Court: Coming and Going Claim Bars Vicarious Liability Claim against Employer

National workers’ compensation commentator, Thomas A. Robinson, comments on the Fort Worth Court of Appeals’ recent decision involving the coming and going rule in a liability suit context. In EAN Holdings, LLC v. Arce, 2021 Tex. App. LEXIS 8354 (Oct. 14, 2021) Arce sued EAN Holdings, LLC alleging that Anthony Nelson, EAN’s employee, acting in the course and scope of his employment for EAN while driving a vehicle owned by EAN, negligently caused Arce’s injuries.

A jury found in Arce’s favor and awarded him substantial damages. The trial court entered judgment on the verdict for Arce against EAN. In its sole issue on appeal, EAN contended that the evidence was insufficient to support the jury’s verdict that Nelson was acting in the course and scope of his employment at the time of the collision. The appellate court agreed and, accordingly, reversed the judgment of the trial court, and rendered judgment that Arce take nothing.

Noting that the evidence was uncontroverted that Nelson was on his way home from work with an intermediate stop to pick up dinner for himself at a Whataburger restaurant when the accident occurred, the court wrote that “this circumstance falls within the ambit of the ‘coming-and-going’ rule.”

A dissenting justice would have affirmed the judgment that Nelson was in the course and scope of his employment at the time of the accident.

In this case, the jury could have determined, based on their credibility and reliability determinations, that Nelson was in the course and scope of his employment when he hit Arce. As the branch manager, Nelson testified that his duties did not necessarily stop when he left the office as they had when he had been an assistant manager. Indeed, it was Nelson’s common practice to contact the other area branch managers and Van Blarcum after his branch closed, many times after he had arrived at home, to make sure sufficient cars were available for the next day. The jury heard that EAN controlled the manner in which Nelson operated the borrowed car and, in fact, Nelson’s first call after the accident was to Van Blarcum. The jury charge defined an employee acting in the “scope of his employment” as one who “is acting in the furtherance of the business of his employer.”^[4] The reasonable inferences arising from the direct and circumstantial evidence were legally sufficient for the jury to find that Nelson was in the course and scope of his employment based on this charge definition and based on the course-and-scope legal authorities discussed by the majority.

While the decision does not resolve a workers’ compensation case, it deals with the familiar “coming and going” rule that appears in workers’ compensation cases from time to time.