Barbara Pinkus v. Hartford Casualty Insurance Company

AFFIRM; and Opinion Filed November 5, 2015.

Court of Appeals
S In The

Fifth District of Texas at Dallas
No. 05-14-00892-CV

BARBARA PINKUS, Appellant
V.
HARTFORD CASUALTY INSURANCE COMPANY, Appellee

On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-02050-2013

OPINION
Before Justices Fillmore, Stoddart, and O’Neill 1
Opinion by Justice Fillmore

Barbara Pinkus appeals the trial court’s summary judgment in favor of Hartford Casualty

Insurance Company. In two issues, Barbara argues the trial court’s summary judgment in favor

of Hartford, a workers’ compensation insurance carrier, was erroneous because her husband, Ron

Pinkus, was in the course and scope of his employment at the time he was injured in a motor

vehicle accident, and if Barbara is the prevailing party on appeal, she is entitled to an award of

attorney’s fees. 2 We affirm the trial court’s judgment.

1
The Hon. Michael J. O’Neill, Justice Fifth District Court of Appeals, Retired, sitting by assignment.
2
Given their common surname, we will refer to Barbara, Ron, and their son, Brett Pinkus, by their first names for clarity.
 Procedural Background

Barbara filed a beneficiary claim for workers’ compensation benefits with the Texas

Department of Insurance, Division of Workers’ Compensation (DWC), which Hartford, the

workers’ compensation insurance carrier of Ron’s employer, denied. After a DWC contested

case hearing, a hearing officer determined Ron was in the course and scope of his employment

when he sustained injury in a January 9, 2012 motor vehicle accident, and Ron had disability for

the period beginning January 10, 2012, and continuing through the date of Ron’s death on

August 1, 2012. Hartford appealed, but the DWC appeals panel affirmed the hearing officer’s

decision. The DWC’s decision and order includes the following as “Background Information”:

Ron . . . was a 64-year-old Product Development Team Leader for Employer, who
was sent to Dallas from the home office in Raleigh, North Carolina for a three day
business trip to meet with customers and plan for opening a Dallas office. All
transportation, meals and lodging expenses for the trip were paid by Employer.
[Ron] stayed at the Westin Galleria Hotel in Dallas. After working at the office in
the Galleria Tower adjacent to the hotel on January 9, 2012, [Ron] had arranged
to meet his son, Brett Pinkus, who lived in Dallas, for dinner at a restaurant. At
about 6:45 pm, [Ron] was seriously injured in an automobile accident which
occurred about one-half mile short of the restaurant, and 11.6 miles from the
hotel.

The facts of this case bring it within the “continuous coverage” doctrine which
provides coverage 24 hours per day for employees sent out of town overnight on
business by Employer. Travel for meals during a business trip is a covered part of
the trip. An exception to such coverage has been recognized in cases where an
employee deviates from the business purpose of a trip for purely personal reasons.
Examples of exceptions include APD 101035 in which the employee was injured
while driving to another city 40 miles distant for dinner, and APD 101035 in
which the employee traveled to another city during his business trip to have
dinner, drink alcohol, play pool, and watch sports on television with a friend.
There is no cited case where a trip of 12 miles to a restaurant within a major
metropolitan area such as Dallas has been held to be a deviation from the business
purpose of the trip. The fact that the son was to meet [Ron] for dinner does not
remove the activity from the scope of covered activities allowable during a
business trip such as sleeping and eating.

[Ron] was rendered quadriplegic by his injuries sustained in the motor vehicle
accident, and died due to his injuries on August 1, 2012. [Hartford] does not
dispute that this would be a period of disability if the injury is found to be
compensable.
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The DWC’s decision and order includes the following findings of fact:

3. [Ron]’s injury of January 9, 2012 was sustained during a business trip to
Dallas, Texas of several days duration from his home base in North
Carolina for which transportation, meals and lodging were furnished by
[his employer].

4. [Ron] sustained serious bodily injury on January 9, 2012 in a motor
vehicle accident while driving from his office in the Dallas Westin
Galleria hotel at about 6:45 pm to have dinner at a restaurant in Dallas.

5. Due to his injury sustained on January 9, 2012, [Ron] was unable to obtain
or retain employment at wages equivalent to his preinjury wage for the
period beginning January 10, 2012 and continuing through August 1,
2012.

It was the appeals panel’s decision that Ron sustained a compensable injury on January 9, 2012,

and suffered disability for the period beginning January 10, 2012, and continuing through August

1, 2012.

Hartford challenged the DWC appeals panel’s final decision by filing a petition for

judicial review in the trial court. See TEX. LAB. CODE ANN. § 410.301 (West 2015) (judicial

review of final decision of appeals panel regarding compensability or eligibility for, or the

amount of, income or death benefits shall be conducted as provided by this subchapter); Davis v.

Tex. Mut. Ins. Co., 443 S.W.3d 260, 263 (Tex. App.—Dallas 2014, pet. denied). Section

410.302(b) of the labor code limits judicial review to “issues decided by the appeals panel and on

which judicial review is sought,” and the pleadings “must specifically set forth the

determinations of the appeals panel by which the party is aggrieved.” TEX. LAB. CODE ANN.

§ 410.302(b) (West 2015); Davis, 443 S.W.3d at 263. If a party seeks review of a final DWC

appeals panel decision regarding “compensability or eligibility for or the amount of income or

death benefits,” the trial court applies a modified de novo standard of review. Rodriguez v. Serv.

Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999); Davis, 443 S.W.3d at 266; see also TEX. LAB.

CODE ANN. § 410.304(b) (West 2015) (in trial to court without jury, court in rendering its
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judgment on issue regarding compensability or eligibility for, or amount of, income or death

benefits shall consider decision of appeals panel); State Office of Risk Mgmt. v. Joiner, 363

S.W.3d 242, 247 (Tex. App.—Texarkana 2012, pet. denied) (under modified de novo standard of

review, trial court is informed of appeals panel’s decision but is not required to accord that

decision any particular weight). The party appealing the final decision of the DWC appeals

panel regarding compensability or eligibility for, or the amount of, income or death benefits

bears the burden of proof by a preponderance of the evidence. TEX. LAB. CODE ANN. § 410.303

(West 2015); see also Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 214 (Tex. 2010); Davis,

443 S.W.3d at 266. Judicial review of the appeals panel’s decision “is limited to the issues that

were before the Commission appeals panel; however, the fact finder does not simply review the

appeals panel decision for reasonableness, but decides the issues independently based on a

preponderance of the evidence.” See Sec. Nat’l Ins. Co. v. Farmer, 89 S.W.3d 197, 200 (Tex.

App.—Fort Worth 2002, pet. denied).

Hartford pleaded it is aggrieved “by the following determinations and all supporting

conclusions of law and findings of fact”:

1. The Employee [Ron] sustained a compensable injury on January 9, 2012;

2. The Employee [Ron] had disability for the period beginning January 10,
2012 and continuing through August 1, 2012.

Hartford filed a traditional motion for summary judgment, asserting there is no genuine issue of

material fact that Ron, who was driving to have dinner with his son at the time of the January 9,

2012 motor vehicle accident, was not in the course and scope of his employment. See TEX. R.

CIV. P. 166a(c). Barbara filed a no-evidence motion for summary judgment, contending there is

no evidence that Ron was not in the course and scope of his employment at the time of the motor

vehicle accident, see TEX. R. CIV. P. 166a(i), and a traditional motion for summary judgment

contending that, viewing the evidence in the light most favorable to Hartford, the evidence
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establishes as a matter of law that Ron was in the course and scope of his employment at the time

of the motor vehicle accident. See TEX. R. CIV. P. 166a(c).

The trial court granted Hartford’s motion for summary judgment. Barbara’s motion for

new trial was overruled by operation of law, and this appeal followed.

Factual Background 3

Ron was a resident of North Carolina, and employed as a Developmental Team Leader

by JVL Ventures. Ron’s employer planned to open a branch office in Dallas, Texas, and Ron

traveled to Dallas in early December 2011 to evaluate potential office locations. In January

2012, Ron again traveled to Dallas for a three-day business trip. The office where Ron worked

was located near the Galleria Westin Hotel, where he lodged while in Dallas on business.

The employer’s 2011 Travel Expense Policy indicates that employees are reimbursed for

actual meal expenses with a maximum reimbursement not to exceed sixty dollars per day. The

Travel Expense Policy states that if a spouse or guest accompanies an employee on a business

trip, but is not participating as a business associate, the employer will reimburse the employee as

though the employee was traveling alone, and expenses for the spouse or guest should be noted

by the employee on expense reports and deducted from the employee’s reimbursable charges.

Ron was required to obtain pre-approval for a business meal or client-entertainment expense.

Ron maintained routine work hours while in Dallas for business. Ron completed his

work assignments around 5:42 p.m. on January 9, 2012. Ron’s calendar did not reflect any

work-related appointments scheduled after his regular work hours on January 9, 2012, and he

had not obtained prior approval for a business or client-entertainment meal. In his affidavit, Bala

Ranganathan, Ron’s direct supervisor, attested that after Ron completed his work on January 9,

2012, he was on personal time and was free to spend the evening as he saw fit. To the best of

3
This factual background is taken from evidence relied upon by the parties in their motions for summary judgment.

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Ranganathan’s knowledge, Ron was not traveling in furtherance of the affairs of his employer

after his regular work hours on January 9, 2012.

Brett testified at the DWC contested case hearing that he and Ron had spoken early in the

day of January 9, 2012, and planned to meet for dinner. They discussed meeting at the Lovers

Pizza restaurant near Mockingbird Lane, because the restaurant location was close to Brett’s

home and convenient for Brett. They had not confirmed whether they were to meet at the

restaurant. At approximately 6:00 p.m., Brett left a voice-mail message on Ron’s phone that he

would meet Ron at the Lovers Pizza restaurant, but Brett did not receive a return telephone call

or voice-mail message from Ron.

At 6:43 p.m., Ron was involved in a motor vehicle accident at the intersection of

Mockingbird Lane and Briar Creek Lane, eleven miles from the Dallas business office at which

Ron was working. Ron had passed other Lovers Pizza restaurant locations and the Lovers Pizza

restaurant at which he and Brett planned to eat in reaching the accident location. The accident

occurred between the Lovers Pizza location where Ron and Brett planned to eat and Brett’s

home (four-tenths of a mile east of the Lovers Pizza restaurant and one-half mile southwest of

Brett’s home).

Barbara spoke with Brett after Ron was injured in the motor vehicle accident. Brett told

her that he and Ron had made plans to meet for dinner, but had not determined whether they

would meet at Brett’s home or at the Lovers Pizza restaurant. According to the DWC Benefit

Review Conference Report, it was Barbara’s position that Ron was in route to Brett’s home

when the accident occurred, and it was Hartford’s position that Ron was on the way to Brett’s

home to meet him for dinner at the time of the motor vehicle accident. Barbara, who had not

traveled with Ron to Dallas on this business trip, testified at the DWC contested case hearing that

Ron was reimbursed by his employer for his hotel, rental car, and meals while on business travel,

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and that when dining with Brett, Ron’s employer would pay for Ron’s meal and Brett would pay

for his own meal.

The injury Ron sustained in the January 9, 2012 motor vehicle accident rendered him

quadriplegic. On August 1, 2012, he died from his injuries sustained in the accident.

Analysis

The Texas Workers’ Compensation Act (the Act) provides for employee compensation

when injuries “arise[ ] out of and in the course and scope of employment for which

compensation is payable under [the Act].” TEX. LAB. CODE ANN. § 401.011(10) (West 2015);

see Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 518 (Tex. 2007); Biggs v. U.S. Fire Ins.

Co., 611 S.W.2d 624, 627 (Tex. 1981) (essential element for recovery of workers’ compensation

benefits is that injury was sustained in course of employment). In this case, the disputed issue is

whether Hartford established there is no genuine issue of material fact that Ron was not in the

course and scope of his employment when he was injured in the January 9, 2012 motor vehicle

accident. Barbara contends the trial court erred by concluding Ron was not in the course and

scope of his employment at the time of his injury and by granting summary judgment in favor of

Hartford on that issue.

Standards of Review and Burden of Proof

“It is now settled that the summary judgment procedure in general applies to Workmen’s

Compensation cases.” Bullock v. Tex. Emp’rs Ins. Ass’n, 254 S.W.2d 554, 556 (Tex. Civ. App—

Dallas 1952, writ ref’d); see also Fowler v. Tex. Emp’rs Ins. Ass’n, 237 S.W.2d 373, 375 (Tex.

Civ. App.—Fort Worth 1951, writ ref’d) (summary judgment available in case where there can

be no recovery if injury was not received in course of employment; if, as a matter of law, injury

was not received in course of employment, it would be useless procedure to try other issues in

case). We review a trial court’s grant of summary judgment de novo. SeaBright Ins. Co. v.

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Lopez, 465 S.W.3d 637, 641 (Tex. 2015). The standards of review for traditional and no-

evidence summary judgments are well known. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

310 (Tex. 2009) (no-evidence motion for summary judgment); Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548 (Tex. 1985) (traditional motion for summary judgment). With respect to a

traditional motion for summary judgment, the movant has the burden to prove that no genuine

issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); SeaBright Ins. Co., 465 S.W.3d at 641. We review a no-evidence summary judgment

under the same legal sufficiency standard used to review a directed verdict. TEX. R. CIV. P.

166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To defeat a no-evidence

summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of

material fact on each challenged element of its claim. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d

at 310.

In reviewing both a traditional and no-evidence summary judgment, we consider the

evidence in the light most favorable to the nonmovant. See SeaBright Ins. Co., 465 S.W.3d at

641; Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Nixon, 690 S.W.2d at 548–49. We

credit evidence favorable to the nonmovant if a reasonable fact-finder could, and we disregard

evidence contrary to the nonmovant unless a reasonable fact-finder could not. SeaBright Ins.

Co., 465 S.W.3d at 641; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009); Gish, 286 S.W.3d at 310. When, as here, both parties move for summary

judgment and the trial court grants one motion and denies the other, we review the summary

judgment evidence presented by both sides, determine all questions presented, and render the

judgment the trial court should have rendered. SeaBright Ins. Co., 465 S.W.3d at 641–42.

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 Applicable Law

An insurance carrier is liable for compensation for an employee’s injury under the Act if

“the injury arises out of and in the course and scope of employment.” TEX. LAB. CODE ANN.

§ 406.031(a)(2) (West 2015). The provisions of the Act are liberally construed “to carry out the

Legislature’s evident purpose of compensating injured workers and their dependents.” Tex.

Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 652 (Tex. 2004).

“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.” TEX. LAB. CODE ANN. § 401.011(12). The term “course and scope of

employment” does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment
or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer;
or

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

(B) travel by the employee in the furtherance of the affairs or business of the
employer if the travel is also in furtherance of personal or private affairs of the
employee unless:

(i) the travel to the place of occurrence of the injury would have been
made even had there been no personal or private affairs of the employee to
be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or
business of the employer to be furthered by the travel.
Id.

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 “The first step [in determining whether an activity is in the course and scope of

employment] requires determining whether the activity (1) originates in the employer’s work,

business, trade, or profession and (2) furthers the employer’s affairs.” Am. Cas. Co. of Reading,

Pa. v. Bushman, No. 04-14-00685-CV, 2015 WL 4934174, at *4 (Tex. App.—San Antonio Aug.

19, 2015, no pet. h.); see also SeaBright Ins. Co., 465 S.W.3d at 642. For an employee’s injury

to be considered sustained in the course and scope of employment, it must (1) relate to or

originate in the employer’s business, and (2) occur in the furtherance of the employer’s business.

Davis, 443 S.W.3d at 267; see also TEX. LAB. CODE ANN. § 401.011(12). Both elements must be

satisfied in order for an employee’s injury to have occurred in the “course and scope of

employment.” Deatherage v. Int’l Ins. Co., 615 S.W.2d 181, 182 (Tex. 1981); Davis, 443

S.W.3d at 267.

“If these two elements are satisfied, then the activity is in the course and scope of

employment unless one of section 401.011(12)’s exclusions applies.” Bushman, 2015 WL

4934174, at *4; see also TEX. LAB. CODE ANN. § 401.011(12)(A), (B); SeaBright Ins. Co., 465

S.W.3d at 645. Therefore, the second step in determining whether an activity is in the course

and scope of employment is to determine whether one of the two exclusions of section

401.011(12) applies: the “coming and going” exclusion of section 401.011(12)(A) or the “dual-

purpose travel” exclusion of section 401.011(12)(B). Bushman, 2015 WL 4934174, at *4; see

also TEX. LAB. CODE ANN. § 401.011(12)(A), (B); SeaBright Ins. Co., 465 S.W.3d at 645 (even

if employee is engaged in actions that originate in and further the employer’s business at the time

of injury, employee may not be acting in the course and scope of his employment if his actions

fall within the statutory exclusion). “The two exclusions are mutually exclusive; that is, if the

‘coming and going’ rule [of section 401.011(12)(A)] applies, then the ‘dual purpose travel’

exclusion [of section 401.011(12)(B)] does not, and vice versa.” Bushman, 2015 WL 4934174,

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at *4. “If an exclusion applies, then the employee’s activity is not in the course and scope of

employment unless an exception to the exclusion applies.” Id.; see also TEX. LAB. CODE ANN.

§ 401.011(12)(A), (B). Therefore, the third step in determining whether an activity is in the

course and scope of employment is to determine whether an exception to the exclusion applies

under section 401.011(12)(A) or (B). Bushman, 2015 WL 4934174, at *4; see also TEX. LAB.

CODE ANN. § 401.011(12)(A), (B).

Course and Scope of Employment

Barbara contends that because Ron had traveled to Dallas on a business trip, the

“continuous coverage” rule applied and Ron was in the course and scope of his employment at

the time of his injury. On the specific facts of this record, we must disagree.

Under the “continuous coverage” rule, “an employee whose work entails travel away

from the employer’s premises [is] 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 v. Standard Ins. Co., 389 S.W.2d 290, 293

(Tex. 1965); see N. River Ins. Co. v. Purdy, 733 S.W.2d 630, 632–33 (Tex. App.—San Antonio

1987, no writ) (“test for determining whether an injury was received during the course of

employment when the injury was suffered by an employee whose employer requires him to

travel is whether the injury ‘has its origin in a risk created by the necessity of sleeping or eating

away from home . . . .’” (quoting Shelton, 389 S.W.2d at 293)). An insurance carrier is not liable

for compensation if the injury to an employee arose out of “voluntary participation in an off-duty

recreational, social, or athletic activity that did not constitute part of the employee’s work-related

duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by

the employment.” TEX. LAB. CODE ANN. § 406.032(1)(D) (West 2015).

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 The parties do not dispute that on January 9, 2012, Ron was in Dallas on a business trip

and had worked a full business day at an office near the hotel at which he was staying. Ron’s

transportation, lodging, and reasonable meal expenses were paid by his employer. After working

normal business hours at his employer’s Dallas office, Ron ceased working at around 5:42 p.m.

He had not obtained prior approval for a business or client entertainment meal, and his calendar

did not reflect any work-related appointment that evening. The summary-judgment evidence is

uncontroverted that during the evening of January 9, 2012, Ron was on personal time and free to

spend the evening as he saw fit. Ron made plans with his son, Brett, to have a personal, social

dinner together. The plans had not been confirmed as to whether they were to meet at Brett’s

home or the Lovers Pizza location on Mockingbird Lane near Brett’s home. The Lovers Pizza

location at which Ron and Brett planned to eat was chosen for Brett’s convenience due to the

proximity of the restaurant to Brett’s home. Ron sustained serious injury in a motor vehicle

accident at 6:43 p.m. The accident location is between the Lovers Pizza restaurant where Ron

and Brett planned to eat and Brett’s home; it is four-tenths of a mile east of Lovers Pizza and

one-half mile southwest of Brett’s home. The accident occurred eleven miles from the Dallas

business office at which Ron had been working. Ron passed other Lovers Pizza locations in

route to have dinner with Brett at the Lovers Pizza restaurant on Mockingbird Lane. Even

viewing the evidence in the light most favorable to Barbara, Ron’s travel at the time of the

accident was to accommodate a personal visit and meal with his son; Ron’s business trip to

Dallas merely placed him in a position to take advantage of an opportunity for a “distinct

departure” on a “personal errand.” See Shelton, 389 S.W.2d at 293; see also Tex. Mut. Ins. Co. v.

Jerrols, 385 S.W.3d 619, 627 (Tex. App.—Houston [14th Dist.] 2012, pet. dism’d) (nature of

inquiry into course and scope of employment is “unavoidably fact-specific”). Thus, with regard

to the first step in determining whether an activity is in the course and scope of employment, we

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conclude the summary judgment evidence establishes there is no genuine issue of material fact

that Ron’s activity at the time of his injury did not originate in and was not in furtherance of his

employer’s business affairs, and the trial court did not err in granting summary judgment in favor

of Hartford. See Bushman, 2015 WL 4934174, at *4.

Dual Purpose Travel

An exclusion from “course and scope of employment” for “dual purpose” travel is

contained in section 401.011(12)(B) of the labor code. See TEX. LAB. CODE ANN. § 401.011(B)

(“course and scope of employment” does not include travel by employee in furtherance of affairs

or business of employer if the travel is also in furtherance of personal or private affairs of

employee). There are two statutory exceptions to the dual purpose travel exclusion from “course

and scope of employment.” See TEX. LAB. CODE ANN. § 401.011(12)(B)(i) (dual purpose travel

exclusion from “course and scope of employment” does not apply if travel to place of occurrence

of injury would have been made even had there been no personal or private affairs of employee

to be furthered by the travel and the travel would not have occurred had there been no affairs or

business of employer to be furthered by the travel). Barbara argues that, because the overall

purpose of Ron’s trip to Dallas was in the furtherance of the business of his employer, there was

a business-purpose component to his travel at the time he was on the personal, social errand of

meeting his son for dinner, and, therefore, Ron was engaged in “dual-purpose travel.” See TEX.

LAB. CODE ANN. § 401.011(12)(B); SeaBright Ins. Co., 465 S.W.3d at 645 (Act governs

compensability of injuries sustained by an employee while traveling for both personal and

business purposes, or “dual-purpose travel”). Because we have concluded the summary

judgment evidence establishes Ron was not in the course and scope of his employment at the

time of his injury, we reach neither the second step of the analysis concerning applicability of the

dual purpose travel exclusion from “course and scope of employment” nor the third step of the

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analysis concerning applicability of an exception to that exclusion. See Bushman, 2015 WL

4934174, at *4; see also TEX. LAB. CODE ANN. § 401.011(12)(A), (B); SeaBright Ins. Co., 465

S.W.3d at 645.

Conclusion

On the specific facts of this case, the travel in which Ron was engaged at the time of his

tragic injury was not so related to his work that it can properly be concluded his injuries

originated in and were in furtherance of his employer’s business. The summary judgment

evidence established there is no genuine issue of material fact that Ron was not in the course and

scope of his employment at the time of his injury, and the trial court did not err in granting

summary judgment in favor of Hartford. We resolve Barbara’s first issue against her.

Attorney’s Fees

In a second issue, Barbara contends that if she prevails on her first issue, the trial court

should award her attorney’s fees pursuant to section 408.221(c) of the labor code. Under section

408.221(c), an insurance carrier unsuccessfully seeking judicial review of an adverse decision of

the DWC appeals panel regarding compensability or eligibility for, or the amount of, income or

death benefits is liable for reasonable and necessary attorney’s fees incurred by the prevailing

claimant as a result of the insurance carrier’s appeal. TEX. LAB. CODE ANN. § 408.221(c) (West

2015). 4 Having resolved Barbara’s first issue against her, she is not the prevailing party in

Hartford’s appeal of the DWC appeals panel’s final decision. Accordingly, we resolve Barbara’s

second issue against her.

4
Hartford contends Barbara’s conditional issue on appeal relating to attorney’s fees was never presented to, or ruled on by, the trial court,
and Barbara has not preserved this complaint. We note Barbara filed a counterclaim seeking recovery of attorney’s fees under section 408.221(c)
of the labor code, and the trial court’s final judgment denies all relief not granted therein.

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 Conclusion

Having resolved Barbara’s issues against her, we affirm the trial court’s judgment.

/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE

Stoddart, J., concurring

140892F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

BARBARA PINKUS, Appellant On Appeal from the 199th Judicial District
Court, Collin County, Texas,
No. 05-14-00892-CV V. Trial Court Cause No. 199-02050-2013.
Opinion delivered by Justice Fillmore,
HARTFORD CASUALTY INSURANCE Justices Stoddart and O’Neill participating.
COMPANY, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee Hartford Casualty Insurance Company recover its costs of
this appeal from appellant Barbara Pinkus.

Judgment entered this 5th day of November, 2015.

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