                                                                             ACCEPTED
                                                                        04-14-00685-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                    4/6/2015 6:04:10 PM
                                                                          KEITH HOTTLE
                                                                                 CLERK

               DOCKET NO. 04-14-00685-CV
         _____________________________________
                                                      FILED IN
               IN THE COURT OF APPEALS       4th COURT OF APPEALS
                                              SAN ANTONIO, TEXAS
         FOR THE FOURTH DISTRICT OF TEXAS
                                             04/6/2015 6:04:10 PM
                  SAN ANTONIO, TEXAS           KEITH E. HOTTLE
         _____________________________________       Clerk

AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA,
                     Appellant,

                          v.
                  DENISE BUSHMAN,
 AS BENEFICIARY OF CLAYTON F. BUSHMAN, JR., DECEASED
                       Appellee.


                      On Appeal from
              The 25th Judicial District Court of
                  Guadalupe County, Texas
                   Cause No. 12-0823-CV


                APPELLANT’S REPLY BRIEF


                     David Brenner
                     State Bar No. 2958020
                     Elizabeth Brenner
                     State Bar No. 24040570
                     BURNS ANDERSON JURY & BRENNER,
                     L.L.P.
                     P.O. Box 26300
                     Austin, Texas 78755-6300
                     (512) 338-5322 (telephone)
                     (512) 338-5363 (facsimile)
                     Attorneys for American Casualty Company of
                     Reading Pennsylvania

            ORAL ARGUMENT REQUESTED
                                      TABLE OF CONTENTS

                                                                                                              Page


INDEX OF AUTHORITIES .............................................................................................. iii
ARGUMENTS AND AUTHORITIES ..................................................................2

      Continuous Coverage Is Inapplicable ..............................................................2
      Mr. Bushman was not on a Special Mission ...................................................4

      The fact that Mr. Bushman traveled further from his home to this job
      site than otherwise, does not change this analysis...........................................6

PRAYER.................................................................................................................8
CERTIFICATE OF SERVICE ...............................................................................9

CERTIFICATE OF COMPLIANCE ...................................................................10




                                                         ii
                                    INDEX OF AUTHORITIES


                                                                                                        Page

Cases

Aetna Cas. & Sur. Co. v. Orgon,
  721 S.W.2d 572 (Tex. App.—Austin 1986, writ ref’d n.r.e.) ................................3

Am. Home Assurance Co. v. De Los Santos,
 2012 WL 4096258, (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) .........3

Collins v. Indem. Ins. Co. of North America,
 2011 WL1631590 (Tex. App.—San Antonio 2011, pet denied) ...........................8

Evans v. Illinois Employers Ins. Of Wausau,
  790 S.W.2d 302 (Tex. 1990) ..............................................................................4, 5

Jecker v. Western Alliance Ins. Co.,
  369 S.W.2d 776 (Tex. 1963) ..................................................................................7

Seabright Ins. Co. v. Lopez,
  427 S.W.3d 442, (Tex. App.—San Antonio 2014, pet. granted) .................. 3, 4, 5

Shelton v. Standard Ins. Co.,
  389 S.W.2d 290 (Tex. 1965) ..................................................................................3

Tex. Employers’ Ins. Ass’n v. Harbuck,
  73 S.W.2d 113 (Tex. Civ. App.—Beaumont 1934, writ dism’d.) .........................3

Texas Mut. Ins. Co. v. Jerrols,
  385 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, pet. dism’d.) ...........3, 6

Zurich Am. Ins. Co. v. McVey,
  339 S.W.3d 724 (Tex. App.—Austin 2011, pet. denied) ...................................5, 6

Statutes

Tex. Lab. Code § 401.011 ..........................................................................................4



                                                         iii
                        DOCKET NO. 04-14-00685-CV
                   _____________________________________

                         IN THE COURT OF APPEALS
                   FOR THE FOURTH DISTRICT OF TEXAS
                            SAN ANTONIO, TEXAS
                   _____________________________________

   AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA,
                        Appellant,

                                           v.

                       DENISE BUSHMAN,
      AS BENEFICIARY OF CLAYTON F. BUSHMAN, JR., DECEASED
                            Appellee.


                                  On Appeal from
                          The 25th Judicial District Court of
                              Guadalupe County, Texas
                               Cause No. 12-0823-CV


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:

      American Casualty Company of Reading Pennsylvania (“American

Casualty”) files its Appellant’s Reply Brief and requests that this Court reverse the

trial court’s judgment that Clayton Bushman was in the course and scope of

employment at the time of his motor vehicle accident, thus relieving American

Casualty Company of Reading Pennsylvania of liability for workers’ compensation

benefits of, alternatively, remand the matter for trial.




                                           1
                     ARGUMENTS AND AUTHORITIES

      The facts presented before this Court fit squarely within the coming and

going exclusion from course and scope set forth in Texas Labor Code section

401.011. In order to avoid the unambiguous statutory exclusion from course and

scope that applies to these facts, Appellee tries to force inapplicable doctrines to

employee travel from home to an employer’s work location. Appellee’s argument

is inconsistent with the plain reading of the statute and is inconsistent with

established precedent. Characterizing the travel from home to work as a “business

trip” does not implicate the continuous coverage doctrine or bring Mr. Bushman

closer to being within the statute’s definition of course and scope. The record is

clear: Mr. Bushman was traveling from home to a fixed job site at the time of the

accident in his personal vehicle and, therefore, was not in the course and scope of

employment. Appellee has failed to prove facts that would bring Mr. Bushman into

the course and scope of employment.

Continuous Coverage Is Inapplicable

      Because the accident occurred at the time of Mr. Bushman’s travel from

home to the work site, the continuous coverage doctrine is inapplicable. Texas law

does not apply the continuous coverage doctrine to injuries that occur while

driving on the highways. The continuous coverage doctrine is intended to cover

employees for injuries arising out of personal necessity, like sleeping in hotels or


                                         2
eating in restaurants when employees are out of town on business trips. For

example, in Shelton, the Supreme Court applied the doctrine to evaluate the

compensability of a claimant walking across the street from his hotel to the only

city café across the street. Shelton v. Standard Ins. Co., 389 S.W.2d 290, 293 (Tex.

1965). In Aetna Cas. & Sur. Co. v. Orgon, the doctrine was used where an

employee was injured when glass shattered and cut his hand as he was going

through his morning preparations in his hotel on an out of town business trip.

Aetna Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572 (Tex. App.—Austin 1986), writ

ref’d n.r.e.).   Or, as a third example, when an employee was injured trying to

escape a burning hotel he was staying in for an overnight business trip. Tex.

Employers’ Ins. Ass’n v. Harbuck, 73 S.W.2d 113, 115 (Tex. Civ. App.—

Beaumont 1934, writ dism’d.)

       With the exception of dicta in McVey, Texas courts including this one, have

uniformly not extended the continuous coverage doctrine to injuries while driving

to and from work, even when the work was out of town or at an alternative

worksite. Seabright Ins. Co. v. Lopez, 427 S.W.3d 442, 450 n. 2 (Tex. App.—San

Antonio 2014); Am. Home Assurance Co. v. De Los Santos, 2012 WL 4096258,

(Tex. App.—San Antonio Sept. 19, 2012, pet. denied); Texas Mut. Ins. Co. v.

Jerrols, 385 S.W.3d 619, 621 (Tex. App.—Houston [14th Dist.] 2012, pet.

dism’d.) As this Court aptly explained in Seabright, the continuous coverage rule



                                         3
protects employees whose work is away from the employer’s premises, not travel

from the employee's home to the work site. Seabright, 427 S.W.3d at 450 n. 2.

Mr. Bushman was not on a Special Mission

      The term “special mission” refers to the exception to the coming and going

exclusion under Texas Labor Code section 401.011(A)(iii): “When the employee is

directed in the employee’s employment to proceed from one place to another.”

[emphasis added]. Here, at the time of the accident, Bushman was not yet on the

clock because he had not begun his work day, but was traveling to the job site to

begin work. As the emphasized portion of the statute states, the special mission

exception applies specifically within the context of the work day, not while coming

to and going from work. Thus, an employee who was injured while traveling from

home to a mandatory work safety meeting located away from the usual work site

was not on a special mission for the employer, but was simply traveling to work.

Evans v. Illinois Employers Ins. Of Wausau, 790 S.W.2d 302, 304 (Tex. 1990).

      Contrary to Appellee’s position, requesting an employee to work at an

alternate work site does not constitute a special mission. The Texas Supreme Court

has considered and rejected the notion that work at a different work site constitutes

a special mission. As the Texas Supreme Court stated, employees “can have more

than one fixed place of employment and that fixed place of employment can

change according to the nature of the work.” Id. Here, as in Evans, the employer



                                         4
“neither supplied the transportation, compensated (Bushman) for transportation

time… specified the route to be taken… nor was aware of the route taken….”

Evans, 790 S.W.2d at 305.

      Appellee cites Zurich Am. Ins. Co. v. McVey and Seabright Ins. Co. v. Lopez

to support her position. Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724 (Tex.

App.—Austin, 2011); Seabright, 427 S.W.3d 442. However, both cases are clearly

distinguishable from the facts in this case. First, in both Seabright and McVey, the

employee was traveling in a company provided vehicle, so the exclusion in

401.011(12) did not apply. Here, it does. Thus, in Seabright and McVey, the

question was not applicability of the exclusion but, instead, whether the risk

originated in the employment. Further, in Seabright, at the time of the accident, the

employee had arrived in the area of the job and had been residing in a motel room

and traveling between his hotel and the job site in a company-provided vehicle

with co-workers at the time of the accident. Seabright, 427 S.W.3d at 450. Based

on those facts and that the Seabright employee would not have been in the area but

for the job, the Court found a strong nexus between employment and travel on the

day of the accident. Id. Here, contrary to Seabright, at the time of the accident,

Bushman was traveling by himself from his home to the alternate job site in his

own vehicle. Thus, there is no such nexus between employment and travel.

      McVey is also distinguishable because the employee was not traveling to a



                                         5
work site at the time of the accident, but was traveling in a company vehicle to a

leadership conference to receive training at the direction of his employer. McVey,

339 S.W.3d 724. The McVey court explains: “An employee is generally within

course and scope of his employment when the employer’s business requires him to

travel away from the employer’s premises.” Id. at 731. In this case, the record

shows that Bushman would occasionally work as a dispatcher. (CR 91) On the day

of the accident, Bushman was traveling to the employer’s premises to begin his

work day as a dispatcher and would not be paid until he arrived at work. (CR 96-

98) Thus, this case falls squarely within the coming and going exclusion from

course and scope.

The fact that Mr. Bushman traveled further from his home to this job site
than otherwise, does not change this analysis.

      An injury received while using public streets and highways in going to or

returning from a place of employment is not compensable because it was not

incurred in course and scope of employment. The rationale of this rule is that in

most instances such an injury is suffered as a consequence of risks and hazards all

members of the general public are subject rather than risks and hazards having to

do with and originating in the business of the employer. The goal of the statute is

to appropriately allocate the risks of travel to work. Risks inherent in the

employee’s job are allocated to the employer, but risks shared by society as a

whole and that do not arise as a result of the employer’s work are absorbed by the


                                        6
employee. Jerrols, 385 S.W.3d 619.

      The business required of Bushman by his employer on the day of the

accident was working as a dispatcher at the employer’s job site in Elgin. (CR 91)

Work as a dispatcher at a fixed job site did not put him at any greater risk for the

injury than the ordinary public any more than had he been working any other

typical desk job. Thus, the only question is whether Mr. Bushman’s travel to a

different location further from his home in his personal vehicle, put him in any

greater risk than the ordinary public. The case law reveals it does not.

      First, the risk related to travel was not inherent in the Bushman’s job on the

day of the accident. Generally Bushman was a truck driver but, occasionally, he

would serve as a dispatcher or dispatch trainer at the employer’s Elgin facility. At

the time of the accident, he was driving from his home to Elgin to work as a

dispatch or dispatch trainer. Contrary to Appellee’s assertion, traveling was not

part and parcel to the nature of Bushman’s work at the time of the accident, as

would be the case of traveling salesmen, repairmen, servicemen, deliverymen, etc.

See Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776 (Tex. 1963). Second, to

find that an individual is within course and scope solely because of longer than

usual travel to work would obliterate the statutory purpose behind course and

scope as contemplated by the Texas Legislature. Rather than allocating risk based

on general public responsibility or a risk created by the employer, this Court would



                                          7
be allocating risk based on distance of travel. Thus, employees who live closer to

work would be less protected than those who chose to live in another town. This

Court has rejected that concept. Collins v. Indem.y Ins. Co. of North America,

2011 WL1631590 (Tex. App.—San Antonio 2011, pet denied). Moreover, the

employer would be responsible for the risk assumed by any employee who chose

to live in a separate town from her work place. This was clearly not contemplated

by the Legislature or by case law. Id. To the contrary, the statute is quite clear that,

unless an exception is shown, travel to and from work is simply not within the

course and scope of employment.


                                      PRAYER

      American Casualty Company of Reading Pennsylvania prays that this Court

reverse the judgment of the trial court and render judgment that Clayton Bushman,

was not in the course and scope of employment at the time of his motor vehicle

accident, thus relieving American Casualty Company of Reading Pennsylvania of

liability for workers’ compensation benefits, or reverse and remand for trial; and

for such other and further relief to which American Casualty Company of Reading

Pennsylvania may show itself to be justly entitled.




                                           8
                               Respectfully submitted,

                               BURNS ANDERSON JURY & BRENNER,
                               L.L.P.
                               P.O. Box 26300
                               Austin, Texas 78755-6300
                               (512) 338-5322 (telephone)
                               (512) 338-5363 (facsimile)

                               /s/ David Brenner
                               David Brenner
                               State Bar No. 02958020
                               dbrenner@bajb.com
                               Elizabeth Brenner
                               State Bar No. 24040570
                               ebrenner@bajb.com


                               COUNSEL FOR APPELLANT




                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing pleading has

been forwarded to all parties listed below, on this 6th day of April 2015 in

accordance with Rule 9.5 of the Texas Rules of Appellate Procedure.

Bradley Dean McClellan
Law Offices of Richard Pena, P.C.
1701 Directors Blvd.
Suite 110
Austin, TX 78744


                                            /s/David Brenner
                                            David Brenner


                                        9
                     CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4 because this brief contains 2,392 words.     This brief

complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4

because this brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in Times New Roman 14 point.

                                            /s/ DAVID BRENNER




                                       10
