Here's the code section Seabright says needs clarification:
(12) "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. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee's employment to proceed from one place to another place; or
(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:
(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
But 401.11 when taken into context is not ambiguous, as I'll explain. Seabright, in my opinion, is instead making a disingenuous argument to avoid paying a death benefit.
Here's the facts as we know them:
Candelario Lopez worked as a carpenter and foreman for Interstate Treating, an Odessa-based business involved in building and installing gas plants.
His work for Interstate always required him to travel away from his Rio Grande City home, which is near the Mexican border – to destinations such as Missouri, Virginia, Oklahoma and Colorado.
In 2007, Interstate sent him to work on a fabrication and construction project in Ridge, Texas, which was an almost seven-hour drive north from his home.
Candelario would stay in hotels near the site where Interstate had sent him to work. He would make his own lodging arrangements, though Interstate would pay him a "per diem" in addition to his hourly wage whenever he was away from home. Candelario's widow, Maximina, said he always used this per diem to pay for his hotel room and meals.
Interstate also provided Lopez with a company vehicle to use, and a company credit card to buy gas and supplies (though Seabright contends that the truck was provided as a gratuity, and Candelario's employment didn't require the vehicle's use).
While Candelario was working for at the Ridge job site, he stayed in a hotel about 47 miles away, in Marlin. He used the company truck to get to and from the job site each day.
While he was headed to work on the morning of Sept. 11, 2007, a vehicle traveling westbound on State Highway 7 crossed over the median and crashed into the truck.
At the time, two subordinate employees were riding with Candelario in the truck, and he was hauling company equipment to the job site.
The truck was propelled into a ditch, and Candelario, 57, died from his injuries.
After his death, Maximina filed a claim for workers' compensation benefits. Seabright denied the claim on the grounds that Cadelario was not in the course and scope of his employment at the time of the accident because he was traveling.
At hearing, the Division of Workers' Compensation found Candelario's fatal injuries were compensable because he "was engaged in or furthering the affairs or business of (his) (e)mployer" at the time of the crash.
An Appeals Panel agreed and Seabright sought judicial review; a Starr County District Court Judge granted summary judgment in favor of Maximina, and the 4th DCA upheld that decision last year.
Seabright then asked the Texas Supreme Court to review - all the while, I presume, holding on to the death benefit money.
Seabrights novel argument is that since the Supreme Court's 2010 decision in Leordeanu v. American Protection Insurance Co., "multiple courts of appeals have construed the statutory requirements of Section 401.011(12) in different ways," and that there is "continuing confusion over the construction of Texas Labor Code Section 401.011(12) as to travel in the course and scope of employment," and "substantial deviation in statutory construction between courts of appeal."
This is why Seabright's cloak of legal basis is disingenuous - the analysis of the law and in particular 401.11(12), is very, very simple: was the worker injured while benefiting the employer?
There is no confusion in this case. Apply the standard and, as applied to Maximina, pay the damned benefit.
Seabright doesn't like that the court used the "but for" test: but for his employment Candelario wouldn't have been where he was when he was killed.
Too bad - that's a proper analysis of the law as applied to the facts of this case.
Seabright will lose at the Supreme Court, and perhaps the court will clarify the standard. But I doubt it.
The LEGAL standard is already clear, as it is in countless workers' compensation cases throughout the country, not just in Texas and whether or not death is involved; it's the FACTS that will always be different.
Which is why a basic analysis is required and that basic analysis comes down to whether or not the employee was doing something that he or she otherwise wouldn't be doing if not for the benefit of the employer.
Conservative insurance folks will argue that's too loose - What about parking lots? What about personal errands? What about idiopathic injuries?
This is not rocket science. It's not even first year law school case analysis. Strip away all of the legal mumbo jumbo and the result is obvious.
Interstate paid for insurance. Seabright took that money. Now it's time for Seabright to make good on its contractual promise.
The petition for review in the Seabright case is available here.
The opposition to the petition is available here.
The reply is available here.
Seabright's petition on the merits is available here.
Maximina's petition on the merits is available here.
Seabright's reply is available here.
Hey, maybe I'm wrong - it's happened before. My suspicion, however, is that you'll read my vindication here in a few months...
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