Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/16/2015 2:01:22 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-14-00685-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/16/2015 2:01:22 PM KEITH HOTTLE CLERK
DOCKET NO. 04-14-00685-CV _____________________________________ IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
_____________________________________ AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, Appellant,
v.
DENISE BUSHMAN, AS BENEFICIARY OF CLAYTON F. BUSHMAN, JR., DECEASED Appellee.
On Appeal from
The 25th Judicial District Court of Guadalupe County, Texas
Cause No. 12-0823-CV APPELLANT’S MOTION FOR REHEARING David Brenner
State Bar No. 2958020
Belinda May Arambula
State Bar No. 24060241
BURNS ANDERSON JURY & BRENNER, L.L.P.
P.O. Box 26300
Austin, Texas 78755-6300 (512) 338-5322 (telephone) (512) 338-5363 (facsimile) Attorneys for American Casualty Company of Reading Pennsylvania
TABLE OF CONTENTS
Page INDEX OF AUTHORITIES ................................................................................... iii
ISSUES PRESENTED FOR REVIEW ..................................................................... 2
There are three distinct factors that must be established to demonstrate course and scope in a commuting injury. First, “furtherance;” second, “origination;” and third, one of the exceptions to the commuting exclusion, contained in Texas Labor Code section 410.011(12)(A), must be met. Does the analysis of each factor focus on that factor’s unique factual characteristic, or can the factual analysis of one factor substitute for another factor? ............................................................................................... 2 ARGUMENT AND AUTHORITIES ON REHEARING ......................................... 2
1. Gratuitously furnishing transportation ...................................................... 5 2. A furtherance factual analysis was used to find origination. .................... 9 3. Exception elements were also used to find origination. .........................10 4. The court appears to apply a continuous coverage analysis ...................12
CONCLUSION ........................................................................................................14
PRAYER ..................................................................................................................14
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
ii *3 INDEX OF AUTHORITIES Cases Page
American Home Assur. Co. v. De Los Santos ,
04-10-00852-CV, 2012 WL 4096528 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) .........................................................................................................5, 6 American Motorists Ins. Co. v. Steel ,
229 S.W.2d 386 (Tex. Civ. App.—Fort Worth 1950, writ ref’d n.r.e.) ................. 3 Collins v. Indemnity Ins. of North America ,
2011 WL 1631590 (Tex. App— San Antonio 2011, pet. denied) .....................6, 7 ESIS, Inc., Servicing Contractor v. Johnson ,
908 S.W.2d 554 (Tex. App.—Fort Worth 1995, writ denied) ............................... 4 Forwood v. City of Taylor ,
14 S.W.2d 282 (Tex. 1948) ..............................................................................4, 10 Int’l Ins. Co. v. Deatherage ,
628 S.W.2d 209 (Tex. App.—Austin 1982, no writ) ............................................. 4 Leordeanu v. Am. Prot. Ins. Co. ,
330 S.W.3d 239 (Tex. 2010) ............................................................................3, 10 Lesco Transp. Co., Inc. v. Campbell , 500 S.W.2d 238 (Tex. Civ. App.—Texarkana
1973, no writ) ......................................................................................................... 4 Lumberman’s Reciprocal Ass’n v. Behnken ,
112 Tex. 103246 S.W.2d 72, 73 (Tex. 1922) ......................................................... 4 R.R. Comm’n of Texas v. Texas Citizens for a Safe Future & Clean Water ,
336 S.W.3d 619 (Tex. 2011) ............................................................................4, 11 SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, No. 14-0272, 2015 WL 3653289
(Tex. June 12, 2015) ............................................................................ 2, 3, 7, 8, 10 iii
Seabright Ins. Co. v. Lopez ,
427 S.W.3d 442, (Tex. App.—San Antonio 2014), review granted (Feb. 20, 2015), aff'd sub nom. SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, 2015 No. 14- 0272, 2015 WL 3653289 (Tex. June 12, 2015) ...............................................7, 13 Texas Mut. Ins. Co. v. Jerrols,
385 S.W.3d 619 (Tex. App.—Houston [14th Dist.], pet. dismissed) ..................13 Statutes
Tex. Lab. Code § 401.011 ....................................................................................3, 10
iv *5 DOCKET NO. 04-14-00685-CV _____________________________________ IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
_____________________________________ AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, Appellant,
v.
DENISE BUSHMAN, AS BENEFICIARY OF CLAYTON F. BUSHMAN, JR., DECEASED Appellee.
On Appeal from
The 25th Judicial District Court of Guadalupe County, Texas
Cause No. 12-0823-CV APPELLANT AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA’S MOTION FOR REHEARING TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:
In evaluating course and scope of employment, this Court articulated a three-step analysis required by Texas law in a commuting case. The Court then
expressed the unique characteristic of each of those steps. But then, in the Court’s
factual analysis of each step, the Court appears to interchange elements of one step
with those of the other steps. At the same time, the Court’s factual analysis appears
to overlook a fact which this Court and sister courts have historically held is key in
evaluating origination. Because the factual analysis applied by the Court appears
inconsistent with its unambiguous statement of the law, and the Court’s analysis
conflicts with prior decisions of this Court and sister courts, Appellant, American
Casualty Company of Reading Pennsylvania, seeks Rehearing.
ISSUES PRESENTED FOR REVIEW There are three distinct factors that must be established to demonstrate course and scope in a commuting injury. First, “furtherance;” second, “origination;” and third, one of the exceptions to the commuting exclusion, contained in Texas Labor Code section 410.011(12)(A), must be met. Does the analysis of each factor focus on that factor’s unique factual characteristic, or can the factual analysis of one factor substitute for another factor?
ARGUMENT AND AUTHORITIES ON REHEARING This Court correctly identified three distinct factors for demonstrating compensability in a commuting case. First, “ furtherance, ” the injury must occur
while the employee is engaged in or about the furtherance of the employer’s affairs
or business. Second, “ origination, ” the injury is of a kind and character that had to
do with and originates in the employer’s work, trade, business, or profession.
Third, the Court must also evaluate if an employee qualifies for one of the three
*7 disjunctive exceptions to the commuting exclusion contained in Texas Labor Code
subsections 410.011(12)(A). [3] The exclusion, a codified version of the common law
“coming and going” rule, excepts travel to or from work from course and scope
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. [4]
No element alone is sufficient to demonstrate compensability of an injury; [5] furtherance, origination, and one of the three exceptions must be proven. [6] The
evaluation of the furtherance component is separate and apart from origination, and
evaluation of the origination component is likewise separate and apart from the
exceptions to “coming and going” exclusion.
While the furtherance factor focuses on the business purpose or benefit to the employer from an employee’s activity at the time of injury, the origination
factor should not. Otherwise, the “origination” factor becomes redundant to the
“furtherance” factor and, thus, meaningless. Whether an injury originates in the
workplace turns on whether the injury results from a risk or hazard that is
*8 reasonably inherent or incident to the work or business. [7] That is why in Lesco
Transp. Co., Inc. v. Campbell , [8] the court stated that an injury arises out of
employment when it reasonably appears from all facts and circumstances that there
is a causal connection between the conditions under which work is required to be
done and the resulting injury.
A fundamental and universal rule of statutory construction is that a general provision must yield to a succeeding specific provision dealing with the same
subject matter. [9] The statute must be read as a whole and interpreted to give effect
to every part. When the Legislature uses a word or phrase in one portion of a
statute but excludes it from another, the term’s exclusion should be interpreted as
purposeful and should not be implied where it has been excluded. [10]
Injuries that occur while traveling to or from work require a fact intensive evaluation of origination separately from the existence of the statutory “coming
and going” exclusion. Applying the exclusion and the furtherance factors to the
origination analysis renders the origination factor meaningless. Here, in evaluating
compensability, the Court’s opinion does not include the fact intensive evaluation
*9 of the employer’s business, which the Texas Supreme Court required in both
Seabright and Leordeanu , while ignoring those facts which this Court historically
held preclude finding origination. Then the opinion not only applies the coming
and going factors but, also the furtherance factor, to its evaluation of origination.
Finally, the Court’s opinion conflicts with previous opinions of this Court and the
Texas Supreme Court. For this reason, American Casualty respectfully requests
rehearing.
1. Gratuitously furnishing transportation
This Court has held that a failure to prove that transportation was provided as a necessity for the employer to secure workers, as opposed as to a gratuity,
precludes summary judgment on the question of origination. Yet, here, the Court
overlooked this aspect of origination.
In American Home Assur. Co. v. De Los Santos , Noela De Los Santos was driving a company truck from home to work at a remote well when killed in an
accident. The widow, like here, argued that because De Los Santos was required to
drive for work, and was driving to work in a company-provided truck, the accident
originated in the employer’s business. This Court held that, as a general rule, an
employee’s travel originates in his employer’s business if the travel was pursuant
to the express or implied requirements of the employment contract. This Court
*10 held that while the evidence showed that the employer
provided De Los Santos with a company truck, the evidence failed to establish why
the truck was furnished. None of the stipulated facts addressed the issues of
whether the employer provided De Los Santos with a company truck because the
worksite was remote, or because the company-furnished truck was part of the
employer's plan to have its employees arrive and leave at the same time. Nor did
the stipulated facts show it was necessary for the employer to
furnish De Los Santos with a company truck in order to induce him to work at this
worksite. Therefore, this Court concluded that the evidence simply did not
demonstrate that the company truck driven by De Los Santos was an integral part
of his employment contract. Because the mere gratuitous furnishing of a vehicle by
an employer to the employee is not sufficient to demonstrate origination, this Court
held summary judgment in favor of the employee was inappropriate.
In Collins v. Indemnity Ins. of North America , this Court considered an injury that occurred to a flight attendant while commuting home from Houston to
San Antonio on an employer aircraft. Distinguishing furtherance from origination,
this Court held that because Collins offered no evidence in the record that she
planned to do work as she was traveling home, Collins failed to prove her travel
*11 home related to or originated in her employer’s business. [14]
Again, in Seabright Ins. Co. v. Lopez , [15] this Court dealt with a compensability question for an employee killed while driving from a motel, 450
miles away from his home, to a nearby worksite in a company-provided vehicle. In
evaluating origination, this Court again held that while an employer's provision of
transportation might be some evidence that an employee's trip originated in his
employer's business, it is insufficient in itself to establish origination. Only
employer-provided transportation that amounts to a necessity, from the employer's
perspective, and not just a gratuitous accommodation to the employee, is sufficient
to prove that travel originated in the employer's business. [16]
In reviewing this Court’s decision in Seabright , the Texas Supreme Court, focusing on the origination factor and consistent with historical precedent, held
that an employee’s travel to and from work cannot ordinarily be said to originate in
the employer’s business because the 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 employer’s work. [17] However, a distinction can be made if the
relationship between the travel and the employment is so close that it can fairly be
*12 said that the injury had to do with and originated in the work, business, trade, or
profession of the employer. [18] Undertaking a fact intensive evaluation of the nature
and business model of the employer’s business, the Court concluded the
employer’s business called for employing specialized, non-local work crews in
constantly changing, remote locations on temporary assignments. [19] The employer’s
business required its installation workers, like Lopez, to obtain temporary housing
and travel from that temporary housing to that temporary, remote location. Lopez’s
travel from his temporary housing to the Ridge job site and, more importantly, the
risks associated with such travel, were dictated by the employer’s business model
and enabled by the employer’s provision of the vehicle and payment of per diem
and other expenses. Thus, the Court concluded that the evidence conclusively
established Lopez was exposed to a risk or hazard that originated in the
employment at the time of his injury.
Yet, here, unlike the Texas Supreme Court’s analysis in Seabright , the Court’s opinion has no factual analysis of the nature of the employer’s business or
the employer’s business model, nor did it evaluate how or why the employer’s
business model increased the risk of harm to Clayton Bushman while commuting
to Elgin. Unlike this Court’s analysis in Collins, the opinion here does not analyze
*13 whether Clayton Bushman was undertaking any task for the employer at the time
of his injury, other than commuting.
While the Court acknowledges that it should review summary judgment evidence “in the light most favorable to the party against whom the summary
judgment was rendered, (Appellant here), it finds the fact that mileage was
reimbursed as a strong factor in favor of origination. The Court’s reliance on this
fact conflicts with precedent, that summary judgment is not appropriate if there is
no proof that employer reimbursement is a necessity from the employer’s
perspective, as opposed to a gratuitous accommodation to the employee.
Here, Appellee failed to present any evidence that mileage was paid as a necessity of employment and, in fact, the evidence established the contrary: the
employer specifically testified that Clayton Bushman was not paid for his commute
time and paying mileage to commute to work was not necessary for Salem to
attract dispatchers. Thus, applying this Court’s previous precedent, the granting
of summary judgment should have been reversed.
2. A furtherance factual analysis was used to find origination.
The Court’s opinion suggests that because driving from his home in Sequin to Elgin, as opposed to Clayton Bushman’s regular commute from Seguin to San
Antonio, was necessary for Clayton Bushman to perform his job, this created
*14 origination as a matter of law. The analysis is problematic because it applies a
furtherance analysis to origination . Furtherance and origination are each unique
elements of the analysis. [23] Travel to work fulfills the furtherance element of course
and scope because an employee’s travel to and from work is necessary for an
employee to perform his job and makes employment possible. [24] While the
necessity of the employee driving to work to ultimately perform his job is clearly a
furtherance factor, the Court’s opinion treats it as an element fulfilling origination.
3. Exception elements were also used to find origination.
The three disjunctive exceptions to the coming and going exclusion from course and scope contained in Texas Labor Code subsections 410.011(12)(A) [25] are
met when (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. [26] Because a fundamental
and universally accepted rule of statutory construction is that a general provision
must yield to a succeeding specific provision dealing with the same subject
matter, [27] and that words or phrases in one portion of a statute that are excluded
*15 from another should be interpreted as purposefully excluded, [28] it must necessarily
be concluded that the evaluation of origination factor is factually unique from the
exceptions to the coming and going exclusion. Yet, to find origination, in addition
to considering evidence germane to furtherance as discussed above, the Court
looked at two exclusion facts. The Court stated:
Salem did not ordinarily reimburse Clayton for travel from his home in Seguin to the truck yard in the San Antonio area, but Salem would reimburse Clayton for his travel expenses for traveling from Seguin to Elgin and his lodging expenses if he chose to stay overnight in Elgin. [29]
This appears to be the same evidence relied upon by the Court to evaluate the
exclusion ( i ) from coming and going, that is, whether the transportation is
furnished as a part of the contract of employment or is paid for by the employer.
The Court also identified the following fact as relevant to origination: “Salem instructed Clayton, who lived in Seguin, to report to Elgin and work there
for a week to train a new dispatcher.” This, too, is a disjunctive coming and going
exclusion exception: whether the employee is directed in the employee’s
employment to proceed from one place to another place. In evaluating the facts
relied on by the Court for origination, one can only conclude that meeting the
exception under Texas Labor Code section 401.011(12)(A) is synonymous with
finding origination. However, the Court’s own summary of relevant law concludes
*16 that it should not be so. Thus, the Court’s factual analysis of origination appears
irreconcilable with the Court’s instruction on the factually unique three-step
analysis required.
4. The court appears to apply a continuous coverage analysis Finally, the Court’s opinion appears to suggest that because of the change in work locations, the forty-mile difference in the commute (Seguin to San Antonio–
39 miles v. Seguin to Elgin–79 miles), and the option of overnight accommodation,
the origination element is met. In essence, the Court appears to implicitly expand
continuous coverage to commuting, when an out of town commute is required. But
how can the opinion be reconciled with this Court’s and other Courts’ express
refusal in previous decisions to expand continuous coverage to encompass the
commute out of town? In Seabright , this Court rejected this very approach stating:
Mrs. Lopez contends these facts entitle her husband to the protections of the “continuous coverage” rule. In Texas, the “continuous coverage” rule regards an employee whose work entails travel away from the employer's premises as being continuously within the course of their employment during the trip, except when a distinct departure on a personal errand is shown. Shelton, 389 S.W.2d at 293; Aetna Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex.App.-Austin 1986, writ ref'd n.r.e.); see also McVey, 339 S.W.3d at 731–32. However, as Seabright correctly argues, the “continuous coverage” rule does not apply here because the rule protects “employees whose work entails travel away from the employer's premises, ” not the employee's home. Shelton, 389 S.W.2d at 293 (emphasis added). Lopez's tenure in Marlin may have been a trip away from home, but it was also travel to the employer's premises as opposed to travel away *17 from such premises. [31]
In Jerrols , the 14th Court analyzed an automobile accident that occurred while returning from lunch to work. [32] The claimants, three oilfield workers who
lived in Houston, were sent to work outside Jal, New Mexico, near the Texas-New
Mexico Border. The workers would stay fifty days on the job, come home for four
days, and then return to the job. They stayed overnight at a hotel in Kermit, Texas,
about twenty miles from the job, and would commute back and forth in a
company-provided vehicle. The employees would generally commute together to
the Town & Country store, about two miles away for lunch and then return to the
job site.
In arguing compensability, the injured employees argued that the continuous coverage doctrine encompassed all activities and events occurring from the time
they left Houston for New Mexico until they returned to Houston. In reversing the
trial court’s summary judgment, the court rejected this argument as an expansive
characterization of the continuous coverage doctrine [33] and, instead, concluded that
the proper method to evaluate compensability was the dual purpose doctrine, and
then finding conflict resulting in the reversal of summary judgment. [34]
CONCLUSION
Here, while the Court accurately reflects the required three-step analysis for evaluating compensability in a travel case, the Court’s application of the facts to
those steps appears irreconcilable with the standards articulated by the Court and
prior precedent. Because the record demonstrates that the furnishing of
transportation was gratuitous, the Court should, at the very least, have concluded
that a question of fact existed precluding the granting of summary judgment in
favor of Appellee.
PRAYER American Casualty Company of Reading Pennsylvania prays that this Court grant rehearing; reverse the judgment of the trial court and render judgment that
Clayton Bushman, was not in the course and scope of employment at the time of
his motor vehicle accident or, alternatively, reverse and render this case for trial on
the disputed facts; and for such other and further relief to which American
Casualty Company of Reading Pennsylvania may show itself to be justly entitled.
Respectfully submitted,
BURNS ANDERSON JURY & BRENNER, L.L.P.
P.O. Box 26300
Austin, Texas 78755-6300 (512) 338-5322 (telephone) (512) 338-5363 (facsimile) /s/ David Brenner
David Brenner
State Bar No. 02958020
dbrenner@bajb.com
Belinda May Arambula
State Bar No. 24060241
barambula@bajb.com
COUNSEL FOR APPELLANT CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing pleading has been forwarded to all parties listed below, on this 16th day of September 2015 in
accordance with Rule 9.5 of the Texas Rules of Appellate Procedure.
Bradley Dean McClellan
Law Offices of Richard Pena, P.C.
1701 Directors Blvd.
Suite 110
Austin, TX 78744
/s/David Brenner David Brenner *20 CERTIFICATE OF COMPLIANCE This motion complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4 because this motion contains 3,590 words. This motion
complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4
because this motion has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Times New Roman 14 point.
/s/ D AVID B RENNER
[1] Slip opinion, page 8, citing SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, No. 14-0272, 2015 WL 3653289, at *3 (Tex. June 12, 2015).
[2] Id .
[3] SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, No. 14-0272, 2015 WL 3653289, at *3.
[4] Tex. Lab. Code § 401.011 (12)(A); Leordeanu v. Am. Prot. Ins. Co. , 330 S.W.3d 239, 241 (Tex. 2010).
[5] American Motorists Ins. Co. v. Steel , 229 S.W.2d 386, 389 (Tex. Civ. App.—Fort Worth 1950, writ ref’d n.r.e.).
[6] Leordeanu , 330 S.W.3d at 244.
[7] ESIS, Inc., Servicing Contractor v. Johnson , 908 S.W.2d 554, 557 (Tex. App.—Fort Worth 1995, writ denied), citing Lumberman’s Reciprocal Ass’n v. Behnken , 112 Tex. 103, 110, 246 S.W.2d 72, 73 (Tex. 1922); s ee also Int’l Ins. Co. v. Deatherage , 628 S.W.2d 209 (Tex. App.— Austin 1982, no writ).
[8] Lesco Transp. Co., Inc. v. Campbell , 500 S.W.2d 238 (Tex. Civ. App.—Texarkana 1973, no writ).
[9] Forwood v. City of Taylor , 214 S.W.2d 282, 285-86 (Tex. 1948).
[10] R.R. Comm’n of Texas v. Texas Citizens for a Safe Future & Clean Water , 336 S.W.3d 619 (Tex. 2011).
[11] American Home Assur. Co. v. De Los Santos , 04-10-00852-CV, 2012 WL 4096528 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied).
[12] De Los Santos , 04-10-00852-CV, 2012 WL 4096528.
[13] Collins v. Indemnity Ins. of North America , 2011 WL 1631590 (Tex. App— San Antonio 2011, pet. denied).
[14] Collins Indemnity Ins. Of North America, 2011 WL 1631590.
[15] Seabright Ins. Co. v. Lopez , 427 S.W.3d 442, (Tex. App.—San Antonio 2014), review granted (Feb. 20, 2015), aff'd sub nom. SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, 2015 No. 14-0272, 2015 WL 3653289 (Tex. June 12, 2015).
[16] Id . at 448- 449.
[17] SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, 2015 No. 14-0272l 2015 WL 3653289.
[18] SeaBright Ins. Co. v. Lopez , ___ S.W.3d ___, 2015 No. 14-0272 WL.
[19] Id .
[20] Id .
[21] Slip opinion at page 7.
[22] CR 248.
[23] Slip opinion at page 8, citing SeaBright , ___ S.W.3d ___, 2015 2015 WL 3653289, at *5.
[24] Id.
[25] Id. .
[26] Tex. Lab. Code § 401.011(12)(A); Leordeanu , 330 S.W.3d at 244.
[27] Forwood, 214 S.W.2d 282.
[28] R.R. Comm’n of Texas , 336 S.W.3d 619.
[29] Slip opinion, page 10.
[30] Id.
[31] Seabright , 427 S.W.3d at 450.
[32] Jerrols, 385 S.W.3d 619.
[33] Id at 633.
[34] Id at 635.