      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       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


               Liana Leordeanu was a pharmaceutical sales representative injured in an accident

while driving from a business dinner to a storage unit to unload and reorganize the sales materials

in her company car. This case hinges on a single issue: was Leordeanu in the course and scope of

her employment at the time of her injury? The jury answered the question in the affirmative.

Because there is ample evidence to support the jury’s finding, and the evidence is legally and

factually sufficient, I would affirm the judgment.

               Workers’ compensation benefits are recoverable only where the death or injury in

question occurs in the course and scope of the employee’s employment. Deatherage v. International

Ins. Co., 615 S.W.2d 181, 182 (Tex. 1981). “‘Course and scope of employment’ means an activity

of any kind or character that has to do with and originates in the work, business, trade, or profession

of the employer and that is performed by an employee while engaged in or about the furtherance of
the affairs or business of the employer.” Tex. Lab. Code Ann. § 401.011(12) (West 2006). The term

includes activities conducted on the premises of the employer or at other locations. Id. Work that

is directed or authorized by the employer is within the course of employment regardless of whether

the work benefits the employer’s business.           Burkett v. Welborn, 42 S.W.3d 282, 287-88

(Tex. App.—Texarkana 2001, no pet.). An injury “arises out of” employment if it would not

have occurred if the conditions and obligations of employment had not placed the claimant in harm’s

way. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 735-36 (Tex. App.—San Antonio

1998, no pet.).

                  It is well settled that courts should construe the Workers’ Compensation Act liberally

in order to carry out the legislature’s evident purpose of compensating injured workers and

their dependents. Texas Workers’ Compensation Comm’n v. Patient Advocates of Texas, 136

S.W.3d 643, 652 (Tex. 2004); Ackerson v. Claredon Nat’l Ins. Co., 168 S.W.3d 273, 275

(Tex. App.—Austin 2005, pet. denied); see also Liberty Mut. Ins. Co. v. Camacho, __ S.W.3d __,

2007 Tex. App. LEXIS 4856 *9-10 (Tex. App.—Beaumont June 21, 2007, no pet. h.). Its provisions

“should not be hedged about with a strict construction but should be given a liberal construction

to carry out its evident purpose.” Lujan v. Houston General Ins. Co., 756 S.W.2d. 295, 297

(Tex. 1998) (quoting Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243,

245 (Tex.1985)).

                  With that context, we begin our analysis from the vantage point of a well-established

rule: Ordinarily an employee is not within the course and scope of his employment when he is

injured going to and coming from work. Tex. Lab. Code Ann. § 401.011(12)(A); Evans v. Illinois



                                                    2
Employers Ins., 790 S.W.2d 302, 304 (Tex. 1990); Texas General Indemnity Co. v. Bottom,

365 S.W.2d 350, 353 (Tex. 1963). The rationale for this rule is that such injuries do not arise out

of a person’s employment, but are suffered as a consequence of the risk to which all traveling

persons are exposed. Evans, 790 S.W.2d at 304.

                   There are some exceptions to this general rule. Transportation to and from the

place of employment may be in the course and scope of employment if the transportation is furnished

as part of the contract of employment or is paid for by the employer. Tex. Lab. Code Ann.

§ 401.011(12)(A)(i); Bottom, 365 S.W.2d at 353-54; see also Poole v. Westchester Fire Ins. Co.,

830 S.W.2d 183, 185-87 (Tex. App.—San Antonio 1992, writ denied) (issue of fact as to whether

sales manager on way to work in company car with logo fell within exception to general commute

rule). The key issue in determining whether compensation is available for an injury incurred while

traveling to or from work under this exception is whether the employer’s furnishing or paying for the

transportation was an integral part of the employment contract or merely an accommodation to the

employee. In the former case, the injury is within the course of employment and is compensable;

in the latter, it is not. See Rose v. Odiorne, 795 S.W.2d 210, 214-15 (Tex. App.—Austin 1990,

writ denied) (oil rig employee entitled to compensation if employer’s transportation plan (1) was

essential for transporting employees to remote job site, (2) benefitted employer, and (3) was needed

to operate rig).

                   An exception has also been created for “special missions” when an employee

is directed in his employment to proceed from one place to another. See Tex. Lab. Code Ann.

§ 401.011(12)(A)(iii); Evans, 790 S.W.2d at 304. The supreme court has construed this exception



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to include “those situations in which the employee proceeds from one place to another under the

terms of an employment which expressly or impliedly requires that he do so to discharge the duties

of his employment.” Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776, 778 (Tex. 1963),

overruled on other grounds by McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964).

               Known as the “dual purpose rule,” section 401.011(12)(B) of the labor code addresses

situations in which an employee is injured while traveling for both personal and business reasons.

Tex. Lab. Code Ann. § 401.011(12)(B). The rule provides that injuries incurred during travel for the

dual purpose of furthering the affairs or business of the employer and of furthering the employee’s

personal or private affairs shall not be deemed in the course of employment unless (1) the trip to the

place of the accident would have been made even had there been no personal or private affairs of the

employee to be furthered by the trip, and (2) the trip would not have been made had there been no

affairs or business of the employer to be furthered by the trip. Id.; Janak v. Texas Employers’ Ins.

Ass’n, 381 S.W.2d 176, 180-81 (Tex. 1964); Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d

419, 422-23 (Tex. App.—Beaumont 1991, writ denied). Texas courts have held that to be entitled

to workers’ compensation benefits in dual purpose situations, the employee or his survivors must

satisfy both prongs of the dual purpose rule. Janak, 381 S.W.2d at 180; Tramel v. State Farm Fire

& Cas. Co., 830 S.W.2d 754, 756 (Tex. App.—Fort Worth 1992, writ denied).

               Citing to Evans that an employee’s trip from “work to home” was “purely personal”

and to Tramel “noting that an employee’s trip from home to work serves ‘private, personal

purpose[s],’” the majority concludes that Leordeanu’s travel from the restaurant on the night in

question was for both business and personal purposes, and that she did not satisfy both prongs of the



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dual purpose test. Although arguing that “this is a simple case involving a single issue,” American

Protection variously urges that (i) unless the motivating purpose for the travel to the place of

occurrence of the accident is a work purpose, travel in service of a personal purpose is not covered

under the Act, (ii) travel from work to home is inherently personal, and (iii) the work must be the

primary reason for the travel, without which reason, the trip would not have occurred. American

Protection acknowledges that Leordeanu submitted sufficient evidence to prove a business reason

for the trip, but asserts that unless she “can show that she would have not returned to home on the

evening of her accident,” she is not entitled to recovery under the Act.

                We will sustain no-evidence points of error only if the record shows (1) a complete

absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a

vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite

of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810-11 (Tex. 2005). We must view

the evidence in the light most favorable to the verdict, crediting favorable evidence where reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 827. The

final test for legal sufficiency must always be whether the evidence at trial would allow reasonable

and fair-minded people to reach the verdict under review. Id. “It is the court’s charge, not some

other unidentified law, that measures the sufficiency of the evidence when the opposing party

fails to object to the charge.” Soto v. Seven Seventeen HBE Corporation, 52 S.W.3d 201, 209-10

(Tex. App.—Houston [14th Dist.] 2000, no. pet.) (quoting Osterberg v. Peca, 12 S.W.2d 31, 55

(Tex. 2000)).



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               The trial court rejected American Protection’s motion for summary judgment

asserting that the dual purpose rule barred Leordeanu’s claim for benefits “because there has been

no evidence offered that Ms. Leordeanu would not have gone home (that she would have abandoned

the trip home) absent a business reason for going to the [storage unit] . . . .” As the trial court

correctly recognized in denying summary judgment, the disputed question as to whether Leordeanu

was acting within the course and scope of employment was a question for the jury.

               The evidence showed that, as a traveling pharmaceutical sales representative,

Leordeanu marketed pharmaceutical products to pharmacies and approximately 400 doctors in

a designated territory that included Austin, Bastrop, La Grange, New Braunfels, and San Marcos.

According to her testimony, Leordeanu often hosted physicians and their staffs at work-related

events at local restaurants. Her job description included calling on doctors, hosting events, and

marketing to doctors, pharmacies and their staffs. Each sales call was reported to the company

and the job contemplated extensive administrative tasks, including documenting each contact,

distributing and accounting for manufacturers’ samples, and submitting expense reports. To

accomplish these administrative tasks, Leordeanu maintained a home office in her apartment.

               American Protection adduced testimony from a representative of the employer that

Leordeanu’s place of employment was her home and that the company did not maintain an office

in the State of Texas. Leordeanu converted an extra room into her home office where she maintained

office equipment, including a computer, printer, and facsimile machine—all paid for and maintained

by the company. She also maintained sales materials and manuals in her home office. Another sales

representative testified that each sales representative has a similar setup. Leordeanu did her



                                                6
extensive paperwork in her home office. She sometimes did paperwork at night and on the weekend.

The company also provided Leordeanu with a company vehicle for which it paid for business-related

gas and repair expenses.

               Each sales representative also had the option of maintaining a storage area in his

home for which he was paid a monthly stipend or maintaining a separate storage unit off site which

was paid for by the company. Leordeanu opted to maintain a storage unit in a nearby storage facility

that was temperature controlled. She stored samples and marketing materials and kept no personal

items in the storage unit. The storage unit was on the road to her home. She would go to her storage

unit frequently, “twice a day,” “quite a few times,” often on weekends. A representative of her

employer testified that it was at her discretion when to go to the storage unit.

               On the day of the accident, Leordeanu completed a sales call at a doctor’s office in

Bastrop and then drove to La Feria Restaurant in Austin to host a dinner for medical personnel. It

is undisputed that the event at the La Feria Restaurant was hosted by the company and was a

company event. It was a “standard” event for a customer. Approximately ten employees and the

doctor from the clinic attended. The sales representatives often hosted similar events each week that

were considered part of their work.

               Leordeanu testified that on the evening of the accident, after the restaurant event,

she was going first to her storage unit to unload and organize her car and was then headed home to

complete an “hour, hour and a half of paperwork, to enter the calls for the day.” Although

Leordeanu was a well-regarded employee, she had received an unfavorable report for her

administrative “paperwork” tasks. Thus, she testified that she had a “serious deadline” that night



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because she was going out of town and needed to put her paperwork in the mail the next day so it

would be received by her district manager on time: “I had to put that stuff in the mail to him that

Friday. It had to be done.” She recognized her performance on administrative tasks was “not where

it should be,” and that she had a deadline she had to meet.

                After dinner, Leordeanu traveled from South Austin via Loop 360, a major artery,

intending to exit at F.M. 2222. The route to the storage unit was also in the direction of her home.

Before she reached the storage unit, and while she was still on Loop 360, Leordeanu suffered serious

injuries in a car accident.

                If facts raise the dual purpose doctrine for injury incurred during travel, the jury—as

it was here—must be instructed as to the dual purpose rule.1 Wausau Underwriters, 807 S.W.2d at

422-23; Texas Workers’ Comp. Ins. Fund v. Bridwell, No. 14-02-00643-CV, 2003 Tex. App. LEXIS

9443 *6-7 (Tex. App.—Houston [14th Dist.] Nov. 6, 2003, no pet.) (mem. op., not designated

for publication); Argonaut Southwest Ins. Co. v. Brewer, No. 09-93-005-CV, 1994 WL 312909 *4

(Tex. App.—Beaumont June 30, 1994, writ denied) (mem. op., not designated for publication). As

the trial judge correctly recognized, the determination of whether the evidence adduced at trial

establishes that an employee was in the course and scope of employment is a fact question for the

jury. The jury answered this fact question in a general verdict, finding that Leordeanu was in the

course and scope of her employment at the time she was injured. American Protection did not




        1
          Where evidence of dual purposes existed and the court did not include a charge, it
was reversed. See, e.g., Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d 419, 422-23
(Tex. App.—Beaumont 1991, writ denied). Despite the fact that this case may not raise the issue
of dual purpose travel and require such a charge, the cautious trial court gave one.

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challenge the instruction, and the instruction is consistent with this court’s analyses of the dual

purpose rule as it applies in the context of the course and scope of employment. Nor is it disputed

that the court’s instruction to the jury provided an accurate statement of the law. If American

Protection had desired findings other than the general verdict, it could have posed separate questions

to the jury. See Tex. R. Civ. P. 278. It did not. The disputed question was whether the plaintiff was

acting within the course and scope of employment; this was a question for the jury to which the

parties sought a general verdict.

               Just as driving in a company car festooned with a company logo does not necessarily

bring the employee within coverage of the Act, neither does the fact that the employee will

eventually end up at home at the close of day exclude him from coverage. If an employee is injured

while running an errand for the employer either on the way to work or on the way home from work,

the controlling issue remains whether the employee was in the course and scope of his employment.

One court reasoned that the inquiry requires the fact finder to determine during which segment of

the trip the injury occurred—the segment between the errand and work or the segment between

the errand and home. St. Paul Fire & Marine Ins. Co. v. Confer, 956 S.W.2d 825, 830

(Tex. App.—San Antonio 1997, pet. denied). In its well-reasoned analysis of a case similar to this

one, the San Antonio court of appeals upheld a jury verdict that an employee was in the course and

scope of his employment when he had an accident that occurred while he was driving to a store for

office supplies after which he would have driven home. As in this case, in Confer, the route home

coincided with the route to the business errand. The majority does not distinguish Confer, but finds

that it “departs” from the statute. I disagree.



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               The court in Confer parsed a difficult statute concluding that the “controlling issue

should be whether the employee is traveling on behalf of his employer at the time of the accident,

not on what road he happens to be traveling.” Id. at 830. The court reasoned that the fact that the

office supply store happened to be along the same route as the employee’s route home “should be

of little consequence.” Id. at 829. Both Confer and Leordeanu were traveling on major highway

arteries—Confer on Interstate Highway 35 and Leordeanu on Loop 360. As the Confer court

correctly asked: “Why should the result be any different if [the office supply company] had been

located somewhere off of Interstate 35, forcing Dr. Confer to travel away from his regular route?”

There is no language in the statute suggesting that the legislature intended such a random factor to

inform its statutory scheme. Nor can one assume that the fact that Leordeanu organized her sales

travels and chores to eventually end up at home just off of Loop 360 would automatically exclude

her from coverage.

               By the majority’s reasoning, Leordeanu was on a dual purpose trip that would exclude

her from coverage when she left the doctor’s office in Bastrop for the business dinner in Austin.

Even though she was traveling from one business errand to another, and was clearly in the course

and scope of employment, she was also traveling the same route that she would have to traverse to

return to her home in Austin later that night even in the absence of a business purpose. Under the

majority’s erroneous application of the statute, this trip would be no different than her trip from the

restaurant to the storage unit. Both the storage unit and restaurant were mere stops on a trip that

would ultimately take her home. The issue is not whether she would end up at home at the end of




                                                  10
her workday—most workers do. The issue is whether she was in the course and scope of her

employment at the time of her accident.

                The majority’s reading makes it impossible for the statute to achieve its legislative

purpose by extirpating its provisions for persons without a fixed workplace. The coming and going

rule originates from the proposition that an injury occurring while using the public streets or

highways in commuting to and from work is non-compensable because the employee is not exposed

to any risk of the workplace that any other driver is not exposed to. A different situation is presented

when an injury occurs as the result of travel pursuant to express or implied requirements of an

employment contract. Jecker, 369 S.W.2d. at 778. The rationale for the exception is that since it

is the employment that exposes the employee to the risks of the public streets and highways,

his injuries arise from the employment. Id. Further, the statutory definition of course and scope of

employment contemplates coverage for activities conducted on the work premises and “at other

locations.” Tex. Lab. Code Ann. § 401.011(12). When travel upon public roadways is an integral

or necessary part of one’s employment, and it is as much a part of one’s work as the actual arrival

at a workplace—or if there is no actual workplace other than a home office—travel is an element

of the employment, and courts have held that such traveling is in the course and scope of

employment. See, e.g., Jecker, 369 S.W.2d 776 (holding that salesman’s death was compensable

when he was in accident on return trip from a service call); Employee Cas. Co. v. Hutchinson,

814 S.W.2d 539 (Tex. App.—Austin 1991, no writ) (holding that dual purpose rule did not bar

recovery for customer service employee killed in an accident on trip from family reunion to

customer’s home); Rose, 795 S.W.2d 210.



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               It would defeat the legislative scheme to simply label all travel in the direction of

home as “inherently personal” and automatically exclude it from coverage under the dual purpose

rule. Surely, a salesperson who organized his stops from the furthest stop to the closest one to home

and began his work with the stop at the longest distance from home cannot be said to be excluded

by the dual purpose rule as he works his way home.

               This is not a typical commuter case. Leordeanu was a traveling sales representative

who worked out of her car, storage unit and home office. Unlike the normal commuter who travels

to and from a set place, or places, of employment, she was directed in her employment to travel from

place to place within her designated territory on a daily basis. On the day of her injury she traveled

to a health care provider’s office in Austin, to offices in Bastrop, back to a restaurant in Austin, and

was then injured in an accident as she drove towards her employer’s storage unit after 9 p.m.

               Leordeanu is not like a normal commuter, and was not injured as a consequence of

a risk to which all traveling persons are exposed. Her accident arose out of the traveling nature of

her employment. It arose from an activity that “originates in the work, business, trade, or profession

of the employer and that is performed by an employee while engaged in or about the furtherance of

the affairs or business of the employer.” See Tex. Lab. Code Ann. § 401.011(12). More than

sufficient evidence was provided at trial for the jury to find that, at the time of her accident,

Leordeanu was traveling from a business dinner to a storage unit, and even then to her home office,

for the sole purpose of furthering her employer’s affairs.

               The jury’s finding, and the San Antonio court’s holding in Confer, are in accord with

Evans and other cases relied on by the majority. In Evans, the Texas Supreme Court held that an



                                                  12
employee’s death was not compensable when he was killed in an accident on his way to a pre-work

safety meeting because he had not yet “begun work” and coverage was therefore barred under the

coming and going rule. 790 S.W.2d at 305. The court stated, however, that the death would have

been compensable if the accident had occurred between the safety meeting and the work site.

               In Tramel, the Fort Worth court of appeals held that an injury was not compensable

when the employee was injured during her regular trip to the bank on behalf of her employer before

work. 830 S.W.2d at 757. The accident occurred on a point in the trip that she would have traveled

on her way from home to either the bank or work. Id. Unlike the employees in both of these cases,

Leordeanu was not merely driving to work at the time of her injury but was in fact in the course and

scope of her employment as a traveling pharmaceutical sales representative. Once she began her

work for the day, Leordeanu’s situation became analogous to the Evans court’s hypothetical in which

the employee injury was compensable because it occurred during travel between the pre-work safety

meeting and the work site. This case is even more compelling as Leordeanu operated out of her

home office and her storage facility and drove a company car.

               The facts of the present case are more like those in Meyer v. Western Fire Ins. Co.,

425 S.W.2d 628, 629 (Tex. 1968), than Evans or Tramel. In Meyer, the Texas Supreme Court held

that an employee’s accident on the way to work was in the course and scope of employment when

the employee had taken work-related phone calls from home before departing. Id. at 629. The

employee was a service supervisor who worked partly at home, partly at his employer’s office and

partly in making service calls to homes built by his employer. Id. He drove his own vehicle and had

discretion as to when he made his service calls. He was not required to stop by the office at any



                                                13
given time, but tried to stop by once a day to pick up messages. Id. The court framed the question

whether he was already working at the time of the accident or whether he was merely on his way to

work. Id. at 628. In determining whether his accident was in the course and scope of employment,

the court reflected on the legislature’s adoption of the “coming and going” and “dual purpose” rules:


        [T]he Legislature surely did not intend to provide that an employee whose
        employment requires him to travel at his own expense in his own automobile on
        streets and highways, either constantly or intermittently, should be denied
        compensation if accidently injured while thus exposed to risks growing out of his
        employment. Any such holding would be wholly unjust to salesmen, servicemen,
        repairmen, deliverymen, and a host of others who may be required to use their own
        automobiles in their work, and would be a strict rather than a liberal interpretation
        of the Workmen’s Compensation Act.


Id. at 630 (quoting Jecker, 369 S.W.2d at 779). The court held that there was evidence that the

employee was impliedly directed in his employment to travel to the office on the day of the accident

and that the dual purpose rule did not bar him from recovering benefits. Id. at 630-31.

                In a similar manner to the employee in Meyer, Leordeanu worked partly in making

sales calls, partly out of her storage facility and partly at home. She had discretion as to when she

would make her calls, and as the employee in Meyer did, she would visit the storage unit on a regular

basis in the course of her duties. Unlike the employee in Meyer, Leordeanu was furnished with a

company car she used to further her employer’s affairs—making the case that her accident was in

the course and scope of employment even more compelling. Leordeanu is precisely the kind of

employee that the Jecker and Meyer courts warned would be unjustly denied recovery under a “strict

rather than a liberal interpretation” of the statute. See id.




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               The majority is correct that the statute is semantically challenging. But the trial court

gave a correct statement of the law in its instruction and identified the ultimate destination for the

jury’s journey. The jury accomplished the task it was asked to do. Because the evidence in this case,

assessed under the appropriate standard, was clearly sufficient to support the jury’s finding of course

and scope of employment, I respectfully dissent.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: August 2, 2007




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