Kevin Newsom, Individually and as Guardian and Next Friend of L.W.N., C.G.N., and C.J.N., Minors v. Ballinger Independent School District

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00022-CV

Kevin Newsom, Individually and as Guardian and Next Friend of L.W.N.,
C.G.N., and C.J.N., Minors, Appellant

v.

Ballinger Independent School District, Appellee

FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NO. 13,810, HONORABLE BEN WOODWARD, JUDGE PRESIDING

MEMORANDUM OPINION

In this appeal of a claim for workers’ compensation death benefits arising from a fatal

automobile accident involving his spouse, Kevin Newsom, individually and on behalf of his

children, appeals the district court’s summary judgment in favor of appellee Ballinger Independent

School District. For the reasons that follow, we affirm the judgment.

BACKGROUND

In the fall of 2003, Cecyle Newsom was employed by the District as a teacher and a

junior high school girls’ basketball coach. She was the head coach of the eighth grade girls’

basketball team. On Saturday, November 22, 2003, Mrs. Newsom was fatally injured in an

automobile accident as she was driving to the school complex to conduct a practice.
 Her husband, Kevin Newsom (“Newsom”), filed a claim for workers’ compensation

benefits on behalf of himself and the Newsoms’ three sons. The District denied the claim on the

basis that Mrs. Newsom’s death did not occur in the “course and scope of her employment.”

The Texas Department of Insurance, Division of Workers’ Compensation (the

“Division”), held a contested case hearing in June 2004 to determine whether Mrs. Newsom’s death

resulted from a compensable injury. The hearings officer found that Mrs. Newsom was acting in the

course and scope of her employment at the time of her death and concluded that her family was

entitled to death benefits. The District appealed the hearings officer’s decision to the Division’s

appeals panel. The appeals panel affirmed the hearing officer’s decision.

In September 2004, the District sought judicial review in district court. In its original

petition, the District maintained that Mrs. Newsom was driving to work when the accident took

place. The District moved for summary judgment on the ground that labor code section

401.011(12)(A) defined the phrase “course and scope of employment” to exclude travel to and from

a person’s place of employment. Accordingly, the District argued that Mrs. Newsom’s death was

noncompensable and the Division’s award of death benefits should be reversed.

The district court granted the District’s motion and rendered summary judgment

reversing the Division’s benefits award. On Newsom’s appeal, the judgment was set aside as void,

the appeal was dismissed, and the case remanded to the district court.1 The parties again filed cross-

motions for summary judgment on the issue of whether Mrs. Newsom was in the course and scope

1
See Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375 (Tex. App.—Austin 2006,
no pet.).

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of her employment at the time the accident occurred. The district court again granted summary

judgment in favor of the District, and this appeal followed.

DISCUSSION

The only issue on appeal is whether the District established as a matter of law that

Mrs. Newsom’s death did not occur in the “course and scope of her employment” because she

was merely traveling to her place of employment, and therefore, the injury was noncompensable.

Because Mrs. Newsom was driving to a Saturday practice and such practices are encouraged by her

employer, Newsom contends that she was acting on a “special mission” for her employer, that she

was therefore acting in the course and scope of her employment, and the injury was therefore

compensable.

The parties do not dispute that an injury is compensable if it occurs in the “course and

scope of employment.” Section 401.011(12) of the Texas Labor Code defines that term:

(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

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 (iii) the employee is directed in the employee’s employment to
proceed from one place to another place.

Tex. Labor Code Ann. § 401.011(12) (West 2006) (emphasis added).

Generally, an employee is not acting in the course and scope of employment while

traveling to and from work. See, e.g., Texas Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353

(Tex. 1963); Longoria v. Texaco, Inc., 649 S.W.332, 335 (Tex. App.—Corpus Christi 1983,

no writ); London v. Texas Power & Light Co., 620 S.W.2d 718, 719-20 (Tex. Civ. App.—Dallas

1981, no writ); American Nat’l Ins. Co. v. O’Neal, 107 S.W.2d 927, 928 (Tex. Civ.

App.—San Antonio 1937, no writ). This rule is based on the premise that an injury occurring while

traveling to and from work is caused by risks and hazards incident to driving on public streets, which

has nothing to do with the risks and hazards emanating from a person’s employment, Smith v. Texas

Employers’ Ins. Assoc., 105 S.W.2d 192, 193 (Tex. 1937), and the employer has not increased the

employee’s risk beyond the risk to the general public.

An exception to the general rule exists where an employee has undertaken a “special

mission” at the employer’s direction or is otherwise performing a service in furtherance of the

employer’s business with the express or implied approval of the employer so that “the employee is

directed in the employee’s employment.” Tex. Labor Code Ann. § 401.011(12)(A)(iii); see also

Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.—El Paso 1993, no writ); Gebert

v. Clifton, 553 S.W.2d 230, 231-32 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d w.o.j.).

Injuries that occur while driving between job sites are covered based on a direction by the employer

to proceed from one place to another. To be on a special mission, an employee must be acting under

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the control or in furtherance of the employer. Chevron, U.S.A., Inc., 847 S.W.2d at 356. An

employee is not engaged in a special mission when the employer neither requires a particular means

of travel, nor directs the employee to take a particular route.

A special mission is a specific errand that an employee performs for his employer,

either as part of his duties or at his employer’s request. It involves work or a work-related activity

apart from the employee’s regular job duties. See Chevron, U.S.A., Inc., 847 S.W.2d at 356

(employee traveling at direction of employer en route to mandatory seminar was on a special

mission); Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 129 (Tex. Civ. App.—Tyler 1977,

writ ref’d n.r.e.) (employee instructed to travel from job site to pick up supplies was on a special

mission); see also Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 654 (Tex. App.—Houston

[1st Dist.] 1993, writ dism’d w.o.j.) (employee who stopped at friend’s house to retrieve briefcase

so she could work at home was not on a special mission).

The undisputed summary-judgment proof shows that Mrs. Newsom was killed in a

single-vehicle automobile accident on her way to a practice of her girls’ basketball team on a

Saturday. She had departed her residence and was on her way to the District’s facilities where both

junior high and high school classes were conducted. The facility is a single complex utilized jointly

by the junior high and high school. It was also undisputed that her purpose in going to the District’s

facility that day was to conduct basketball practice with her eighth grade girls’ basketball team.

The District contends that Mrs. Newsom was traveling to her regular place of

employment and was therefore outside of the definition of the term “course and scope of

employment.” See Tex. Labor Code Ann. § 401.011(12). Because transportation to and from a place

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of employment is not included within the definition of “course and scope of employment,” an injury

is not compensable unless it falls within one of the three exceptions to noncompensability. The

parties dispute only whether Mrs. Newsom was on a “special mission” as to fall within the third

exception to the noncompensability provision, i.e., that she was directed by her employer. Newsom

urges and averred in his affidavit that the Saturday practice was “a special practice, in furtherance

of her duties as the coach” and that “she was encouraged to have such special practices by

the school.”

In support of its motion for summary judgment, the District produced the affidavits

of Mickey Owens, the director of athletics for the District; Tri Danley, the high school varsity girls’

basketball coach; Freda Perez, the coach of the high school girls’ junior varsity basketball team; and

Nancy Minzenmayer, the seventh grade girls’ basketball coach. The District’s summary judgment

evidence showed that the eighth grade girls’ team generally practiced from 3:00 to 3:45 p.m. on

school days. Owens averred that University Interscholastic League (“UIL”) rules would not allow

teams to practice after school and on Saturdays except during specific times of the year. When UIL

rules did allow additional practice after school and on Saturdays, the District allowed the coach to

conduct those practices, as long as the practices were in compliance with UIL regulations and did

not exceed limitations concerning the amount of time that could be spent in practice. Owens also

averred that extra practice time was allowed and encouraged, and that it was not unusual for the

girls’ basketball teams to practice after school or on Saturdays: “Although Saturday was not a

regular practice day, Saturday practice was not an unusual occurrence.”

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 The proof also showed that Mrs. Newsom had total control over the scheduling of

practices for her team. Neither Owens nor Tri Danley, the high school girls’ basketball coach and

Mrs. Newsom’s immediate supervisor, set the schedule for the teams to practice. Danley averred

that Saturday practices were not allowed by the UIL until after the last Monday in October. In her

affidavit, she stated:

Cecyle Newsom and Nancy Minzenmayer set their own schedules for their teams to
practice. Saturday practices for the girls’ basketball teams were not required by me
or the athletic department, but they were allowed. The only limitation or restriction
was that the coach comply with the UIL rules on the amount of time that could be
spent in practice, especially limitations concerning practice after school and practices
on Saturday. The only other limitation was having available gym space.

Danley averred that on November 22 she was deer hunting and had not scheduled or contemplated

practices by any of the teams or a scrimmage between any of the teams: “[T]here was no planned

scrimmage between the high school girls’ varsity teams and the 8th grade girls’ ‘A’ team on

Saturday, November 22, 2003.” Nor did she instruct Mrs. Newsom to conduct a practice on that

date. She left the practice schedule to Mrs. Newsom’s discretion. She averred:

Basketball practice at that time of year on Saturday was not unusual. This was a
routine practice, and it was a normal or routine part of Cecyle Newsom’s job as head
coach of the 8th grade girls’ basketball team.

There is no testimony that anyone in the District directed Mrs. Newsom to conduct a practice on that

day. The decision as to the scheduling of practices was left to her discretion and, on that day, it is

uncontroverted that Mrs. Newsom alone decided that she would schedule a practice.

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 In response to the District’s motion and in support of his own motion for summary

judgment, Newsom averred that the practice was not a “regularly scheduled practice,” but was

instead a “special practice.” But he does not dispute that practices were conducted regularly after

school and on Saturdays. Nor does he dispute that Mrs. Newsom scheduled her practices.

Relying on Evans v. Illinois Employers Ins., 790 S.W.2d 302 (Tex. 1990), Newsom

urges that because the practice was not a regularly scheduled practice, it was transformed into a

“special mission.” In Evans, two employees working on their company’s contract with the Army

Corps of Engineers to relocate a county road and railroad tracks had been instructed by their

supervisor on the Friday before the accident to attend a safety meeting at 7:30 a.m. on the following

Monday morning, at which time their pay began. As the two men were driving directly to the

meeting on Monday morning, they collided with a train. Because all employees were required to

attend the regularly scheduled safety meetings as a part of their employment, attendance was “an

integral part of the job, and not a special mission, travel to the safety meeting was simply travel to

work.” Id. at 304. The employees asserted that because the meeting started at an earlier time than

their usual work began and was at a different location than their work that they were on a special

mission. The court rejected this argument:

Had [the employees] been injured while en route from the safety meeting to the
primary work site[], these injuries would have been covered by the Act. However,
since neither of them had begun work, their injuries fall squarely within the ‘coming
and going’ rule and they are thereby precluded from recovering workers’
compensation benefits. If other factors are not found to be special, then the employee
must have been actually working as he traveled down the road in order for an injury
to be compensable.

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Id. at 305. Because the employer neither supplied the transportation, compensated the employees

for transportation time to the safety meetings, specified the route to be taken, nor was aware of the

route normally taken, there was nothing that would bring the employees within the coverage of the

Act. By merely being on their way to work at the time of the accident, the court concluded that the

employees were outside the scope of employment. Id.

In this case, Mrs. Newsom was driving to the school complex for practice; she was

not traveling on a “special mission” for the school district, nor was she traveling at anyone’s

direction or control. We conclude that the accident occurred while Mrs. Newsom was en route to

work and that the accident did not occur in the course and scope of her employment.

CONCLUSION

We affirm the judgment of the district court granting summary judgment in favor of

the District.

Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 17, 2007

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