      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-529-CV



                     American Protection Insurance Company, Appellant

                                                 v.

                                   Liana Leordeanu, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
    NO. D-1-GN-04-001199, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                                          OPINION


               American Protection Insurance Company appeals a district court judgment awarding

workers’ compensation benefits to appellee Liana Leordeanu based on a jury’s finding that

Leordeanu sustained a compensable injury while in the course and scope of her employment with

American Protection’s insured, Schering Plough, Inc. The issue presented involves the application

of section 401.011(12)(B) of the Texas Workers’ Compensation Act which is known as the “dual

purpose rule.” This section governs the compensability of injuries sustained by an employee while

traveling for both personal and business purposes. See Tex. Lab. Code Ann. § 401.011(12)(B)

(West 2006). American Protection argues that there is no evidence to support the jury’s finding that

Leordeanu’s injury was compensable and that the trial court erred as a matter of law in applying the

dual purpose rule of section 401.011(12)(B). We conclude that there is no evidence to support

the jury’s finding that Leordeanu sustained a compensable injury under the Texas Workers’
Compensation Act. Accordingly, we reverse the judgment of the district court and render judgment

that Leordeanu take nothing on her claims for workers’ compensation benefits.

               At the time of her injury, Leordeanu worked for Schering Plough as a pharmaceutical

sales representative. Her job duties required that she spend a significant portion of her time traveling

to pharmacies and doctors’ offices within a designated area. Schering Plough provided Leordeanu

with a car and with a storage unit for storing drug samples and marketing materials. Leordeanu’s

storage unit was located at a storage facility next door to the apartment complex where she lived.

In addition, Leordeanu testified that she maintained a business office in her apartment. From time

to time as part of her job, Leordeanu would entertain doctors and their staff at local restaurants and

pay for their drinks and food.

               On March 21, 2003, Leordeanu met with a doctor and members of his staff for dinner

at La Feria Restaurant in south Austin. After dinner and on her way home from the restaurant,

Leordeanu was involved in a single car accident and sustained serious injury. According to

Leordeanu, she had intended to stop at the storage unit next door to her apartment complex on her

way home from the restaurant and then to finish job-related paper work at her home office.

               American Protection, the workers’ compensation carrier for Schering Plough, denied

Leordeanu’s claim for compensation for the injuries she sustained in the accident. Leordeanu then

submitted the dispute to the Texas Department of Insurance Workers’ Compensation Commission

Division. The Division held a contested case hearing and determined that Leordeanu did not have




                                                   2
a compensable claim because she was not in the course and scope of employment at the time of the

accident.1 An appeals panel of the Division affirmed.

               Leordeanu sought judicial review of the appeals panel’s decision. American

Protection filed a motion for summary judgment arguing that the dual purpose rule of the Workers’

Compensation Act barred Leordeanu’s claim for benefits “because there has been no evidence

offered that Ms. Leordeanu would not have gone home (that she would have abandoned the trip

home) absent a business reason for going to the [storage unit] . . . .” The district court denied

American Protection’s motion for summary judgment, and the case was tried to a jury. The jury

found that Leordeanu sustained a compensable injury, and the district court entered judgment in

favor of Leordeanu.

               On appeal, American Protection argues that there is no evidence to support the jury’s

finding that Leordeanu sustained a compensable injury. In reviewing no evidence points, we

consider only the evidence and inferences that tend to support the finding and disregard all evidence

and inferences to the contrary. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992). If there is more

than a scintilla of evidence to support the finding, the no evidence challenge must fail. Id. We will

sustain a no evidence point of error when (1) the record discloses a complete absence of evidence

of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than


       1
         The Division also concluded that “the carrier [American Protection] is relieved of liability
for compensation because the claimed injury occurred while the claimant [Leordeanu] was in a state
of intoxication.” However, on judicial review of the Division’s decision, a jury found that
Leordeanu was not intoxicated at the time of the accident. This finding is not challenged on appeal.


                                                  3
a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Juliette Fowler Homes, Inc.

v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990) (citing Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).

               Under the Texas Workers’ Compensation Act, an insurance carrier is liable for

compensation for an employee’s injury if the injury arises out of and in the course and scope of

employment. Tex. Lab. Code. Ann. § 406.031 (West 2006). Generally, an employee is not in the

course and scope of his employment while driving his own vehicle to and from his place of work.

Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2000,

no pet.); Upton v. Gensco, Inc., 962 S.W.2d 620, 621 (Tex. App.—Fort Worth 1997, pet. denied).

The reasoning underlying this general rule is that injury incurred in such travel does not arise out of

that person’s employment, but rather is suffered due to the dangers and risks to which all traveling

persons are exposed. Evans v. Illinois Employers Ins., 790 S.W.2d 302, 304 (Tex. 1990). Stated

another way, the general rule is that travel to and from work, without some special instruction or

“special mission” from the employer directing the employee to proceed from one place to another,

is considered travel for personal purposes rather than travel for business purposes. See id. Thus,

travel for exclusively business purposes is considered within the course of employment and travel

for exclusively personal purposes is not within the course and scope of employment under the

Workers’ Compensation Act. See Tex. Lab. Code Ann. § 401.011(12).

               A different situation is presented when an employee is engaged in travel that has both

personal and business-related purposes. The dual purpose rule is designed to address whether an



                                                  4
employee is in the course and scope of employment for the purpose of coverage when injury occurs

during travel that is for both personal and business purposes.             See Tex. Lab. Code Ann.

§ 401.011(12)(B). The rule provides that injuries incurred during travel for the dual purpose of

furthering the affairs or business of the employer and of furthering the employee’s personal or private

affairs shall not be deemed in the course of employment unless (1) the travel to the place of

occurrence of the injury would have been made even had there been no personal or private affairs

of the employee to be furthered by the travel; and (2) the travel would not have been made had there

been no affairs or business of the employer to be furthered by the travel. Id.; Janak v. Texas

Employers’ Ins. Assoc., 381 S.W.2d 176, 179 (Tex. 1964). In order to be entitled to workers’

compensation benefits in dual purpose situations, the employee or his survivors must satisfy both

prongs of section 401.011(12)(B). Janak, 381 S.W.2d at 180; Tramel v. State Farm Fire & Cas. Co.,

830 S.W.2d 754, 756 (Tex. App.—Fort Worth 1992, writ denied). This means that the travel would

have occurred even if the personal purpose were removed from the analysis and the travel would not

have occurred if the business purpose of the travel were removed from the analysis. See Tex. Lab.

Code Ann. § 401.011(12)(B).

                It is undisputed that Leordeanu was injured while traveling from the business-related

dinner meeting to her apartment and the storage unit next door to her apartment. Leordeanu testified

that upon leaving the restaurant on the night of the accident, she intended to travel first to the storage

unit next door to her apartment and then to her apartment to finish certain job-related paper work.

These tasks furthered the business affairs of Leordeanu’s employer, Schering Plough, and were,

therefore, business purposes for the travel.



                                                    5
               Leordeanu also testified that when she left La Feria Restaurant on the night of the

accident, she was “planning on going first to the storage unit and then to the office, to my home.”

She gave the following testimony during cross-examination:


       [Counsel]:             Now, I understand that you left the restaurant and you drove
                              from La Feria on Loop 360; is that correct?

       [Leordeanu]:           Uh-huh.

       ...

       [Counsel]:             And then you would turn west on Highway 22; is that correct?

       [Leordeanu]:           Yes, sir.

       [Counsel]:             And you would do those things to go to your home; is that
                              correct?

       [Leordeanu]:           I would do those things to go in the direction of first the
                              storage unit, as well as the direction of home as well as the
                              office, yes.

       [Counsel]:             And I understand your testimony is that you were going to the
                              storage locker.

       [Leordeanu]:           That’s right.

       [Counsel]:             And I’m asking you about if you were leaving La Feria and
                              going home and not going to the storage locker, that’s the
                              same route you would take, correct?

       [Leordeanu]:           That’s right.

       [Counsel]:             So the routes are identical at that point in time in the travel,
                              leaving the restaurant and going to either the storage unit or
                              your apartment?

       [Leordeanu]:           That’s right.



                                                 6
       [Counsel]:              Now, did you intend to spend the night at home that night?

       [Leordeanu]:            Yes.

       [Counsel]:              So you were also going home as well as going to the storage
                               locker?

       [Leordeanu]:            Yes.


               Leordeanu added that she intended to stay at her apartment after finishing her work

there. Thus, she was also traveling home from the restaurant—a personal purpose for the same

travel. See Evans, 790 S.W.2d at 305 (stating employee’s trip from work to home was “purely

personal”); Tramel, 830 S.W.2d at 757 (noting that employee’s trip from home to work serves

“private, personal purpose”). Leordeanu’s travel from the restaurant that night was, therefore, for

both business and personal purposes, and the question of whether she was acting in the course and

scope of employment is governed by the dual purpose rule of section 401.011(12)(B).

               Under the dual purpose rule of section 401.011(12)(B), it is not enough that

Leordeanu intended to finish certain job-related paper work upon returning to her apartment for her

injury to be compensable. Rather, under the rule, Leordeanu was required to show that she would

not have made the travel that resulted in her injuries had there been no business of her employer

to be furthered by the travel. In other words, Leordeanu had to show that she would not have

returned home after dinner on the night of the accident, but for the need to complete business-related

paperwork. However, there is no evidence in the record to that effect.

               Leordeanu urges this Court to view her intended travel on the night of the accident

as two separate, single purpose segments of travel—from the restaurant to the storage unit and from



                                                  7
the storage unit to her apartment—and to analyze each segment of her travel separately. She argues

that the first phase of her intended travel, from the restaurant to the storage unit, was not dual

purpose travel because she had no personal reason for going to the storage unit. She contends that

the dual purpose aspect of the trip did not occur until the second phase of her intended travel, from

the storage unit to her apartment, because she had both a business reason (finishing her paper work)

and a personal reason (going home) for traveling from the storage unit to her apartment. Thus,

according to Leordeanu, because the accident occurred during the first phase of her travel and

because that phase of the travel was not a dual purpose trip, she was in the course and scope of

employment at the time of the accident.

               The San Antonio Court of Appeals adopted a similar approach to dual purpose travel

in St. Paul Fire & Marine Insurance Co. v. Confer, 956 S.W.2d 825 (Tex. App.—San Antonio 1997,

pet. denied). In that case, Dr. Ronald Confer was killed in an automobile accident while traveling

home from work. He had left work early so that he could also run a business errand to purchase

computer supplies for use at his office. See id. at 827. The route to the computer supply store was

along Dr. Confer’s normal route home, and Dr. Confer intended to continue home after running the

business errand. See id. However, Dr. Confer was killed before he reached the computer supply

store.2 See id. Dr. Confer’s widow sued for death benefits under the Workers’ Compensation Act,

and a jury found that Dr. Confer was in the course and scope of his employment at the time he was

killed. See id. The issue on appeal was whether the evidence adduced at trial satisfied both prongs


       2
         Interestingly, the Confer court expressly found that Dr. Confer’s travel at the place of
occurrence of the injury was dual purpose travel and section 401.011(12)(B) was applicable. See 956
S.W.2d at 829.

                                                 8
of the dual purpose rule of the Workers’ Compensation Act. See id. at 828. The court addressed

several cases concerning injuries sustained by employees while traveling from home on a business

errand. See Evans, 790 S.W.2d at 305 (holding employee’s death not compensable where employee

was on way from home to pre-work safety meeting); Meyer v. Western Fire Ins. Co., 425 S.W.2d

628, 629 (Tex. 1968) (holding injury compensable where employee was involved in accident on way

to work after having taken work-related telephone calls from home); Janak, 381 S.W.2d at 182

(holding injury compensable where accident occurred on way to work after employee had deviated

from his normal route in order to pick up ice for use during work). It then distinguished the facts

presented in Dr. Confer’s case as follows:


        the controlling issue in cases such as this is during what segment of a trip did the
        injury occur; the segments being home to business errand and business errand to
        work. These segments are reversed in the present case. In other words, Dr. Confer’s
        fatal trip consisted of segments including work to business errand and business
        errand to home. Applying the logic of the cases discussed above, an injury occurring
        between work and the business errand would be compensable because the employee
        has not completed work, while an injury occurring between the business errand and
        home would not be compensable because the employee’s work would be finished.


Id. at 830.

               We are of the view that the approach taken in Confer—separating dual purpose travel

into “business related” and “personal related” segments—departs from the mandatory requirements

of the dual purpose rule as set out in the Workers’ Compensation Act. Section 401.011(12)(B),

when it applies, does not contemplate analyzing a claimant’s dual purpose travel and determining

whether particular segments or portions of that travel are for a single, business-related purpose. If

travel is exclusively for a business-related purpose, section 401.011(12)(B) does not apply at all.

                                                 9
Section 401.011(12)(B) only applies whenever the travel is for both business and personal purposes

(dual purpose) and the travel cannot be ascribed a single purpose.

                When travel is dual purpose, the dual purpose rule requires the court to determine the

answers to two questions: (1) would the travel during which the claimant was injured have occurred

even if there were no personal purpose; and (2) would the travel not have occurred if there were no

business purpose.3 If the answer to either of these questions is “no,” then the employee is not

deemed to be in the course and scope of employment. If the answers to both questions are “yes,” the

employee is deemed to be in course and scope of employment and the injury is potentially

compensable. The statute does not allow a court to approach the analysis of compensability of dual

purpose travel in any other way.




        3
           Part of the difficulty with this statute is that the provisions of section 401.011(12)(B)(i) and
(ii) are exceptions to the general rule of section 401.011(12)(B) which is itself an exception to the
general definition of “course and scope of employment.” This difficulty is compounded by the fact
that the requirements of section 401.011(12)(B)(i) and (ii) are conjunctive, but section
401.011(12)(B)(ii) is drafted in the form of a double negative—“the travel would not have been
made had there been no affairs or business of the employer to be furthered by the travel.” Thus, to
address an issue such as the one presented by this case, the courts and lay juries are faced with a rule
that (translated) looks something like this:

        An employee is in the course and scope of employment when engaging in any
        activity of any kind that has to do with the business of the employer while the
        employee is engaged in the furtherance of the affairs of the employer except when the
        employee is traveling for both business and personal purposes unless the travel
        would have been made even if there were no personal purpose involved and the
        travel would not have been made had there been no business purpose involved.

Although semantically challenging, the rule can be deciphered and appears to work when applied
correctly. However, the way it works is not readily apparent. Expecting juries to consistently and
knowledgeably apply a charge instruction based on the structure of this statute is problematic.

                                                    10
               The dual purpose rule, applied correctly, can be an effective mechanism for ferreting

out whether dual purpose travel is primarily business travel or primarily personal travel, and the

pertinent questions can be posed and answered for any point in a claimant’s travel. The dual purpose

rule as it is currently formulated in the Workers’ Compensation Act does not, however, allow for

assigning single purpose segments or phases to dual purpose travel. Evidence as to whether a person

is on the “business-related segment” of dual purpose travel when an accident occurs is not relevant

to the analysis because it does not answer either question set out in section 401.011(12)(B), the key

inquiries of the dual purpose rule. Rather, the evidence must support answers to the questions in

section 401.011(12)(B)(i) and (ii), regardless of whether the business purpose for the travel had been

completed at the time of the accident.

               The Confer court articulated its reasoning as follows:


       The evidence supports a finding that Dr. Confer would not have been on Interstate
       35 at 4:20 p.m. if he had not been going to Altex [a business errand for his
       employer]. The fact that Altex happens to be along the same route as his route home
       should be of little consequence. Why should the result be any different if Altex had
       been located somewhere off of Interstate 35, forcing Dr. Confer to travel away from
       his regular route? The controlling issue should be whether the employee is traveling
       on behalf of his employer at the time of the accident, not on what road he happens
       to be traveling.


956 S.W.2d at 830 (emphasis in original). This approach basically concludes that, since the portion

of Dr. Confer’s travel from the office to Altex (the stop on the business errand) had a business-

related component, such travel would be in the course and scope of employment even though it

was also personal travel to the doctor’s home. The portion of the travel from Altex to Dr. Confer’s

home then lacks any business-related component and is, therefore, not in the course and scope of

                                                 11
employment, even though the personal travel home would necessarily include both portions of the

trip if Dr. Confer were not stopping at Altex.

               The Confer approach adopts a policy position to the effect that if a claimant is

traveling for a business purpose at all, even if there is also a personal purpose, then the travel is in

the course and scope of employment and any injury incurred during the travel compensable. This

might arguably be a reasonable policy position. It would allow injuries to be compensable any time

there is a business-related component to travel no matter how incidental. However, this is not the

policy position that the Legislature has taken in section 401.011(12). The statute mandates that if

the travel has dual purposes—both business and personal—it is only within the course and scope of

employment and, therefore, compensable, if it meets the requirements of section 401.011(12)(B).

               If the Confer approach were correct, section 401.011(12)(B) would not exist. The

statute would simply provide that if travel had any business purpose at all, it is in the course and

scope of employment. There would not be a dual purpose rule because there would be no special

treatment of dual purpose travel. Dual purpose travel would, by definition, have a business purpose

component and, therefore, would always be travel in the course and scope of employment. Thus,

if we are to grant section 401.011(12)(B) any meaning at all, we cannot take the approach proposed

in the Confer opinion.

               The answer to the Confer court’s rhetorical question “Why should the result be

any different if Altex had been located somewhere off of Interstate 35, forcing Dr. Confer to travel

away from his regular route?” is twofold: first, the statute expressly declines to adopt the policy of

allowing coverage whenever there is any business-related component to travel, and it mandates a



                                                  12
different result for dual purpose travel based on specific statutory criteria; second, the statutory

scheme has a rational basis in that a policymaker could well come to the conclusion that dual

purpose travel should not be compensable unless it is predominately for a business-related purpose

rather than predominately for a personal purpose with an incidental business-related component.

Section 401.011(12)(B) appears to be an attempt to create a statutory system for distinguishing

between predominately business-related travel and predominately personal travel. Consequently,

in Dr. Confer’s case, the result would be different if Altex were not located on Interstate 35 because

Dr. Confer’s travel to Altex would then not have happened at all but for the business purpose. Since,

instead, Dr. Confer was on his route home when the accident happened, it was travel that he would

have made in any event and the business purpose of stopping at Altex was incidental. Under the

language of section 401.011(12)(B), this travel was not in the course and scope of Dr. Confer’s

employment. The notion that the timing of the travel is significant—i.e. leaving early from work in

order to make the business stop and get home at the usual time—appears nowhere in the statute.

               In applying the dual purpose rule, we ask the statutory questions about the travel at

the point that the claimant is injured.4 In this case, we know that Leordeanu was traveling to both

her home and the storage unit at the point at which she was injured. The route of travel to both

destinations was identical. Thus, her travel at that point was dual purpose and the provisions of

section 401.011(12)(B) apply. We then ask the statutory questions. First, would her travel have

been made even had there been no personal or private affairs to be furthered by the travel? In this




       4
         Section 401.011(12)(B)(i) of the Texas Labor Code refers to the “travel to the place of the
occurrence of the injury.”

                                                 13
case, Leordeanu concedes she was going home for the evening from the restaurant, but was going

to drop off some items at the storage unit on the way. There is nothing in the evidence to suggest

that Leordeanu would have traveled to the storage unit even if she were not going home. Thus, on

this record, the answer to the first question, rather than being a conclusive “yes,” is, at best,

equivocal.5 Second, would the travel not have been made had there been no affairs or business of

the employer to be furthered by the travel? Once again, Leordeanu concedes that she was going

home for the evening from the restaurant. There is no evidence that Leordeanu would not have made

this travel if she did not intend to drop off items at the storage unit.6 On the contrary, Leordeanu

concedes that she was going home whether or not she dropped items off at the storage unit.

Therefore, on this record, the answer to the second question is “no,” and it precludes a finding that

Leordeanu was in the course and scope of her employment at the time of her injury.

               We conclude that there is no evidence in the record to satisfy the second prong of the

dual purpose rule which requires that the travel would not have occurred if the business purpose of

the travel were removed from the equation. There is no evidence that Leordeanu would have



       5
          Since there is insufficient information in the record to answer the question posed by the
first prong of section 401.011(12)(B) “yes,” one could argue that Leordeanu has failed to satisfy
either prong of the statute. However, the case was briefed and argued as a failure by Leordeanu to
satisfy the second prong of section 401.011(12)(B), and even if we assume the answer to the first
prong of section 401.011(12)(B) is “yes,” the lack of evidence as to the second prong of the statute
is dispositive.
       6
          Here the problem of the double negative in the statute comes up again. Dealing with a
question that involves a double negative and to which the answer is “no” can create confusion. Here
the question can be rephrased: “If Leordeanu had not planned to drop by the storage unit, would she
have cancelled (or not made) the travel?” The answer to this question is more easily seen to be “no”
because she concedes that she was going to go home in any event and the route of travel to both the
storage unit and her apartment at the time of the injury was the same.

                                                 14
been traveling on some other route to her home when she was injured had she not intended to stop

by the storage unit next door to her apartment. The evidence is conclusive that Leordeanu’s travel

from the restaurant to her home at the point where she was injured would have been identical

whether she had intended to stop by the storage unit or not. There is no evidence that she would not

have made the travel that resulted in her injuries had there been no business of her employer to be

furthered by the travel.

               The dual purpose rule of the Workers’ Compensation Act bars Leordeanu’s claim for

workers’ compensation benefits. Therefore, we conclude that there is no evidence to support the

jury’s finding that Leordeanu sustained a compensable injury. Accordingly, we reverse the judgment

of the district court and render judgment that Leordeanu take nothing on her claims for workers’

compensation benefits.



                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
  Dissenting Opinion by Justice Patterson

Reversed and Rendered

Filed: August 2, 2007




                                                15
