Coming and Going Rule Bars Recovery in Fatal MVA
The 4th Court of Appeals has affirmed the summary judgment of a trial court which found that an employee was not in the course and scope of his employment at the time of a fatal motor vehicle accident. In Fuentes vs. Texas Mutual Ins. Co., No. 04-16-00662-CV, decided November 1, 2017, the court held that the employee’s accident was not compensable under the coming and going rule.
The employee was an electrician who was driving to work at the beginning of his day when he was involved in a head-on collision. His widow and minor child pursued death benefit recovery. They claimed that, not only was the employee driving to work at the time of his accident, he was also going to stop by the company office on the way to his jobsite in order to drop off time sheets.
The Division denied the compensability of the claim. On suit for judicial review, the trial court considered the case on cross motions for summary judgment. The court granted the carrier’s motion and denied the motion of the claimant beneficiaries.
Although Estrada lived in Sonora, and Bryant Electric’s office and the Goodfellow jobsite were in San Angelo, Estrada did not travel to or between several jobsites. He was assigned only to the Goodfellow jobsite, and his pay began when he arrived at that jobsite. Estrada was fatally injured while travelling from his home to Bryant Electric’s office on his way to Goodfellow. However, there is no evidence, or a genuine issue of material fact, that any implied employment contract required Estrada to first stop at the office on the date of the accident before travelling to the Goodfellow jobsite.
Another factor is whether any employer-provided transportation amounts to a necessity from the employer’s perspective, and not just an accommodation to the employee. Zurich Am. Ins., 339 S.W.3d at 730. There is no dispute that Bryant Electric did not furnish Estrada with transportation or that Bryant Electric did not direct or otherwise influence Estrada’s route to work. Although Estrada may have used his stipend to pay for gasoline, there is no evidence Bryant Electric required him to use the money for that purpose, or for any other specific purpose. To the extent Estrada may have used his stipend to pay for gas, there is no evidence the stipend amounted to a necessity from his employer’s perspective. Instead, as Bader testified, the stipend was an accommodation to Estrada.
The court also rejected the argument that the employee was engaged in a special mission at the time of the accident.
Here, submitting time sheets was a required part of Estrada’s job and not a “special mission.” Estrada may have left his house early enough to allow him the extra time to stop at the office on his way to Goodfellow; however, Bryant Electric did not require him to submit the paperwork at its office. Estrada could have used the fax machine located at the Goodfellow jobsite or he could have sent the timesheets with Dial Ortiz who made daily trips between Goodfellow and the office. Instead, he chose to stop by the office on Thursdays while en route to Goodfellow. As in Evans, there is no evidence, or a genuine issue of material fact, that Estrada was actually working as he travelled to the Bryant Electric office or that he had begun work at the time of the accident.
The case is subject to review on motion for rehearing and by the Texas Supreme Court on petition for review.
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