United States District Court,
W.D. Texas, Midland-Odessa Division.
AMERICAN ZURICH INSURANCE COMPANY, Plaintiff,
Sandra JASSO, Beneficiary of Hilario Jasso, Deceased, Defendant.
Attorneys & Firms
Belinda Arambula, David L. Brenner, Burns Anderson Jury & Brenner, LLP, Austin, TX, for Plaintiff.
Kevin B. Miller, Law Offices of Miller & Bicklein, San Antonio, TX, for Defendant.
ORDER DENYING PLAINTIFF AMERICAN ZURICH INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT AND ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
ROBERT JUNELL, United States District Judge
*1 Before the Court are Plaintiff American Zurich Insurance Company’s Motion for Summary Judgment (Doc. No. 15), Defendant’s Motion for Partial Summary Judgment (Doc. No. 16), Defendant’s Response in Opposition to Plaintiff’s Motion for Summary Judgment (Doc. No. 18), and Plaintiff’s Response to Defendant’s Motion for Summary Judgment (Doc. No. 19). After consideration, the Court is of the opinion that the Plaintiff’s motion should be denied and Defendant’s motion should be granted.
I. Procedural Background
Plaintiff’s complaint seeks 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 that the Deceased, Hilario Jasso (“Jasso”), sustained a compensable injury on July 20, 2010, that resulted in his death, and that Sandra Jasso (“Mrs. Jasso”) is entitled to death benefits. Id. at ¶ 8. Plaintiff contests the determinations made by the hearing officer, and pleads it would show this Court the hearing officer’s decision is 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. at ¶ 9.
Plaintiff states its has exhausted its administrative remedies under the Texas Workers’ Compensation Act of 1989. Id. at ¶ 7. After the hearing officer, on September 14, 2011, found that Hilario Jasso was in the course and scope of employment when he died and that 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 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 the 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. Mooring Dep. 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.
STANDARDS OF REVIEW
I. Judicial Review Standard
If a party seeks review of a final appeals panel decision “regarding compensability or eligibility for or amount of income or death benefits,” the modified de novo procedures apply. Tex. Lab.Code § 410.301; Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex.1999). Further, issues concerning whether an injury occurred within the scope of employment are also subject to modified de novo review. Tex. Prop. & Cas. Guar. Ass’n v. Nat’l Am. Ins. Co., 208 S.W.3d 523, 535 (Tex.App.—Austin 2006, pet. denied).
II. Burden of Proof
Plaintiff American Zurich Insurance Company, as the party appealing the decision of the Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation, has the burden of proof. Tex. Lab.Code § 410.303.
III. Summary Judgment Standard
Summary judgment should be granted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996).
If the movant carries this burden, the burden shifts to the nonmovant to show the existence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party may not rest upon the allegations or denials contained in his pleading, but instead he must show specific facts creating the existence of a genuine issue that needs to be decided by a factfinder. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Conclusional allegations, speculation, improbable inferences, or a mere scintilla of evidence are insufficient to defeat a summary judgment motion. Michaels v. Avitech, Inc., 202 F.3d 746, 754–55 (5th Cir. 2000).
Any inferences drawn from the underlying facts in dispute must be viewed in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587. If the record, viewed in this manner, could not lead a rational trier of fact to find for the nonmovant, then summary judgment is proper. Kelley v. Price–Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993)(citing Matsushita, 475 U.S. at 577–78). If, on the other hand, the factfinder could reasonably find in the nonmovant’s favor, then summary judgment should be denied. Id. (citing Anderson, 477 U.S. at 250). Finally, even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that it would be prudent to proceed to trial. Anderson, 477 U.S. at 255.
*3 Plaintiff asserts the issue before the Court is 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 argues the summary evidence establishes conclusively that at the time of the accident, Hilario Jasso was merely commuting to work. As such, Plaintiff contends Mrs. Jasso is not entitled to DIBs.
Defendant argues 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 claims it was part and parcel of Jasso’s employment to travel. Therefore, Defendant asserts the “coming and going” rule does not apply to the death of Jasso because the undisputed facts satisfy Texas Labor Code § 401.011(12)(A), and Mrs. Jasso is entitled to DIBs.
I. Standards Governing Course and Scope of Employment
Here, the parties agree to the facts of the case as stated above. They disagree, however, as to whether the undisputed facts demonstrate that Jasso’s death occurred within the course and scope of his employment as defined by the Workers’ Compensation Act.
An injury, under the Workers’ Compensation Act, is compensable when it “arises out of and in the course and scope of employment for which compensation is payable.” Tex. Lab.Code § 401.011(10). Section 401.011(12) of the Texas Labor Code defines “[c]ourse and scope of employment” as “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.” Id. at § 401.011(12). To be considered in the course and scope of employment, the employee’s injury must (1) relate to or originate in the employer’s business, and (2) occur in furtherance of the employer’s business. See Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241—44 (Tex.2010); Tex. Lab.Code § 401.011(12). The employee must establish both elements to satisfy the course and scope requirement. See Leordeanu, 330 S.W.3d at 241; Tex. Lab.Code § 401.011(12).
Even when both the origination and furtherance requirements are satisfied, subsections (A) and (B) of § 401.001(12) nonetheless exclude two distinct circumstances from the course and scope of employment. See Tex. Lab.Code § 401.011(12)(A), (B). In this case, both parties agree only Subsection (A) is implicated.2 Under subsection (A)’s exclusion, “course and scope of employment” does not include “transportation to and from the place of employment” unless one of three exceptions to the exclusion applies:
(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.at § 401.011(12)(A)(i), (ii), (iii). The exception under § 401.011(12)(A)(iii) pertaining to circumstances in which “the employee is directed in the employee’s employment to proceed from one place to another place” is referred to in case law as “special mission” travel.3 See Evans v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 304 (Tex. 1990); Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex.App.—Austin 2011, pet. denied). These three exceptions are disjunctive; “if any one is met, the exclusion does not apply, and travel to and from work is not excluded from the course and scope of employment.” Leordeanu, 330 S.W.3d at 244.
*4 This language in subsection (A) codifies the “coming and going” rule and its exceptions, which developed to address an employee’s travel between home and work. Id. at 242 (citing Janak v. Tex. Emp’rs’ Ins. Ass’n, 3 81 S.W.2d 176, 178 (Tex.1964), and Am. Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957)). While recognizing that employee travel to and from work furthers the employer’s affairs by making employment possible, cases reasoned that such travel generally does not 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.’ +” Leordeanu, 330 S.W.3d at 242 (quoting Evans, 790 S.W.2d at 305); see also McVey, 339 S.W.3d at 728.
Satisfying the exceptions to the exclusions under subsections (A) or (B), however, does not automatically establish that the travel at issue falls within the course and scope of employment. See McVey, 339 S.W.3d at 729. Satisfying these exceptions establishes only that these exclusions do not apply. Id. Section 401.011(12)’s separate origination and furtherance requirements still must be met to establish that an activity falls within the course and scope of employment. Id.
II. Application of Standards
In this case, it is undisputed that at the time of his fatal accident, Jasso was traveling from home to work, thereby potentially implicating the “coming and going” rule. See Tex. Lab.Code § 401.011(12)(A). It is also undisputed, however, that Jasso was traveling in a vehicle that his company provided and paid for, thus coming squarely within the exception in subparagraph (i) of the rule—“the transportation is furnished as a part of the contract of employment or is paid for by the employer.” See id. at § 401.01 l(12)(A)(i). Consequently, Jasso’s travel is excepted from the “coming and going” rule. See Leordeanu, 330 S.W.3d at 249 (“It is undisputed that Leordeanu was driving a car provided by her employer at the time of her accident and therefore excepted from the ‘coming and going’ rule by subpart (A)(i).”). Nevertheless, the fact that the employer furnished the truck involved in the accident is not, in and of itself, sufficient to establish that Jasso was in the course and scope of his employment. See Tex. Gen. Indent. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963) (“We have not said or held, however, that an employee is in the course of his employment whenever he rides in a vehicle owned, or is otherwise furnished transportation, by the employer.”). To prevail on its summary judgment motion, Plaintiff is required to establish that Jasso’s travel did not originate in his employer’s business, and that Jasso was not traveling in furtherance of the employer’s business when the accident occurred.
As previously noted, an employee’s travel between home and work furthers the affairs of the employer (the second element of the course and scope definition) because it makes employment possible. See Leordeanu, 330 S.W.3d at 240–42. Thus, the final summary judgment determination here depends on the definition’s first element—whether the travel originated in the employer’s business. See Tex. Lab.Code § 401.011(12). 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,
*5 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.
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 210, 214 (Tex.App.—Austin, 1990, no writ)). 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].” Coleman, 303 S. W.2d at 387. 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).
Plaintiff argues that although DCP furnished the truck and paid for fuel, at the time of the accident Jasso was merely traveling to work, or an alternate first work site. Plaintiff further asserts there is no evidence that Jasso was performing any other duties during his commute that originated in DCP’s business. Defendant argues Jasso’s injury originated in the business of the employer because Jasso had been issued a company truck, it was part and parcel of his employment to travel, he was driving to a meeting with Jamie Midkiff, and he had been traveling to an alternate work location at the time of the accident.
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. 12:2313:7. 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). 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.
*6 Based on the above-stated reasons, the Court holds, as a matter of law, the undisputed facts establish that 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 finds that Jasso’s travel originated in the business of his employer. Consequently, Jasso was acting in the course and scope of his employment at the time of the accident, and his death is compensable. Accordingly,
IT IS ORDERED that Plaintiff American Zurich Insurance Company’s Motion for Summary Judgment (Doc. No. 15) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial Summary Judgment (Doc. No. 16) is hereby GRANTED.
SIGNED this 1st Day of MARCH, 2013.
Normally, Jasso would be at the Fullerton office by 6:30 a.m. or 7:00 a.m. Hudson Dep. 32:9–12.
The Texas Supreme Court held in Leordeanu that “only subsection (A) applies to travel to and from the place of employment, and that subsection (B) applies to other dual-purpose travel.” 330 S.W.3d at 248.
The Court notes neither party argues Jasso was on a special mission regarding his physical wellness appointment. Even so, the evidence in this case shows that Jasso was not on a special mission with regard to his physical. A special mission is at the direction of an employer or is otherwise performing a service in furtherance of the employer’s business with the express or implied approval of the employer. Upton v. Gensco, Inc., 962 S.W.2d 620, 621–22 (Tex.App.—Fort Worth 1997, pet. denied); Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex.App.—El Paso 1993, no writ); Gebert v. Clifton, 553 S.W.2d 230, 232 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dismissed). It involves work or a work-related activity apart from the employee’s regular job duties. See Chevron, 847 S.W.2d at 356 (employee traveling en route to mandatory seminar was on a special mission);Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 129 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.) (employees traveling from job site to pick up supplies were on a special mission);see also Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 654 (Tex.App.—Houston [1 st Dist.] 1993, writ dism’d w.o.j.) (employee who stopped at friend’s house to retrieve briefcase so she could work at home was not on a special mission). An employee is not engaged in a special mission when the employer neither requires a particular means of travel, nor directs the employee to take a particular route. Upton, 962 S.W.2d at 622.
In this case, although the records shows DCP encouraged annual physical wellness checks, it also shows Jasso had control over scheduling his physical. There is no testimony that one of Jasso’s supervisors directed him to take a physical or to take a physical on that particular day. The decision as to when and if to take a physical was left to Jasso, and the record shows that Jasso decided on his own to schedule his physical on July 19th and return for blood work on July 20th before driving to work. The record also shows Jasso decided what route to take to the physical and on to the Love discharge facility.