                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 May 13, 2013 Session

               JASON COOPER, ET AL. v. ROBERT LEDFORD
                      FUNERAL HOME, INC., ET AL.

          Extraordinary Appeal from the Circuit Court for Unicoi County
                      No. C7768     Jean A. Stanley, Judge


               No. E2013-00261-COA-R10-CV-FILED-JULY 29, 2013


We granted Robert Ledford Funeral Home, Inc.’s (“the Funeral Home”) application for
extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider the issue of whether the
Funeral Home was entitled to summary judgment as a matter of law if the undisputed
material facts demonstrate that its “on call” employee, Johnny Tipton, was not acting within
the course and scope of his employment with the Funeral Home when the vehicle accident
causing injuries to the plaintiffs occurred. We find and hold that the undisputed material
facts demonstrate that Mr. Tipton was not acting within the course and scope of his
employment with the Funeral Home, and that the Funeral Home is entitled to summary
judgment as a matter of law.

              Tenn. R. App. P. 10 Extraordinary Appeal by Permission;
              Judgment of the Circuit Court Reversed; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Richard M. Currie, Jr., Kingsport, Tennessee, for the appellant, Robert Ledford Funeral
Home, Inc.

B. Andrew Glenn, Gate City, Virginia, for the appellees, Jason Cooper individually and on
behalf of his daughter Brooke Cooper, and Sylvia Renfroe.
                                             OPINION

                                            Background

              Jason Cooper, individually and on behalf of his daughter Brooke Cooper, and
Sylvia Renfroe (“Plaintiffs”) sued Johnny Tipton, Angela Frey, and Robert Ledford Funeral
Home, Inc. concerning an automobile accident (“the Accident”) that occurred in December
of 2011 in Erwin, Tennessee. The Accident occurred when a vehicle operated by Mr. Tipton
collided with a vehicle being operated by plaintiff Sylvia Renfroe. Plaintiffs Jason Cooper
and Brooke Cooper were passengers in Ms. Renfroe’s vehicle at the time of the accident.
The vehicle being driven by Mr. Tipton belonged to defendant Angela Frey. At the time of
the accident, Mr. Tipton, an employee of the Funeral Home, was traveling to the Funeral
Home in order to clock in, obtain a Funeral Home vehicle, and then pick-up the body of a
deceased individual.

              The Funeral Home filed a motion for summary judgment alleging, in pertinent
part, that Mr. Tipton was not in the course and scope of his employment with the Funeral
Home at the time of the accident and, therefore, the Funeral Home could not be held liable.
In support of their motion for summary judgment, the Funeral Home filed a statement of
undisputed material facts,1 which stated, in pertinent part:

        4. Johnny Tipton was listed for payroll purposes as an employee of Erwin
        Memorial Funeral Home, Inc. Robert Ledford Funeral Home, Inc., Erwin
        Memorial Funeral Home, Inc., and Unicoi Funeral Home are three funeral
        homes located in Unicoi County, Tennessee. They have one owner and are
        operated together. Employees of one funeral home are expected to and do
        work at the other funeral home locations as needed. This was the case with
        Johnny Tipton.
        5. Johnny Tipton was hired on October 31, 2011, as a general laborer.
        6. Johnny Tipton’s duties including [sic] picking up the remains of deceased
        persons from the facility or the residence where the death occurred and
        bringing them to Robert Ledford Funeral Home in a funeral home hearse.
        7. Johnny Tipton was paid by the hour.
        8. Johnny Tipton was not at work and was not paid until he clocked in.
        9. Johnny Tipton was not paid to travel to the funeral home from his home and
        received no mileage reimbursement for traveling to the funeral home.



       1
       In their response to the Funeral Home’s motion for summary judgment Plaintiffs admit for purposes
of summary judgment to the facts contained in the Funeral Home’s statement of undisputed material facts.

                                                  -2-
        10. On December 2, 2011, Johnny Tipton worked during the day and clocked
        out at 16:05 hours (4:05 p.m.), which ended his work day.
        11. Although Johnny Tipton typically worked during regular business hours,
        he and other employees were subject to being called to return to work after
        regular business hours for the purpose of obtaining a funeral home hearse and
        picking up the remains of a deceased person. Upon being requested to retrieve
        the remains of a deceased person, Johnny Tipton, and other employees, were
        to report to 720 Ohio Avenue, Erwin, Tennessee, clock in, obtain the funeral
        home pick-up hearse and retrieve the remains.
        12. At the time of the accident, which is the basis of the above-referenced
        lawsuit, Johnny Tipton was traveling to Robert Ledford Funeral Home from
        his residence in Unicoi, Tennessee, to clock in for the purpose of retrieving the
        remains of a deceased person. He was not traveling in a vehicle owned by,
        controlled by or authorized by Robert Ledford Funeral Home. He had not yet
        arrived at the funeral home to clock in to begin performing his job duties and
        was not in the course and scope of his employment.2

                                                   ***

        18. Johnny Tipton was never authorized to use any private vehicle in
        connection with his work at the funeral homes.
        19. Johnny Tipton was never paid any mileage or other compensation or
        reimbursement for use of a personal vehicle in his work for the funeral homes.
        20. Neither Johnny Tipton, nor any other employee have ever been paid any
        additional compensation for being subject to call after regular business hours
        to retrieve remains.

(citations to the record omitted).

               After a hearing on the Funeral Home’s motion for summary judgment, the Trial
Court entered its order on November 21, 2012 denying the Funeral Home summary judgment
after finding and holding, inter alia, that based upon the undisputed facts that the Trial Court
could not determine whether or not Mr. Tipton was acting within the course and scope of his
employment. The Funeral Home filed a Tenn. R. App. P. 10 motion for extraordinary appeal,
which we granted by order entered on February 12, 2013.



        2
          Even though Plaintiffs admit in their response to the Funeral Home’s motion for summary judgment
to the facts in the Funeral Home’s statement of undisputed material facts, they continue to argue, even within
their response, that Mr. Tipton was acting within the course and scope of his employment.

                                                     -3-
                                                Discussion

               We granted the Funeral Home’s motion for extraordinary appeal to consider
the sole issue of whether the Funeral Home was entitled to summary judgment as a matter
of law if the undisputed facts demonstrate that its “on call” employee, Johnny Tipton, was
not acting within the course and scope of his employment with the Funeral Home when the
accident causing injuries to the Plaintiffs occurred.

                 With regard to summary judgments, this Court explained in Estate of Boote v.
Roberts:

             The trial court’s resolution of a motion for summary judgment is a
      conclusion of law, which we review de novo on appeal, according no
      deference to the trial court’s decision. Martin v. Norfolk S. Ry. Co., 271
      S.W.3d 76, 84 (Tenn. 2008). Summary judgment is appropriate only when the
      moving party can demonstrate that there is no genuine issue of material fact,
      and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04;
      see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall,
      847 S.W.2d 208, 214 (Tenn. 1993).

             This action was filed [after July 1, 2011]. Therefore, the trial court was
      required to apply the summary-judgment standard set forth in Tennessee Code
      Annotated § 20-16-101.3 That statute provides:

                        In motions for summary judgment in any civil action in
                 Tennessee, the moving party who does not bear the burden of
                 proof at trial shall prevail on its motion for summary judgment
                 if it:

                                 (1) Submits affirmative evidence that
                          negates an essential element of the nonmoving
                          party’s claim; or
                                 (2) Demonstrates to the court that the
                          nonmoving party’s evidence is insufficient to
                          establish an essential element of the nonmoving
                          party’s claim.




      3
          Section 20-16-101 is applicable to all cases filed on or after July 1, 2011.

                                                      -4-
        Tenn. Code Ann. § 20-16-101 (Supp. 2012).4

Estate of Boote v. Roberts, No. M2012-00865- COA-R3-CV, 2013 Tenn. App. LEXIS 222,
at **24-25 (Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footnotes in
original but renumbered).5

              Dealing with an issue of first impression regarding liability under the doctrine
of respondeat superior for “on-call” employees this Court explained:

               In order to impose liability under respondeat superior, it is necessary to
        show that the operator of a vehicle causing injury was, at the time of the
        accident, acting as a servant or employee of the owner, was engaged in the
        employer’s business, and was acting within the scope of his employment. See
        Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 386 (Tenn. 1986);
        Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co., 840 S.W.2d
        933, 937 (Tenn. Ct. App. 1992).

                                                    ***

        In determining whether an “on call” employee is acting within the course and
        scope of his employment, thus casting liability on his employer, we find the
        following factors helpful:

                 1. Whether, at the time of the accident, the employee’s use of
                 the vehicle benefitted the employer;
                 2. Whether the employee was subject to the employer’s control
                 at the time of the accident;



        4
         Section 20-16-101 was enacted to abrogate the summary-judgment standard set forth in Hannan,
which permitted a trial court to grant summary judgment only if the moving party could either (1)
affirmatively negate an essential element of the nonmoving party’s claim or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial. Hannan, 270 S.W.3d at 5. The statute is
intended “to return the summary judgment burden-shifting analytical framework to that which existed prior
to Hannan, reinstating the ‘put up or shut up’ standard.” Coleman v. S. Tenn. Oil Inc., No. M2011-01329-
COA-R3-CV, 2012 Tenn. App. LEXIS 453, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App. July 5, 2012).
        5
         The case now before us on appeal was filed in April of 2012. The parties do not dispute the
summary judgment standard applicable to this case, and neither side raises an issue as to the constitutionality
of Tenn. Code Ann. § 20-16-101. While there may be an unraised question as to the constitutionality of
Tenn. Code Ann. § 20-16-101, we note that in the case now before us the result would be the same whether
we applied the statutory standard or the standard set out by our Supreme Court in Hannan.

                                                     -5-
              3. Whether the employee’s after-hour activities were restricted
              while on call;
              4. Whether the use of the vehicle at the time of the accident was
              authorized by the employer; and
              5. What the employee’s primary reason for using the vehicle
              was at the time of the injury-producing accident.

       This list is not meant to be exclusive but is rather provided for guidance in
       future cases. It should be remembered, however, that the primary focus should
       be on whether the use of the vehicle at the time of the collision was within the
       course and scope of employment, and, as the Johnson [v. Dufrene, 433 So.2d
       1109 (La. Ct. App. 1983)] court stated, each case should be determined upon
       its unique facts.

Thurman v. Sellers, 62 S.W.3d 145, 152-55 (Tenn. Ct. App. 2001).

              In its November 21, 2012 order, the Trial Court discussed the five Thurman
factors and found that two of the factors weighed in favor of a finding that Mr. Tipton had
been acting within the course and scope of employment. Specifically, the Trial Court found:

       1. Whether at the time of the accident, the employee’s use of the vehicle
       benefitted the employer. The Court finds that it would. Mr. Tipton was using
       his vehicle to go to the Funeral Home at the request of his employer to pick up
       a hearse so that he might transport the remains of a deceased person for the
       Funeral Home.

                                            ***

       5. What the employee’s primary reason for using the vehicle was at the time
       of the injury producing accident. It is undisputed that the primary reason was
       to travel to the Funeral Home to conduct their business.

We disagree with the Trial Court on both of these points.

              Importantly, Mr. Tipton was not utilizing a Funeral Home vehicle to commute
to work. If he had been, our analysis could have been affected by this change in the factual
scenario. The undisputed facts clearly show that Mr. Tipton was utilizing a private vehicle
over which the Funeral Home exercised no control whatsoever. The record also shows that
the Funeral Home exercised no control over the manner in which Mr. Tipton got to work or



                                             -6-
the route he took to do so. Thus, the fact that Mr. Tipton was commuting to work in a private
vehicle over which the Funeral Home exercised no control is significant to our analysis.

               To say that Mr. Tipton’s use of Ms. Frey’s vehicle benefitted the employer
when the evidence clearly shows that Mr. Tipton was using the vehicle simply to get to the
Funeral Home would render every employee’s commute to work a benefit to the employer.
Certainly the employer benefits when its employee gets to work. To satisfy this Thurman
factor, however, requires more. Furthermore, the fact that Mr. Tipton was “called in,” rather
than commuting to work on his normal schedule is a distinction without a difference as
concerns this Thurman factor. There is no rational basis for distinguishing an employee
commuting to work on his or her regular schedule from one commuting to work at an
“irregular,” or not regularly scheduled time. In both situations, the employee is doing the
same thing, which is traveling to work. Either way, the employee’s use of a vehicle to
commute to work does not automatically provide a benefit to the employer.6

               For the same reasons, we disagree with the Trial Court’s finding relative to the
fifth Thurman factor. The undisputed facts show that Mr. Tipton simply was commuting to
work. Mr. Tipton was not running an errand for the Funeral Home at the time of the
accident. Nor was he transporting something for the Funeral Home at that time. He was
simply commuting to the job site so that he could clock in and begin his work of retrieving
a Funeral Home hearse so that he could pick-up the body of a deceased individual. Thus, Mr.
Tipton was not engaged in any task for the Funeral Home at the time of the accident. The
fact that he was on his way to work does not render Mr. Tipton’s primary use of the vehicle
to be for the employer’s benefit.

               We agree with the Trial Court’s implicit finding that consideration of the other
three Thurman factors in light of the undisputed facts leads to the conclusion that Mr. Tipton
was not acting within the course and scope of his employment at the time of the accident.
As we have determined that the undisputed material facts in light of the Thurman factors
show that Mr. Tipton was not acting within the course and scope of his employment at the
time of the accident, the Funeral Home was entitled to summary judgment as a matter of law.

            The Funeral Home argues in its brief on appeal that a line of worker’s
compensation cases should control our disposition of the issue now before us. We disagree




        6
          We acknowledge that as the analysis in these cases is heavily fact dependent, it is possible that given
a different factual scenario a finding that the employee’s use of a vehicle to commute to work benefitted the
employer might be proper.

                                                      -7-
for two reasons. First, the case now before us is a tort case, and there are tort cases 7 dealing
with this issue, as discussed above. Second, worker’s compensation cases involve a no-fault
based system, whereas tort cases, such as the one now before us on appeal, inherently involve
fault. As such, we do not find the worker’s compensation cases to be controlling of the issue
now before us. We will, however, discuss the worker’s compensation cases discussed in both
parties’ briefs in order to point out that even if we applied worker’s compensation law, the
result in this case would be the same.

            In Howard v. Cornerstone Med. Assocs., P.C., a worker’s compensation case,
our Supreme Court specifically stated:

        travel to and from work is not, ordinarily, a risk of employment. Rather,
        driving to work falls into the group of all those things a worker must do in
        preparation for the work day, such as dressing; and driving home from work
        is often a prerequisite to getting home. While this travel is some modicum of
        benefit to the employer, travel to and from work is primarily for the benefit of
        the employee: if he doesn’t present himself at the work place, he is not
        compensated for his labors.

Howard v. Cornerstone Med. Assocs., P.C., 54 S.W.3d 238, 241 (Tenn. 2001) (quoting Sharp
v. Northwestern Nat’l Ins. Co., 654 S.W.2d 391, 392 (Tenn. 1983)).

              Additionally, in the recent worker’s compensation case of Shannon v. Roane
Med. Center, our Supreme Court8 dealt with the issue of whether an “on call” employee was
acting within the course and scope of employment. Shannon v. Roane Med. Center, No.
E2011-02649-WC-R3-WC, 2013 Tenn. LEXIS 302 (Tenn. March 13, 2013). The Shannon
Court explained:




        7
         Plaintiffs cite to Russell v. City of Memphis, Tennessee a tort case wherein this Court applied the
Thurman factors. Russell v. City of Memphis, Tennessee, 106 S.W.3d 655 (Tenn. Ct. App. 2002). In Russell
this Court held that the employee was not acting within the scope of employment because although on-call
and driving a City vehicle, the employee was using the vehicle for personal use, his after-hours activities
were not restricted, and his use of the vehicle did not benefit the City. Id. at 658. Plaintiffs assert that the
case now before us is distinguishable from Russell because the employee was not on-call at the time of the
accident, while Mr. Tipton had received a call to come to work, and, therefore, that Russell supports their
position. We disagree that this one change in the fact pattern merits a different result. Id. at 658.
        8
        By order entered March 13, 2013 our Supreme Court adopted, affirmed, and made the judgment of
the Court the Special Workers’ Compensation Appeals Panel’s Memorandum Opinion.

                                                      -8-
               The general rule is that an employee is not acting within the course of
       employment when the employee is going to or from work unless the injury
       occurs on the employer’s premises. The primary basis for this rule, often
       referred to as the “coming and going rule,” is that travel to and from work is
       not ordinarily a risk of employment and instead falls into the category of things
       any employee must do “in preparation for the work day” or as a “prerequisite
       to getting home.” While travel to and from work may provide a modicum of
       benefit to the employer, such travel is typically considered to be primarily for
       the benefit of the employee. That is, unless employees travel to the workplace,
       they are not entitled to be compensated for their labors.

               The coming and going rule does, however, have exceptions. If the
       employee is injured “while performing some special act, assignment, or
       mission at the direction of the employer,” then the injury may be compensable.
       Likewise, an injury that occurs while an employee is traveling to or coming
       from work in a company vehicle may also be compensable. Additionally, our
       supreme court has recognized that an injury occurring while an employee
       travels to or from work is compensable when the travel itself “is a substantial
       part of the services for which the [employee] was employed and
       compensated.” Factors that may lead to a finding that the travel was a
       substantial part of the employment services include the use of a vehicle by an
       employee to transport materials used in the employment or the compensation
       of the employee for food and travel expenses.

Id. at **10-12 (citations omitted).

              The Shannon Court determined that:

       courts should consider the totality of the circumstances in determining whether
       the coming and going rule applies to an on-call employee, including but not
       limited to the following factors: (1) whether the employee is paid for time
       spent on call, either in the form of an hourly wage or increased annual salary;
       (2) the nature of any restrictions imposed by the employer during the
       employee’s on-call hours; (3) the extent to which the employer benefits from
       the on-call system; and (4) the extent to which the on-call system requires
       additional travel that subjects the employee to increased risk compared to an
       ordinary commuter.

Id. at *18. After considering the totality of the circumstances, the Shannon Court held that
the employee was acting within the course and scope of her employment because she was

                                              -9-
paid an hourly rate for the time she was on-call, the employer placed significant restrictions
upon the on-call employee, the on-call system provided significant benefit to the employer,
and the on-call system required additional travel that subjected the employee to increased
risk. Id. at **18-21.

               The Shannon Court also discussed three other Tennessee worker’s
compensation cases, which “at least partially addressed the issue of whether an on-call
employee who is injured on the way to or from work has sustained an injury in the course of
employment.” Id. at *12. In Howard v. Cornerstone Med. Assocs., benefits were denied
because the employee was not on-call, was not subject to restrictions, was not required to
remain within a certain radius of the job site, and was not compensated for time spent waiting
for an assignment. Howard v. Cornerstone Med. Assocs., 54 S.W.3d 238 (Tenn. 2001). In
Sharp v. Northwestern Nat’l Ins. Co., benefits were denied because the employer would call
the employee to tell him when and where to report for work, but the employee was paid only
for hours worked at the job site not for time waiting for a call or traveling to the job site.
Sharp v. Northwestern Nat’l Ins. Co., 654 S.W.2d 391 (Tenn. 1983). Likewise, in Douglas
v. Lewis Brothers Bakeries, Inc., benefits were denied because pursuant to the employment
contract the employee was subject to being called to come to the job site when not on his
regular shift to repair breakdowns in machinery and was guaranteed at least eight hours
weekly at time and a half pay for this extra work, but was not paid for the extra work until
he had clocked in. Douglas v. Lewis Brothers Bakeries, Inc., 477 S.W.2d 202 (Tenn. 1972).

              The facts in the case now before us are distinguishable from the facts in
Shannon, and are much more similar to the facts in Howard, Sharp, and Douglas, wherein
the employees were found to be not within the scope of employment. In the case now before
us, the undisputed facts show that Mr. Tipton, although subject to being called in to work,
was not paid until he clocked in at the Funeral Home job site.

               Plaintiffs also argue that because Mr. Tipton’s job required travel, the Funeral
Home should be held vicariously liable as the injuries occurred while Mr. Tipton was
traveling to work. We disagree. Mr. Tipton’s job required him to utilize a Funeral Home
vehicle to pick-up the bodies of deceased individuals. Mr. Tipton was not driving a Funeral
Home vehicle at the time of the accident. Nor was he en route to pick-up a body. Rather,
Mr. Tipton was utilizing a private vehicle and was en route to clock in to work where he
would obtain a Funeral Home vehicle to enable him to do his job. The analysis would
necessarily be different if the accident had occurred after Mr. Tipton had obtained a Funeral
Home hearse and was en route to pick up the body of the deceased individual. To find that
the Funeral Home should be held liable simply because Mr. Tipton’s job required travel and
the accident occurred while Mr. Tipton was traveling to work would result in employers
being subject to vicarious liability while their employee was traveling to work all of the time

                                             -10-
for any employee whose job required travel. Such a rule would extend to employees such
as bus drivers, truck drivers, ones who drive company vehicles, etc., whether the employee
was driving the employer’s vehicle or a personal vehicle and whether the employee was
acting within the course and scope of employment or not. Given all of the above, applying
worker’s compensation cases would result in the same outcome in the case now before us.

                                       Conclusion

               The judgment of the Trial Court is reversed, Robert Ledford Funeral Home,
Inc. is granted summary judgment, and this cause is remanded to the Trial Court for
collection of the costs below. The costs on appeal are assessed against the appellees, Jason
Cooper, individually and on behalf of his daughter Brooke Cooper, and Sylvia Renfroe.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                            -11-
