                                FOURTH DIVISION
                                  DILLARD, J.,
                               BOGGS and RAY, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                 November 12, 2014




In the Court of Appeals of Georgia
 A14A1121. MASTEC NORTH AMERICA, INC. v. SANDFORD
     et al.

      BOGGS, Judge.

      In this interlocutory appeal, Mastec North America, Inc. (“Mastec”) and

DirecTV, Inc.(California) (“DirecTV”) appeal from the trial court’s order denying

their motion for summary judgment. They contend that no genuine issues of material

fact exist as to whether a field technician was acting in the course and scope of his

employment at the time he ran a stop sign and collided with another vehicle. For the

reasons explained below, we agree and therefore reverse.

      “Summary judgment is appropriate when no genuine issues of material fact

remain and the movant is entitled to judgment as a matter of law. We review a trial

court’s grant of summary judgment de novo, construing the record and all reasonable
inferences in favor of the nonmoving party.” (Citation and punctuation omitted.)

Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 (629

SE2d 501) (2006). So viewed, the record shows that Warnock was employed by

Mastec as a field technician to go to the home of DirectTV customers to install and

repair satellite TV equipment provided by DirectTV. At the time of the accident,

Warnock was driving a Mastec work van. Warnock authorized Mastec to deduct $40

per week from his paycheck for the privilege of driving the work van to and from his

home at the start and end of each workday.

      Warnock’s personnel file included documents in which he acknowledged the

following:

      “WORKING TIME” is time spent performing any activities for the
      benefit of MasTec, such as:


             1. Performing warehouse activities;


             2. Performing Office Work;


             3. Time spent training;


             4. Performing installation or service actions at a customer
             location;


                                          2
      5. Door tagging a customer if not home during designated
      appointment window;


      6. Travel time between jobs;

      7. Attending company meetings;

      8. Participating in training activities;

      9. Traveling from the office to your first job and back to office
      after completing your last job.


The following activities are typically “NON-WORKING TIME”:


      1. Meals or other breaks lasting 30 minutes or longer;


      2. Time spent getting to work in the morning;


      3. Time spent traveling home after work.


Questions and Answers


Q. When does my work day begin?


A. The beginning of your work day usually begins when you arrive at
the warehouse or the location where you receive your daily work orders
from your supervisor. If you do not report to the facility or a remote



                                    3
location, your work day typically begins when you arrive at the location
of your first work order.


Q. If I do not go by the office, but drive directly from my house to my
first job, is that drive time working time?


A. No. In that case, the drive time is non-work time.


                                     ...

Q. When does my work day end?


A. Your work day ends when you have completed all your work related
activities for the day. If you report to warehouse at the end of the day,
you should include travel time to the warehouse as working time. If you
drive home after your last job, the time spent driving home [is] non-
working time.


Q. I forgot to call in and close my last job, but remember and close it
after I arrive at home. Is that working time?


A. Yes. Please include the time calling in and closing your work order
on your timesheet. But, it is MasTec policy and your duty to close all
work orders before leaving the customer’s house. Failing to do so may
result in disciplinary procedures.




                                      4
      Warnock testified that on the day of the accident, his two scheduled work

orders “had fallen through.” He received a telephone call from his supervisor

directing him to a new job on Creekview Drive in Newnan, Georgia. Information

about this job was also entered into a computer system that Warnock could access

through a hand-held device. Warnock did not have a preprinted work order for this

job, because it was assigned after the start of the work day.

      When Warnock completed his assigned work at a customer location, he was

required to make an entry into his hand-held device before leaving the customer

location to close out the job. Warnock testified that he closed out the Creekview

Drive job on his hand-held device; he did not recall any other paperwork associated

with this job. Warnock testified that he could not recall ever closing out a job on his

hand-held after returning home from his last job.

      With regard to the time sheet that he was required to complete on a daily basis,

Warnock testified that completing his time sheet was his last work activity of each

work day. Warnock acknowledged that “most of the time” he completed his time

sheet in his work van when the job was completed. When asked if he ever completed

his time sheet after he arrived at home after the last job, Warnock replied, “I vaguely

can say possibly that that could have happened. I remember, you know, in the van - -

                                          5
that we basically completed each job. And at the of - - end of that job as our working

time ended, we completed the time sheet. I remember most.” He could not recall any

specific occasion when he completed a time sheet at home.

      An eyewitness to the accident testified that when she was picking up loose

papers on the ground after the accident, Warnock told her, “don’t worry about that

paperwork, we do so much as it is, we have so much paperwork to do I get that

whenever.” Additional questioning during her deposition elicited the following

response:

             Q. And did Mr. Warnock say - - the driver of the DirecTV van - -



             A. Uh-huh.


             Q. - - say something to you about that he had more paperwork to
      do to finish - -


             A. Yes. He said don’t worry about that paperwork, I have more
      paperwork to do. We have so much to do. I’m not worried about that
      right now.


             Q. Okay. And he indicated to you that he had more paperwork to
      do to finish his work?


                                          6
             A. I guess to finish his work.


             Q. Okay. Well, that’s what he said to you, correct?


             A. Yes. Got more paperwork to do so . . .


             Q. Okay. To finish his work?


             A. To finish out his job, yes.


      A Green Road Central Records satellite tracking device was installed on

Warnock’s work van that collected data about the start and stop time of a “trip” and

whether high speeds were detected. The record includes a Green Road trip report for

the date and time of the accident with an identification number of “57556” that does

not include a driver’s name for the date of the accident. It states the trip began at 6:59

p.m. and ended at 7:22 p.m. A 911 call reporting the accident was made at 7:23 p.m.

While the trip report appears to have been produced by Mastec in discovery, no

testimony or other evidence in the record explains how the trip data was collected or

how the Green Road trip reports should be interpreted.

      Mastec produced in discovery a weekly time sheet signed by Warnock with a

handwritten date of “9/10/09” in the blank beside an entry for “Signature Date.”


                                            7
Warnock also handwrote an “end time” of 7:17 p.m. for his work on the date of the

accident, which was September 10, 2009. Warnock testified that he did not have a

specific recollection of his location when he signed the time sheet and he did not

remember which of multiple potential clocks he may have looked at to determine the

time before making his entry. He stated that he stopped at a gas station to get a snack

after leaving the last customer’s home before continuing on his way home. He

explained that “perhaps [he] may have made a telephone call to [his] supervisor at

some point.” He stated that he would have signed the time sheet at 7:17 p.m. on

September 10, 2009. After repeated questioning during his deposition, Warnock

stated he did not have a recollection of where and at what time he completed the time

sheet.

         Frank Casto, a DirecTV employee who worked with Warnock on his last job

before the accident,1 testified that he witnessed the accident as he was following

Warnock in a separate vehicle. He testified that both he and Warnock were headed

home at the time of the accident. Casto testified that he did not see Warnock complete

any paperwork at the conclusion of the job and agreed that it was possible to conclude

that Warnock may have completed his time sheet at home after the accident. He stated

         1
             Casto is also Warnock’s father-in-law.

                                             8
that he would occasionally close out a job on his hand-held device at home because

he could not get a signal on it at the customer location.

      Following the accident, Henry and Tina Sandford filed a complaint against

Mastec, DirecTV, and Warnock, alleging negligence and gross negligence against

Warnock and seeking a recovery from Mastec and DirecTV under a theory of

respondeat superior. The trial court initially granted summary judgment in favor of

Mastec and DirecTV on the issue of respondeat superior, but later changed its mind

and denied summary judgment on this issue. After the trial court granted a certificate

of immediate review, this court granted Mastec and DirecTV’s application for

interlocutory appeal.

      1. Appellants contend that they are entitled to summary judgment in their favor

because the undisputed evidence shows that Warnock was not acting within the

course and scope of his employment at the time of the accident. We agree.

      “When a servant causes an injury to another, the test to determine whether the

master is liable is whether or not the servant was at the time of the injury acting

within the scope of his employment and on the business of the master. [Cits.]”

(Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257

SE2d 186) (1979). Generally, an employee traveling to or from work “is not in the

                                          9
course of his employment but rather is engaged in a personal activity.” (Citations and

punctuation omitted.) Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710

SE2d 839) (2011).

      Where a tort occurs as a result of a vehicle collision in which the
      employee was driving his employer’s vehicle, however, the employer’s
      liability must be analyzed under the burden-shifting framework
      espoused by the Supreme Court of Georgia in Allen Kane’s Major
      Dodge, [supra]. Under this framework, a presumption arises that the
      employee was acting in the course and scope of his employment at the
      time of the collision, and the burden is then on the employer to show
      otherwise. An employer may overcome this presumption as a matter of
      law by presenting uncontradicted evidence showing that the employee
      was not acting in the course and scope of his employment. The employer
      is thereafter entitled to summary judgment unless “other facts” are
      proffered — that is, additional evidence other than the fact that the
      vehicle was owned by the employer — from which a jury could
      reasonably infer that the employee was acting within the course and
      scope of his employment when the accident occurred. Where the “other
      facts” are direct evidence, such is sufficient for the case to go to the jury.
      Where the “other facts” are circumstantial, however, such evidence will
      not defeat the employer’s motion for summary judgment, unless it is
      sufficient to support a verdict in the plaintiff’s favor.


(Citations and punctuation omitted.) Dougherty Equipment Co. v. Roper, 327 Ga.

App. 434, 436 (1) (a) (757 SE2d 885) (2014).

                                           10
      Here, the appellants rebutted this presumption with testimony from Warnock

and Casto that Warnock was driving home from his last job at the time of the

accident. See CGL Facility Mgmt. v. Wiley, Ga. App. (Case No. A14A0455, decided

July 16, 2014). The circumstantial evidence appellees rely upon to show that

Warnock may not have been driving home is insufficient to overcome such direct

evidence. Specifically, appellees point to evidence showing that Warnock should

have turned left to drive directly home, rather than straight, at the intersection where

the accident occurred. Warnock testified that he was using a GPS device to provide

directions home after he completed his last job and that he “would not have gone

straight if it wouldn’t have told me to.” “When a party attempts to create a jury issue

using circumstantial evidence to counter uncontradicted direct testimony as to a

certain fact, the circumstantial evidence must be inconsistent with the direct

testimony and must tend to establish the conclusion projected while rendering less

probable all inconsistent conclusions.”(Citations and punctuation omitted.) Target

Corp v. Amerson, 326 Ga. App. 734, 743 n. 29(1) (h) (755 SE2d 333) (2014). Here,

the circumstantial evidence was not inconsistent with the direct evidence that

Warnock was driving home at the time of the accident, because the GPS device could

have provided Warnock with directions for a different route to his home.

                                          11
      Appellees argue that issues of fact as to whether Warnock had outstanding

paperwork to complete once he arrived home from his last job also preclude summary

judgment on the issue of respondeat superior. This argument has no merit, because

appellees must show that Warnock was acting within the scope of his employment at

the time of the accident. In Elam v. Ins. Co. of North America, 134 Ga. App. 169 (213

SE2d 546) (1975), we rejected a similar argument and concluded that an employee

was not acting within the scope of his employment while driving home, even though

he intended to complete paperwork once he arrived at home. We stated,

      Even if the employee be considered “at work” when he reached his
      home where he worked on his employer’s business, at most he was still
      only “en route to or from his work” at the time of the collision under the
      above authorities, there being no showing that he was in continuous
      employment, as a traveling salesman. [Cit.]


Id. at 170.

      Appellees assert that we should affirm the trial court based upon our decision

in Littlefield Constr. Co. v. Bozeman, 314 Ga. App. 601, 603-604 (1) (725 SE2d 333)

(2012). We disagree. In Littlefield, the employer allowed employees to drive a

company vehicle home provided they “kept the vehicle clean,” and an employee

drove a company vehicle home in order to wash it over the weekend, as well as to use

                                         12
the vehicle and its trailer hitch on a personal errand. We concluded that an issue of

fact existed as to whether the employee was driving the vehicle for the “employer’s

business at the time of the collision because although [the employee] had made a

personal stop on the way home, at the time of the collision, [the employee] was

driving the truck to his home so that it could be washed the next morning.” (Emphasis

supplied.) Id. at 605. Significantly, we noted that the exception to the general rule

applies “where the employer has provided the employee a vehicle which enables the

employee more conveniently to perform a duty for the employer.” (CItations,

punctuation and footnote omitted.) Id.

      In contrast, here, Warnock was driving the truck home for his own convenience

and he paid $40 a week to his employer for this privilege. And company policy

clearly stated that he would only be paid for the time spent completing paperwork at

home, not his driving time, if he failed to complete all of his paperwork before

departing from the location of his last customer for the day as required by company

policy. Based upon these distinguishing facts, we conclude that Littlefield does not

control the outcome of this case.

      Finally, we reject appellees’ contention that Warnock was performing a special

mission within the scope of his employment at the time of the accident. An exception

                                         13
to the general rule that an employee is not acting within the scope of their

employment while driving to and from work applies “where the employee undertakes

a special mission at the direction of the employer.” Wright v. Pine Hills Country

Club, 261 Ga. App. 748, 751 (583 SE2d 569) (2003).

      Where the employee, before or after customary working hours, is on his
      way home after performing, or on the way from his home to perform,
      some special service or errand or the discharge of some duty incidental
      to the nature of his employment in the interest of, or under direction of,
      his employer, and an injury arises en route from the home to the place
      where the work is performed, or from the place of performance of the
      work to the home, such injury is considered as arising out of and in the
      course of the employment.


(Citation and punctuation omitted.)Id. In this case, Warnock’s last job involved

performing his usual work and cannot be considered a special mission. See Hargett’s

Telephone Contractors v. McKeehan, 228 Ga. App. 168, 170-171 (491 SE2d 391)

(1997).2



      2
         Our decision in Patterson v. Southeastern Newspapers, 243 Ga. App. 241
(533 SE2d 119) (2000), does not require a different result. In Patterson, we
concluded that issues of fact existed as to whether the employee was driving home
from a special errand because the employee had been called in to work on a scheduled
day off. 243 Ga. App. at 243-244 (1). Here, there was no evidence that Warnock was
asked to work on a scheduled day off.

                                         14
      2. Appellants’ remaining enumeration of error contesting the trial court’s

authority to grant a motion for reconsideration of a summary judgment decision is

rendered moot by our holding in Division 1.

      Judgment reversed. Dillard, and Ray, JJ., concur.




                                       15
