                               Fourth Court of Appeals
                                      San Antonio, Texas

                                              OPINION
                                         No. 04-12-00863-CV

                              SEABRIGHT INSURANCE COMPANY,
                                          Appellant

                                                   v.

                   Maximina LOPEZ, Beneficiary of Candelario Lopez, Deceased,
                                          Appellee

                      From the 229th Judicial District Court, Starr County, Texas
                                     Trial Court No. DC 08-484
                             Honorable Ana Lisa Garza, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: January 29, 2014

AFFIRMED

           This is an appeal from a trial court’s order granting summary judgment in favor of appellee

Maximina Lopez, Beneficiary of Candelario Lopez, deceased (“Mrs. Lopez”), and denying

summary judgment in favor of appellant Seabright Insurance Company. On appeal, Seabright

challenges the denial of its motion for summary judgment and granting of summary judgment in

favor of Mrs. Lopez. We affirm the trial court’s judgment.
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                                           BACKGROUND

         Candelario Lopez (“Lopez”) was fatally injured in a motor vehicle accident while traveling

from his motel room in Marlin, Texas, to his jobsite in Ridge, Texas. Lopez’s widow sought

workers’ compensation benefits, which Seabright denied, contending Lopez was not in the course

and scope of his employment at the time of the accident. Mrs. Lopez then filed a claim with the

Texas Department of Insurance, Division of Workers’ Compensation (“DWC”) to recover

compensation benefits for her husband’s death. After a contested case hearing, a hearing officer

with the DWC determined Lopez was in the course and scope of his employment at the time of the

accident. Seabright appealed, but the Appeals Panel affirmed the hearing officer’s decision.

Seabright challenged the administrative decision by filing a petition for judicial review in the trial

court.

         In the trial court, Seabright and Lopez filed competing traditional motions for summary

judgment on the issue of whether Lopez was in the course and scope of his employment at the time

of the accident.     The summary judgment evidence presented to the trial court is largely

uncontested.

         At the time of the accident, Lopez worked for Interstate Treating, Inc. on a fabrication and

construction project in Ridge, Texas. Because the jobsite was roughly 450 miles from his home

in Rio Grande City, Texas, Lopez resided in a motel in Marlin, Texas, about forty miles away from

the Ridge jobsite. Lopez commuted to work in a company truck, which was paid for and

maintained by Interstate.

         In addition to providing the truck used by Lopez, Interstate provided Lopez with a per

diem, in addition to his salary, to cover the cost of room and board while he was away from home.

Admittedly, Lopez was not paid for travel time to or from the Ridge job site.



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       On the morning of the accident, Lopez was driving himself and two co-workers from

Marlin to the Ridge jobsite. Although there was no express policy regarding such “carpooling,”

the use of company vehicles to transport multiple employees to and from jobsites like the one in

Ridge was a common occurrence for Interstate.

       Based on the above facts, the trial court concluded, as had the DWC, that Lopez was in the

course and scope of his employment at the time of the accident. The trial court granted Mrs.

Lopez’s summary judgment motion, denied Seabright’s motion, and rendered judgment in favor

of Mrs. Lopez. Seabright subsequently perfected this appeal.

                                            ANALYSIS

       On appeal, Seabright contends the trial court erred in granting Mrs. Lopez’s motion for

summary judgment, and in denying its summary judgment motion. We disagree.

                                       Standard of Review

       This court reviews a trial court’s summary judgment de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The well-established standards for reviewing a motion

for summary judgment, as mandated by the Texas Supreme Court, are: (1) the movant for summary

judgment has the burden of showing there is no genuine issue of material fact and it is entitled to

judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the non-movant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the non-movant and any doubts

resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985).

When both parties move for summary judgment on the same issues and the trial court grants one

motion and denies the other, as it has here, this court considers the summary judgment evidence

presented by both sides, determines all questions presented, and if the court determines the trial



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court erred, we render the judgment the trial court should have rendered. See Dorsett, 164 S.W.3d

at 661.

                                 Course and Scope of Employment

          The Workers Compensation Act compensates employees who sustain a “compensable

injury,” which means “an injury that arises out of and in the course and scope of employment for

which compensation is payable under [subtitle A of the Workers’ Compensation Act].” TEX.

LABOR CODE ANN. § 401.011(10) (West 2006) (emphasis added). For an employee’s injury to be

considered in the course and scope of employment, it must (1) relate to or originate in the

employer’s business, and (2) occur in the furtherance of the employer’s business. Am. Home

Assurance Co. v. De Los Santos, No. 04-10-00852-CV, 2012 WL 4096258, at *2 (Tex. App.—

San Antonio Sept. 19, 2012, pet. denied) (mem. op.) (citing Leordeanu v. Am. Prot. Ins. Co., 330

S.W.3d 239, 241–44 (Tex. 2010)); see TEX. LABOR CODE ANN. § 401.011(12). These elements

are applied liberally as “[w]e liberally construe the provisions of the Workers’ Compensation Act

to carry out the Legislature’s evident purpose of compensating injured workers and their

dependents.” Texas Workers’ Comp. Comm’n v. Patient Advocates of Texas, 136 S.W.3d 643,

652 (Tex. 2004). An injured employee must establish both elements to satisfy the course and

scope requirement. De Los Santos, 2012 WL 4096258, at *2.

          Here, it is undisputed Lopez was traveling from his motel in Marlin to work at the time of

the accident, therefore implicating what is known as the “coming and going rule,” which excludes

travel between work and home from the course and scope of employment. See TEX. LABOR CODE

ANN. § 401.011(12)(A); Leordeanu, 330 S.W.3d at 242. It is also undisputed that Lopez was

traveling in a vehicle provided and paid for by Interstate. This travel arrangement between

Interstate and Lopez falls squarely within the statutory exception to the coming and going rule

where “the transportation is furnished as a part of the contract of employment or is paid for by the
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employer.” See id. § 401.011(12)(A)(i) (emphasis added). The effect of satisfying this statutory

exception is not to establish that the travel is within the course and scope of employment, but rather

to establish that such travel is not summarily excluded from being within the course and scope of

the employment solely by virtue of the fact that the employee was traveling to and from work. De

Los Santos, 2012 WL 4096258, at *3. Essentially, even though Lopez was traveling to work at

the time of the accident, because Interstate paid for the vehicle he drove, Mrs. Lopez may still

attempt to establish that her husband’s injury satisfies both elements of the course and scope

requirement. See id. at *2.

       The Texas Supreme Court has recognized that “[a]n employee’s travel to and from work

makes employment possible and thus furthers the employer’s business.” Leordeanu, 330 S.W.3d

at 242. Therefore, Lopez’s travel from his motel in Marlin to work on the day of the accident

satisfies the second element of the course and scope of employment requirement. De Los Santos,

2012 WL 4096258, at *2. However, travel to and from work does not ordinarily satisfy the first

element of originating in or relating to the business of the employer as “[t]he risks to which

employees are exposed while traveling to and from work are shared by society as a whole and do

not arise as a result of the work of employers.” Leordeanu, 330 S.W.3d at 242 (quoting Evans v.

III. Emp’rs Ins. Of Wausau, 790 S.W.2d 302, 305 (Tex. 1990)). Accordingly, the primary issue

for our review of the cross-motions for summary judgment is determining whether a genuine issue

of material fact exists that Lopez’s travel originated in Interstate’s business.

       We recognize there is no bright line rule for determining if employee travel originates in

the employer’s business as each situation is dependent on the facts. De Los Santos, 2012 WL

4096258, at *4. No single fact is dispositive; rather, we consider the nature of the employee’s job,

the circumstances of the travel, and any other relevant facts. Id. In sum, we must “determine

whether the relationship between the travel and the employment is so close that it can fairly be
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said that the injury had to do with and originated in the work, business, trade or profession of the

employer.” Leordeanu, 330 S.W.3d at 242 (quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290,

292 (Tex. 1965)).

                          Mrs. Lopez’s Motion for Summary Judgment

       We begin by addressing whether the trial court erred in granting Mrs. Lopez’s motion for

summary judgment. Mrs. Lopez presented the following evidence to the trial court to support the

contention that her husband’s travel related to or originated in Interstate’s business such that it is

considered in the course and scope of his employment under the Texas Workers’ Compensation

Act: (1) at the time of the accident, Lopez was traveling in a vehicle that Interstate provided and

paid for; (2) Lopez was required to live in a motel during his employment, for which he was

provided a per diem in addition to his salary; and (3) Lopez had subordinate workers in the

company vehicle with him during the commute. Mrs. Lopez contends these facts establish her

husband’s travel on the day of his accident originated in his employer’s business as a matter of

law.

                             1. Transportation Provided by Interstate

       It is undisputed Lopez was traveling in a vehicle provided and paid for by Interstate at the

time of his accident. However, the parties do not agree as to the significance of this fact regarding

whether Lopez’s travel originated in his work for Interstate. Specifically, Seabright argues that

“[t]he use of a company vehicle originates in the business of the employer only if the employee is

required as a condition of employment to use the vehicle.” (emphasis added). As explained in De

Los Santos and the Third Court’s decision in Zurich Am. Ins. Co. v. McVey, Seabright’s contention

is misplaced. See 339 S.W.3d 724, 730 (Tex. App.—Austin 2011, pet. denied).

       An employer’s provision of transportation is evidence that an employee’s trip originated

in his employer’s business; however, it is insufficient in itself to establish origination. See De Los
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Santos, 2012 WL 4096258, at *3–4; McVey 339 S.W.3d at 730. This is because only employer-

provided transportation that amounts to a necessity 1 from the employer’s perspective, and not just

a gratuitous accommodation to the employee, is sufficient, without more, to prove that as a matter

of law travel originated in the employer’s business. De Los Santos, 2012 WL 4096258, at *3–4;

McVey 339 S.W.3d at 730; see also Am. Gen. Ins. Co. v. Coleman, 303 S.W.2d 370, 376 (Tex.

1957) (announcing proposition “that the mere gratuitous furnishing of transportation by the

employer to the employee as an accommodation, and not as an integral part of the contract of

employment, does not bring the employee, when injured in the course of traveling on the streets

and highways, within the protection of the Workmen’s Compensation Act.”). In sum, although

gratuitously furnished transportation is not per se evidence of origination, it is still a summary

judgment fact we consider in determining the nexus between the employee’s travel and work. See

Leordeanu, 330 S.W.3d at 242.

         According to the deposition testimony of Ronald Rains, owner of Interstate, the employer

furnished Lopez with a company truck because “[h]e asked if he could drive it to and from [work

and the motel], and he was granted permission.” Viewing the evidence in the light most favorable

to Seabright, as we must, the company truck was furnished to Lopez gratuitously. Mrs. Lopez

does not point to any evidence in the record to suggest otherwise. Therefore, the fact Interstate

furnished Lopez with a company truck to travel to work must be supported with other evidence to

entitle summary judgment as the provided means of transportation is not in itself dispositive of

origination in this case.




1
 The idea of “necessity” for furnishing the transportation originates in Coleman’s language of “an integral part of the
contract of employment.” 303 S.W.2d at 376. “Necessity” has been interpreted to equate to where an employer must
furnish transportation in order to secure labor. See Rose v. Odiorne, 795 S.W.2d 210, 214 (Tex. App.—Austin 1990,
writ denied).

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                                          2. Work Away From Home

        Mrs. Lopez contends the circumstances surrounding her husband’s work away from home

is evidence, when coupled with the other summary judgment evidence she produced, to establish

Lopez was in the course and scope of his employment at the time of the accident. It is undisputed:

(1) Lopez resided with his wife in Rio Grande City, Texas; (2) Interstate’s jobsite was located

roughly 450 miles away in Ridge, Texas; (3) Interstate paid Lopez a per diem while he was

working at the Ridge jobsite that was not paid to its workers at its home office in Odessa, Texas;

and (4) Lopez used his per diem to stay at a motel about forty miles away in Marlin, Texas. We

hold that this evidence, when considered with the evidence that Interstate provided transportation

to Lopez, entitles Mrs. Lopez to judgment as a matter of law.

        The evidence of Lopez’s working conditions clearly suggest his presence in the area of the

accident, and the accident itself, originated in his work for Interstate. 2 Specifically, the nature of

the remote job site conditions and the provision of a per diem for food and lodging illustrate

Interstate clearly knew the only reason employees like Lopez would be present in the area of Ridge

was their job. Further, employees like Lopez, in the words of site superintendent Knight, could

“stay where they wish.” As such, a commute to the jobsite is not only expected, but in reality,

required.

        Here, the accident occurred: (1) during Lopez’s commute from his de facto employer-

provided housing to his employer’s premises, (2) in an employer provided vehicle, and (3) in an


2
  Mrs. Lopez contends these facts entitle her husband to the protections of the “continuous coverage” rule. In Texas,
the “continuous coverage” rule regards an employee whose work entails travel away from the employer’s premises as
being continuously within the course of their employment during the trip, except when a distinct departure on a
personal errand is shown. Shelton, 389 S.W.2d at 293; Aetna Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex.
App.—Austin 1986, writ ref’d n.r.e); see also McVey, 339 S.W.3d at 731–32. However, as Seabright correctly argues,
the “continuous coverage” rule does not apply here because the rule protects “employees whose work entails travel
away from the employer’s premises,” not the employee’s home. Shelton, 389 S.W.2d at 293 (emphasis added).
Lopez’s tenure in Marlin may have been a trip away from home, but it was also travel to the employer’s premises as
opposed to travel away from such premises.

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area of Texas where Lopez would not have otherwise been but for his employment with Interstate.

These circumstances present a strong nexus between Lopez’s employment and travel on the day

of the accident. Seabright does not point to any evidence in the record to the contrary, and we

have found none. As such, we hold the evidence presented by Mrs. Lopez showing the relationship

between her husband’s travel and employment for Interstate is so close it can fairly be said the

injury had to do with and originated in the work, business, trade or profession of Interstate. See

Leordeanu, 330 S.W.3d at 242; TEX. LABOR CODE ANN. § 401.011(12). Accordingly, Lopez’s

injury occurred in the course and scope of his employment as a matter of law because it both

originated in and furthered his employer’s business. TEX. LABOR CODE ANN. § 401.011(12).

       Based on the foregoing, we need not address Mrs. Lopez’s argument that evidence of

“carpooling” established origination for the purposes of course and scope of employment.

                  Seabright’s Response and Motion for Summary Judgment

       By holding Mrs. Lopez established her right to summary judgment as a matter of law, we

have, per force, determined the trial court did not err in denying Seabright’s motion and that

Seabright did not, in response to Mrs. Lopez’s motion, produce evidence raising a genuine issue

of material fact. To be entitled to summary judgment, Seabright had the burden to prove Lopez

was acting outside the course and scope of employment at the time of his accident. Seabright

failed to meet its burden. Moreover, Seabright failed to present more than a scintilla of evidence

to negate Mrs. Lopez’s right to summary judgment.

       Instead of presenting distinct summary judgment evidence to entitle it to judgment as a

matter of law or to raise a fact issue, Seabright merely contested the legal significance of the

generally uncontested summary judgment evidence in light of existing law. Based on our

interpretation of the law as set out above, Seabright was not entitled to judgment as a matter of



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law, and did not produce evidence to raise a fact issue relative to Mrs. Lopez’s motion. Therefore,

we hold the trial court did not err in denying Seabright’s motion for summary judgment.

                                          CONCLUSION

       Based on the foregoing, we hold Mrs. Lopez established as a matter of law that Lopez’s

travel in this case: (1) related to or originated in Interstate’s business, and (2) occurred in the

furtherance of Interstate’s business. See TEX. LABOR CODE ANN. § 401.011(12). Thus, Mrs. Lopez

proved, as a matter of law, her husband was in the course and scope of his employment at the time

of the accident. We therefore hold the trial court properly granted summary judgment for Mrs.

Lopez and denied the summary judgment sought by Seabright.              We overrule Seabright’s

contentions and affirm the trial court’s judgment.



                                                  Marialyn Barnard, Justice




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