Texas Supreme Court Finds “Coming & Going” Case Compensable
The Texas Supreme Court released an opinion June 12, 2015 in SeaBright Insurance Co. v. Maxima Lopez, No. 14-0272, a “coming and going case” from Starr County and the San Antonio Court of Appeals. The court concluded that the employee in Lopez had been injured in the course and scope of his employment.
The central issue in the death-benefits claim was whether an exception to the coming-and-going rule applied to a vehicle accident that killed a contract foreman working 440 miles from home, provided a company car and paid per-diem to live near his work site. When the accident occurred, Lopez was driving two subordinates to the work site, 40 miles from their temporary quarters. After his death, and after SeaBright denied his widow workers-comp benefits, she contested the denial before the Insurance Department’s workers-comp division and won. SeaBright sued, but the trial court granted Mrs. Lopez summary judgment. The court of appeals affirmed, holding that Lopez’s accident occurred in the course and scope of his employment.
The Supreme Court held that conclusive evidence established that the employee was in the course and scope of his employment at the time of his death.
The employer’s business called for specialized, non-local work crews in constantly changing, remote locations on temporary assignments.
Lopez, the employee, had been hired as a civil foreman at the temporary job and paid an offset for lodging and food. His employer expected him to secure temporary lodging rather than commute from his home and, upon his request, provided him with a company vehicle to drive to and from the job site and paid the vehicle’s fuel and insurance expenses. Lopez was driving himself and two of his coworkers from the motel to the Ridge job site in the company-provided vehicle when he died.
Regarding the “origination” element of compensability, the court wrote:
The ultimate inquiry under the origination element is to determine if the relationship between Lopez’s travel and his employment with Interstate Treating “is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” Id. As discussed above, we conclude that Interstate Treating’s business called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments. Interstate Treating’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 Interstate Treating’s business model and enabled by Interstate Treating’s provision of the vehicle and payment of per diem and other expenses. See Meyer, 425 S.W.2d at 629 (stating that an employee’s travel injuries fall in the course and scope of employment if the travel is “pursuant to express or implied conditions of his employment contract”). As with the employee in Inge, who was not provided a company car or fuel expenses but who was paid per mile to transport other employees to a remote work location, the provision of transportation to the temporary, remote work location was an essential part of Lopez’s employment. Lopez’s travel is more akin to those “employees such as deliverymen, messengers, collectors, and others, who by the very nature of the work they have contracted to do are subjected to the perils and hazards of the streets.” Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d 192, 193 (Tex. 1937). Accordingly, we hold 10 that the relationship between Lopez’s travel and his employment “is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession” of Interstate Treating. Shelton, 389 S.W.2d at 292. Maximina conclusively established the origination element.
Regarding the “furthering” element of compensability, the court wrote, that Lopez’s travel made his employment possible and thus furthered his employer’s business.
Justice Johnson dissented:
An injury while traveling to or from the place of employment is excluded from coverage unless one of three exceptions to the exclusion are met. But proving an exception to the coming-and-going rule does not mean that the travel was an activity within the course and scope of employment so as to render the injury compensable. Rather, proving an exception merely prevents the employee’s injury during the travel from being automatically excluded from coverage. And injuries to employees during travel to and from work generally do not originate in the employer’s business because 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 employers’ work. Lopez was not traveling as part of his work. He was traveling to get to his work, in contrast to being injured after beginning his work. No evidence demonstrates that express or implied conditions of Lopez’s employment contract required more than that he show up at the job site and work.
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