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At a Glance:
Title:
Seabright Insurance Company v. Lopez
Date:
June 12, 2015
Citation:
465 S.W.3d 637
Court:
Texas Supreme Court
Status:
Published Opinion

Seabright Insurance Company v. Lopez

Supreme Court of Texas.

SEABRIGHT INSURANCE COMPANY, Petitioner,

v.

Maximina LOPEZ, Beneficiary of Candelario Lopez, Deceased, Respondent

NO. 14–0272

|

Argued March 26, 2015

|

OPINION DELIVERED: June 12, 2015

*639 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

Attorneys & Firms

Richard Pena, Law Offices of Richard Pena, PC, Austin, for Amicus Curiae Combined Law Enforcement Associations of Texas.

Joy M. Brennan, Smith & Carr, P.C., Houston, for Petitioner SeaBright Insurance Company.

Martin J. Phipps, Phipps Cavazos PLLC, San Antonio, for Respondent Maxima Lopez, beneficiary of Candelario Lopez, deceased.

Opinion

Justice Brown joined.

This workers’ compensation case requires us to determine whether summary judgment evidence conclusively established that an employee was acting in the course and scope of his employment when he died in an automobile accident while traveling to a job site. A contested case hearing officer for the Texas Department of Insurance, Workers’ Compensation Division, heard evidence and determined that the *640 employee suffered a compensable injury, and a three-member appellate panel affirmed. The insurer sought judicial review, and the trial court granted summary judgment for the claimant and affirmed the administrative decision. The court of appeals likewise affirmed. 427 S.W.3d 442, 450–51 (Tex.App.–San Antonio 2014). We agree that conclusive evidence established that the employee was acting in the course and scope of his employment at the time of his death and affirm the court of appeals’ judgment.

I. Factual and Procedural Background

The relevant facts of this case are undisputed. Interstate Treating, Inc., a company that fabricated and installed materials for the oil and gas processing industry, hired Candelario Lopez in 1999.1 Interstate Treating’s primary office and fabrication department was in Odessa, Texas. Interstate Treating provided its installation services at other, often remote, locations. Lopez resided in Rio Grande City, Texas, with his wife, Maximina Lopez, but he never worked in the vicinity of Rio Grande City during his employment with Interstate Treating. When Interstate Treating assigned Lopez to work at remote job sites, Lopez made his own living arrangements—usually staying in a motel—and Interstate Treating paid Lopez an hourly wage plus per diem for his lodging and food expenses. Interstate Treating also would provide Lopez with a company vehicle to use at the remote job locations, but Lopez was not paid for any time traveling to or from the job site.

In September 2007, Interstate Treating assigned Lopez to work on the installation of a gas processing plant near Ridge, Texas—a distance the parties estimate to be 450 miles from Lopez’s home in Rio Grande City. Although Interstate Treating expected Lopez to stay in a motel, Lopez had full control of which motel he stayed in while working at the Ridge job site. He chose to stay approximately forty miles from Ridge at a motel in Marlin, Texas. Interstate Treating allowed Lopez to use a company vehicle to drive between his motel in Marlin and the Ridge job site. Interstate Treating paid the vehicle’s insurance and provided Lopez with a credit card so that he could fuel the vehicle. Lopez drove from his motel in Marlin to the Ridge job site every day, often allowing other Interstate Treating employees to ride with him. Although Interstate Treating had no express policy regarding carpooling, the use of company vehicles to transport employees to and from remote job sites was a common occurrence. On the morning of September 11, 2007, Lopez was transporting two other Interstate Treating employees to the Ridge job site when he died in an automobile accident.

Maximina sought death benefits from Interstate Treating’s workers’ compensation insurance carrier, SeaBright Insurance Co. SeaBright denied coverage, taking the position that Lopez was not acting in the course and scope of his employment at the time of the accident. Maximina then initiated an administrative proceeding to challenge SeaBright’s denial of benefit payments. The parties participated in a contested case hearing under Texas Labor Code section 410.151, and the hearing officer determined that Lopez was acting in the course and scope of his employment and ordered SeaBright to pay death benefits. A three-member appeals panel affirmed the hearing officer’s decision.

*641 SeaBright sought independent judicial review of the administrative decision. SeaBright’s petition challenged four administrative determinations:

• Lopez’s work involved travel away from Interstate Treating’s premises;

• Lopez was engaged in or furthering the affairs or business of Interstate Treating at the time of his fatal vehicle accident on September 11, 2007;

• Lopez sustained damage or harm to the physical structure of his body in the course and scope of his employment at the time of his fatal vehicle accident on September 11, 2007; and

• Lopez sustained a compensable injury on September 11, 2007.

Both parties filed motions for summary judgment on the issue of whether Lopez was acting in the course and scope of his employment at the time of the accident. The trial court granted Maximina’s motion and denied SeaBright’s motion, affirming the administrative decision.

SeaBright appealed, and the court of appeals affirmed. Id. at 450–51.

SeaBright petitioned this Court for review. We granted the petition. 58 TEX. SUP. CT. J. 369 (Feb. 23, 2015).

II. Discussion

We review a grant of summary judgment de novo. Comm’rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex.1997).

“The Texas Legislature enacted the [Texas Workers’ Compensation] Act in 1913 in response to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied recovery.” In re Poly–Am., L.P., 262 S.W.3d at 350.

The Act provides for employee compensation when injuries “arise[ ] out of and in the course and scope of employment for which compensation is payable.” (12); 410.302(b) (“A trial [reviewing a final decision of the appeals panel regarding compensability] is limited to issues decided by the appeals panel and on which judicial review is sought.”). The Legislature defined “course and scope of employment” to mean:

[A]n activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.

Leordeanu, 330 S.W.3d at 241.

Regarding the origination element, “[a]n employee’s travel to and from work ... cannot ordinarily be said to originate in the [employer’s] business ... because ‘[t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.’ ” Am. Home Assur. Co. v. De Los Santos, No. 04–10–00852–CV, 2012 WL 4096258, at *4 (Tex.App.–San Antonio Sept. 19, 2012, pet. denied) (mem. op.).

The facts of this case are most similar to those of Id. at 869.

While In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex.2006) (orig. proceeding).

Here, we likewise review the application of law to the summary judgment evidence to determine whether the relationship between Lopez’s travel and employment is so close that it can fairly be said that his injury had to do with and originated in Interstate Treating’s work, business, trade, or profession. See Shelton, 389 S.W.2d at 292. Our starting point is to determine what Interstate Treating’s business was. Interstate Treating’s president testified in a deposition that, at the time of the accident, Interstate Treating had roughly 150 employees. About half of those employees worked at Interstate Treating’s Odessa office fabricating equipment. The other half worked on a temporary assignment installing a gas processing plant near Ridge. The location of installation employees was never permanent, and Interstate Treating installed equipment in multiple states. Although *644 Interstate Treating could have hired local employees at each temporary, remote job site, its general practice was to hire people who had worked on previous installation jobs. From the evidence in the record, we conclude that Interstate Treating’s business called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments.

We next address the nature of Lopez’s employment. Lopez had worked on previous installation jobs for Interstate Treating, and he was hired as a civil foreman at the temporary job site near Ridge. His job required him to oversee the installation of all of the plant’s concrete foundations and the placement of the plant’s equipment. While working at a temporary, remote job site like the one near Ridge, Lopez and his coworkers were paid per diem to offset lodging and food expenses. Although Lopez could stay at any motel he wished, Interstate Treating expected him to secure temporary lodging rather than commute 450 miles from his home in Rio Grande City. Upon Lopez’s request, Interstate Treating provided him with a company vehicle to drive to and from the job site and paid the vehicle’s fuel and insurance expenses. Lopez was driving himself and two of his coworkers from the motel to the Ridge job site in the company-provided vehicle when he died.

The ultimate inquiry under the origination element is to determine if the relationship between Lopez’s travel and his employment with Interstate Treating “is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” Shelton, 389 S.W.2d at 292. Maximina conclusively established the origination element.

Regarding the furtherance element, we have recognized that “[a]n employee’s travel to and from work makes employment possible and thus furthers the employer’s business.” id. Maximina conclusively established the furtherance element.

Even if an employee is engaged in actions that originate in and further the employer’s business at the time of injury, the employee may not be acting in the course and scope of his employment if his actions fall in one of two statutory exclusions. The phrase “course and scope of employment” does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 192 (Tex.1980) (stating that the exceptions to the exclusion do “not enlarge the definition of ‘course of employment’ ”).

Here, it is undisputed that Lopez was traveling only to his place of employment, rather than furthering any of his personal or private affairs. Therefore, Lopez’s travel implicates the exclusion in subsection (A) and not subsection (B). See TEX. LAB. CODE § 401.011(12)(A)(i). We therefore hold that Lopez was acting in the course and scope of his employment at the time of the September 11, 2007 accident.

III. Conclusion

Maximina conclusively established that Lopez’s travel to the Ridge job site originated in and furthered Interstate Treating’s business, satisfying the statutory definition of “course and scope of employment.” Because Interstate Treating furnished and paid for Lopez’s transportation, the statutory exclusion in subsection (A) does not apply. Therefore, we hold that Lopez was acting in the course and scope of his employment when he died, and Maximina is entitled to benefits. We affirm the court of appeals’ judgment.

Justice Johnson filed a dissenting opinion.

*646 Justice Johnson, dissenting.

In my view, Lopez’s death was not in the course and scope of his employment. Because the Court holds otherwise, I respectfully dissent.

An injured employee is entitled to compensation under the Texas Workers’ Compensation Act if “the injury arises out of and in the course and scope of employment.” TEX. LAB. CODE § 406.031(a)(2). As relevant to this case,

“[c]ourse and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place;

Id. § 401.011(12).

The definition requires two elements to be met for an injury to have occurred in the course and scope of employment. See id. § 401.011(12)(A)(i)-(iii).

An injury while traveling to or from the place of employment is excluded from coverage unless one of three exceptions to the exclusion are met. Id. But proving an exception to the coming and going rule does not mean that the travel was an activity within the course and scope of employment, so as to render the injury compensable. See Smith v. Tex. Emp’rs’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192, 193 (1937).

At the time of the accident, Lopez was traveling to work on State Highway 7 in a company truck he had been granted permission to use. Thus, an exception to the coming and going exclusion applies because the transportation was paid for by his employer, Interstate Treating, Inc. TEX. LAB. CODE § 401.011(12)(A)(i). But unless the evidence shows that his injury *647 met the furtherance and origination requirements, it was not covered.

The furtherance aspect is satisfied because Lopez was on his way to the job site. See Meyer v. W. Fire Ins. Co., 425 S.W.2d 628, 628 (Tex.1968).

The Court relies on Meyer, the injured employee was a service supervisor for a home builder. Meyer, the injured employee, frequently took calls at his home or wherever he happened to be, and responded to them directly from there. As we explained the facts,

[Meyer’s] duties did not require him to report to the office daily or at any particular time. Although he “liked to get by” the office once a day to pick up messages, he did not always do so. He did not have a desk at his employer’s office, and he usually received complaints and did his required paper work at his home.

On the day of the automobile accident and resulting injury, Meyer began the working day at home by taking two business telephone calls from Fairview Addition homeowners and completing some paper work in preparation for a meeting at the office that afternoon. He testified in his deposition that he then left his home to make service calls in a subdivision in Northeast Austin. Although he was not required to report to his employer’s office that morning and had no duties to perform there, he decided to drive by the office on his way to the subdivision to determine whether there were any messages relating to service calls in Northeast Austin, so that he could perform all his work in that area at one time. The automobile collision occurred before he reached his employer’s office, and on the usual and customary *648 route between Meyer’s home and the office.

Meyer, 425 S.W.2d at 629. The trial court granted summary judgment to the workers’ compensation insurer on the basis that Meyer was not in the course of his employment when he was injured in the accident, and the court of appeals affirmed. This Court reversed and remanded on the basis that

Meyer’s duties as a service supervisor required him to travel from place to place in order to discharge the duties of his employment. Thus there is evidence that he was impliedly directed to travel to make his service calls on the morning of the accident, and injuries thus sustained while furthering his employer’s business by making such service calls would be compensable....

The [evidence] supports the contention that Meyer was not on his way to [b]egin work, or to be assigned work; but that he had already begun work and was traveling on the streets to make service calls pursuant to his usual duties, and merely deviated to his employer’s office to see if there were other duties to be performed in the neighborhood of his planned service calls. Assuming that the evidence upon trial on the merits were to establish that Meyer was not reporting to work or to be assigned work at his employer’s office, his deviation to his employer’s office while in the course of his usual service calls would not place him within the category of workers driving from home to work, ...

Id. at 630.

The differences between Meyer’s situation and Lopez’s situation are readily apparent. Meyer did not have a fixed place to work, such as an office or particular job site. Id. Lopez had yet to begin work when he was injured. There is no evidence that express or implied conditions of Lopez’s employment contract required more than that he show up at the job site and work.

Traveling public roadways entails risks of accidents and injuries. Employees who travel as part of their duties are at risk of being injured during the travel, whereas they would not have that risk if they worked at a fixed place of employment. See Smith, 105 S.W.2d at 193. Even though the risk of traffic injuries is qualitatively the same as to both employees traveling to or from work and those employees whose job duties require travel, the latter employee’s risk of traffic injury is in addition to the risk of merely going to and from work that all employees share. Plus, travel by employees as part of their job duties clearly would be in the course and scope of employment. But Lopez had not yet begun work at the time of the accident. This risk of injury to which he was exposed on the morning of the accident was the same as any other person traveling on public roads to reach a job site. The duties of his job did not create the chances of his being injured. And the fact that he was going to work from a temporary residence in Marlin does not change that. Whether he was going to work from his home in Rio Grande City to a job site forty miles away or traveling forty miles to Interstate Treating’s job site from his temporary residence in Marlin, the risk of injury to which Lopez was exposed under the facts of this case is the same: the risk of injury in a traffic accident on a public roadway while on the way to begin work. That is not a risk covered *649 by SeaBright Insurance’s policy of workers’ compensation insurance.

The Court’s reliance on Id. at 869. In Lopez’s case, however, there were motels near the Ridge job site, and Lopez’s supervisor even asked Lopez why he was staying so far from the site.

Moreover, it was not Interstate Treating’s policy to provide its employees with off-site transportation as an employment incentive for field projects. As noted previously, the company merely acquiesced to Lopez’s request to use a company truck to travel to and from work. Interstate Treating did not initiate Lopez’s use of the truck by offering it to him. No evidence suggests that Interstate Treating explicitly or implicitly required Lopez to transport other workers to the job site, nor is there evidence that Interstate Treating promised other employees free transportation by means of the truck Lopez was given permission to use. Nothing in the record suggests that Interstate Treating had to offer transportation incentives to its field employees in order to secure or retain their employment.

The Court says that Interstate Treating’s business model calls for extended-duration field work away from employees’ residences, so Lopez’s travel was effectively dictated by Interstate Treating. ––– S.W.3d ––––. However, where the employee is traveling to a fixed-location job site on public roads, regardless of whether the employee leaves from a temporary or permanent residence, the risk is the same—the ordinary risks associated with highways and roads. There is no meaningful distinction between the two. This situation is not analogous to those instances where the duties of the job itself require travel, such as travel by delivery and service workers.

Additionally, while the Court credits Interstate Treating’s payment of a per diem as evidence of a close relationship between travel and the employment, merely increasing a worker’s pay through a per diem does not expand workers’ compensation coverage to include ordinary risks of traveling to and from a job site. A per diem is simply a form of compensation, and in Lopez’s case it was not related to commuting. As the record reflects, the per diem was for temporary housing and meal expenses. The type of lodging he rented, the location of the lodging, and the types of food he ate were not matters dictated by Interstate Treating. And to the extent the lodging was distant from the job site, exposing Lopez to increased traffic during his commute to and from work, the choice of how far he had to drive to get to work was his.

Workers’ compensation insurance is not life insurance. Nor is it all-risk accident insurance. It is insurance covering work-related injuries. While tragic, Lopez’s death under these circumstances did not originate in his employment duties for Interstate Treating. Rather, it originated in the ordinary, usual risks all workers assume when they travel to and from fixed work locations.

*650 I would hold that the record conclusively proves that the requisite nexus between the travel and Lopez’s employment duties did not exist, and Lopez was not injured in the course and scope of his employment. I would reverse the judgment of the court of appeals and render judgment for SeaBright Insurance Company.

Footnotes

1

Lopez worked temporary assignments for Interstate Treating. The record indicates that there were times between temporary assignments that Lopez was not working.

End of Document
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