This opinion is subject to revision before final
publication in the Pacific Reporter.
2013 UT 40
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
LAYNE JEX,
Petitioner,
v.
UTAH LABOR COMMISSION, PRECISION EXCAVATING, and OWNERS
INSURANCE COMPANY,
Respondents.
———————
No. 20120347
Filed July 9, 2013
———————
On Writ of Certiorari to the Utah Court of Appeals
———————
Attorneys:
Aaron J. Prisbrey, Trevor C. Sanders, St. George, for petitioner
Bret A. Gardner, Kristy L. Bertelsen, Salt Lake City, for
respondents Precision Excavating and
Owners Insurance Company
Alan L. Hennebold, Salt Lake City, for respondent Utah Labor
Commission
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
JUSTICE LEE, opinion of the Court:
¶1 While traveling home from work in his personal vehicle,
petitioner Layne Jex sustained back injuries in a roll-over accident.
He filed a workers‘ compensation claim shortly thereafter, which
was denied. Jex appealed, first to the labor commission and then
to the court of appeals. In each forum, Jex argued that in light of
the benefits his employer received through various work-related
uses of his vehicle, he was ―in the course of employment‖ during
his accident and thus entitled to benefits under the Workers‘
Compensation Act. See UTAH CODE § 34A-2-401(1).
JEX V. LABOR COMMISSION
Opinion of the Court
¶2 Both the labor commission and the court of appeals reject-
ed Jex‘s claim under the general rule that employees are not in the
course of their employment when traveling to or from work. In
affirming the labor commission, the court of appeals also conclud-
ed that Jex did not qualify under the ―instrumentality‖ exception
to the ―going and coming‖ rule. We affirm. We clarify the nature
and scope of the going and coming rule and the instrumentality
exception, conclude that Jex falls within the rule and not the ex-
ception, and reject Jex‘s claim to the benefit of ―any doubt‖ about
his right to workers compensation.
I
¶3 Jex began working for Precision Excavating as a heavy
equipment operator in St. George, Utah. After a slump in the con-
struction industry made work in St. George scarce, Jex accepted
Precision‘s offer to work at a jobsite near Cedar City—some sixty
miles north.
¶4 Though Jex and his fellow workers were ultimately respon-
sible for making and paying their own way to the new jobsite,
Precision designated a location for employees to meet to carpool
together if they so desired. Precision also provided a company-
owned truck at the meeting spot each day to ferry at least some
employees. Jex rode in this truck several times, but drove his own
vehicle most days. While traveling home from the jobsite in his
vehicle on one such day, Jex sustained back injuries when his
pickup truck rolled after a tire failure.
¶5 After the accident, Jex applied for workers‘ compensation
benefits. His application was denied under the ―going and coming
rule‖—a workers‘ compensation principle deeming injuries occur-
ring during a work commute outside the ―course of employment‖
and thus not compensable. Jex sought review of that denial before
an administrative law judge (ALJ), contending that he qualified
for an exception to the going and coming rule—an exception
deeming a commuting accident in the ―course of employment‖ if
the vehicle is an ―instrumentality‖ of the employer‘s business.
¶6 In advancing this exception, Jex claimed that his vehicle
was employed for a number of business purposes, which in his
view converted the vehicle into an instrumentality of Precision‘s
business. First, Jex claimed that he provided transportation to Pre-
cision employees in his pickup truck. According to Jex, his super-
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Opinion of the Court
visor at Precision asked him on several occasions to wait ten extra
minutes at the company-designated meeting spot to give a ride to
a chronically late employee, Nick. Jex also asserted that, on the
day of the accident, he approached his supervisor and asked if he
should give another employee, James, a ride home, to which the
supervisor responded ―Yeah go ask if he wants to go now, and
give him a ride.‖ At the same time, the supervisor also asked Jex
to give James the option of leaving with Jex or working overtime
and riding home with the supervisor. For whatever reason, Jex
did not relay the supervisor‘s second message to James, and the
two left together in Jex‘s vehicle.
¶7 Next, Jex reported that he transported hydraulic fluid be-
longing to Precision and his personal tools—including a tape
measure, a large pipe, a crescent wrench, a sledge hammer, a
heavy chain, a trailer hitch, and a homemade level—in his pickup
truck to Precision‘s jobsite for use there. Finally, Jex twice, at his
supervisor‘s request, ran errands in his vehicle for Precision that
required him to leave the jobsite and travel to Cedar City.
¶8 After hearing this evidence, the ALJ denied Jex‘s claim on
the ground that these services were insufficient to qualify Jex for
the instrumentality exception. As to Jex‘s transportation of Preci-
sion employees, the ALJ determined that the arrangement be-
tween Precision and Jex regarding Nick‘s ride to work was merely
―loose cooperation‖ and ―not mandated by the employer.‖ In the
ALJ‘s view, though Jex complied with Precision‘s requests con-
cerning Nick, it was not a job requirement for him to do so. The
ALJ further noted that, on the day of the accident, Jex ―offered‖ to
give his co-worker a ride home; it was not the result of an ―em-
ployer instruction.‖ And in the ALJ‘s view, the ride offered no
benefit to Precision.
¶9 As to the personal tools Jex brought and used on the job
site, the ALJ concluded that that ―was not a job requirement, and
was not necessary,‖ because Jex was able to perform his job
―without problem‖ the days he rode in the company truck and
did not have his personal tools. Finally, the ALJ concluded that
though Jex used his own vehicle for two errands, a company truck
was available for use on both occasions, he was compensated for
his time while on these errands, and the lack of employer control
over the use of the truck weighed against a finding of compensa-
bility.
3
JEX V. LABOR COMMISSION
Opinion of the Court
¶10 Jex renewed the same instrumentality arguments in a mo-
tion for review to the labor commission. But the labor commission
agreed with the ALJ—expressly adopting the ALJ‘s factual find-
ings—and denied benefits based on the going and coming rule.
¶11 Jex then appealed to the Utah Court of Appeals. The court
of appeals began with the premise that ―Utah‘s appellate courts
. . . have not excepted an employee‘s travel to or from work from
the usual rule when the travel did not confer a substantial benefit
on the employer.‖ Jex v. Labor Comm’n, 2012 UT App 98, ¶ 12, 275
P.3d 1078. It then invoked a ―substantial benefit‖ requirement it
found in past cases, including Salt Lake City Corp. v. Labor Commis-
sion, 2007 UT 4, 153 P.3d 179, as ―a frame of reference for as-
sessing‖ whether Jex‘s vehicle had become a limited purpose in-
strumentality based on its use on the day of the accident and
whether it had become an all-purpose instrumentality based on
the ―totality of the circumstances‖ surrounding its use to benefit
Precision generally. Jex, 2012 UT App 98, ¶¶ 13–16.
¶12 As to the former, the court concluded that Jex‘s transporta-
tion of James back to St. George on the day of the accident ―was
not required by Precision‖ and did not ―provide the company
with any substantial benefit.‖ Id. ¶ 15. It thus determined that his
vehicle was not an instrumentality on the day of the accident. Id.
It reached the same conclusion on the second question. According
to the court of appeals, ―each of the activities Jex relie[d] on pro-
vided the employer with only minimal or occasional benefit‖ and
the use of his vehicle to benefit Precision was typically ―the result
of his unilateral decision, rather than a requirement of his posi-
tion.‖ Id. ¶ 23. The court ultimately concluded that absent a show-
ing of ―more regular demands‖ on the use of Jex‘s vehicle or the
presence of ―a more pervasive benefit,‖ the court would not dis-
turb the commission‘s decision. Id.
¶13 Jex filed a petition for certiorari, seeking review of the court
of appeal‘s decision that the ―going and coming rule‖ defeated his
claim for workers‘ compensation benefits because his vehicle did
not qualify as an all-purpose instrumentality of Precision‘s busi-
ness. We granted that petition.
¶14 We consider the court of appeals‘ decision under a correct-
ness standard of review, affording no deference to its considera-
tion of the labor commission‘s decision. Newspaper Agency Corp. v.
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Opinion of the Court
Auditing Div. of the Utah State Tax Comm’n, 938 P.2d 266, 267 (Utah
1997). In evaluating the correctness of the court of appeals‘ deci-
sion, however, we consider ―whether the court of appeals re-
viewed the decision of the Commission with the appropriate
standard of review.‖ Id.
¶15 Whether the commission correctly or incorrectly denied
benefits is ―a traditional mixed question of law and fact.‖ See Mur-
ray v. Labor Comm’n, 2013 UT 38, ¶ 34, __ P.3d __. ―The standard of
review we apply when reviewing a mixed question can be either
deferential or non-deferential.‖ Id. ¶ 36. Deference on a mixed
question is warranted when ―the mixed finding is not ‗law-like‘
because it does not lend itself to consistent resolution by a uni-
form body of appellate precedent‖ or ―is ‗fact-like‘ because the
[factfinder] is in a superior position to decide it.‖ Id. ¶ 37 (internal
quotation marks omitted).
¶16 Whether benefits are barred by the ―going and coming‖
rule is such a mixed question. Given the varied factual postures
possible in ―going and coming‖ cases and the fact-intensive na-
ture of the question, the matter does not lend itself easily to con-
sistent resolution through a ―uniform body of appellate prece-
dent.‖ Id. (internal quotation marks omitted). And because the
ALJ and the commission have firsthand exposure to the evidence
in such cases, their view of the matter is superior to ours. The
commission‘s decision denying benefits is accordingly entitled to
deference.
II
¶17 Under our Workers‘ Compensation Act, employees who
are accidentally injured ―in the course of [their] employment‖ are
entitled to compensation. UTAH CODE § 34A-2-401(1).1 The Act it-
self does not define ―course of . . . employment.‖ But our cases
have given content to that phrase over time, through rules and
exceptions that offer shorthand grounds for deeming various ac-
1 See Allen v. Indus. Comm’n, 729 P.2d 15, 18 (Utah 1986) (decid-
ing that the Workers‘ Compensation Act ―creates two prerequi-
sites for a finding of compensable injury‖: (1) an accidental injury
and (2) ―a causal connection between the injury and the employ-
ment‖).
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JEX V. LABOR COMMISSION
Opinion of the Court
tivities either within or beyond a person‘s ―course of employ-
ment.‖
¶18 At the core of this case is a judicially adopted principle
known as the ―going and coming‖ rule. See, e.g., Higgins v. Indus.
Comm’n, 700 P.2d 704, 707 (Utah 1985); Covey-Ballard Motor Co. v.
Indus. Comm’n, 227 P. 1028, 1028 (Utah 1924). According to this
rule, ―accidents occurring to the employee while going to and
from work‖ are generally not compensable because they are out-
side the course of employment. Bailey v. Indus. Comm’n, 398 P.2d
545, 546 (Utah 1965). Our cases have also recognized exceptions to
this general rule—limited circumstances in which an accident in
the course of ―going and coming‖ is nonetheless within the course
of employment. See, e.g., Tax Comm’n v. Indus. Comm’n, 685 P.2d
1051, 1053–54 (Utah 1984) (cataloguing various exceptions to the
going and coming rule).
¶19 The question before us is whether Jex qualifies for such an
exception. The exception he has sought to invoke is the so-called
―instrumentality‖ exception—an exception holding that even in
going and coming a vehicle may be in the course of employment
if it is an instrumentality of the employer‘s business in light of the
employer‘s benefit from and control over it. See Bailey, 398 P.2d at
546–47. Jex seeks to invoke this exception, citing the benefits con-
ferred on Precision‘s business by the use of his vehicle. Because he
used his pickup truck to give rides to Precision employees, to car-
ry tools to the jobsite for use, and to run occasional errands, in
other words, Jex contends that his vehicle became an all-purpose2
2 The court of appeals also considered whether Jex‘s vehicle was
a limited-purpose instrumentality on the day of the accident—
given that Jex was transporting a Precision employee when the
accident occurred. But Jex does not pursue that line of argument
here. We accordingly restrict our analysis to whether Jex‘s vehicle
was an all-purpose instrumentality—whether it was so pervasive
a part of Precision‘s business that it was always ―in the course of
employment‖ during all of Jex‘s commutes.
In so doing, we need not and do not endorse the legitimacy of a
limited-purpose instrumentality exception. Such a notion would
appear to be subsumed in the special errand exception, which
brings within the course of employment ―a special activity . . .
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Opinion of the Court
―instrumentality‖ of Precision‘s business, and thus that he was in
the course of employment even in going and coming from work.
¶20 We disagree. Under a proper understanding of the instru-
mentality exception and its elements, which we clarify below,
Jex‘s vehicle was not an instrumentality of Precision‘s business.
Instead, we conclude that Jex fell squarely within the going and
coming rule and thus that his accident was outside his ―course of
employment.‖ In affirming the court of appeals on that basis, we
also reject a fallback argument advanced by Jex—that he is enti-
tled to the benefit of ―any doubt‖ about the availability of work-
ers‘ compensation benefits, and thus should prevail in light of a
range of unresolved factual and legal questions implicated in this
case.
A
¶21 The central statutory inquiry in workers‘ compensation
cases is whether the injury occurred in the ―course of
. . . employment.‖ UTAH CODE § 34A-2-401(1). Our cases, as noted,
articulate subsidiary rules and exceptions that help define this
standard. See, e.g., Tax Comm’n, 685 P.2d at 1053–54. But these con-
ceptualizations are only tools in aid of the central statutory in-
quiry. They are not independent standards in themselves.3
¶22 Our objective in this or any statutory field is to fairly and
faithfully apply the governing statutory text. See, e.g., Myers v.
which is reasonably undertaken at the request or invitation of the
employer.‖ Drake v. Indus. Comm’n, 939 P.2d 177, 183 (Utah 1997)
(internal quotation marks omitted). Jex made a special errand ar-
gument in proceedings before the ALJ, but he did not renew that
argument on appeal or on certiorari. That failure would appear to
foreclose a parallel assertion that his vehicle was a limited-
purpose instrumentality. And in any event Jex has pressed no
such exception in his briefs or argument in this court.
3 See Lundberg v. Cream O’Weber/Federated Dairy Farms, Inc., 465
P.2d 175, 176 (Utah 1970) (―[R]eferring to [past caselaw] as ‗excep-
tions‘ to the [going and coming] rule . . . is not strictly accurate.
They are simply specific applications of the statute to particular
fact situations.‖); see also Salt Lake City Corp. v. Labor Comm’n, 2007
UT 4, ¶¶ 20–27, 153 P.3d 179 (deciding that going and coming rule
did not apply without reference to specific exceptions).
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JEX V. LABOR COMMISSION
Opinion of the Court
Myers, 2011 UT 65, ¶ 28, 266 P.3d 806. Thus, though our analysis is
couched in terms of the subsidiary rules (―going and coming‖)
and exceptions (―instrumentality‖) from our caselaw, the ultimate
question is the statutory one—whether Jex‘s accident was in the
―course of employment.‖ That is the lodestar. The contours and
scope of the rules and exceptions announced in our cases must be
driven by the statutory standard. Not vice-versa.
¶23 That predicate informs our resolution of this case. Jex‘s
claim is premised on an expansive conception of the instrumental-
ity exception that finds some support in the dicta in our cases, but
is ultimately irreconcilable with the statutory lodestar. Specifical-
ly, Jex asserts that a vehicle used for ―going and coming‖ purpos-
es falls within the ―instrumentality‖ exception whenever its use
confers any benefit on the employer—even absent any control or
direction on the part of the employer.
¶24 We reject that conception of the instrumentality exception.
We acknowledge dicta in our precedent that is susceptible to Jex‘s
construction. But we conclude that the ―any benefit‖ conception
runs counter to the tenor of the exception as articulated in our
caselaw. And, more fundamentally, we find that approach in-
compatible with the statutory standard, in that a ―going and com-
ing‖ commute that is only incidentally beneficial to the employer
and not subject to its control does not bring the commute within
the ―course of employment.‖
1
¶25 We first recognized an instrumentality exception to the go-
ing and coming rule in Bailey v. Industrial Commission, 398 P.2d 545
(Utah 1965). That case involved a sole proprietor who ran a ser-
vice station and used his own car to make emergency calls for his
business, to carry tools that were necessary to repair the cars he
worked on, and to loan to customers while he serviced their vehi-
cles. Id. at 546. The proprietor also ―carried the [car] upon his
books as a business asset,‖ ―owned another automobile which
was used as a ‗family car,‘‖ and charged the oil and gas as a busi-
ness expense. Id. After the proprietor died in an accident on his
way to work in the car, the predecessor to the labor commission
(the industrial commission) denied his survivors‘ request for ben-
efits under the going and coming rule. Id.
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Opinion of the Court
¶26 We reversed, citing two principal considerations. First, we
noted that it was the proprietor‘s ―regular and definite duty to
take [and use the car] in the business.‖ Id. at 547 (emphasis add-
ed). Second, we observed that by using his car, the proprietor was
―performing . . . a substantial service required by his employment.‖
Id. (emphasis added). The basis for our determination that the
proprietor‘s car had become ―an instrumentality‖ of the business
hinged on employer control (via duty) and benefits conferred (via
the substantial service performed). See id. Thus, in Bailey we deter-
mined that an employee is in ―the course of [her] employment‖ if
she is injured while subject to her employer‘s control and while
benefiting the employer. See id.; see also BLACK‘S LAW DICTIONARY
405 (9th ed. 2009) (defining ―course of employment‖ as ―[e]vents
that occur or circumstances that exist as part of one‘s employ-
ment, [especially] the time during which an employee furthers an
employer‘s goals through employer-mandated directives‖).
¶27 In the years since Bailey, we have continued to cite these
two factors—employer control and benefits conferred—not only
in applying the instrumentality exception,4 but also as ―the major
focus in determining whether or not the general [going and com-
ing] rule should apply in a given case,‖ Whitehead v. Variable An-
nuity Life Ins. Co., 801 P.2d 934, 937 (Utah 1989).
4 See, e.g., Lundberg, 465 P.2d at 176 (employee injured while trav-
eling to specially-called meeting not within Bailey and Moser be-
cause ―the use of [the plaintiff‘s] own car in going to work [was
not] any such essential aspect of the carrying on of the business as
to be regarded as an integral part thereof to take it out of the [go-
ing and coming rule]‖); Moser v. Indus. Comm’n, 440 P.2d 23, 24
(Utah 1968) (employee injured while starting truck was in the
course of employment because ―in order to continue its function
in the [employer‘s] business, it was necessary that someone take
[the truck] down to the [employer‘s] terminal,‖ that was the plain-
tiff‘s ―duty,‖ and the plaintiff was carrying out employer‘s in-
structions at time of the accident); see also Cross v. Indus. Comm’n,
824 P.2d 1202, 1205 (Utah Ct. App. 1992) (employee injured in
personal vehicle on the way home from work not in the course of
employment where ride-sharing program was merely one of ―mu-
tual convenience‖ rather than an employer requirement, and the
only benefit conferred on employer was arrival at the jobsite).
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JEX V. LABOR COMMISSION
Opinion of the Court
2
¶28 Jex insists that we adopted a more permissive instrumen-
tality standard in Salt Lake City Corp. v. Labor Commission, 2007 UT
4, 153 P.3d 179. He cites that case for the proposition that a mere
incidental benefit to an employer—with or without any employer
control—is enough to trigger the instrumentality exception. We
reject that standard as incompatible with the tenor of our caselaw
and, more importantly, with the statutory ―course of employ-
ment‖ standard.
¶29 Our decision in Salt Lake City Corp. deemed an officer who
was injured while traveling home in a patrol car in the city‘s
―Take Home Car program‖ within the course of her employment.
Id. ¶¶ 6, 26. In so holding, we suggested that ―an employee may
be eligible for workers‘ compensation benefits if the injury occurs
while the employee is engaged in an activity that is at least inci-
dental to employment.‖ Id. ¶ 23. We also stated, citing Black v.
McDonald’s of Layton, 733 P.2d 154, 156 (Utah 1987), that ―an activ-
ity is incidental to the employee‘s employment if it advances, di-
rectly or indirectly, his employer‘s interests.‖ Salt Lake City Corp.,
2007 UT 4, ¶ 23 (internal quotation marks omitted). And we
commented that ―[i]n almost every instance,‖ the question wheth-
er an employee is in the course of employment ―can be reduced to
one unit of measure—benefit.‖ Id. ¶ 20.
¶30 Jex invokes these dicta in service of his position that his ve-
hicle ―had become an ‗instrumentality‘ of Precision‘s business by
benefitting Precision,‖ emphasizing the premise that an activity
incidental to employment is one that ―advances, directly or indi-
rectly, his employer‘s interests.‖ See id. ¶ 23 (internal quotation
marks omitted); Black, 733 P.2d at 156 (same). Because his vehicle
advanced Precision‘s interests at least indirectly, Jex insists that it
became an instrumentality of Precision‘s business without regard
to any control or direction it may or may not have employed.
¶31 Jex overreads our opinion in Salt Lake City Corp. That opin-
ion should not be construed to jettison the ―control‖ factor or to
distill the entire instrumentality inquiry down to the notion of
―benefit.‖ Our focus on benefit, rather, was in articulating a ―utili-
tarian‖ standard for assessing ―the degree of employer involve-
ment in the activity in which the employee was engaged when the
injury occurred‖—a standard (of involvement) tied to the statuto-
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ry criterion of injury in the ―course of employment.‖ Salt Lake City
Corp., 2007 UT 4, ¶ 20. And, although we emphasized benefit and
seemed to minimize control, we did so in circumstances where
only the former was in question, and where we assumed that the
two elements would necessarily go hand-in-hand.5 Thus, the no-
tion of ―benefit‖ as the sole ―measure‖ of the instrumentality ex-
ception cannot be extended beyond the facts and circumstances of
Salt Lake City Corp., where the employer‘s control was evident—
and indeed the vehicle in question was owned by the employer—
and the only question was the extent of the benefit on the party
exercising control.
¶32 Jex‘s construction is also contrary to the broader body of
our caselaw in this field. The Salt Lake City Corp. dicta he cites is
based on our decision in Black, and the Black opinion repudiates
the notion of a benefits-only standard for the instrumentality ex-
ception. In Black we considered whether an employee injured on
the way to an employer-sponsored softball game was ―in the
course of employment.‖ 733 P.2d at 155–56. And in affirming the
denial of benefits, we acknowledged that the employer ―received
no benefit from those games beyond the improved morale and
enhanced camaraderie . . . .‖ Id. at 158. Black is thus impossible to
square with a standard deeming any incidentally useful commut-
ing activity an instrumentality of the employer. Surely enhancing
morale and camaraderie ―directly or indirectly‖ advances an em-
ployer‘s interests, yet in Black we determined that such benefit
was not ―significant enough to tip the balance‖ in favor of an
award. Id. And in that case we emphasized the relevance of em-
ployer control by discussing the ―[d]egree of employer initiative,
promotion, and sponsorship‖—a factor we deemed ―clearly‖ to
5 Salt Lake City Corp., 2007 UT 4, ¶ 20 & n.2 (asserting that ―the
beneficiary of an activity will always be the party in whom vests
the power to control its performance‖); id. ¶ 24 (cataloguing the
benefits to the city—of ―having more officers available for imme-
diate response,‖ of ―better care of patrol cars,‖ and of ―increased
police visibility‖—and noting the city‘s effective control in direct-
ing officers to be ―prepared to respond to emergency calls at any
time‖ and in having ―at hand those items required to be kept in
the take-home patrol cars, including their service gun, police ra-
dio, identification, flashlight, ticket book, report forms, and
flares‖).
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JEX V. LABOR COMMISSION
Opinion of the Court
―point toward sufficient control to identify the activity with the
employment.‖ Id. at 157.
¶33 We therefore read Salt Lake City Corp. and Black as continu-
ing rather than repudiating the two-fold standard in Bailey. Mere
incidental benefit is not sufficient, standing alone, to sustain invo-
cation of the instrumentality exception. An employer‘s control
must also be evaluated.
¶34 Ejecting employer control from the conversation would
yield unilateral control over the ―course of employment‖ to the
employee—who could transform any routine ―going and coming‖
commute into an activity in ―the course of employment‖ through
the simple expedient of conferring a collateral benefit along the
way. That would run counter to a major premise of our caselaw.
See Whitehead, 801 P.2d at 937 (―The major premise of the ‗going
and coming‘ rule is that it is unfair to impose unlimited liability
on an employer for conduct of its employees over which it has no
control and from which it derives no benefit.‖ (emphasis added)).
¶35 More importantly, it would override the statutory ―course
of employment‖ standard. Employment by nature is bilateral.
And the ―course of employment‖ can hardly be dictated at the
employee‘s whim. See BLACK‘S LAW DICTIONARY 405 (9th ed. 2009)
(defining ―course of employment‖ as ―[e]vents that occur or cir-
cumstances that exist as part of one‘s employment; [especially] the
time during which an employee furthers an employer‘s goals
through employer-mandated directives‖).
¶36 A clerical office worker who goes to the gym after work or
on weekends could be seen as conferring an incidental benefit on
her employer in so doing. Yet there is no reasonable relationship
between that activity and the clerical duties the employee was
hired to perform. And the purely incidental benefits inuring to the
employer (of having a fitter, healthier worker) cannot reasonably
be deemed within the ―course of employment.‖6
6 See Auerbach Co. v. Indus. Comm’n, 195 P.2d 245, 248 (Utah 1948)
(Wolfe, J., concurring) (―To allow [an employee injured on the
way to a company-sponsored, volunteer basketball game on the
theory that it directly or incidentally benefitted the employer]
would be to hold, in effect, that all amateur athletes, playing on
any sponsored team, are employees of the sponsor . . . .‖).
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Opinion of the Court
¶37 Thus, both factors—control and benefit—are relevant to the
instrumentality inquiry. Their evaluation, moreover, is on a slid-
ing scale. If an employer imposes a clear-cut requirement that an
employee bring and use her car at work, for example, then we can
probably presume that the employer is benefited, or deem any in-
cidental benefit enough to bring the use of the vehicle within the
course of employment. A loose request, on the other hand, might
require a stronger showing of benefit to bring the use of the vehi-
cle within the course of employment.7
¶38 Under that standard and in all cases, the ultimate question
is whether the use of a vehicle in ―going and coming‖ is nonethe-
less within the ―scope of employment.‖ And that question must
be answered by considering and balancing both the benefit to the
employer and the nature and extent of the employer‘s control.
B
¶39 We affirm the decision of the court of appeals under these
principles. Because Jex has failed to show the degree of control or
benefit necessary to bring him within ―the course of employment‖
at the time of his injury, we conclude that the court of appeals was
right to affirm the denial of his workers‘ compensation claim.
1
¶40 Jex attempts to demonstrate control by his employer by
characterizing his actions as somehow ―necessary‖ or ―required‖
by Precision. But his assertions collide head-on with the findings
of the ALJ, which were expressly adopted by the labor commis-
sion. And those findings have been unchallenged by Jex at all
stages of his appeals—a fatal omission. See Tillman v. State, 2005
7 We accordingly reject any general requirement of ―substantial
benefit‖ as a universal element of the instrumentality exception.
Yet we affirm a variation on that principle in the context in which
it was invoked by the court of appeals: Where employer control is
lacking, a greater showing of benefit is required to sustain the
conclusion that a vehicle employed for commuting purposes is
nonetheless within the course of employment (as an instrumental-
ity). We therefore accept the court of appeals‘ ―substantial bene-
fit‖ standard to the extent it is consistent with the sliding scale
approach we articulate herein.
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JEX V. LABOR COMMISSION
Opinion of the Court
UT 56, ¶ 71, 128 P.3d 1123 (accepting factual findings as true if not
challenged).
¶41 Jex maintains that he received ―directives‖ to transport ha-
bitually late Nick and that he ―believed it was a job requirement
to transport fellow co-employees to work in his personal truck.‖
And he asserts that his tools were ―necessary‖ because some of
Precision‘s tools were ―the incorrect type‖ and that he used his
tools frequently on site. In support of his view, Jex points to the
errands he ran on Precision‘s behalf as justifying his conclusion
that ―[he] felt obligated‖ to ask if he needed to give a Precision
employee a ride home the day of the accident.
¶42 Jex‘s points cannot stand in the face of the ALJ‘s unchal-
lenged factual findings. The ALJ found that Precision required the
use of Jex‘s truck for none of these activities. As to the ride ar-
rangements for chronically late Nick, the ALJ determined that
Jex‘s role was nothing more than ―loose cooperation‖ and was
―not mandated by the employer.‖8 Thus, when Jex rode in the
company truck or when Nick did not show up within the ten-
minute waiting window, the ALJ found that Jex was not required
and in fact did not arrange for Nick‘s transportation.
¶43 According to the ALJ, providing a ride for Nick was thus
not a requirement of Jex‘s employment, but a mere request.
Though a request by an employer evinces some degree of control
over the employee—control inherent in the subordinate nature of
an employee—the record here reveals that there was little to no
effective control over Jex‘s decision to comply with Precision‘s re-
quest. Most importantly, it is clear from the record that if Jex had
declined the invitation to give Nick a ride, no negative repercus-
sions would have ensued.
¶44 The ALJ likewise found that giving a ride to James on the
day of the accident was not required. Indeed, the ALJ deemed it
8 The ALJ included its characterization of this relationship as
―loose cooperation‖ under the heading ―DISCUSSION AND
CONCLUSIONS OF LAW.‖ But whatever the heading, this was
effectively a finding of fact, and we treat it as such. See Zions First
Nat’l Bank v. Nat’l Am. Title Ins. Co., 749 P.2d 651, 656 (Utah 1988)
(―The labels attached to findings of fact or conclusions of law are
not determinative.‖).
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Opinion of the Court
significant that Jex ―offered the ride to his co-worker.‖ Because Jex
offered the ride, the ALJ found that everything surrounding the
conversation about the ride was ―best described as informational
communication, not employer instructions.‖ This is perhaps most
clearly indicated by the fact that Jex‘s supervisor specifically told
Jex to tell James that he could either go home with Jex or stay and
work overtime. Thus, whether Jex gave James a ride home was up
to James alone and beyond Precision‘s—or Jex‘s supervisor‘s—
control.
¶45 The same can be said of the tools Jex brought to work. As
the ALJ put it, ―[Jex] was not required [to bring or use his tools]
and [Precision] provided all necessary tools at the job site.‖ For
example, Precision testified that its truck had a ball and hitch that
―could have been used to move the compressor‖ instead of it be-
ing moved by Jex‘s hitch. And the evidence indicated that Jex
could complete his job ―without problem on the days he rode [in
the company truck] and did not have access to [his] tools.‖ This
strongly suggests that these tools were not ―necessary‖ or re-
quired in any meaningful sense.
¶46 Finally, it is undisputed that Jex ran errands on Precision‘s
behalf and that he was on the clock during those errands. Preci-
sion presumably had a good deal of control over Jex‘s behavior
while on those errands. But Precision neither required nor asked
Jex to take his own truck. Much like the use of the trailer hitch,
company trucks ―were . . . available for [Jex‘s] use on . . . the two
days that he [ran] errands.‖ Jex simply chose to use his own vehi-
cle.9
¶47 In light of the ALJ‘s findings, we cannot agree with Jex that
his activities were ―required‖ or the result of a ―directive.‖ Rather,
these activities ranged from unilateral decisions on Jex‘s part to
arrangements of ―mutual convenience‖ between Jex and his em-
ployer. There is little by way of employer control to assist Jex in
his contention that he was in the course of employment the day of
his accident.
9 Had Jex‘s accident and injury occurred during one of these er-
rands, he presumably would have had a good argument under
the special errand exception that he was in the course of employ-
ment. See supra ¶ 19 n.2. But they did not, and he does not.
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JEX V. LABOR COMMISSION
Opinion of the Court
2
¶48 An examination of the benefits conferred on Precision does
little to strengthen Jex‘s position. At the outset, we acknowledge
that most of the activities in which Jex engaged did benefit Preci-
sion to some degree. For instance, Precision benefitted from (1) Jex
and Nick showing up at work,10 (2) Jex not having to walk dis-
tances to get tools from the company truck because he could use
his own, (3) the use of Jex‘s chain and trailer hitch on occasion,
and (4) Jex running errands. Considered together, these benefits
are greater in significance than, say, the intangible benefits an
employer might receive from his employees voluntarily playing in
an approved, after-hours softball league. See Black v. McDonald’s of
Layton, 733 P.2d 154, 158 (Utah 1987). But they are not significant
enough to sustain the overarching result sought by Jex—the con-
clusion that every work commute in his personal vehicle occurred
within an instrumentality of his employer (and thus within the
course of his employment).
¶49 First, the benefit of having employees show up to work is
not a meaningful one in light of the ―going and coming‖ rule
(which deems the ordinary commute outside the course of em-
ployment). Vitagraph v. Indus. Comm’n, 85 P.2d 601, 607 (Utah
1938) (―[A]n employ[ee] going to and from his place of employ-
ment is not rendering any service, and begins to render such ser-
vice only [after] . . . arriving at the place of his employment . . . .‖
(internal quotation marks omitted)); see Cross, 824 P.2d at1205.
And the remaining benefits—limited errand-running and the oc-
casional convenience of having Jex‘s tools available and nearby—
do not compare to benefits that we have found sufficient in other
cases. In Bailey, for example, we described the use of the employ-
ee‘s vehicle as conferring a ―substantial service‖ to the employer
because it was regularly used to respond to emergency calls at all
hours, to carry tools and implements necessary to service or repair
customer automobiles, and as a loaner to customers. Bailey, 398
P.2d at 546–47 . Yet we nonetheless called the case ―a close one‖
10 As the ALJ noted, however, giving James a ride home simply
did not benefit Precision. After all, Jex and James were leaving
work, and ―[t]here [was] no indication that had . . . Jex not offered
a ride to . . . James that [Precision‘s] work would have been in an-
yway hindered.‖
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Opinion of the Court
and only narrowly awarded benefits even though extensive em-
ployer control was proven. Id. at 546.
¶50 So, though Jex‘s vehicle yielded benefits for Precision, the
benefits were sporadic, slight, and employee-initiated. And in
light of the lack of control or direction by the employer in this
matter, we agree with the court of appeals‘ decision upholding the
commission‘s determination that these benefits were insufficient
to transform an employee-owned commuting vehicle into an all-
purpose instrumentality of the employer‘s business.
¶51 Weighing the factors of control by and benefit to the em-
ployer, we conclude that the court of appeals properly deferred to
the commission‘s determination that Jex‘s truck was not an all-
purpose instrumentality of Precision‘s business. Based on the
ALJ‘s findings, which we accept as true, and on the commission‘s
application of the law to those findings, which was entitled to
deference, the court of appeals was right to conclude that Jex‘s
pickup truck was not an instrumentality of Precision‘s business,
and thus that he was acting outside the course of employment at
the time of his injury.
C
¶52 In addition to asserting the merits of his position on the in-
strumentality exception, Jex also advances a fallback position. Cit-
ing dicta in a few of our cases, Jex insists that even if his position
ultimately fails under the law as applied to the facts of his case, he
should nonetheless prevail on his claim for benefits because there
are ―doubts‖ about the nature and application of the instrumen-
tality exception—and because as an employee he is entitled to the
benefit of ―any doubt‖ on the matter. See Salt Lake City Corp., 2007
UT 4, ¶ 16 (explaining that ―we . . . look closely to assure our-
selves that the Commission . . . has resolved any doubt respecting
the right to compensation in favor of an injured employee‖).
¶53 This argument misperceives the dicta in our cases. Our hy-
perbole notwithstanding, it cannot literally be true that we resolve
―any doubt‖ about the right to workers‘ compensation in favor of
coverage. The judicial process is premised on doubt. In workers‘
compensation cases as in others, the supposed precondition for
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Opinion of the Court
litigation is uncertainty11—regarding unresolved legal questions,
unknown results of factual discovery, or unpredictable decisions
by imperfect decisionmakers under inherently subjective legal
standards.
¶54 And of course there is uncertainty on all such points in a
case like this one, which is why we judges (and lawyers) who are
a part of it have jobs. That cannot be enough to generate a benefit-
of-the doubt presumption in favor of coverage. If it were, work-
ers‘ compensation litigation would be overwhelmingly lopsided,
and the law would never evolve or be clarified because doubts
would generate compensation awards instead of precedents.
¶55 Thus, the benefit-of-the doubt presumption in our cases
must necessarily stand for something more modest. We now clari-
fy that it does, while refining the dicta in our prior cases.
¶56 The benefit of the doubt owing to workers‘ compensation
claimants comes at the back end of the litigation—after the judge
(or commission) makes a run at resolving disputed questions of
fact, at clarifying gray areas of law, and at applying the law to the
facts of the case at hand. In the rare case where that process yields
genuine doubt—in a dead heat without an apparent winner—that
doubt should be resolved in favor of coverage. But otherwise the
judge (or commission) is oath-bound to rule in favor of the party
whose case is strongest under the law as applied to the facts. Such
11 See Steven Shavell, Suit, Settlement, and Trial: A Theoretical
Analysis Under Alternative Methods for the Allocation of Legal Costs,
11 J. LEGAL STUD. 55, 63 & n.36 (1982) (―Under the American sys-
tem, there will be a trial if and only if the plaintiff‘s estimate of the
expected judgment exceeds the defendant‘s estimate by at least
the sum of their legal costs. The simple logic behind this result is
that because the plaintiff and the defendant will save the sum of
their legal costs by settling, the only factor that could lead to a tri-
al is that the plaintiff‘s expectations as to the likelihood of success
or the judgment that could be obtained are more optimistic than
the defendant‘s . . . . This comports with the notion that what
leads to litigation is uncertainty as to the law or as to the facts.
Without such uncertainty, the plaintiff‘s beliefs about his changes
or possible judgment could not differ from the defendant‘s.‖ (cita-
tions omitted) (emphasis omitted)).
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Opinion of the Court
a judgment cannot be abandoned on the mere presence of doubt
about the matter.
¶57 This clarification of the presumption renders its application
here a nonstarter. We see Jex‘s case as the court of appeals did—as
not presenting a ―close question‖ on the applicability of the in-
strumentality exception. Jex v. Labor Comm’n, 2012 UT App 98,
¶ 24, 275 P.3d 1078. Granted, Jex cited cases to support his view of
this exception, and he offered some evidence weighing in favor of
its application to his case. But that is hardly enough to qualify Jex
for a benefit-of-the-doubt presumption in his favor. Like the ALJ,
the commission, and the court of appeals, we must interpret the
law and apply it to the facts at hand to evaluate the merits of Jex‘s
claim to workers‘ compensation benefits.
¶58 And, having concluded that that claim fails under the law
as we see it (just as the ALJ, the commission, and the court of ap-
peals did before us), we must therefore rule against him. We ac-
cordingly affirm.
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