Court: Coming and Going Claim against Employer Barred by Exclusive Remedy Defense
The 11th Court of Appeals issued a decision determining whether an employee that was driving three coworkers to a drill site was within the course and scope of his employment when involved in a single vehicle accident. The Court decided that, in this case, the driver of the vehicle was not within the course and scope of employment, and that the claim brought by the passengers was barred by the Texas Workers’ Compensation Act’s (the Act) exclusive remedy provision.
The initial personal injury suit was filed by three employees (Mark Wheeler, Jeremy Rich and David Kiser) of Ringo Drilling I, L.P. and Ringo Management Company, L.L.C. (Ringo), who were passengers in a vehicle that was involved in a motor vehicle accident and being driven by another coworker (Brandon Scott Free). At the time of the accident, Free was transporting the passengers from a convenience store in Taylor County to Ringo’s drilling rig located in Throckmorton County.
The passengers alleged, in relevant part, that the accident was caused by Free’s negligence and that Ringo was vicariously liable for his actions under the doctrine of respondeat superior. In a single issue, the passengers appealed the trial court’s order granting summary judgment in favor of Ringo.
At the trial court level, Ringo produced summary judgment evidence that it was a subscriber to workers’ compensation insurance at the time of the accident. There was also evidence that Ringo had a “drive pay” policy, wherein one member of the crew was paid a per diem to furnish transportation for himself and the additional crew members to and from the drill site. Notably, Kiser, and not Free, was the crewmember that was being paid drive pay. However, on the date of the accident, Kiser’s vehicle was inoperable. Consequently, Kaiser asked Free to drive the crew that night and paid for the fuel. However, Free testified that he did not receive drive pay for the date of the accident. There was also evidence that participation in the carpool was voluntary and that the crewmembers could have driven to the drilling rig on their own.
Ringo moved for traditional summary judgment, asserting that the passengers’ negligence action was precluded by the exclusive remedy provision of the Act (see Texas Labor Code Section 408.001(a)). In the alternative, for the respondeat superior claim, Ringo asserted that Free was not the course and scope of his employment at the time of the accident.
In its analysis, the Court stated that whether Free was in the course and scope of his employment at the time of the accident was determined under the common law doctrine of respondeat superior, and that the critical question was whether Free was “doing his job” at the time of the accident. As part of its analysis, the Court provided a discussion regarding the “coming and going” rule, which generally stands for the proposition that an employer is not liable for acts of its employees while traveling to and from work. Additionally, the Court noted that an exception to the coming and going rule exists when the employee undertakes a special mission at the direction of his employer, or is otherwise performing a service in furtherance of his employer’s business with the express or implied approval of his employer.
In supporting its conclusion that Free was not in the course and scope of his employment as a matter of law, the Court stated that (1) Free was not specifically assigned the task of transporting the crew to the drill site, and that (2) he did not receive drive pay for the trip on the day of the accident. In fact, there was evidence that the employer was not aware that Free was going to drive the crew on the day of the accident.
Furthermore, the Court made a distinction between a “bonus” for driving coworkers to and from work sites, and what amounts to be a travel reimbursement. In the instant case, the Court opined that the drive pay paid by Ringo was basically reimbursement for the crew member’s travel expenses for transporting the crew to the drill site, and did not bring the driver within the course and scope of employment.
In its closing remarks, the Court stated that “the task of getting to and from the place of work is the responsibility of the employee, and his travel to a worksite is not part of his service to his employer,” and further observed that “travel to a worksite is not a mission with a special benefit to the employer so as to remove the employee from the coming and going rule.” Accordingly, the Court affirmed the trial court’s order, and held that the summary judgment evidence in this case conclusively established that Free was not in the course and scope of his employment while driving himself and his fellow coworkers to the drill site.
It should be noted that the court did not analyze this case the same way it would necessarily be analyzed for compensability under the workers’ compensation act. Oddly, Texas law considers such cases using different rules, depending upon the nature of the claim or suit.
FOLIO
