American Zurich Insurance Company v. Jasso

United States District Court,

W.D. Texas, Midland-Odessa Division.

American Zurich Insurance Company, Plaintiff,

v.

Sandra Jasso, Beneficiary of Hilario Jasso, Deceased, Defendant.

MO-12-CV-007

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Signed October 23, 2013

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Filed 10/24/2013

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF TRIAL COURT’S ORDER ON SUMMARY JUDGMENT

ROBERT JUNELL, United States District Judge

*1 Before the Court are Plaintiff’s Motion for Reconsideration of Trial Court’s Order on Summary Judgment (Doc. No. 40), and Defendant’s Response in Opposition to Plaintiff’s Motion for Reconsideration (Doc. No. 42). After consideration, the Court is of the opinion that Plaintiff’s motion should be denied.

BACKGROUND

I. Procedural Background

Plaintiff’s original Complaint sought review of a decision of the Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation. Compl. ¶ 7, Doc. No. 1. On September 14, 2011, the contested case hearing officer determined the Deceased, Hilario Jasso (“Jasso”), sustained a compensable injury on July 20, 2010, that resulted in his death, and that Sandra Jasso (“Mrs. Jasso”) was entitled to death benefits. Id. ¶ 8. Plaintiff contested the determinations made by the hearing officer, and pled it would show the Court the hearing officer’s decision was erroneous and the Deceased was not in the course and scope of employment at the time of his motor vehicle accident on July 20, 2010. Id. ¶ 9.

Plaintiff stated, prior to this lawsuit, it had exhausted its administrative remedies under the Texas Workers’ Compensation Act of 1989. Id. ¶ 7. After the hearing officer, on September 14, 2011, found Hilario Jasso was in the course and scope of employment when he died and Sandra Jasso was therefore entitled to death benefits, American Zurich Insurance Company appealed that decision to the Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation. Id. On December 19, 2011, the Appeals Panel did not issue an opinion relating to American Casualty’s appeal and, by failing to issue such a written decision, the benefit contested case hearing officer’s decision became final and appealable. Id.; Compl. at Exs. A–B; see also Tex. Lab.Code § 410.204(c). Thereafter, on January 25, 2012, Plaintiff filed this suit seeking a judgment setting aside the final decision of the Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation. Plaintiff counterclaimed seeking a judgment affirming the final decision of the Appeals Panel.

II. Factual Background

Hilario Jasso worked for DCP Midstream (“DCP”) on the date of his death—July 20, 2010—as the field supervisor for DCP’s Fullerton location. Hudson Dep. 8:13–16, Nov. 27, 2012; Mooring Dep. 12:11–12, Nov. 27, 2012. As part of his job as a field supervisor, Jasso was issued a cell phone, lap top, and company truck. MooringDep. 13:11–18, 15:8–16. The truck was not for personal use. Hudson Dep. 13:13–25. Jasso also had a fuel card for the truck, but paid income tax on the value of the use of the company truck to commute to and from work. Mooring Dep. 13:11–16; Hudson Dep. 39:5–24. Also as field supervisor, Jasso worked over 40 hours a week splitting time between the office and in the field overseeing various project sites. Hudson Dep. 9:15–20. Jasso lived in Odessa, Texas, and was given the discretion as to whether he would travel from home each morning to the office or directly to a field site. Id. at 42:2–7. Regardless, Jasso would travel the same route out of Odessa along Highway 385 North to either the Fullerton office or a field site. Jasso Dep. 11:3–23, Nov. 27, 2012; Hudson Dep. 34:3–11.

*2 On July 19, 2010, Jasso did not go to work; he was off work for a wellness physical. Jasso Dep. 11:24—12:13. Wellness physicals were not mandatory but DCP encouraged its employees to have them to qualify for an insurance discount. Mooring Dep. 18:1–4. On July 20, 2010, Jasso went by his physician’s office in Odessa to have his blood drawn for one more test. Jasso Dep. 12:14–23. The morning of July 20th, Jasso left his home later than he normally did because he had to wait for his doctor’s office to open.¹ Id. at 19:19–22, 21:10–12. Jasso left his home around 7:34 a.m. and drove to his physician’s office. Id. Jasso’s phone logs show he received a call from Tony Baiza (a DCP employee) at 7:24 a.m., placed a call to Lynn Hudson (a DCP employee) at 7:41 a.m., received a call from Cedric Flowers (a DCP employee) at 7:46 a.m., received a call from Larry’s Construction at 7:55 a.m., and placed a call to Lynn Hudson (a DCP employee) at 8:07 a.m. Def.’s Mot. Summ. J. Ex. 6, Hudson Dep. at Exs. 2–3, Doc. No. 16. Jasso then had his blood drawn at 8:14 a.m. Pl.’s Mot. Summ. J.App. at 16, Doc. No. 15. Thereafter, Jasso proceeded out of Odessa on Highway 385 North—his normal commute route—to a field project site known as the Love discharge facility to meet with a DCP employee, Jamie Midkiff. Jasso Dep. 14:14–22, 16:4–17:1; Hudson Dep. 18:14–25. During this commute, his company truck was struck at the intersection of Highway 385 and Loop 338 by a vehicle that ran a stop sign. Pl.’s Mot. Summ. J.App. at 38–39. Jasso was killed from the injuries sustained in the wreck. Id.

III. Summary Judgment Ruling

On December 17, 2012, both Plaintiff and Defendant filed motions for summary judgment. See Doc. Nos. 15, 16. Plaintiff asserted the issue before the Court was whether Hilario Jasso was in the course and scope of employment while commuting to work on the morning of his fatal accident, entitling Sandra Jasso to death income benefits (“DIBs”) under the Texas Workers’ Compensation Act. Plaintiff argued the summary evidence established conclusively at the time of the accident, Hilario Jasso was merely commuting to work. As such, Plaintiff contended Mrs. Jasso was not entitled to DIBs.

Defendant argued Hilario Jasso was on his way to a job site, in transportation furnished by DCP, paid for by DCP, and which transportation was under the control of DCP, in furtherance of his duties at the time he was killed. Defendant also claimed it was part and parcel of Jasso’s employment to travel. Therefore, Defendant asserted the “coming and going” rule did not apply to the death of Jasso because the undisputed facts satisfied Texas Labor Code § 401.011(12)(A), and Mrs. Jasso was entitled to DIBs.

On March 1, 2013, the Court issued an order granting Defendant’s motion and denying Plaintiff’s motion (“March 1st Order”). See Doc. No. 38. The Court found the undisputed facts established the “coming and going” rule did not apply to the travel in which Jasso was engaged at the time of his fatal accident and that this travel furthered the business of his employer. The Court also found Jasso’s travel originated in the business of his employer. Specifically, the Court found as part of Jasso’s duties, he would ideally travel to field sites about 50% of the time; however, due to paper work and reports, he traveled to field sites about 20% of the time. Mooring Dep. 12:23–13:7. Viewing the facts in a light most favorable to Defendant, the Court then found these summary facts established DCP required Jasso to travel as part of its business. See Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex.App.—Austin 2011, pet. denied)(citing Rose v. Odiorne, 795 S.W.2d 210, 214 (Tex.App.—Austin, 1990, no writ)). Therefore, the Court reasoned “the risk of traveling stems from that business and properly can be said to arise as a result of the employer’s business.” Id. Accordingly, the Court concluded the evidence established Jasso’s travel originated in his employer’s business. Consequently, the Court held Jasso was acting in the course and scope of his employment at the time of the accident, and his death was compensable. The Court then granted Defendant’s motion for summary judgment and denied Plaintiff’s motion for summary judgement. See Doc. No. 38.

STANDARD OF REVIEW

Plaintiff styles its postjudgment motion as a “Motion for Reconsideration of Trial Court’s Order on Summary Judgment.” Plaintiff, however, fails to state under which rule it seeks relief. Plaintiff’s motion was filed within 28 days from the date of the Court’s summary judgment ruling.² See Fed.R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment.”). Therefore, the Court will treat Plaintiff s motion as one seeking relief under Federal Rule of Civil Procedure 59(e).

*3 A motion for reconsideration under Rule 59(e) “calls into question the correctness of a judgment.” Templetv. Hydro Chem, Inc., 367 F.3d 473, 478 (5th Cir. 2004) (citation omitted). Rule 59(e) has been interpreted as covering motions to vacate judgments, not just motions to modify or amend. Edward H. Bohlin Co., Inc. v. Banning Co., In c., 6 F.3d 350, 355 (5th Cir. 1993). Such a motion is “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet, 367 F.3d at 479 (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Instead, a Rule 59(e) motion merely serves to allow “a party to correct manifest errors of law or fact or to present newly discovered evidence.” Id. Rule 59(e) may also provide a means for a party to bring an intervening change in the controlling law to the Court’s attention. See Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567–68 (5th Cir. 2003). District courts have “considerable discretion in deciding whether to grant or deny a motion to alter a judgment.” Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995). In exercising this discretion, a district court must “strike the proper balance between the need for finality and the need to render just decisions on the basis of all the facts.” Id. With this balance in mind, the Fifth Circuit has observed that Rule 59(e) “favor[s] the denial of motions to alter or amend a judgment.” Southern Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). That is, “[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479.

DISCUSSION

In its motion to reconsider, Plaintiff argues while the Court properly evaluated the status of the law as it pertains to assessing compensability, Plaintiff believes the Court’s factual analysis of the “origination factor” was erroneous and necessarily renders the origination factor analysis meaningless. Specifically, Plaintiff argues Jasso was merely traveling to and from work which does not fulfill the origination factor. Plaintiff further states the Court correctly noted employer-provided transportation that amounts to a necessity of employment from the employer’s perspective, and not just an accommodation to the employee, is a factor in evaluating whether travel originates in the employment. However, Plaintiff contends this factor should focus on whether providing transportation from home to work is essential in order for the employer to secure employees and not on whether employer-provided transportation is a necessity during regular working duties.

Here, the final summary judgment determination depended on whether the travel originated in the employer’s business. See Doc. No. 38. This Court noted in its March 1st Order there is no bright line rule for determining if employee travel originates in the employer’s business; each situation is dependent on the facts. McVey, 339 S.W.3d at 730. No single fact is dispositive; courts consider the nature of the employee’s job, the circumstances of the travel, and any other relevant facts. Id. As the Texas Supreme Court has stated,

When an ordinary workman who lives at home and works at a fixed location is injured while going to or returning from work, his presence at the place of injury is causally related to the employment. The services for which he is employed cannot be performed unless he goes regularly to the place where the work is to be done, and in that sense he furthers the affairs or business of his employer by making the journey. The problem in each case is to determine whether the relationship between the travel and the employment 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.

Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 242 (Tex. 2010)(quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965)).

Generally, “[w]hen the employer requires the employee to travel as part of its business—i.e, pursuant to the contract of employment—the risk of traveling stems from that business and properly can be said to arise as a result of the employer’s business.” McVey, 339 S.W.3d at 730 (citing Rose v. Odiorne, 795 S.W.2d at 214). There are various ways to prove that travel originates in an employer’s business, and thereby establish this element of the course and scope of employment requirement. Id. Depending on the circumstances, evidence of employer-provided transportation may show that an employee’s travel originates in the employer’s business. Id. However, “the mere gratuitous furnishing of transportation by the employer to the employee as an accommodation, and not as an integral part of the contract of employment, does not bring the employee, when injured in the course of traveling on streets and highways, within the protection of the [workers’ compensation statute].” Am. Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 387 (1957). In other words, employer-provided transportation that amounts to a necessity from the employer’s perspective, and not just an accommodation to the employee, may be sufficient to prove that travel originated in the employer’s business. McVey, 339 S.W.3d at 730 (citing Rose, 295 S.W.2d at 214).

*4 Plaintiff concedes traveling from one work location to another work location is generally by definition compensable. It is here where Plaintiff believes the Court improperly applied its factual analysis to evaluate origination. Plaintiff states the Court, focusing on Jasso’s daily job responsibilities, noted as a field supervisor, Jasso’s job duties required him to travel to projects and/or drive to field sites; thus, his employer required Jasso to travel as part of his business. Plaintiff confirms if Jasso had been traveling from work site to work site his injury would be compensable. Plaintiff, however, argues at the time of this injury, Jasso was traveling from a personal doctor’s office to work. Therefore, Plaintiff asserts the evidence does not demonstrate that allowing Jasso to utilize the employer’s work vehicle to travel to and from home or to make incidental stops, like the doctor’s office, was necessary to secure employees. Instead, Plaintiff argues it was a convenience to employees for which employees were taxed.

Defendant contends the Court properly applied the facts and law and should not reconsider its ruling. Specifically, Defendant argues the Court relied upon undisputed evidence that Jasso was on his way to a job site in transportation furnished by DCP, paid for by DCP, and which transportation was under the control of DCP, in furtherance of his duties at the time he was killed. Thus, Defendant asserts Jasso’s death was in the course and scope of his employment and the Court ruled properly. The Court agrees.

Here, DCP supplied Jasso a truck for business use only and paid to fuel the truck. Hudson Dep. 12:12–13:25; Mooring Dep. 13:11–16. Additionally, as a field supervisor for the Fullerton location, Jasso was required, as part of his job, to check on projects in the field (away from the Fullerton location) at least two to three times a week. Hudson Dep. 9:17–20. If there were projects in progress, Jasso would have to travel to the field more than two to three times a week. Id. Thus, as part of Jasso’s duties, he would ideally travel to field sites about 50% of the time; however, due to paper work and reports, he traveled to field sites about 20% of the time. Mooring Dep. 12:23–13:7. Viewing the facts in a light most favorable to Defendant, these summary facts establish that DCP required Jasso to travel as part of its business. See McVey, 339 S.W.3d at 730 (citing Rose, 795 S.W.2d at 214). Further, these facts establish the DCP-provided truck amounts to a necessity from DCP’s prospective because of the travel requirement imposed by Jasso’s job description. Therefore, “the risk of traveling stems from that business and properly can be said to arise as a result of the employer’s business.” Id. Accordingly, the Court concludes the evidence establishes that Jasso’s travel originated in his employer’s business. As such, Plaintiff has failed to establish as a matter of law that Jasso was not acting in the course of employment when he sustained his injury.

CONCLUSION

In this case, the Court finds Plaintiff has not demonstrated an error of the application of the facts or law that require this Court to reconsider its summary judgment order. Accordingly,

IT IS ORDERED that Plaintiff’s Motion for Reconsideration of Trial Court’s Order on Summary Judgment (Doc. No. 40) is hereby DENIED.

IT IS SO ORDERED.

SIGNED on this 23 ^rd day of OCTOBER, 2013.