MEMORANDUM DECISION
BENCH, Presiding Judge:T1 Plaintiff Kenneth D. Newman appeals from the trial court's grant of summary judgment in favor of Defendant White Water Whirlpool (White Water). Plaintiff alleges that the court erred in deciding that, as a matter of law, White Water's employee, Bradley Sundquist, was acting outside the course and scope of his employment when he was involved in an automobile accident with Plaintiff. We reverse and remand.
12 Summary judgment is appropriate only when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as' a matter of law." Utah R. Civ. P. 56(c). We consider " 'the facts and all reasonable inferences drawn therefrom ... in the light most favorable to the nonmoving party'" and review the trial court's grant of summary judgment for correctness. Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312 (quoting Fericks v. Lucy Ann Soffe Trust, 2004 UT 85, ¶ 2, 100 P.3d 1200).
13 An employer may be held liable for the acts of an employee when the employee is acting within the course and seope of his or her employment. See Ahlstrom v. Salt Lake City Corp., 2003 UT 4, ¶ 6, 78 P.3d 315. It is a question of fact whether an employee is acting within the scope of employment; indeed, "[sleope of employment questions are inherently fact bound." Id. at T7 n. 1. The dissent seems to suggest, by stating that the scope of employment "is not infrequently an issue to be resolved by the fact-finder," that trial courts routinely decide the issue as a matter of law. However, the cases relied upon by the dissent all state that the general rule is to treat the seope of employment question as one of fact. See id. at 15; Christensen v. Swenson, 874 P.2d 125, 127 (Utah 1994); Clover v. Snowbird Ski Resort, *776808 P.2d 1037, 1040 (Utah 1991). Further, "it is not true that onee both parties move for summary judgment the court is bound to grant it to one side or another. The law is otherwise." Diamond T Utah, Inc. v. Travelers Indem. Co., 21 Utah 2d 124, 441 P.2d 705, 706 (1968). The trial court is obligated to ascertain whether either party's request for judgment as a matter of law should be granted. See id. The court must recognize that a party's claim that there are no issues of fact relates to that party's theory of the case and should not be construed as support for the adversary's argument or motion. See Amjacs Interwest, Inc. v. Design Assocs., 635 P.2d 53, 55 (Utah 1981).
T4 Utah courts use a three-part test to determine whether an employee is within the course and seope of his or her employment: |
First, an employee's conduct must be of the general kind the employee is employed to perform.
Second, the employee's conduct must occur within the hours of the employee's work and the ordinary spatial boundaries of the employment.
Third, the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest.[1]
Birkner v. Salt Lake County, 771 P.2d 1053, 1056-57 (Utah 1989).
15 "[Aln employee is [generally] not in the seope of his employment for purposes of third-party negligence claims when he is traveling to and from work." Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934, 986 (Utah 1989). The primary purpose for this coming and going rule is to avoid imposing unlimited liability "on an employer for conduct of its employees over which it has no control and from which it derives no benefit." Id. at 987. Nevertheless, the "seope of employment issue must be submitted to a jury 'whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of his [employer's] business or within the seope of employment.'" Clover, 808 P.2d at 1040 (alterations - in original) (quoting Carter v. Bessey, 97 Utah 427, 93 P.2d 490, 493 (1939)); see also Ahlstrom, 2003 UT 4 at ¶ 18, 73 P.3d 315 (reversing a grant of summary judgment and rejecting the trial court's determination that the employer was liable for employee's negligence as a matter of law).
T6 Looking at the facts of this case, and drawing inferences therefrom in a light most favorable to Plaintiff, a trier of fact could reasonably find that Sundquist was in the course and scope of his employment rather than merely commuting to work at the time of the accident. Sundquist's regular duties as White Water's employee included hauling materials to job sites, performing installations, and returning unused materials to White Water's warehouse. At the time of the accident, Sundquist was traveling to White Water's warehouse with installation tools and materials from the previous day's work. White Water was aware that Sund-quist regularly spent the night at his Salt Lake County home prior to making his return trip to the Utah County warehouse.
T7 Reasonable minds might differ as to whether Sundquist was acting in the course and scope of his employment at the time of the accident, and thus the question presents a genuine issue of material fact. We therefore reverse the summary judgment and remand the case for further proceedings.
T8 I CONCUR: JUDITH M. BILLINGS, Judge.. The dissent states that both sides have claimed, from the beginning, that there are no disputed facts. This is true only as it relates to historical facts. Despite what the parties may have claimed in arguing their respective motions for summary judgment, the parties have not agreed on an answer to the central factual questions in this case.