                          NOT DESIGNATED FOR PUBLICATION

                                             No. 119,799

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                             THIEN TRAN,
                                              Appellant,

                                                   v.

                                        ANGELLO FIGUEROA,
                                            Appellee.


                                   MEMORANDUM OPINION

        Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed April 24, 2020.
Reversed and remanded.


        James M. Roswold and Kyle P. Sollars, of Kansas City Accident Injury Attorneys, P.C., of
Kansas City, Missouri, for appellant.


        Jessica R. Beever, of Lee's Summit, Missouri, for appellee.


Before BUSER, P.J., GREEN and MALONE, JJ.


        PER CURIAM: Thien Tran filed a lawsuit against Angello Figueroa seeking
damages for personal injuries he sustained when Figueroa negligently struck Tran with
his car in the parking lot where the two men worked. Tran and Figueroa were coworkers
at Hendrick Automotive Group (Hendrick) when the incident occurred. Figueroa moved
for summary judgment on the basis that he is immune from liability under the fellow
servant provision of the Kansas Workers Compensation Act (the Act), K.S.A. 44-501 et
seq. The district court agreed with Figueroa and granted him summary judgment, finding
that Tran's compensation under the Act was the exclusive remedy for his injuries.

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       But whether an employee was acting within the course and scope of his or her
employment is a question of fact to be determined by a trier of fact unless the evidence
shows that only one conclusion can be drawn from the facts. Here, the evidence presented
to the district court indicates that reasonable persons could reach different conclusions on
whether the incident arose out of and in the course of Figueroa's employment. Because
genuine issues of material fact remain to properly resolve the issue, we find the district
court erred in granting summary judgment in favor of Figueroa.


                       FACTUAL AND PROCEDURAL BACKGROUND

       On May 1, 2017, Tran filed a petition for damages against Figueroa stemming
from an incident on the Hendrick parking lot. Both Tran and Figueroa were employees of
Hendrick and were working on the day of the incident. In the petition, Tran alleged he
was walking in the Hendrick parking lot when Figueroa backed his personal vehicle into
a parking space after returning from an on-site car wash and "carelessly, recklessly and
negligently struck" Tran and knocked him to the ground. Tran received compensation for
his injuries under the Act. Figueroa moved for summary judgment on the basis that Tran's
claim fell under the Act's fellow servant immunity provision which prohibits an injured
worker from recovering damages for an on-the-job injury caused by a fellow employee in
which compensation is recoverable under the Act.


       In the summary judgment pleadings, the parties agreed to the following facts. Both
Tran and Figueroa were employees of Hendrick and were working on May 2, 2015. Tran
was employed as a sales associate and Figueroa was a service technician. Late in the
afternoon, Figueroa drove his personal vehicle from a parking space on Hendrick's
parking lot to Hendrick's on-site car wash. Figueroa washed his vehicle and drove it back
to the main building. While Figueroa was backing into a parking space he struck Tran.
Both parties agreed the sole issue was whether Figueroa was acting within the course and
scope of his employment when the incident occurred—specifically, whether Figueroa

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was fulfilling work duties or whether he was engaged in a personal task unrelated to his
employment when he took his personal vehicle through the car wash.


       Figueroa argued that he was within the course and scope of his employment when
the incident occurred and, even if his actions were not work related, they were only a
minor deviation which would not take him out of the scope of his employment. Thus,
Figueroa argued he was still considered an employee under the Act. But Tran argued that
Figueroa's actions were a deviation from his job duties and the deviation was so
substantial as to take Figueroa outside the course and scope of employment.


       The district court held a hearing on the summary judgment motion. The district
court found that both Tran and Figueroa were on-the-clock employees when the incident
occurred. The district court found that it did not matter whether Figueroa took a minor or
major deviation from his employment because the applicable statute focused only on the
plaintiff's employment status. Even if a deviation analysis was necessary for Tran to have
a cause of action against Figueroa, the district court found that Figueroa had returned to
his employment at the time of the incident. The district judge stated:


       "The statute focuses on the plaintiff and not the defendant. It is if the plaintiff is within
       the scope of his employment and it is not if the defendant is within the scope of his
       employment. Even if that were, the defendant was within the scope of his employment.
               ....
               "So what happened is the defendant drove his car, got it washed, drove it back
       out, parked it and then while backing it into the space is when he hit the car salesman,
       i.e., the plaintiff in this case. He was back in his employment. He was a tech for the
       company, and I don't know what it was—why he was doing it then or anything like that.
       What I do know is that both of you talked about a minor deviation and a major deviation.
       I think that has zero input as to what this statute focuses on. Our statute focuses on the
       person who is injured and their roles. This is not an intentional act done by Mr. Figueroa
       nor was it anything for us to try to distinguish whether this was a minor deviation or
       major deviation.

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               ....
               "But more importantly, like I said, the focus has to be on the person who is
       injured according to the statute and not the person who may have injured him in this
       particular case. For those reasons I am going to grant the summary judgment."


       The district court later signed a journal entry granting summary judgment in favor
of Figueroa, finding that Tran was barred from pursuing a civil lawsuit by the exclusive
remedy provision under the Act. Tran timely filed a notice of appeal.


                                              ANALYSIS

       On appeal, Tran claims the district court erred by granting summary judgment in
favor of Figueroa. More specifically, he argues that a court must consider the defendant's
employment status, not the plaintiff's, in order to determine whether the Act's fellow
servant immunity provision applies. As such, Tran contends that genuine issues of
material fact remain as to whether Figueroa was acting in the course and scope of his
employment when the incident occurred. Tran also briefly argues that the personal
comfort doctrine does not apply in this case.


       Figueroa contends that the district court did not err by granting summary judgment
in his favor. He argues that the district court correctly applied the exclusive remedy
provision to bar Tran's tort claim based on the clear and unambiguous language of the
Act. He also argues that the district court correctly applied the exclusive remedy
provision because any deviation by Figueroa from his job duties was minor. He argues
that the personal comfort doctrine provides guidance in this case and supports his claim
that he was acting within the scope of his employment when the incident occurred.




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       Our standard of review provides:


                "'"Summary judgment is appropriate when the pleadings, depositions, answers to
       interrogatories, and admissions on file, together with the affidavits, show that there is no
       genuine issue as to any material fact and that the moving party is entitled to judgment as
       a matter of law. The trial court is required to resolve all facts and inferences which may
       reasonably be drawn from the evidence in favor of the party against whom the ruling is
       sought. When opposing a motion for summary judgment, an adverse party must come
       forward with evidence to establish a dispute as to a material fact. In order to preclude
       summary judgment, the facts subject to the dispute must be material to the conclusive
       issues in the case. On appeal, we apply the same rules and when we find reasonable
       minds could differ as to the conclusions drawn from the evidence, summary judgment
       must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan.
       616, 621, 413 P.3d 432 (2018).


       Both parties agree that the relevant statute here is K.S.A. 2018 Supp. 44-501b(d)
which states:


                "Except as provided in the workers compensation act, no employer, or other
       employee of such employer, shall be liable for any injury, whether by accident, repetitive
       trauma, or occupational disease, for which compensation is recoverable under the
       workers compensation act nor shall an employer be liable to any third party for any injury
       or death of an employee which was caused under circumstances creating a legal liability
       against a third party and for which workers compensation is payable by such employer."


       This subsection, known as the fellow servant immunity provision, states that a co-
employee is immune from liability for an accident that injures another employee for
which compensation is recoverable under the Act. K.S.A. 2018 Supp. 44-508(f)(2)(B)
provides that an injury is compensable only if it arises out of and in the course of
employment. Here, the district court determined that an analysis of whether the tortfeasor
co-employee was acting within the scope of his employment was not relevant to whether
the fellow servant immunity provision applied. The district court found that summary
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judgment was appropriate because the statute only requires a court to consider whether
the plaintiff was acting within the course and scope of his employment.


       But in Scott v. Hughes, 294 Kan. 403, 415, 275 P.3d 890 (2012), our Supreme
Court made it clear that the tortfeasor co-employee was the only person whose course and
scope of employment mattered for determining the application of fellow servant
immunity. The Scott court stated: "If an employee is injured by a coworker while the
coworker is acting in the course and scope of his or her employment, then fellow servant
immunity under K.S.A. 44-501(b) applies." 294 Kan. at 415. "If, on the other hand, an
employee is injured by the tort of a coworker while the coworker is not acting in the
course and scope of his or her employment, then fellow servant immunity under K.S.A.
44-501(b) does not apply." 294 Kan. at 415. The Scott court stated: "Further, and
critically important, it was essential for the parties and the district judge to understand
that the only person whose course and scope of employment mattered for determination
of the existence of fellow servant immunity was [the defendant]." 294 Kan. at 421.


       Thus, it is clear that the district court must analyze whether the tortfeasor
coworker—in this case, Figueroa—was acting within the course and scope of his or her
employment before determining whether fellow servant immunity applies. Here, the
district court erred as matter of law in refusing to perform this analysis.


Do genuine issues of material fact exist as to whether Figueroa was acting within the
scope of his employment when the incident occurred?

       On appeal, neither party argues that the district court erred as a matter of law in
refusing to perform the proper analysis. Instead, both parties focus on the correct
statement of law enunciated in Scott—whether the facts conclusively show that Figueroa
was acting within the course and scope of his employment when the incident occurred.



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       Both parties admit that Tran and Figueroa were employees and were both working
on the day of the incident. But Tran argues that genuine issues of material fact exist as to
whether Figueroa's use of his personal vehicle to perform a prohibited activity took him
out of the course and scope of his employment when the incident occurred.


       Kansas has a definition for "arising out of and in the course of employment":


               "[A]n injury arises 'out of' employment if it arises out of the nature, conditions,
       obligations, and incidents of the employment. The phrase 'in the course of' employment
       relates to the time, place, and circumstances under which the accident occurred and
       means the injury happened while the worker was at work in the employer's service.
       [Citations omitted.]'" Scott, 294 Kan. at 416 (quoting Kindel v. Ferco Rental, Inc., 258
       Kan. 272, 278, 899 P.2d 1058 [1995]).


       Courts have held that "the two phrases arising 'out of' and 'in the course of'
employment, as used in our [Act], have separate and distinct meanings; they are
conjunctive, and each condition must exist before compensation is allowable." Kindel,
258 Kan. at 278. Courts have further emphasized work that has expressly been forbidden
can take an employee out of the scope of employment.


               "[A]n accident which occurs while an employee is not actually performing his
       job may nonetheless arise out of and in the course of employment. On the other hand, if
       an employee is performing work which has been forbidden, as distinguished from doing
       his work in a forbidden manner, he is not acting in the course of his employment." Wells
       v. Anderson, 8 Kan. App. 2d 431, 434, 659 P.2d 833 (1983).



       The Wells case is similar to our facts. In that case, Wells and Anderson were co-
employees at a truck stop. While working one night, Anderson drove his personal vehicle
into the service bay to change the anti-freeze. Anderson spent 20 minutes working on his
personal vehicle, but alternated between tending to his vehicle and pumping gas for


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customers during that time. Just as Anderson finished filling his radiator with anti-freeze,
he turned on the ignition. Because the car was already in gear, the vehicle moved forward
and pinned Wells between two vehicles.


       Wells sued Anderson for damages, but Anderson asserted the fellow servant
immunity defense arguing that his co-employee status conclusively barred Wells'
negligence claim. But the Wells court held a literal definition of "co-employee" was too
broad and that the "mere co-employee status is not sufficient for immunity. There must
be some connection between the defendant's acts and his employment for immunity to
attach." 8 Kan. App. 2d at 433-34.


       The Wells court reviewed whether Anderson's conduct was within the course and
scope of his employment. Under company policy, employees were forbidden to work on
their own vehicles on company time. But it was custom and practice that employees
could work on their personal vehicle so long as it did not interfere with company
business. Anderson testified that while he was working on his vehicle in the service bay,
he could not always see what was happening in the front of the store. So even though
Anderson claimed he was also attending to customers during the time he was working on
his vehicle, it was unclear whether his conduct fell within the forbidden work category or
whether his conduct fell within the accepted customs and practices of the employment.
Under these facts, the Wells court found summary judgment was inappropriate because
the record did not conclusively show that Anderson's actions arose out of and in the
course of his employment. 8 Kan. App. 2d at 434-35.


       Returning to Tran's claim, this court must determine whether the evidence
conclusively shows that Figueroa's actions arose out of and in the course of his
employment with Hendrick when he injured Tran with his vehicle. As Tran argues, the
record in this case, considered in the light most favorable to Tran, shows three genuine
issues of material fact: (1) whether Hendrick's company policy allowed employees to use

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the car wash for personal vehicles while they were on the clock and after hours; (2)
whether managers and employees used the car wash regardless of any contrary company
policy; and (3) whether Figueroa's unique method of compensation somehow affected
whether he was actually working at the time he washed his car.


       First, even Figueroa's appellate brief admits that "[t]here is a dispute about
Hendrick's policies regarding use of its carwash for personal vehicles." Figueroa attested
in an affidavit that he would frequently move and park vehicles on Hendrick's property
and run vehicles through the car wash as part of his job as a service technician. One of
Figueroa's managers, Steven Shewmaker, confirmed these duties were part of Figueroa's
job, but operating and moving a personal vehicle around the premises was not a part of
Figueroa's job. Shewmaker also stated that employees were not allowed to use the car
wash on the job, and that they would have to wait until after hours to use it. In contrast,
one of Figueroa's other managers, Jon Howell, testified in a deposition that company
policy prohibits employees from using the car wash on personal vehicles, both on
company time and on personal time. Howell stated he had never seen any employee take
a personal vehicle through the car wash and it was not common for employees to do so.


       Second, there is conflicting testimony on whether managers and employees
frequently used the car wash when business was slow regardless of company policy. Tran
testified it was not common for employees to use the car wash on their personal vehicles,
but he stated that he had used the car wash on previous occasions. When asked if there
were rules against it, Tran stated, "The managers really don't care as long as it's not
busy." Figueroa stated he was not aware of this policy and that he ran his personal vehicle
through the car wash whenever he wanted to do so without reprimand—almost 20 times a
month. Thus, it is unclear whether employees were allowed to use the car wash for their
personal vehicles only when business was slow. If the employees were allowed to do so,
there is also a dispute about whether business was actually slow that day. Figueroa and
Tran had different job titles, thus, it may have been busy for Tran, but not Figueroa.

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       Third, Tran disputes whether Figueroa was actually being paid when the incident
occurred because Figueroa was generally paid by commission upon completing a service
job rather than by the hour. Both managers testified that Figueroa was paid on
commission for service jobs he completed. Figueroa would be paid based on the number
of hours recommended for each job, regardless of how long it actually took Figueroa to
complete the job. Figueroa stated he was required to stay the full length of his shift, even
if he did not have any service jobs to complete. When a service technician is not working
on a service job, they are expected to be keeping their service bays clean, organizing their
areas, or completing online certification modules. Employees were expected to clock out
when taking their breaks. On the day of the incident, Figueroa stated, he did not clock out
and his pay was not reduced for using the car wash.


       Thus, under Scott, it is possible that the incident did not arise out of Figueroa's
employment because Shewmaker stated that running a personal vehicle through the car
wash is not part of Figueroa's job duties. Further, there was testimony that if Figueroa
was not working on a service job, he should be organizing his area or completing online
certification modules. Both managers testified that it was not common for employees to
use the car wash on company time. Conversely, the incident could have happened in the
course of Figueroa's employment with Hendrick because he was using the company car
wash, he was on the clock, he did not get reprimanded for his actions, and he got paid for
his full shift that day. Thus, genuine issues of material fact remain.


       If a court determines that an employee was not attending to business objectives or
the activity was more personal in nature, then the employee will be said to have deviated
from his or her work duties. Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 290-91,
144 P.3d 668 (2006). "[W]hen an employee takes a clearly identifiable side-trip, thereby
deviating from the business route, the employee steps beyond the course of employment
and toward his or her personal objective." 282 Kan. at 290. A minor deviation would


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keep the employee within the course and scope of employment, but a major deviation
would take them out of the course and scope of employment. 282 Kan. at 290-91.


               "'A deviation from the employer's work generally consists of a personal or
       nonbusiness-related activity. The longer the deviation exists in time or the greater it
       varies from the normal business route or in purpose from the normal business objectives,
       the more likely that the deviation will be characterized as major. In the case of a major
       deviation from the business purpose, most courts will bar compensation recovery on the
       theory that the deviation is so substantial that the employee must be deemed to have
       abandoned any business purpose and consequently cannot recover for injuries received,
       even though he or she has ceased the deviation and is returning to the business route or
       purpose. (Emphasis added.)'" 282 Kan. at 290-91 (quoting Kindel, 258 Kan. at 284).


       Assuming Figueroa's actions constituted a deviation, a material question remains
as to whether Figueroa's deviation was minor or major enough to take him out of the
scope of employment. Figueroa argues he drove his vehicle to the car wash at 4:08 p.m.
and returned to the parking space at 4:12 p.m. Thus, Figueroa argues any deviation was
only a few minutes which would support a finding that it was minor. In contrast, Tran
stated that the incident occurred around 4:20 p.m. and Figueroa clocked out that day
around 4:50 p.m. Tran disputes how long the actual deviation was and whether Figueroa
ever returned to his work duties after using the car wash. Tran asserts that even though
Figueroa was returning to his employment when he was parking the vehicle,
abandonment of the deviation does not automatically bring the employee back into the
scope of employment. Thus, material facts exist as to how long the deviation lasted and
whether Figueroa ever returned to his scope of employment.


       "[W]hether an employee is acting within the scope of his or her employment is
generally a question of fact, but if only one reasonable conclusion can be drawn from the
evidence, the court can decide the issue as a matter of law." Wayman v. Accor N. Am.,
Inc., 45 Kan. App. 2d 526, 533, 251 P.3d 640 (2011). Here, the facts in the record show

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that more than one conclusion could reasonably be drawn from the evidence presented to
the court at this stage of the proceedings. As a result, whether Figueroa was acting within
the course and scope of his employment when the incident occurred is a question of fact
that should be evaluated by the trier of fact. Summary judgment was inappropriate.


       Finally, Figueroa contends the personal comfort doctrine should be considered in
determining whether he left the course and scope of his employment. Figueroa raised this
argument below, but the district court did not address it at the hearing. Tran argues that
the personal comfort doctrine does not apply in this case.


       The personal comfort doctrine recognizes that an employee does not leave the
scope of employment by taking breaks to attend to personal comfort. Gould v. Wright
Tree Serv., Inc., No. 114,482, 2016 WL 2811983, at * 6 (Kan. App. 2016) (unpublished
opinion). Gould discussed the personal comfort doctrine in the context of a smoke break,
bathroom breaks, and coffee breaks but noted that when accidental injuries occur on an
authorized break, there is no deviation from employment. Figueroa's act of washing his
car during work hours is not the same as taking a cigarette, bathroom, or coffee break.
We agree with Tran that the personal comfort doctrine does not apply in this case.


Conclusion

       The record reflects material facts remain in dispute as to whether Figueroa was
acting in the course and scope of employment for purposes of whether the fellow servant
immunity provision applies. For these reasons, we conclude the district court erred in
granting summary judgment in favor of Figueroa and remand for further proceedings.


       Reversed and remanded.




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