Texas Mutual Insurance Company v. Ronald Jerrols

Motions for Rehearing and En Banc Reconsideration Overruled; Opinion of
September 6, 2012 Withdrawn; Reversed and Remanded; and Substitute Opinion
filed October 11, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00131-CV

TEXAS MUTUAL INSURANCE COMPANY, Appellant

V.

RONALD JERROLS, Appellee

On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2009-41876

NO. 14-11-00496-CV

CEDRIC WILLIAMS AND JAIME LUNA, Appellants

V.

TEXAS MUTUAL INSURANCE COMPANY, Appellee

On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2009-41875
 SUBSTITUTE OPINION
We overrule the motions for rehearing, withdraw our opinion dated September 6,
2012, and issue the following substitute opinion.

Ronald Jerrols, Cedric Williams, and Jaime Luna sustained serious injuries in a
traffic accident while they were returning to work from a restaurant after eating lunch.
This appeal focuses on whether Jerrols, Williams, and Luna (also referred to collectively
as the “claimants”) were in the course and scope of their employment under the Texas
Labor Code when these injuries occurred.

Material fact issues preclude an as-a-matter-of-law determination that the
claimants were or were not in the course and scope of their employment when these
injuries occurred. Accordingly, we reverse the summary judgments granted below and
remand for further proceedings.

BACKGROUND

I. The Tank Cleaning Job in Jal, New Mexico

Jerrols, Williams, and Luna lived in the Houston area and worked for Midwestern
Services, Inc. as part of a crew cleaning above-ground oil storage tanks. Midwestern
provides cleaning services for crude oil tank farms in thirteen states.

In fall 2008, Midwestern sent Jerrols, Williams, and Luna to work at a tank farm
outside of Jal, New Mexico near the Texas-New Mexico border. The job was anticipated
to last between three and six months. The claimants were expected to work
approximately 50 days on the job; come home to Houston for four days or so; and then
return to the job.

Williams and Luna had been in Jal for at least six weeks when the accident
occurred. Jerrols joined the crew in Jal three days before the accident.

Midwestern provided a Midwestern-owned crew cab truck driven by a Midwestern
employee to transport its crew members. Midwestern required the claimants to use this

2
mode of transportation while they were working in Jal. The claimants were not permitted
to bring personal vehicles to New Mexico. They were permitted to use the company
truck in the evenings and on Sundays for personal errands.

At the time of the accident, the claimants were staying at a motel located in
Kermit, Texas about 20 miles from the tank farm outside Jal. Each work day, the
cleaning crew rode together in the Midwestern crew cab truck from the motel to the tank
farm and back again. The claimants were paid on an hourly basis for 10 hours each day
Monday through Saturday with Sundays off. While they were away from home, they
received a $25 per diem each day including Sundays for meals and personal items.

The claimants had one hour for lunch. They bought and ate lunch each day
Monday through Saturday at the Town & Country, a retail location about two miles from
the tank farm that included a gas station, convenience store, and restaurant.1 In addition
to buying and eating lunch, the claimants participated in other activities over the lunch
hour including making personal calls; engaging in personal and work-related discussions;
and buying snacks and drinks for personal consumption. They rode together during the
one-hour lunch break from the tank farm to the Town & Country and back again in the
Midwestern crew cab truck driven by a Midwestern employee.

The accident occurred on October 22, 2008, while the claimants were returning
from the Town & Country to the tank farm after eating lunch; as required, they were
riding together in the Midwestern truck with a fellow employee at the wheel. The
claimants were injured when the Midwestern truck left the Town & Country, pulled onto
the highway, and collided with an 18-wheel tractor-trailer.

II. Legal Proceedings

Following a contested case hearing, a hearing officer for the Division of Workers’
Compensation determined that the claimants were on a “special mission” at the time of

1
Texas Mutual contends another restaurant was located nearby. The record is not clear on this
point.

3
the accident and were injured in the course and scope of their employment with
Midwestern. An appeals panel affirmed the hearing officer’s decision. Midwestern’s
workers’ compensation insurer, Texas Mutual Insurance Company, filed multiple suits in
district court seeking judicial review of the administrative compensability determination.

One suit addressing Williams’s claim was filed as Cause No. 2009-41875 in the
333rd District Court of Harris County; that court later consolidated a separate suit
addressing Luna’s claim with Williams’s claim under Cause No. 2009-41875. Another
suit addressing Jerrols’s claim was filed as Cause No. 2009-41876 in the 129th District
Court. In both Cause Nos. 2009-41875 and 2009-41876, Texas Mutual and the claimants
filed cross-motions seeking traditional summary judgment with respect to the
compensability determination.

In Cause No. 2009-41875, the 333rd District Court determined as a matter of law
that Williams and Luna were not in the course and scope of employment at the time of
the accident and their injuries were not compensable; the court granted summary
judgment in favor of Texas Mutual and against Williams and Luna. In Cause No. 2009-
41876, the 129th District Court determined as a matter of law that Jerrols was in the
course and scope of employment at the time of the accident and his injuries were
compensable; the court granted summary judgment in favor of Jerrols and against Texas
Mutual.

Texas Mutual filed a notice of appeal in Cause No. 2009-41876, which was
docketed in the Fourteenth Court of Appeals. Williams and Luna subsequently filed a
notice of appeal in Cause No. 2009-41875, which was docketed in the First Court of
Appeals. We consolidated the subsequent appeal with the first-filed appeal in this court.

STANDARD OF REVIEW

We review the summary judgment rulings below de novo, applying the same
standard that the trial courts applied in the first instance. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment under Rule 166a(c)’s

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traditional standard is appropriate when (1) there are no genuine issues of material fact,
and (2) the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We indulge every
reasonable inference in favor of the non-movant and resolve any doubts in the non-
movant’s favor. Nixon, 690 S.W.2d at 548-49.

The Labor Code provides for modified de novo review in the trial court of an
administrative decision on compensability. Tex. Lab. Code Ann. §§ 410.301-.308
(Vernon 2006); Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 528 (Tex. 2000).
The factfinder is informed of the underlying determination, but is not required to accord
that decision any particular weight. Tex. Workers’ Comp. Comm’n v. Garcia, 893
S.W.2d 504, 528 (Tex. 1995). The party appealing the underlying compensability
determination bears the burden of proof by a preponderance of the evidence. Tex. Lab.
Code Ann. § 410.303.

ANALYSIS

We begin with a detailed discussion of the key statutory provisions at issue in this
case. This discussion will put the parties’ arguments in context.

I. Standards Governing Course and Scope of Employment

An injury is compensable when it “arises out of and in the course and scope of
employment for which compensation is payable” under the Workers’ Compensation Act.
Tex. Lab. Code Ann. § 401.011(10) (Vernon Supp. 2012).

Section 401.011(12) defines “[c]ourse and scope of employment” as “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.” Id. at § 401.011(12).
This definition encompasses “an activity conducted on the premises of the employer or at
other locations.” Id.

Origination and furtherance are separate components. Both must be satisfied to

5
bring an activity within the “course and scope of employment.” See Leordeanu v. Am.
Prot. Ins. Co., 330 S.W.3d 239, 243-44 & n.18 (Tex. 2010).

The statute’s underlying policy goal is to allocate “to the employer and insurance
carrier the risks inherent in an employee’s job while leaving to the employee risks that
are ‘shared by society as a whole and do not arise as a result of the work of the
employer.’” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.—Austin
2011, pet. denied) (quoting Evans v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 305
(Tex. 1990)). The Workers’ Compensation Act “should be given a liberal construction to
effect its purpose of compensating injured workers and their dependents.” Id. (citing
Albertson’s, Inc. v. Sinclair, 984 S.W.2d 959, 961-62 (Tex. 1999)).

Even when both the origination and furtherance requirements are satisfied,
subsections (A) and (B) of section 401.001(12) nonetheless exclude two distinct
circumstances from the “course and scope of employment.” Id. at § 401.011(12)(A), (B).

Under subsection (A)’s exclusion, “course and scope of employment” does not
include “transportation to and from the place of employment” unless one of three
exceptions to the exclusion applies.

Transportation to and from the place of employment is not excluded under
subsection (A) if

“the transportation is furnished as part of the contract of employment or is
paid for by the employer;”

“the means of the transportation are under the control of the employer;” or

“the employee is directed in the employee’s employment to proceed from
one place to another place . . . .”

Id. at § 401.011(12)(A)(i), (ii), (iii). The exception under section 401.011(12)(A)(iii)
pertaining to circumstances in which “the employee is directed in the employee’s
employment to proceed from one place to another place” is referred to in case law as

6
“special mission” travel. See Evans v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 304
(Tex. 1990); Zurich Am. Ins. Co., 339 S.W.3d at 730. These three exceptions are
disjunctive; “if any one is met, the exclusion does not apply, and travel to and from work
is not excluded from the course and scope of employment.” Leordeanu, 330 S.W.3d at
244.

This language in subsection (A) codifies the “coming and going” rule and its
exceptions, which developed to address an employee’s travel between home and work.
Id. at 242 (citing Janak v. Tex. Emp’rs’ Ins. Ass’n, 381 S.W.2d 176, 178 (Tex. 1964), and
Am. Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957)). While
recognizing that employee travel to and from work furthers the employer’s affairs by
making employment possible, cases reasoned that such travel generally does not originate
in the employer’s business because “‘[t]he risks to which employees are exposed while
traveling to and from work are shared by society as a whole and do not arise as a result of
the work of employers.’” Leordeanu, 330 S.W.3d at 242 (quoting Evans, 790 S.W.2d at
305); see also Zurich Am. Ins. Co., 339 S.W.3d at 728.

The Texas Supreme Court has emphasized that “[t]he ‘coming and going’ rule
developed . . . specifically for travel between home and work.” Leordeanu, 330 S.W.3d
at 245 (citing Evans, 790 S.W.2d at 304-05). The supreme court has construed
subsection (A)’s exclusion in a manner “consistent with the historical development” of
the “coming and going” rule’s focus on employee travel between home and work, and
has refrained from “expand[ing] the ‘coming and going’ rule beyond its traditional
boundaries.” Id. at 248-49 & n.36.

Subsection (B)’s exclusion codifies the separate “dual purpose” rule that
developed to address “an employee traveling for both business and personal purposes.”
Leordeanu, 330 S.W.3d at 243.

Under the “dual purpose” rule, travel encompassing both business and personal
purposes “is in the course and scope of employment only if the business purpose is both a
necessary and a sufficient cause for the travel.” Id. “The ‘dual purpose’ rule was devised

7
for the distinct situation in which the employee is traveling between work and a place
other than home.” Id. at 244-45; see also id. at 248 (The “dual purpose” rule was devised
for situations in which “the employee was not headed home but to another destination,
both on business and for pleasure.”).

Like subsection (A)’s “coming and going” rule, subsection (B)’s “dual purpose”
rule also codifies exceptions to the exclusion. “Dual purpose” travel is not excluded
under subsection (B) if two circumstances exist. The first circumstance is that “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.” Tex. Lab. Code
Ann. § 401.011(12)(B)(i). The second circumstance is that “the travel would not have
been made had there been no affairs or business of the employer to be furthered by the
travel.” Id. at § 401.011(12)(B)(ii). Both circumstances must exist in order for the
exception to apply. Leordeanu, 330 S.W.3d 244.

As the supreme court observed in Leordeanu, subsection (B)’s wording “is
somewhat convoluted.” Id. at 244. “More simply put, it does not exclude work-required
travel from the course and scope of employment merely because the travel also furthers
the employee’s personal interests that would not, alone, have caused him to make the
trip.” Id.

The supreme court also analyzed the relationship between subsections (A) and (B)
in Leordeanu. The court did so as it addressed whether injuries sustained in a car
accident that occurred when the employee was traveling from one workplace to another
while on the way home fell within the course and scope of employment under section
401.011(12). See id. at 240. The court concluded that such travel was within the
employee’s course and scope of employment. Id. at 248-49.

In analyzing the relationship between subsections (A) and (B) in Leordeanu, the
supreme court observed that section 401.011(12) was rewritten in 1989 as part of a larger
legislative overhaul of the Workers’ Compensation Act. Id. at 244. This 1989 rewrite of
section 401.011(12) listed subsections (A) and (B) as “two disjunctive exclusions” and

8
“can be read to suggest that travel is excluded from the course and scope of employment
if either one applies.” Id.

The supreme court rejected such a reading in Leordeanu. “The difficulty with this
construction is that travel between work and home is just one kind of dual purpose travel
benefitting both employer and employee.” Id. “If both subsections (A) and (B) apply in
every situation, (A) becomes merely a specialized application of (B).” Id. The court
further noted, “If the ‘dual purpose’ rule also applied to travel to and from work,
homeward-bound travel could never be in the course and scope of employment” because
such travel never could satisfy subsection (B)(ii)’s exception to the exclusion. Id. at 245.
“[A]ny employee intending to take care of business on the way home, if the business
purpose evaporates, will still go home.” Id. “Applying subsection (B)(ii) to employees
coming home from work limits subsection (A) to a ‘going’ rule.” Id.

This concern prompted the supreme court to reject “application of the ‘dual
purpose’ rule to ‘coming and going’ travel.” Id. at 248-49. It rejected this approach in
light of the “coming and going” rule’s historic focus on “travel between work and home,”
and the “dual purpose” rule’s historic focus on travel “between work and a place other
than home.” Id. at 244-45.

The supreme court held in Leordeanu that “only subsection (A) applies to travel to
and from the place of employment, and that subsection (B) applies to other dual-purpose
travel.” Id. at 248. The “dual purpose” rule continues to apply “in the situations for
which it was devised . . . where the employee was not headed home but to another
destination, both on business and for pleasure.” Id. See also Zurich Am. Ins. Co., 339
S.W.3d at 729 (Leordeanu held that “subparagraphs (A) and (B) are mutually exclusive
and thus any travel between work and home, even if it is also for a dual purpose, must be
analyzed exclusively under paragraph (A)”) (citing Leordeanu, 330 S.W.3d at 248-49).

Like the Austin Court of Appeals, we too note that satisfying exceptions to the
exclusions under subsections (A) or (B) does not automatically establish that the travel at
issue falls within the course and scope of employment. See Zurich Am. Ins. Co., 339

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S.W.3d at 729. Satisfying these exceptions establishes only that these exclusions do not
apply. Id. Section 401.011(12)’s separate origination and furtherance requirements still
must be met to establish that an activity falls within the course and scope of employment.
Id.

Finally, two additional concepts potentially bear on the arguments for and against
coverage in connection with the accident at issue in this case.

The first concept is the “personal comfort” doctrine, under which “[a]n employee
in the course of his employment may perform acts of a personal nature that the person
might reasonably do for his health and comfort, such as quenching thirst or relieving
hunger . . . .” Yeldell v. Holiday Hills Ret. & Nursing Ctr., 701 S.W.2d 243, 245 (Tex.
1985). “[S]uch acts are considered incidental to the employee’s service and the injuries
sustained while doing so arise in the course and scope of his employment and are thus
compensable.” Id.; see also Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 298 (Tex.
1988); Emp’rs’ Cas. Co. v. Bratcher, 823 S.W.2d 719, 721 (Tex. App.—El Paso 1992,
writ denied); Tex. Emp’rs’ Ins. Ass’n. v. Prasek, 569 S.W.2d 545, 548 (Tex. Civ. App.—
Corpus Christi 1978, writ ref’d n.r.e.); Weaver v. Standard Fire Ins. Co., 567 S.W.2d 34,
35 (Tex. Civ. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.).2

The second concept is “continuous coverage.” See, e.g., Zurich Am. Ins Co., 339
S.W.3d at 731 (citing Shelton v. Standard Ins. Co., 389 S.W.2d 290, 293-94 (Tex. 1965),
and Aetna Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 574-75 (Tex. App.—Austin 1986,
writ ref’d n.r.e.)). “Most courts which have considered the question regard an employee
whose work entails travel away from the employer’s premises as being in the course and
scope of his employment when the injury has its origin in a risk created by the necessity
of sleeping or eating away from home, except when a distinct departure on a personal

2
Courts have applied the personal comfort doctrine in determining that compensable injuries
occurred when the employee was injured while making a personal call during working hours while on
duty at her nursing station, see Yeldell, 701 S.W.2d at 245; eating in an employer-provided trailer located
on a drilling site, see Prasek 569 S.W.2d at 548; and preparing to take a shower at home after being
doused with paint and gasoline at the worksite, see Lujan, 756 S.W.2d at 298-99.

10
errand is shown.” Shelton, 389 S.W.2d at 293; see also Zurich Am. Ins. Co., 339 S.W.3d
at 731-32.3

With this backdrop, we now turn to the parties’ arguments.

II. Application of Standards

Texas Mutual argues that Jerrols, Williams and Luna were not in the course and
scope of their employment because they performed personal tasks during the lunch hour
and were en route back from lunch when the accident occurred. According to Texas
Mutual, the claimants were performing a personal errand that was not controlled by the
employer; did not originate in the employer’s work; did not further the employer’s affairs
or business; and is excluded from coverage under the “dual purpose” rule even if
origination and furtherance can be established.

Jerrols, Williams, and Luna contend that they were in the course and scope of
employment because the accident occurred while they were present in another state for
work without independent means of travel; they were required to use employer-provided
transportation throughout their time in New Mexico; they were being paid during the
lunch hour; and they were under employer control at the time of the accident.

The court’s task is to determine how these contentions mesh with the record and
the governing legal standards. We undertake this task in two steps. First, we examine
the origination and furtherance requirements. Second, we address the exclusions for
“coming and going” travel and “dual purpose” travel.

3
Texas Mutual characterizes the continuous coverage doctrine in its brief as a “specialized
application of the special mission exception.” We reject this characterization because the special mission
exception reflected in section 401.011(12)(A)(iii) pertains to “coming and going” travel between work
and home. See Leordeanu, 330 S.W.3d at 245; Evans, 790 S.W.2d at 304-05. The continuous coverage
doctrine is not limited to “coming and going” travel. See Shelton, 389 S.W.2d at 292-93 (while observing
that “this is not a ‘going to or returning from’ case,” the supreme court nonetheless applied the continuous
coverage doctrine to a truck driver who was struck by a car while crossing the street to walk from his
motel to a restaurant during an overnight layover in the midst of work-related travel between two of his
employer’s facilities).

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 A. Course and Scope Based on Travel During an Off-Site Meal Break

The parties’ disagreement about how to analyze section 401.011(12)’s origination
and furtherance requirements stems in part from their emphasis on different aspects of the
claimants’ lunch break in relation to the “course and scope” inquiry.

Texas Mutual argues that the claimants were returning to the tank farm after
having eaten lunch at a restaurant of their own choosing. According to Texas Mutual,
eating lunch does not originate in or further the employer’s business because this activity
always is a “personal task[];” reflects an “interest shared by ‘society as a whole’ rather
than any particular employer;” and constitutes a “personal matter.” Jerrols, Williams,
and Luna counter that “injuries over the course of lunch, when the employee is on the
clock or under circumstances controlled by the employer, are within the course and scope
[of] . . . employment.”

Case law does not provide a bright-line rule for determining the compensability of
injuries occurring during travel in connection with meal breaks.

In part, the absence of a bright-line rule reflects the unavoidably fact-specific
nature of the inquiry into course and scope. This absence also is attributable to
contradictory pronouncements appearing in the case law. Compare Berry v. Gregg
Indus. Servs., Inc., 907 S.W.2d 4, 5 (Tex. App.—Tyler 1994, writ denied) (“The
overwhelming weight of Texas authority holds that an injury received during the lunch
period is compensable as a matter of law.”), with Holditch v. Standard Accident Ins. Co.,
208 F.2d 721, 722 (5th Cir. 1953) (“[E]stablished Texas rule” holds that “injuries
incurred off the employer’s premises while the employee is off duty at his lunch hour
[and] is going to or returning therefrom . . . are not compensable . . . .”).

Similarly, cases with parallel facts involving injuries arising from travel away
from work premises during meal breaks reach varying conclusions that are difficult to
reconcile. Compare Mapp v. Md. Cas. Co., 730 S.W.2d 658 (Tex. 1987) (per curiam)
(fact issue existed as to whether employee was in the course and scope of her

12
employment when she was kidnapped while getting into her personal vehicle in
restaurant parking lot to drive back to her office after lunch break), with Smith v. Tex.
Emp’rs’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192 (1937) (employee was not in the
course and scope of employment when he was killed in a car accident while driving
personal vehicle back to his job at funeral home to continue working after dinner break at
home); see also Holditch, 208 F.2d at 722 (employee was not in the course and scope of
employment when she was injured by slip and fall during lunch hour while leaving
grocery store, which was adjacent to her workplace, to return to work); Berry, 907
S.W.2d at 5 (employee was in the course and scope of employment when he was injured
in collision while riding in employer-owned truck and returning from lunch at mine
dining facility to employer’s equipment yard at the mine).

Imprecise references to the personal comfort doctrine foster additional uncertainty
when analyzing injuries occurring during travel for meals away from the workplace.

For example, Berry’s broad pronouncement that “an injury received during the
lunch period is compensable as a matter of law” rests in part on the Texas Supreme
Court’s decision in Yeldell. See Berry, 907 S.W.2d at 5 (citing Yeldell, 701 S.W.2d at
245). But Yeldell involved neither an off-site injury nor a meal break; instead, it involved
a nurse who overturned a coffee urn at her nursing station while hanging up the telephone
after talking to her daughter. Yeldell, 701 S.W.2d at 244-45. The “personal comfort”
activity at issue in Yeldell was “making a personal telephone call during working hours.”
Id. at 245.4 See also Bratcher, 823 S.W.2d at 721 (“‘Employees who, within the time and

4
Berry also cites Texas Employer’s Insurance Association v. Prasek, 569 S.W.2d 545 (Tex. Civ.
App.—Corpus Christi 1978, writ ref'd n.r.e.), and Travelers Insurance Company v. McAllister, 345
S.W.2d 355 (Tex. Civ. App.—Amarillo 1961, writ ref'd n.r.e.). Both cases involved injuries that
occurred at or adjacent to the work site during a meal break. See Prasek, 569 S.W.2d at 548 (employee
was within course and scope of employment when he choked on a piece of steak while eating in trailer at
oil field drilling site; employer provided trailer for employees’ use while they were required to be at well
site during crucial drilling stages); McAllister, 345 S.W.2d at 357 (employee was within course and scope
of employment when he fell to his death from top of grain elevator during lunch hour because “he fell
from a place he was authorized to be” and “[t]he employer had no objection to employees eating their
lunch on top of the elevator;” court observed that “the master and servant relationship in Workmen's
Compensation cases is not suspended during the noon hour where the master expressly or by implication
13
space limits of their employment, engage in acts which minister to personal comfort do
not thereby leave the course of employment, unless the extent of the departure is so great
that an intent to abandon the job temporarily may be inferred, or unless . . . the method
chosen is so unusual and unreasonable that the conduct cannot be considered an incident
of the employment.’”) (quoting 1A Larson’s Workmen’s Compensation Law §21.00
(1990)).

There is room to question whether the personal comfort doctrine is the correct
framework for analyzing the compensability of injuries occurring in connection with
travel to or from a meal at a location miles from the work premises. Driving to a location
miles away from the work site during a meal break at least raises the prospect of a
“‘departure’” significant enough to signal “‘an intent to abandon the job temporarily.’”
See Bratcher, 823 S.W.2d at 721 (quoting 1A Larson’s Workmen’s Compensation Law
§21.00 (1990)); see also Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d 419, 422-
23 (Tex. App.—Beaumont 1991, writ denied) (Reversing judgment based in part on
erroneous inclusion of jury instruction on personal comfort doctrine from Yeldell in case
in which employee was injured in traffic accident while riding in company vehicle to
have lunch at a restaurant away from the job site; “[t]he Yeldell case had nothing
whatsoever to do with an injury sustained while travelling on the public highway or
streets.”). For this reason, we do not rely on the personal comfort doctrine to resolve the
coverage dispute at issue here.

1. Furtherance

Because analysis of section 401.011(12)’s furtherance requirement is
straightforward on this record, we address it first.

invites his employees to remain on the premises in the vicinity of the work”). These circumstances
distinguish Prasek and McAllister from a situation in which an injury occurs while the employee is
driving between a work site and an off-premises dining location miles away. Other cases involving
lunchtime injuries on the employer’s premises are distinguishable for the same reason. See, e.g., Nat’l
Sur. Corp. v. Bellah, 245 F.2d 936 (5th Cir. 1957) (employee injured during lunch at dining location set
up by employer on the employer’s premises); Tex. Emp’rs’ Ins. Ass’n v. Davidson, 295 S.W.2d 482 (Tex.
App.—Fort Worth 1956, writ ref’d n.r.e.) (employee injured after eating lunch at work station by slipping
on materials dropped by co-worker).

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 Texas Mutual asserts that “no authority supports the notion that performing basic,
life-sustaining functions like eating, breathing, and sleeping ‘furthers’ the affairs of the
employer for purposes of the statute.” Texas Mutual overreaches. See Shelton, 389
S.W.2d at 292-93.

Shelton analyzed the compensability of injuries sustained by a truck driver during
an overnight layover in Dallas en route from one of his employer’s facilities in Abilene,
Texas to another of his employer’s facilities in Wichita, Kansas. Id. at 291-92. The
distance and driving time involved made it “necessary for [Shelton] . . . to sleep and eat
en route.” Id. The injuries occurred when a car struck the driver while he crossed the
street to walk from his motel to a restaurant for dinner during the Dallas layover. Id. at
291. The trial court granted summary judgment on grounds that the injury did not occur
within the course and scope of the truck driver’s employment, and the court of appeals
affirmed. Id. The supreme court reversed and held that the injury occurred in the course
and scope of the truck driver’s employment. Id. at 293-94. The supreme court stated:
“Petitioner was furthering the affairs of his employer by going to Dallas and also by
spending the night and eating there so as to be ready to continue his trip the following
day.” Id. at 291.

Given the record in this case, addressing the furtherance inquiry does not require
us to decide whether and under what circumstances an employee’s act of eating a meal
furthers the employer’s affairs. The key inquiry here does not focus solely on eating.
The key inquiry is whether the claimants’ travel to and from the Town & Country in the
course of their one-hour lunch break — during which they ate lunch and performed other
tasks — furthered the employer’s affairs. The answer to this question requires
consideration of multiple activities during the claimants’ lunch break. Some of those
lunchtime activities potentially furthered the employer’s affairs, and some potentially did
not.

It suffices for purposes of this appeal to note testimony that Jerrols, Williams, and
Luna discussed work-related topics during their lunch break such as safety, task

15
coordination, and scheduling. Although it downplays the amount of time devoted to such
topics, Texas Mutual identifies no evidence contradicting testimony that work-related
topics were discussed during the lunch break. This circumstance demonstrates that the
furtherance requirement is satisfied here regardless of whether the act of eating lunch
itself (or any other activities undertaken by the claimants during lunch) also furthered the
employer’s affairs.

2. Origination

Origination presents a closer question. On appeal, the parties dispute certain
aspects of the claimants’ lunch break on the day of the accident.

The claimants contend Midwestern required them to eat lunch and paid
them for doing so. Texas Mutual contends they were not required to eat
lunch and suggests in its briefing that they were not paid for doing so.

The claimants contend Midwestern required them to eat lunch at a location
away from the tank farm due to the presence of hazardous substances in the
tanks. Texas Mutual contends the claimants were allowed to bring food
with them and eat in the truck or at another location at the tank farm that
was not in the immediate vicinity of the specific tanks being cleaned.

The claimants contend their supervisor chose to have the crew eat at the
Town & Country. Texas Mutual contends the claimants could exercise
their own discretion and choose where to eat.

We conclude that any such disputes are not material to resolution of section
401.011(12)’s origination inquiry. Origination based on travel in connection with the
claimants’ lunch break is established on this record regardless of whether the claimants
were required to eat lunch; were paid for eating lunch; were required to leave the tank
farm if they decided to eat lunch; or were free to choose an off-site lunch location in their
own discretion.

The claimants were injured in a collision that occurred while they were stationed

16
in New Mexico to work for weeks at a time, living in a motel away from their homes in
Houston. Their required mode of transportation while working in New Mexico was a
Midwestern-owned crew cab truck driven by a Midwestern employee. They were
traveling together in Midwestern’s truck during their lunch break at the moment of
impact, returning from a restaurant to the work site.

In addressing these circumstances, we agree that “[t]here is no bright-line rule for
determining whether employee travel originated in the employer’s business.” Zurich Am.
Ins. Co., 339 S.W.3d at 730. “Rather, each situation is necessarily dependent on the
facts.” Id. “As a general rule, an employee’s travel originates in his employer’s business
if the travel was pursuant to the express or implied requirements of the employment
contract.” Id. (citing Rose v. Odiorne, 795 S.W.2d 210, 213-14 (Tex. App.—Austin
1990, writ denied)). “This reflects the underlying policy goal of allocating to the
employer and insurance carrier the risks inherent in an employee’s job while leaving to
the employee risks that are ‘shared by society as a whole and do not arise as a result of
the work of the employer.’” Id. (quoting Evans, 790 S.W.2d at 305). “When the
employer requires the employee to travel as part of its business — i.e., pursuant to the
contract of employment — the risk of traveling stems from that business and properly can
be said to arise as a result of the employer’s business.” Id. (citing Rose, 795 S.W.2d at
214).

We also agree that Midwestern’s ownership of the truck, standing alone, is not
dispositive. See Potter, 807 S.W.2d at 422 (“The mere furnishing of transportation by an
employer does not automatically bring the employee within the protection of the Texas
Workers’ Compensation Act. . . . If this were not the law in this State, then each and
every accident in a company vehicle, including those operated for purely personal
reasons, would be compensable under the Texas Workers’ Compensation Act.”) (citing
Tex. Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963), and United States
Fire Ins. Co. v. Eberstein, 711 S.W.2d 355, 357 (Tex. App.—Dallas 1986, writ ref’d
n.r.e.)); see also Eberstein, 711 S.W.2d at 357 (“[T]he mere gratuitous furnishing of

17
transportation by the employer, as an accommodation to the employee and not as an
integral part of the contract of employment, does not bring the employee within the
protection of the Worker’s Compensation Act.”) (citing Bottom, 365 S.W.2d at 353).

But this case involves more than Midwestern’s ownership of the truck standing
alone. Jerrols testified at his deposition that Midwestern “had a company driver. We
were in a company vehicle everybody had to ride together.” Jerrols stated in his
affidavit: “. . . I was never free to choose to separate myself from the rest of the crew.”
Williams testified as follows during his deposition:

Q. All right. Were you allowed to stay there at the job during the lunch
hour if you didn’t feel like going into town?
A. No, we wasn’t.
Q. Okay. Did you ever ask to do that?
A. No.
Luna testified as follows during his deposition:

Q. Were there any occasions when crew members would decide to just
stay out there at the job rather than go into town for lunch?
A. No.
Q. All right. So everybody would get in the cab and go to lunch
whether they were going to eat their own lunch or eat lunch or whatever.
A. Yes.
Luna stated in his affidavit: “Crew members were not free to split up and go to different
restaurants. Crew members, including me, were not free to come and go during lunch
and were required to stay with the crew at all times. . . . I was never free to choose to
separate myself from the rest of the crew.”

Midwestern’s vice president and safety manager, identified at the Division of
Workers’ Compensation contested case hearing as Tonya Renee Bates, testified that
Midwestern’s employees were not allowed to bring their own cars to New Mexico; they
were required to travel in a crew cab truck provided by Midwestern and driven by a
Midwestern employee. Rene Jackson, who also was identified as vice president and

18
safety manager of Midwestern, testified during her deposition: “I mean, they go to the
same place for lunch. I mean, it’s not like they all go to different places.” Counsel
asked, “Why not?” Jackson responded, “Because they’re in our company vehicle, and
they’re a team, and they have a set time. And so, if you didn’t do it that way, you
wouldn’t be on task.” Jackson also testified: “When they get their lunch, we provide
them a company vehicle, fuel, we provide them that for their lunch hour.”

This testimony establishes that the claimants’ presence in a Midwestern-owned
truck driven by a Midwestern employee at the moment of impact stemmed in significant
part from the requirements of their employment with Midwestern. See Zurich Am. Ins.
Co., 339 S.W.3d at 730. Even if the claimants were not expected to eat lunch, or to eat
lunch away from the tank farm, or to eat lunch away from the tank farm at a particular
restaurant, they were expected to (1) stay together as a “team” to remain “on task” given
the time constraints of their lunch break; and (2) ride together in a Midwestern-owned
vehicle driven by a Midwestern employee if they ate lunch at a location away from the
job site during the work day. They could not use their own vehicles, which Midwestern
did not allow in New Mexico.

In deciding how and where to obtain a meal on any given day, the rest of lunch-
eating society as a whole does not share the employment-related travel expectations and
risks that applied to these claimants while they were working for Midwestern in New
Mexico.

Here, as in Shelton, the claimants’ “circumstances of . . . eating . . . . were dictated
to a large degree by contingencies inherent in the work.” Shelton, 389 S.W.2d at 294. It
follows that section 401.011(12)’s origination requirement is satisfied because the
claimants were subjected to risks in connection with lunch-related travel that (1) were
inherent in their employment; (2) are not shared by society as a whole; and (3) are thus
properly allocated to the employer and its insurance carrier. See Zurich Am. Ins. Co., 339
S.W.3d at 730.

This conclusion comports with the continuous coverage doctrine, under which an

19
employee is regarded as “being in the course of his employment when the injury has its
origin in a risk created by the necessity of sleeping or eating away from home, except
when a distinct departure on a personal errand is shown.” Shelton, 389 S.W.3d at 293. In
analyzing the continuous coverage doctrine, we steer a course between the more extreme
positions urged by the parties.

Jerrols, Williams, and Luna contend that the continuous coverage doctrine
encompassed all activities and events occurring from the time they left for New Mexico
until they returned to Houston weeks later.

For its part, Texas Mutual urges us to restrict the continuous coverage doctrine to
injuries arising from employment requiring continuous travel such as that undertaken by
the long-haul truck driver in Shelton. Texas Mutual urges us to distinguish Shelton on
this basis and to rely instead on Rodriguez v. Great American Indemnity Company, 244
F.2d 484 (5th Cir. 1957).

Rodriguez, a carpenter who lived in San Antonio, stayed in a hotel in Del Rio four
and a half days a week while working fixed hours for his employer to build a high school
in Del Rio. Id. at 485-86. The Fifth Circuit determined that coverage did not exist for
Rodriguez’s death in an overnight fire at the hotel. Id. at 488. The Fifth Circuit
discerned a pattern in the case law under which “a workman employed at regular hours
and places, when going to and from his work or when asleep or otherwise off duty, is not
engaged in the course and scope of his employment and . . . if injured at other times and
places than in his working hours and at his work, the injury does not originate in the
employment.” Id. The court said it was “bound to conclude that his injury was not
compensable” given that Rodriguez worked “at a fixed place of work, at fixed hours and
a fixed hourly rate of pay; [and] that he came to his death not in his working hours or at
his work place but away from it, out of hours and when sleeping . . . .” Id.

Texas Mutual relies on Rodriguez to argue that, despite their extended presence in
New Mexico, the continuous coverage doctrine does not apply to Jerrols, Williams, and
Luna because they had a fixed place of work at the tank farm to which they returned each

20
day. According to Texas Mutual, “When a worker has fixed hours and a fixed place of
work, injuries are compensable only if sustained in the course and scope of employment
under traditional course and scope analysis.”

We need not embrace the claimants’ expansive characterization of the continuous
coverage doctrine — or address circumstances that are not part of this traffic accident,
such as use of the employer-provided truck in New Mexico in the evenings after work or
on days off — in order to conclude that origination is established in connection with this
particular accident during the work day.

And we need not endorse Texas Mutual’s narrow focus on the presence of a fixed
place of work — or its suggestion that the continuous coverage doctrine applies only to
long-haul truck drivers, traveling salespersons, and the like — in order to recognize limits
to the doctrine’s reach even during an employee’s extended work-related absence from
home. The result in Rodriguez appears to have had at least as much to do with the after-
hours nature of Rodriguez’s death as it did with the fixed location of his construction
employment. Id. The existence of a fixed work location may be a factor to consider
depending on the particular circumstances of a particular case, but it is not dispositive
here.

Whatever the limits of the continuous coverage doctrine during an employee’s
extended work-related absence from home, the injuries at issue here had their origin in a
risk involving the expected use during the work day in New Mexico of a Midwestern-
owned vehicle and a Midwestern driver to accomplish lunch travel for which the
claimants were expected to remain together. In significant part, these expectations arose
from the means Midwestern provided for the claimants’ travel during their extended
presence on the job in New Mexico; Midwestern’s prohibition of personal vehicles in
New Mexico; and Midwestern’s expectation that the crew would stay together as a
“team” throughout the work day to remain “on task” in light of time constraints. To
borrow a phrase from Texas Mutual’s briefing, these were “atypical circumstances
created by the business travel.” Under these circumstances, a determination that

21
origination is satisfied dovetails with the continuous coverage doctrine because the injury
at issue “bears the sort of nexus with . . . employment that distinguishes it as one whose
risk should be borne by the employer and carrier, as opposed to risks borne by members
of society at large.” Zurich Am. Ins. Co., 339 S.W.3d at 732.

Having determined that section 401.011(12)’s furtherance and origination
requirements are established as a matter of law on this record, we next consider whether
coverage nonetheless is foreclosed under the express exclusions for “coming and going”
travel and “dual purpose” travel.

B. Exclusions From Course and Scope

1. “Coming and going” rule

Jerrols, Williams, and Luna invoke exceptions to the “coming and going” rule
codified in section 401.011(12)(A) to argue that their injuries fall within the course and
scope of employment. In particular, they rely upon subsection (A)(iii)’s special mission
exception to the exclusion for “coming and going” travel. They also point to subsection
(A)(i), which addresses whether “the transportation is furnished as a part of the contract
of employment or is paid for by the employer,” and subsection (A)(ii), which addresses
whether “the means of the transportation are under the control of the employer.”

We reiterate that satisfying exceptions to the exclusions under subsections (A) or
(B) does not automatically establish that the travel at issue falls within the course and
scope of employment. See Zurich Am. Ins. Co., 339 S.W.3d at 729. In any event, we do
not decide the applicability of exceptions to section 401.011(12)(A)’s exclusion for
“coming and going” travel between work and home because this is not a “coming and
going” case. See Leordeanu, 330 S.W.3d at 242; see also id. at 245, 248-49. Rather, this
is a “dual purpose” case involving travel between work and a place other than home. See
id. at 244-45.

The supreme court has treated the “coming and going” rule and the “dual purpose”
rule as mutually exclusive concepts, and has held that it is error to apply section

22
401.011(12)(B)’s “dual purpose” rule to “coming and going” travel between work and
home. Id. at 248-49; see also Zurich Am. Ins. Co., 339 S.W.3d at 729. Following this
logic, we likewise refrain from applying section 401.011(12)(A)’s “coming and going”
rule to “dual purpose” travel between work and a place other than home. See Leordeanu,
330 S.W.3d at 248-49.

2. “Dual purpose” rule

Texas Mutual contends that section 401.011(12)(B)’s “dual purpose” rule
forecloses coverage here even if furtherance and origination are established on this
record. As noted above, the “dual purpose” rule provides that travel encompassing both
business and personal purposes “is in the course and scope of employment only if the
business purpose is both a necessary and a sufficient cause for the travel.” Leordeanu,
330 S.W.3d at 243. Stated another way, the “dual purpose” rule “does not exclude work-
required travel from the course and scope of employment merely because the travel also
furthers the employee’s personal interests that would not, alone, have caused him to make
the trip.” Id. at 244.

The record here demonstrates that the claimants’ travel to the Town & Country
during their lunch break furthered both Midwestern’s business purposes and the
claimants’ own personal purposes.

At a minimum, the lunchtime travel at issue here furthered Midwestern’s business
purposes because the claimants discussed work-related topics during their lunch break
such as safety, task coordination, and scheduling.

The travel also furthered the claimants’ personal purposes because they were
allowed to perform non-business tasks during the lunch hour such as making personal
phone calls and buying snacks for consumption after working hours. On the day of the
accident, Luna spoke to his wife briefly on his cell phone as lunch was ending before
getting into the truck to return to the tank farm. Williams testified that he was allowed to
and did make personal calls from the Town & Country restaurant during the lunch break.

23
Williams was talking with his mother on his cell phone in the truck at the moment of
impact. Jerrols also testified that he was allowed to call home during the lunch break.
According to Luna, lunch-break conversations sometimes focused on work-related
matters and sometimes focused on personal matters. According to Midwestern’s Rene
Jackson, Midwestern allowed employees to buy snacks during their lunch break to be
consumed after working hours at the motel; additionally, she confirmed that Midwestern
allowed employees to make personal calls during the lunch break.

As discussed earlier, the record contains factual disputes concerning other aspects
of the claimants’ lunch break. These factual disputes are immaterial to section
401.011(12)’s origination inquiry because there is other, undisputed evidence
establishing origination. However, these factual disputes are material to section
401.011(12)(B)’s “dual purpose” rule and exceptions to the exclusion for “dual purpose”
travel between work and a place other than home.

The claimants asserted that Midwestern required them to eat lunch so they would
be able to perform their strenuous jobs, and paid them for doing so. Texas Mutual points
to other testimony indicating that Midwestern did not require the claimants to eat lunch
and left this decision up to its employees, although the physically demanding nature of
the work made it a good idea to eat lunch. The claimants testified that Midwestern
required them to eat lunch at a location away from the tank farm due to the presence of
hazardous substances in the tanks. Texas Mutual points to testimony indicating the
claimants were allowed to eat in the Midwestern truck or at another location at the tank
farm that was not in the immediate vicinity of the specific tanks being cleaned.5

5
On motion for rehearing, Texas Mutual contends the only potential fact issue that could be
material to the “dual purpose” rule’s applicability focuses exclusively on whether Midwestern required
the claimants to eat lunch at a specific location, the Town & Country. We disagree. Section
401.011(12)(B)(i)’s inquiry into whether “the travel to the place of the 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” potentially encompasses circumstances in which an employee is injured while traveling to a
restaurant selected by the employee. See Potter, 807 S.W.2d at 420-22 (material fact issue existed
regarding “dual purpose” rule’s applicability to traffic accident during lunchtime travel between worksite
and a Wendy’s restaurant; injured employee “was about to go to Wendy’s for lunch before [the
24
 The claimants also asserted that their supervisor determined they would eat at the
Town & Country.6 Texas Mutual points to testimony indicating the claimants could
exercise their own discretion and choose where to eat within the time constraints of their
lunch hour.

In short, this record contains evidence of multiple purposes — both work-related
and personal — that were accomplished during the lunch break and promoted by the
claimants’ lunchtime travel. The primary purpose and impetus behind the claimants’
decision to travel to the Town & Country during their lunch break is disputed on this
record. Therefore, we conclude that fact issues exist as to whether, in the words of

employee’s supervisor] . . . arrived at the job site,” asked if he could “tag along” on lunch travel to
Wendy’s, and then discussed work-related matters with the employee en route to lunch at Wendy’s before
accident occurred).
6
Citing Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st
Dist.] 1997, no pet.), Texas Mutual asks this court to disregard the following statement in Luna’s
affidavit: “For lunch each day, Midwestern required that a Midwestern employee drive the crew
members in a Midwestern vehicle from the jobsite to a nearby gas station with a restaurant, the Town &
Country.” Texas Mutual contends that this statement should be disregarded because it was inserted in the
affidavit solely to create a conflict with Luna’s prior deposition testimony. During his deposition, Luna
answered “I was never told that” when asked whether he had been told “you’ve got to go to the Town &
Country to eat lunch . . . .” Luna answered “no” to another question asking, “Did someone tell you that
the only place you could eat lunch and the only place you could gas up in Jal was the Town & Country
convenience store . . . ?” Although the sham affidavit doctrine has been recognized by several courts of
appeals, others have rejected or limited this doctrine. See Argovitz v. Argovitz, Nos. 14-07-00206-CV &
14-07-00396-CV, 2008 WL 5131843 at *20 (Tex. App.—Houston [14th Dist.] Dec. 9, 2008, pet. denied)
(mem. op.) (collecting cases). We do not address whether the challenged statement from Luna’s affidavit
should be disregarded under the sham affidavit doctrine because Texas Mutual raised no such objection in
the trial court. See Bexar Cnty. v. Lopez, 94 S.W.3d 711, 715 (Tex. App.—San Antonio 2002, no pet.);
see also Browne v. Kroger Co., No. 14-04-00604-CV, 2005 WL 1430473 at * 3 (Tex. App.—Houston
[14th Dist.] June 21, 2005, no pet.) (mem. op.). This circumstance makes it unnecessary for us to
determine whether the sham affidavit doctrine “is recognized by the Fourteenth Court of Appeals or may
be applicable to this case.” See Argovitz, 2008 WL 5131843 at *20. Independently of Luna’s affidavit,
Jerrols testified in his deposition that he ate lunch exclusively at the Town & Country before the accident.
When asked, “How do you know that,” Jerrols responded: “Well, they had control over there.” Jerrols
was asked: “How did they have control over that?” He responded: “They had a company driver. We
were in a company vehicle everybody had to ride together.” When Jerrols was asked who chose the
Town & Country, he responded: “Supervisor, I believe.” Jerrols testified that the supervisor did not tell
him personally that he had to eat at the Town & Country. In his affidavit, Jerrols stated: “Midwestern
retained complete control over my time, and Midwestern paid me for my time from the moment I was
picked up in the company vehicle at the hotel in the morning until I returned to the hotel in the company
vehicle in the evening.” Jerrols also stated in his affidavit that “I was never free to choose to separate
myself from the rest of the crew.”

25
subsections (B)(i) and (B)(ii), travel to the Town & Country in connection with the
claimants’ lunch break “would have been made even had there been no personal or
private affairs of the employee to be furthered by the travel” and “would not have been
made had there been no affairs or business of the employer to be furthered by the travel.”
See Potter, 807 S.W.2d at 422 (fact issues existed under the “dual purpose” rule in
connection with traffic accident that occurred during lunch break while employee was
riding in employer-owned vehicle driven by his supervisor from construction site where
he worked to restaurant for lunch; employee and supervisor discussed construction job
during ride). The existence of fact issues under sections 401.011(12)(B)(i) and (ii)
precludes summary judgment in favor of either Texas Mutual or the claimants.

CONCLUSION

We reverse the trial court judgments in Cause Nos. 2009-41875 and 2009-41876,
and remand for proceedings consistent with this opinion.

/s/ William J. Boyce
Justice

Panel consists of Justices Seymore and Boyce and Senior Justice Mirabal.7

7
Senior Justice Margaret Garner Mirabal sitting by assignment.

26