Melissa Fuentes, Individually, and as Next Friend of Victor Robert Fuentes and Isabella Elaine Fuentes, Minors v. Texas Mutual Insurance Co. ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00662-CV
Melissa FUENTES, Individually, and as Next Friend of Victor Robert Fuentes and Isabella
Elaine Fuentes, Minors,
Appellant
v.
TEXAS MUTUAL INSURANCE CO.,
Appellee
From the 112th Judicial District Court, Sutton County, Texas
Trial Court No. 5910
Honorable Pedro Gomez, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: November 1, 2017
AFFIRMED
In the underlying proceedings, Melissa Fuentes filed a death benefits claim arising from
the death of her husband, Robert Estrada. Texas Mutual Insurance Company denied the claim,
and Fuentes sought administrative review by the Texas Department of Insurance, Division of
Workers’ Compensation (“DWC”). After both the DWC contested case hearing officer and the
DWC appeals panel agreed with Texas Mutual, Fuentes sought judicial review in district court.
At trial, Fuentes and Texas Mutual filed competing motions for summary judgment. The trial
court granted Texas Mutual’s motion, denied Fuentes’s motion, and Fuentes now appeals. The
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dispositive issue in the proceedings below and on appeal is whether Estrada was in the course and
scope of his employment when he was killed in an automobile accident while driving from his
home to his employer’s office. We affirm.
BACKGROUND
The parties filed the following stipulated facts in the trial court. Bryant Electric, Inc.
employed Estrada on the date of the fatal accident. Texas Mutual provided workers’ compensation
insurance coverage to Bryant Electric. Estrada lived in Sonora, Texas; and Bryant Electric’s office
is located in San Angelo, Texas. Bryant Electric hired Estrada to work at its jobsite located at
Goodfellow Air Force Base in San Angelo, Texas. In addition to an hourly wage, Bryant Electric
paid Estrada a $75 per week stipend. Bryant Electric did not require or maintain records on how
its employees spent their stipends.
Estrada worked as a foreman, and his job duties included laying out the day’s work,
overseeing his crew, answering questions, scheduling material deliveries, tracking employee time,
and submitting crew timesheets to Bryant Electric. Bryant Electric allowed Estrada to submit the
timesheets in one of three ways: (1) by use of a fax machine located at Goodfellow, (2) give them
to Dial Ortiz, another Bryant Electric employee, who made daily trips between the office and
Goodfellow, or (3) hand deliver the sheets to an inbox at Bryant Electric’s office. Bryant Electric
ran its payroll every Thursday morning.
Estrada’s usual route to work was to drive north on U.S. Highway 277 from his house to
Bryant Electric’s office or past the offices directly to Goodfellow. On the morning of Thursday,
November 1, 2012, Estrada left his house, and was travelling on Highway 277 when an oncoming
vehicle struck Estrada’s vehicle head-on, resulting in Estrada’s death. The accident occurred
between Estrada’s residence and about one mile south of Bryant Electric’s office.
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Fuentes later filed a workers’ compensation claim seeking death benefits as Estrada’s
surviving common-law wife. After Texas Mutual denied the claim, Fuentes initiated a contested
case proceeding before the DWC. The sole issue before the DWC hearing officer was whether
Estrada “sustain[ed] a compensable injury on November 1, 2012, resulting in his death.” The
hearing officer entered the following findings of fact: Estrada’s “transportation to the office and
to the worksite was not furnished or paid for by his employer”; his “travel to the office or to the
worksite from his home was not pursuant to an express or implied requirement of his employment
contract”; at the time of his fatal injury, Estrada “was not directed by his employer to proceed from
one place to another (from his home to the company office or to the worksite) and was not on a
special mission of the employer”; and Estrada “did not sustain his fatal injury while in the course
and scope of his employment with his employer.” The hearing officer concluded Estrada “did not
sustain a compensable injury on November 1, 2012, resulting in his death.” Therefore, the hearing
officer ordered that Texas Mutual was not liable for benefits. Fuentes then requested review by
the DWC appeals panel, which affirmed the hearing officer’s decision.
Fuentes subsequently sought judicial review in district court, and the parties filed
competing motions for summary judgment. In her motion for summary judgment, Fuentes argued
that, at the time of his death, Estrada was furthering Bryant Electric’s affairs, Estrada’s work
originated in Bryant Electric’s business, and Bryant Electric paid for Estrada’s transportation to
and from work. In its motion for summary judgment, Texas Mutual argued Estrada’s travel to
work did not originate in Bryant Electric’s business, and the “coming-and-going” rule precluded
recovery for Estrada’s death during his commute to work. Texas Mutual also argued Fuentes did
not raise the “paid transportation” argument before the DWC; therefore, the trial court lacked
jurisdiction to consider that argument. The trial court granted Texas Mutual’s motion for summary
judgment and denied Fuentes’s motion for summary judgment.
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STANDARD OF REVIEW
We apply the same standards of review to appeals from workers’ compensation panel
decisions as we do to appeals in other civil cases. Safford v. Cigna Ins. Co. of Tex., 983 S.W.2d
317, 319 (Tex. App.—Fort Worth 1998, pet. denied). We review a trial court’s granting of a
summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
When, as here, both parties move for summary judgment on the same issues and the trial court
grants one motion and denies the other, we review both parties’ summary judgment evidence and
determine all questions presented. Id.; FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872 (Tex. 2000). To prevail on a traditional motion for summary judgment, the movant must show
“there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a
matter of law.” TEX. R. CIV. P. 166a(c); see also Diversicare Gen. Partner, Inc. v. Rubio, 185
S.W.3d 842, 846 (Tex. 2005). 1 Each party bears the burden of establishing it is entitled to
judgment as a matter of law. City of Santa Fe v. Boudreaux, 256 S.W.3d 819, 822 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). In reviewing a traditional summary judgment, we take as true
all evidence favorable to the non-movant, indulging every reasonable inference and resolving any
doubts in the non-movant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157
(Tex. 2004).
If we determine the trial court erred, we render the judgment the trial court should have
rendered. Valence Operating, 164 S.W.3d at 661; FM Props., 22 S.W.3d at 872. If, as here, the
trial court’s order does not specify the grounds for its summary judgment ruling, we affirm the
1
Fuentes moved for a traditional summary judgment. Texas Mutual entitled its motion as a motion for both a
traditional and a no-evidence summary judgment. However, the entirety of its motion relies on evidence it submitted
in support of a traditional summary judgment and nowhere in its motion did Texas Mutual state the elements of
Fuentes’s claim as to which there was no evidence. See TEX. R CIV. P. 166a(i) (“The motion must state the elements
as to which there is no evidence.”). Therefore, Texas Mutual sought only a traditional summary judgment, and to the
extent the trial court rendered a no-evidence summary judgment in favor of Texas Mutual, the trial court erred.
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summary judgment if any of the theories presented to the trial court and preserved for appellate
review are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
LIABILITY FOR COMPENSATION
“An insurance carrier is liable for compensation for an employee’s injury without regard
to fault or negligence if: (1) at the time of injury, the employee is subject to this subtitle; and (2)
the injury arises out of and in the course and scope of employment.” TEX. LABOR CODE ANN.
§ 406.031(a) (West 2015); see also TEX. LABOR CODE § 401.011(10) (“‘Compensable injury’
means an injury that arises out of and in the course and scope of employment for which
compensation is payable under this subtitle.”). The Labor Code defines “course and scope of
employment” to mean
an activity of any kind or character that has to do with and originates in the work,
business, trade, or profession of the employer and that is performed by an employee
while engaged in or about the furtherance of the affairs or business of the employer.
The term includes an activity conducted on the premises of the employer or at other
locations.
Id. § 401.011(12).
There are two exclusions to when an employee’s activity is considered in the course and
scope of an employee’s work: (1) the coming and going exclusion, which excludes “transportation
to and from the place of employment,” and (2) the dual purpose exclusion, which excludes “travel
by the employee in the furtherance of the affairs or business of the employer if the travel is also in
furtherance of personal or private affairs of the employee.” 2 Id. § 401.011(12)(A),(B). If an
exclusion applies, then the employee’s activity is not in the course and scope of employment unless
an exception to the exclusion applies. Am. Cas. Co. of Reading, Pa. v. Bushman, 480 S.W.3d 480,
2
In this case, neither party argued the dual purpose exclusion applies.
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673-74 (Tex. App.—San Antonio 2015, no pet.). The coming and going exclusion does not apply
if one of the three exceptions listed in section 401.011(12)(A) applies. The only exception on
which Fuentes relied at trial was the so-called paid transportation exception, which applies if “the
[employee’s] transportation is furnished as a part of the contract of employment or is paid for by
the employer.” TEX. LABOR CODE § 401.011(12)(A).
Determining whether an activity is in the course and scope of employment involves a three-
step analysis. Bushman, 480 S.W.3d at 673. The first step requires determining whether the
activity (1) originates in the employer’s work, business, trade, or profession and (2) furthers the
employer’s affairs. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015); Bushman, 480
S.W.3d at 673. Because we conclude this first step is dispositive, we do not address the second
step (application of the coming and going exclusion) or the third step (application of the paid
transportation exception).
FURTHERANCE AND ORIGINATION COMPONENTS
The definition of “course and scope of employment,” has two components: the injury had
to (1) relate to or originate in, and (2) occur in the furtherance of, the employer’s business.
Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010). Both components must be
satisfied. Id. “An employee’s travel to and from work makes employment possible and thus
furthers the employer’s business,” which satisfies the second component of the definition. Id. at
242. But, such travel “cannot ordinarily be said to originate in the [employer’s] business, the
requirement of the first component, because ‘[t]he 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 the work
of employers.’” Id. (citation omitted).
Here, there appears to be no dispute Estrada was travelling to Bryant Electric’s office on
his way to the Goodfellow jobsite at the time of the accident. Therefore, his travel furthered Bryant
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Electric’s affairs. However, we must also examine whether the origination component is satisfied.
The origination component is satisfied if the employee’s travel was “pursuant to express or implied
conditions of his employment contract.” Meyer v. W. Fire Ins. Co., 425 S.W.2d 628, 629 (Tex.
1968); see also SeaBright Ins., 465 S.W.3d at 642 (quoting Meyer). The Meyer Court noted this
provision includes those situations in which the employee proceeds from one place to another
under the terms of an employment that expressly or impliedly requires that he do so to discharge
the duties of his employment. Meyer, 425 S.W.2d at 630.
The Texas Supreme Court has noted several factors that reflect on whether an employee’s
travel originates in the employer’s business or work, including: (1) whether the employment
contract expressly or impliedly required the travel involved; (2) whether the employer furnished
the transportation; (3) whether the employee was traveling on a special mission for the employer;
and (4) whether the travel was at the direction of the employer, such as requiring the employee to
bring tools or other employees to work or another location. SeaBright Ins. Co., 465 S.W.3d at 647
(Johnson, J., dissenting). Courts generally employ a fact-intensive analysis to determine whether
an employee’s travel originated in the employer’s business, focusing on the nature of the
employee’s job, the circumstances of the travel, and any other relevant facts. Id. at 642-43. For
example, evidence that the employer provided or paid for the transportation is probative of whether
the employee’s trip originated in his employer’s business. Bushman, 480 S.W.3d at 674.
However, an employer’s mere gratuitous furnishing or paying transportation as an accommodation
to its employee and not as an integral part of the employment contract does not by itself render an
injury occurring during such transportation compensable. Zurich Am. Ins. Co. v. McVey, 339
S.W.3d 724, 730 (Tex. App.—Austin 2011, pet. denied). In other words, employer-provided
transportation that amounts to a necessity from the employer’s perspective, and not just an
accommodation to the employee, may be sufficient to prove travel originated in the employer’s
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business. Id. “No singular fact is necessarily dispositive.” 3 Id. Our starting point in analyzing
the origination component is to determine the nature of Bryant Electric’s business. See SeaBright
Ins., 465 S.W.3d at 643; Bushman, 480 S.W.3d at 675.
Bryant Electric is an electrical contractor that does new construction and remodeling/repair
of residential, commercial, and institutional facilities. The company employs several foremen who
supervise work on different projects at different jobsites, and the company employs about twenty-
five electricians, at different experience levels, who work at the various jobsites. The only
employees who drive company-owned vehicles are the service employees, who go job to job and
need a truck with signage, or employees who work at out-of-town jobsites. From the evidence in
the record, we conclude Bryant Electric’s business called for employing electricians to work at
their various jobsites.
We next address the nature of Estrada’s employment. See SeaBright Ins., 465 S.W.3d at
644. Sometime in 2001, the company began electrical work at a new dormitory located at
Goodfellow Air Force Base. Terry Bader, who co-owns Bryant Electric with his wife and acts as
the day-to-day manager of the company, testified the Goodfellow project was one of Bryant
Electric’s largest and was technically demanding. The Goodfellow project was just one of several
on-going projects, which presented a staffing problem for Bryant Electric. As a result, the
company hired electricians from other Texas cities to work at the Goodfellow jobsite in San
3
In Bushman, this court considered American Casualty’s argument that facts supporting exceptions to the coming and
going exclusion, such as considerations of the paid transportation exception or the special-mission exception, were
irrelevant to the consideration of the origination component. Bushman, 480 S.W.3d at 674. The court disagreed,
noting the Supreme Court in SeaBright Insurance Co. cited to cases applying such facts, and explaining “[c]ourts have
generally employed a fact-intensive analysis to determine whether an employee’s travel originated in the employer’s
business, focusing on the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.”
Id. (quoting SeaBright Ins. Co., 465 S.W.3d at 642-43). Therefore, although paid transportation and special mission
are separate exceptions to the coming and going exclusion, evidence that an employer furnished or paid for an
employee’s transportation or evidence that the employee was on a special mission for his employer may also be
considered in a fact-intensive analysis of whether an employee’s injury originated in the employer’s business.
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Angelo. Estrada was one such employee. When he was first hired, Estrada commuted to
Goodfellow from his home in Abilene. He was not originally hired to be a foreman, but was later
promoted to that position after the original foreman unexpectedly quit. Bryant Electric
discouraged its electricians from making supply runs or picking up supplies. Instead, Estrada, as
foreman, would call for any material he needed and the company’s warehouseman (Dial Ortiz)
delivered the materials to the jobsite.
Bryant Electric did not require any electrician or foreman to start and end their work day
at the office. Instead, they began their workday at the jobsite. The only employees who started
their workday at the office were the service electricians who did not have regular jobsites and
needed to come to the office for their dispatches. Bryant Electric paid its employees an hourly
wage, the workweek ran Thursday morning through quitting time the following Wednesday, and
employees were paid on Friday. Depending on the circumstances, Bryant Electric paid some
employees a per diem in addition to their hourly wage. For example, if an employee worked at an
out-of-town jobsite, the company paid for a hotel room if an overnight stay was required, provided
a credit card to pay for fuel, and paid a $25 daily per diem for other expenses. No employee was
paid during their commute to or from work, unless they were required to work at an out-of-town
jobsite. For example, if an employee who lived in San Angelo was required to travel from San
Angelo to a project in another city, then Bryant Electric paid that employee for his travel time. On
the other hand, employees who travelled to a jobsite from their own out-of-town home would not
be paid for travel time. Bader said the only exception to this would be if an employee had to travel
from the jobsite to the office during the workday, in which case, the employee would be paid for
travel time. But, as Bader explained, “When they’re off the clock — When they’re not working,
they are off the clock and that’s it.”
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Bryant Electric hired Estrada to work at the Goodfellow jobsite and he did not work at any
of the company’s projects located at other jobsites. Estrada’s hourly wage began when he reported
to the office or to the jobsite, and he was “scripted to be at the jobsite by 7:00[a.m.].” When he
was first hired, Estrada and his family lived in Abilene. At some point in time, Estrada and his
family moved to Sonora to be closer to extended family. Sonora is about ninety miles south of
San Angelo. Bader said the understanding when Estrada was hired was that Goodfellow was his
jobsite and he would not be paid to travel from his home to the site. When Estrada first began
work for the company, he reported directly to the Goodfellow jobsite. After he became the
foreman, Estrada generally reported to the jobsite, but because he passed the company office on
his way from his home to Goodfellow, he could stop by the office if he needed to. Because the
accident occurred on a Thursday—the day time sheets were due to be turned in—and the time
sheets had not yet been turned in, both Bader and Fuentes believed Estrada had the time sheets
with him in his truck when the accident occurred. Therefore, it appears undisputed that Estrada
was driving from his house to the office, before he went to Goodfellow.
Bader stated Estrada was not a travelling serviceman, he was not required to travel for his
work, and when asked if he was a “journeyman electrician,” Bader responded that Estrada “was
an apprentice electrician.” Bader said he discouraged employees from leaving their jobsite,
“[e]specially someone in [Estrada’s] position, because he was — that’s who everyone went to to
ask questions, and if he wasn’t there, things didn’t get done.” Estrada could use any of the alternate
means to submit his work crew’s timesheets to the office, and Bryant Electric never instructed him
to personally deliver the time sheets to the office. Bader stated the company never required Estrada
to stop by the office before he went to the jobsite, but it was possible Estrada may have initiated
an office meeting with the company’s operations manager if Estrada had a question and he knew
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the manager would be in the office. Bader also said the company did not instruct Estrada, or exert
any influence over him, regarding his route to work or to the jobsite.
Estrada did not drive a company vehicle, he used his own truck to commute to and from
work, and he was not paid for his mileage or other car-related expenses such as insurance.
However, Bryant Electric paid Estrada a $75 per week stipend. Bader said there were not enough
electricians in San Angelo and the company had to hire electricians, such as Estrada, from out of
town to work at Goodfellow. Bader testified he did not know how Estrada used the stipend, and
Estrada was not required to submit receipts. Bader explained that when Estrada first started with
the company, Estrada and another employee car-pooled to work from Abilene where they both
lived at the time. When the car-pooling stopped, Estrada asked the company to help him with his
fuel expenses, and the company elected to give him the weekly stipend because the company
considered Estrada a valued employee. 4 His weekly stipend was not tied to the number of hours
he worked or to any actual expenses he may have incurred, and he worked only at the Goodfellow
jobsite. When asked if he had any personal knowledge regarding how Estrada used his weekly
stipend, Bader replied, “I have no earthly idea. I assume it was gasoline, but I don’t know.”
Bader said the use of a stipend is up to the employee, “[s]ome use it for gasoline. Some of
them use it for food. Just, you know, whatever. That’s their choice.” Bryant Electric did not
maintain any documentation on which employees received a weekly stipend or the reason they
might receive such a stipend, and the company did not have any written travel policies.
Fuentes testified her husband was paid the stipend “to help with gas, since he was driving.”
She said her husband normally went directly to Goodfellow, but on Thursdays he would stop by
the office on his way to Goodfellow. She said he usually left the house between 5:30 a.m. and
4
Bader testified that when the Goodfellow project was complete, the company would have found another project for
Estrada.
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6:00 a.m. to arrive at Goodfellow by 7:00 a.m. when his workday began, and on Thursdays, he
would stop by the office to turn in time sheets before he went to the Goodfellow jobsite.
Because we have already determined Estrada’s travel furthered Bryant Electric’s business,
Estrada was in the course and scope of his employment if the relationship between his travel and
his employment was so close that the injury had to do with and originated in Bryant Electric’s
work, business, trade or profession. See SeaBright Ins. Co., 465 S.W.3d at 642. This inquiry is
satisfied if Estrada’s travel was “pursuant to express or implied conditions of his employment
contract.” Id.; Meyer, 425 S.W.2d at 629. Two cases provide some guidance on this inquiry.
The court in U.S. Fire Insurance Co. v. Brown, 654 S.W.2d 566 (Tex. App.—Waco 1983,
no writ), concluded the employee (Brown) traveled on the public highways pursuant to express or
implied requirements of his employment contract, and the very nature of the employer’s business
and of Brown’s duties demanded that he frequently be on the highways. Id. at 569. The court
noted, “Brown’s work situation was different from that of the ordinary employee who travels each
day to a specific location to begin work in that Brown’s duties required his traveling almost every
day to seven different hospitals located in six different counties.” Id. Under the undisputed facts
of the summary judgment record, Brown was not simply on his way to work at the time of his
injuries, although his hourly rate did not begin until he reached Meridian Hospital. The court held
Brown’s agreement to travel in his automobile from his home in Troy to any one of seven hospitals
assigned to him by Homemakers was an integral part of his employment contract, and he began
execution of this part of his job duties when he left his home on direct route to Meridian Hospital.
Id.
In Bushman, the employer (Salem) instructed Clayton, who lived in Seguin, to report to
Elgin and work there for a week to train a new dispatcher. Bushman, 480 S.W.3d at 675. Although
he primarily worked as a Salem truck driver in San Antonio, Clayton had on a few prior occasions
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worked as a dispatcher, but never as a dispatcher trainer. Salem did not ordinarily reimburse
Clayton for travel from his home in Seguin to the truck yard in the San Antonio area, but Salem
would reimburse Clayton his expenses for traveling from Seguin to Elgin and his lodging expenses
if he chose to stay overnight in Elgin. On the day of the accident, Clayton was traveling to Elgin
and his travel was necessary if Clayton was to perform his job as his employer had instructed.
Clayton was not traveling to Elgin by his own choice but was required to go and perform a job
outside of his ordinary job duties and away from his ordinary job site. The Bushman court held
the evidence established Clayton’s required work travel to Elgin to train a dispatcher originated in
Salem’s work, business, trade, or profession. Id.
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
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to a necessity from his employer’s perspective. Instead, as Bader testified, the stipend was an
accommodation to Estrada.
Finally, evidence that an employee was on a “special mission” for his employer is also
probative of whether an employee’s trip originated in his employer’s business. SeaBright Ins. Co.,
465 S.W.3d at 647. “The term special mission eludes precise definition but, in essence, is
shorthand for trips made by an employee under the direction and for the benefit of the employer.”
Zurich Am. Ins., 339 S.W.3d at 730. Although Fuentes testified her husband left the house early
on Thursdays to stop by the office to submit the timesheets, a time change alone is not sufficient
to transform a trip into a “special mission.” Evans v. Ill. Emp’r Ins. of Wausau, 790 S.W.2d 302,
304 (Tex. 1990). Also, an employee “can have more than one fixed place of employment and that
fixed place of employment can change according to the nature of his work.” Id. (quoting Bissett
v. Tex. Emp’rs Ins. Ass’n, 704 S.W.2d 335, 338 (Tex. App.—Corpus Christi 1986, writ ref’d
n.r.e.)). In Evans, the jobsite was located six miles north of Tioga, Texas, at an area known as
Range Creek. A provision in the contract required all personnel working on the job to attend safety
meetings held every Monday morning in a trailer located one and one-half miles south of Tioga.
On the Friday before the accident, Larry Brawdy and James Evans, who were carpenters on the
job, were instructed by their supervisor to attend the safety meeting at 7:30 a.m. on the following
Monday morning, at which time their pay began. With Evans as a passenger, Brawdy was driving
directly to the meeting at approximately 7:20 a.m. when a collision with a train rendered him a
quadriplegic and killed Evans. The Texas Supreme Court concluded that all employees were
required to attend the regularly scheduled safety meetings as a part of their employment; therefore,
attendance was an integral part of the job, and not a special mission, and travel to the safety meeting
was simply travel to work. Id. at 304. The Court held
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Had Brawdy and Evans been injured while en route from the safety meeting
to the primary work site (at Range Creek), these injuries would have been covered
by the Act. However, since neither of them had begun work, their injuries fall
squarely within the “coming and going” rule and they are thereby precluded from
recovering workers’ compensation benefits. If other factors are not found to be
special, then the employee must have been actually working as he traveled down
the road in order for an injury to be compensable. The safety meetings were not
“special missions” but rather a regularly scheduled part of each employee’s job.
Railroad Builders neither supplied the transportation, compensated
employees for transportation time to the safety meetings, specified the route to be
taken by Brawdy and Evans, nor was aware of the route normally taken by Brawdy
and Evans. . . . .
The 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 the work of
employers. [citation omitted] Because Brawdy and Evans were outside the scope
of employment—merely being on their way to work at the time of the accident—
we affirm the decision of the court of appeals.
Id. at 305.
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.
CONCLUSION
Although Fuentes characterizes Estrada as a “field electrician” who was directed to travel
out of town to locations away from his employer’s premises, there is no evidence Estrada travelled
to more than one jobsite. Estrada travelled only from his home to the Goodfellow jobsite, with
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perhaps weekly stops at the office for his own convenience to drop off the timesheets, and his
stipend was a mere accommodation and not an integral part of his employment contract.
Therefore, although Estrada’s travel furthered Bryant Electric’s work, we conclude Texas Mutual
conclusively established Estrada’s choice to stop at the office en route to the Goodfellow jobsite
on the day of the accident did not originate in Bryant Electric’s business. Accordingly, the trial
court properly rendered summary judgment in favor of Texas Mutual on the ground that Estrada’s
travel was not in the course and scope of his employment. 5 For these reasons, we affirm the trial
court’s summary judgment in favor of Texas Mutual.
Irene Rios, Justice
5
Because we conclude Estrada’s travel was not in the course and scope of his employment, we need not address
whether any exclusion or exception applies. We also need not address whether the trial court properly denied
Fuentes’s motion for summary judgment.
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