Supreme Court Construes Coming & Going Rule for Vicarious Liability

The Texas Supreme Court has reversed the judgment of the Court of Appeals in a case involving an employer’s liability for damages to its employee under the coming and going rule. The decision may impact how employers and their workers’ comp carriers evaluate the compensability of such claims on the workers’ comp side of the equation.

The case, Painter v. Amerimex Drilling, No. 16-120, involves a travel issue that is regularly seen in workers’ compensation cases, although it is not, itself, a workers’ compensation case. In July 2007, three members of a drilling crew from Amerimex had been assigned to work the night shift on an oil and gas drilling rig at the Longfellow Ranch in Pecos County. The drilling site was remote. The company established a bunkhouse near Fort Stockton, some 30 miles from the drilling site. The Contract provides for the Driller to be paid $50.00 per day for transporting the Amerimex Crew between the drilling site and the bunkhouse as a Driver Bonus.

On July 28, 2007, after the Amerimex Crew’s shift ended, Burchett was driving the Crew from the rig site to the bunkhouse. Burchett fell asleep while driving, truck rolled over, and all of the crewmembers were ejected. Two crewmembers died.

Burchett, the driver, filed a claim for workers’ compensation benefits. None of the passengers, nor any of their surviving beneficiaries filed claims for benefits. The employer sought dispute resolution in an effort to obtain a Division determination that the passengers were in the course and scope of employment at the time of the accident.

The Division of Workers’ Compensation determined Burchett’s injuries were covered by WC “because he was paid to transport his crew to and from the worksite and the company bunkhouse. Moreover, delivering a crew to the worksite each day directly furthered the business interests of Amerimex.” The Division also concluded that the employer had no standing to request a Division finding that the passengers were in the course and scope of employment. The Division found, conditionally, however, that even if the employer had standing, the passengers were not injured in the course and scope of employment. Thus, only the driver’s claim was determined to be compensable.

Representatives of the deceased employees sued Amerimex and the driver, Burchett. The trial court granted Amerimex’s summary judgment motion on the sole ground that Amerimex was not vicariously liable for any negligence of Burchett. The court of appeals affirmed.

Vicarious liability is the doctrine used in law to determine an employer’s liability for the actions of its employees. The Division of Workers’ Compensation found Burchett to have been acting in the course and scope of his employment for purposes of receiving benefits, while the trial court and court of appeals found that he was not acting in the course and scope of his employment for purposes of establishing Amerimex’s liability to the plaintiffs.

The issue is whether a company is vicariously liable for an employee’s negligence in an after-work vehicle accident work because it paid the employee to drive crew members to the job site. In this case Painter sued for his drilling-crew chief’s alleged negligence that seriously injured Painter and others as he, the crew chief, Burchett, and the others returned from a drilling site to the company bunkhouse. Amerimex, the employer, paid Burchett a daily bonus to drive his crew to and from the site. The trial court granted Amerimex’s summary-judgment motion, finding the company not liable for Burchett’s negligence because it did not have the right to control Burchett’s driving. The appeals court affirmed.

The Supreme Court held that Amerimex was not entitled to summary judgment on the vicarious-liability claim.

Even considering an employer’s concession that it had a sufficient overall right to control the details of the wrongdoer’s work to give rise to an employer-employee relationship, Amerimex would have the Court reevaluate the worker’s employment status for vicarious-liability purposes: Isolating the task the worker was performing at the moment of the accident and conducting an independent evaluation of the employer’s control with respect to that particular task. That would be unworkable and could result in a worker shifting between employee and independent contractor status countless times in a work day.

To the extent transporting the crew was part of Burchett’s job as a driller, it falls within Amerimex’s “general power of supervision, implicit in the contract of employment” regardless of how much or how little control Amerimex actually chose to exercise over this particular task.

Burchett was not merely making his own services available to Amerimex by driving workers from housing to the drill site. He was ensuring the rest of the crew were available as well. And, more importantly, evidence shows he was doing so as part of his assigned job duties.

The court wrote that the course-and-scope inquiry involved an objective analysis, hinging on whether the employee was performing the tasks generally assigned to him in furtherance of the employer’s business. That is, the employee must be acting with the employer’s authority and for the employer’s benefit. The coming-and-going rule, under which an employee is generally not acting within the scope of his employment when traveling to and from work, applies in the vicarious-liability context. But the Court recognizes an exception when such travel involves regular or specifically assigned duties for the employer’s benefit.

Justice Green dissented in an opinion, joined by Justice Brown:

For the same reasons that the court of appeals held Burchett was the leaseholder’s employee for purposes of transporting the crew in a petition the Court denied, in a case involving the same accident, the Court should hold that Burchett was not Amerimex’s employee for purposes of transporting the crew in this case. The Court properly states the initial inquiry must focus on the employment relationship between Burchett and Amerimex and whether, at the time of the negligent conduct, Amerimex had the right to control the progress, details and methods of Burchett’s work. The Court actually skips this critical inquiry, however, instead asserting that Burchett’s status as Amerimex’s employee at the time of the accident is undisputed and conclusive because an employer-employee relationship exists as to Burchett’s drilling work. But Amerimex has disputed Burchett’s employment status as to crew members’ transportation since the litigation began.

Frequently where an employer has liability exposure for an injury received by an employee, as well as potential comp liability, the employer’s position in the claim will be guided by the likelihood of its general liability exposure. Previously, in cases such as this, the employer’s exposure was minimal. That calculation will now be viewed differently by employers and their liability carrier, as well, perhaps, by the employer’s comp carrier.