      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                    ON MOTION FOR RECONSIDERATION EN BANC



                                      NO. 03-06-00529-CV



                     American Protection Insurance Company, Appellant

                                                 v.

                                   Liana Leordeanu, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
    NO. D-1-GN-04-001199, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                              DISSENTING OPINION


               Because the majority opinion in this case deviates from this Court’s precedent

regarding the “continuous coverage principle,” I believe that en banc review is warranted. See Aetna

Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex. App.—Austin 1986, writ ref’d n.r.e.) (holding

that employee whose work entails travel remains within course of employment continuously during

trip). As discussed in Justice Patterson’s substituted dissenting opinion, Leordeanu was a traveling

salesperson without a fixed place of employment, and was therefore subject to the “continuous

coverage principle.” See generally Orgon, 721 S.W.2d at 575; Texas Employers Ins. Ass’n v. Cobb,

118 S.W.2d 375, 379 (Tex. Civ. App.—El Paso 1938, writ ref’d) (holding that because traveling

employee had “the duty to go from place to place at the will of his employer” in the performance of
his employment, injury that occurred during overnight stay on business trip was “proper subject for

compensation under our Workmen’s Compensation Act.”); 99 C.J.S. Workers’ Compensation § 428

(2000) (collecting cases).1 Because I believe that the continuous coverage principle applies in the

present case, I adopt the reasoning of Justice Patterson’s dissent and respectfully dissent from the

denial of en banc consideration.



                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Patterson, Puryear, Pemberton, Waldrop and Henson

Filed: February 13, 2009




       1
           In Orgon, this Court cited a number of cases from other jurisdictions to illustrate that the
“‘continuous coverage principle’ is the prevailing view throughout the United States.” Aetna
Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex. App.—Austin 1986, writ ref’d n.r.e.). This
citation includes two cases involving facts similar to the present case, in which a traveling employee
was injured while returning home from a business trip. See Baldridge v. Inter-River Drainage Dist.
of Mo., 645 S.W.2d 139, 140 (Mo. App. 1982) (holding that coming-and-going rule does not apply
to “employees whose work entails travel away from the employer’s premises”); McGee v. Panhandle
Tech. Systems, Inc., 387 N.W.2d 709, 713 (Neb. 1986) (employee was acting in scope of
employment when injured during drive home from trip taken for purpose of studying marketing
techniques of similar businesses).

                                                  2
