibility of being replaced himself. The $50 per diem paid by Patterson to Brooks was to cover his expenses. Brooks testified that his previous employer paid $35 per day in “drivers’ pay” and that he would not have taken the job with Patterson without receiving similar reimbursement. This testimony was undisputed, and Patterson admitted that it was required to pay the $50 per diem to remain competitive with other industry employers. Without the $50 per diem, Cullifer testified that Patterson would lose drillers to the competition. Regardless of the name used by Patterson to refer to the $50 per diem, Patterson’s own witness, Ronald Simonds, averred that he “may have” told Brooks that it was “drivers’ pay.” Like the employer in Inge, Patterson did not deduct taxes from the $50 per diem it paid to Brooks. The undisputed evidence further showed that, like Inge, Brooks was not in the business of carrying passengers for hire and that transporting himself and his crew members to and from the drilling site was merely part of his job as a driller working for Patterson. Because the undisputed evidence showed that Patterson paid the $50 per diem to transport Brooks and his crew members to the drilling site, I would affirm the trial court’s judgment that Brooks was acting within the course and scope of his employment when he was injured.

In addition, I observe that another exception to the “coming and going” rule is likewise applicable to the undisputed facts in this case. Subsection 401.011(12)(A) of the labor code also excepts from the general rule transportation to and from the place of employment where the employer directs the employee in his employment to proceed from one place to another place. See Tex. Lab.Code Ann. § 401.011(12)(A)(iii).

In Janak, 381 S.W.2d at 181.

The undisputed evidence in this case satisfies the exception as interpreted by the supreme court in Janak, 381 S.W.2d at 181.

Because the majority misapplies the standard of review and creates a fact issue where none exists, I respectfully dissent.