### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00252- CV

Michael Her vey, Appellant

v. Enerpip e, Ltd., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0460 3, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N 1

Michae l Her

vey appea ls from the trial co u rt’s final summary judgme nt dismiss ing with prejudice his claims ag ainst Enerpipe , L td., arising from an automobile collision between
Her vey and an Enerpipe employ ee. I n six appellate issues, Her vey contends that the trial court

err ed in g ranting Enerpipe ’s no-evide nce and traditional motions for summary judgme nt. We w ill aff irm the trial cour

t’s final summary

judgme nt.

BACK GR OUND The following fac ts are not disputed on appea l. Robert Palmatee r, an Enerpipe employ ee, was involved in a vehicle collision with Her vey
. Her vey sued Palmateer for neg lige nce,

Notice of appea l for this case was orig inally filed in this Court in September 2016, at which 1 time the case was transfe rre d to the El Paso Court o f Ap p ea l s in compliance with a docketequalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court order ed that cer

tain case s be transfe rre d back to this Court from the El Paso Court, and we consider this appea l pursuant to that order

. See Misc. Docke t No. 18-9054 (Tex. Apr. 12, 2018) (per curia m).later added Enerpipe to the suit, and then filed a notice of non-suit with respe ct to Palmateer

. I n his

live pleading , Her

vey contende d that Enerpipe was vica riously liable for Palmate er’ s neg lige nce. Enerpipe filed both a t ra d itional and a no-evide nce motion for summary judgme nt and attache d a transcr ipt of Palmateer ’s deposition and an aff idavit of Michae l Hobbs, Palmateer ’s friend and cowor

ker who was riding with Palmateer at the time of the collision. The t ri al court
g rante d both motions for summary judgme nt and rende red a final judgme nt dismi s s i n g Her vey ’s claims with prejudice , and this appea l followed.

DISCUSSIO N
Be cause they are dispositi ve, we will addre ss Her vey ’s second throug h six th issues, whi ch conce rn Enerpipe ’s no-evide nce motion for summary judgme nt. A party “may m o v e fo r
summary judgme nt on the ground that there is no evidenc e of one or m ore essential elements of a claim or defe nse on which an adver se par ty would have the burden of proof a t trial.” Tex. R. Civ.
P. 166a(i). “The motion must state the elements as to which there is no evidenc e,” and the trial court “mus t gra n t the motion unless the responde nt produce s summary judgme nt evidenc e raising a
g e n u in e is s u e o f ma

te r ia l f a c t. ” I d

. “ [I ]t is p r o p e r f

o r th e tr ia l c o u

r t to g r a n t a d e f e n d a n t’ s n o - e v id e n c e motion for summary judgme nt if the plaintiff has produce d no more than a scintilla of evidenc e on

an essential element of the cause of action, that is, if the plaintiff’s evidenc e does not rise ‘to a level th a t w o u ld e n a

b le r e a s o n a

b le a n d f a ir

- mi n d e d p e o p le to d if

f e r in th e ir c o n c lu s io n s
. ’ ” D a ll a s M o r n in g News, Inc. v. Tatum , No. 16-0098, 2018 WL 2182625, at * 4 (T ex
. May 11, 2018) (quoting Ford
Motor Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004)). We revie w t h e t ri al court’s summary judgme nt de novo. See Exx on Mobil Corp. v. Rincones , 520 S.W .3d 572, 579 (Tex. 2017); Soledad

2v. Texas Farm Bureau Mut. Ins. Co. , 506 S.W .3d 600, 602 (Tex. App.—Austin 2016, pet. denied)

.

I n our revie w, “we take as true all evidenc e favor able to the nonmovant and we i n d u l ge ever y

r e a s o n a b le in f e r e n c e a n d r e s o lv e a

n y d o u b ts in th e n o n

mo v a n t’ s f a v o r
. ” R in c o n e

s , 5 2 0 S. W. 3 d a

t 5 7 9

. Her vey contends that Enerpipe is liable for Palmateer ’s alleg ed neg lige nce throug h the doctrine of respond ea t s u p erior. “Unde r our law, the doctrine of responde at s uperior makes a principal liable for the conduct of its e mploy ee or ag ent.” Fort W orth Transp. Auth. v. Rodriguez , 547 S.W .3d 830, 846 (Tex. 2018). T o p reva il on his claim ag ainst Enerpipe throug h responde at superior, Herve y must establish that, at t he ti me of P al m at eer’s neglig ent conduct, Palmateer was Enerpipe ’s employ ee and was acting in th e course and scope of his employ ment. See Painter v. Amerime x Drilling I, Ltd. , No. 16-0120, 2018 WL 2749862, at *3 (Te x . Apr. 13, 2018). Enerpipe has not contested the fac t that Palmateer was its employ ee. There fore , we focus our analy sis on whether Palmateer was acting in the course and scope of his employ ment with Enerpipe

. “[V]i car ious liability arises only if the tortious act falls within the scope of the employ ee’ s
g ener al authority in further ance of the employ er’ s business and for the acc omplishm ent of the object for whi ch t h e empl oy ee was hired.” Id. at *4 (cle aned up). “[I ]f an employ ee deviates from the perf orm an ce o f his duties for his own purposes, the employ er is not responsible for what occur s during that deviation.” Id. (cle aned up)

.

I n its no-evide nce summary -judg ment motion, Enerpipe asser ted that Her

vey “has no evidenc e to establish one or more of the following elements in his case: 1) tha t Enerpipe pr ovided the truck that Mr. Palmateer was driving at the time of the acc ident; 2 ) that Enerpipe controlled Palmateer ’s means o f t ra n sportation and the route that he was require d to take; 3) that Palmateer

was eng ag ed in t h e further ance of Enerpipe ’s business at the time of the occur renc e; 4) that
3Palmateer was eng ag ed in a ‘spec ial mission’ for Enerpipe at the time of the acc ident; or 5) that

Palmateer , who was off duty , was acting within the course and scope of employ ment with Enerpipe at the time of the a ccide nt.”

Her e, the undisputed summary -judg ment evidenc e, most o f which is taken from Palmateer ’s deposition, includes the following fac ts:

• Palmateer

was wor king f or Ener pipe as a supervisor a

nd was pa id hourly

.

• On the day

of the c ollisi on, Palmateer was driving his personal ve hicle.

• Enerpipe paid for the fuel for Palmateer ’s vehicle throug h a company cre dit car d.

• Palmateer , Hobbs, and other Enerpipe employ ees had alre ady finished their work for the day about 20 minutes befor e the collision occur red. At the time of the c ollisi on, they

wer e not “on the c lock.”

• When asked at his deposition when he decide d that he was off work that day , Palmateer explained, “Wheneve r I told ever y body that we wer e done for the day

. We couldn’t do any

thing else. We wer e waiting on equipment to show up. We had trucks in or out with equipment and stuff, and we didn’t have ever y thing we neede d to—to do any work other than unloading materia l, and we g ot ever

y thing done that we could do that day , an d s o t h en we decide d to g o home, then we stood around and visited a littl e bit and then we heade d that way .”

• Hobbs rode wi th Palmateer beca use they “we re longtime friends” and “wa nted to catc h up.”

• On t he way home, P almatee r decided t o show Hobbs “one of the s pots that [t h e y ] w o u ld b e w o r

k in g a t. ” A s Pa lm a

te e r s ta te d in h is d e p o s it io n , “ I d e c id e d we wer e g oing rig ht by there , I ’d show him wher e it was. L ike I say , we wer e off of work. We wer e just visiti ng and riding around, y ou know, basica lly .”

• Palmateer started to turn into a drivewa y to show Hobbs the future work site. P almatee r intended to “show [Hobbs] wher e it was and then come bac k

4out

. . . and leave .” Palmateer did not intend to “g et out and look at any thing” or to talk to any one while a t the future site.

• Whil e turning , Palmateer struck He rvey ’s vehicle

.

• There wer e other

Enerpipe employ ees driving behind Palmateer at t he time of the collision heading home. Howeve r, Palmateer had not direc ted any one to follow him, and the drivers behind him wer e not intending to turn into the drivewa y with Palmateer.

• I n his aff

idavit, Hobbs stated, “W e we re n o t working at the time and wer e not ‘on the clock’ at the time. [P almatee r] was just being friendly and, since we knew each other well, he was just simply showing m e where one of t he jobsites was located. There wer e no Enerpipe vehicles in front of us. There wer e a couple of pickup trucks behind us that wer e driven by Enerpipe employ ees who had left the y ard at t h e same time we did, and they wer e heading back to their

hotels.”

Ba sed on the re cord be fore us, even taking as true all evidenc e favor able to H erve y and indulging ever

y rea sonable infere nce and resolving any doubts in Her vey ’s favor , we conclude that there is no evidenc e that Palmateer was acting in the course and scope of his employ ment at the ti me o f th e c o ll is io n
. T h e u n d is p u te d e v id e n c e s h o w s th a t Pa lm a te e r a n d h is c o w o r

k e r s h a d c o mp le te d their work for the day and that they could do no further work that day

. The evidenc e further shows that Hobbs was riding with Palmateer beca use they wer e persona l friends and that Palmateer decide d to show Hobbs a future work site on his own initiative beca use they happene d to be passing by the location. The evidenc e shows that Enerpipe did not instruct Palmatee r to take Hobbs to the future site and that Palmateer did not i n tend to g et out of his vehicle, look around, or talk to any one at the future site. Contrary to Her vey ’s asser

tions in his appellate brief, the evidenc e does not show that Palmateer was further ing Enerpipe ’s in t er es t s in showing Hobbs the site. Palmateer was off

5work a t the time and was ser ving his own pur

poses by turning into the drivewa

y of the futur e site. The mere fac t that Palmateer was commuting betwee n work and home does not g ive rise to vicar ious liability on Enerpipe ’s part. See Painter , 2018 WL 2749862, at *10 (“We confirm that the coming

and-g oing rule, under which an employ ee is g ener ally not acting within the scope of his employ ment when trave ling to a

nd from work, applies in the vicar ious-liability context.”); OCI Beaumont LLC

v. Barajas , 520 S.W .3d 83, 91 (Tex. App.—B eaumont 2017, no pet.) (“A pply ing Texas law, Texas
courts have consistently held that the employ er i s n o t v i cariously liable for the torts committed by employ ees when their connec tion to their job shows they wer e m er ely commuting to work.” ); Mancil v. Stroud , No. 11-13-00354- CV, 2016 WL 932949, at *3 (Tex. App.—Eastlan d M ar
. 1 0,
2 0 1 6 , n o p e t. ) ( me m. o p
. ) ( “ E mp lo y e r s g e n e r a ll y a r e n o t li a b le f o r a c c id e n ts in v o lv in g th e ir e mp lo y e e s while the employ ees are trave ling to and from work.” ); see also Evans v. Illinois Emp’rs Ins. of
W ausau , 790 S.W .2d 302, 305 (Tex. 1990) (“The risks to which employ ees are expose d whi le
trave ling to and from work are share d by society as a whole and do not arise as a result of the work of employ ers.” ).

I n addition, we are not persua ded that the mere fac t that Enerpipe paid for Palmateer ’s
f u e l e s ta b li s h e d th a t P a lm a te e r w a s a c ti n g in th e c o u

r s e a n d s c o p e o f h is e mp lo y

me n t. S e e M o o r e v
. S tr ik e , LL C , N o
. 0 4

- 1 6

- 0 0 3 2 4

- CV , 2 0 1 7 WL 9 6 1 3 0 , a t * 9 n
. 4 ( T e x. A

p p
. — Sa n A n to n io Ja n
. 1 1 , 2 0 1 7 ,

no pet.) (mem. op.) (noting that “cour ts have rec og nized that evidenc e that an employ er reimburse s

an em p l oy ee for use of his persona l vehicle does not equate to evidenc e of course and sco p e” i n

ever y circ ums ta

nce) ; Mancil , 2016 WL 932949, at *4 (“A ppellants also claim that, beca use Studdard was compensated for his fuel costs, he w as in the course and scope of his employ ment at t he ti me

6o f t he collision. Howeve r, courts have held otherwise.” ); ACME Energy Servs., Inc. v. Aran d a , No. 08-02-00205- CV, 2004 WL 868486, at *3 (Tex. App.—El Pas o Apr. 22, 2004, pet. denied) (mem. op.) (“[T]emporary mileag e compensa tion does not place t h e employ ee in the course and

s co p e of employ

ment while trave ling to and from work in the employ ee’ s automobile.”); accord
W ilson v. H.E. Butt Groce ry Co. , 758 S.W .2d 904, 907 (Tex. App.—Corpus Christi 1988, no writ);

see also Pilgrim v. Fortune Drilling Co., Inc. , 653 F.2d 982, 988 (5th Cir. 1981) (re jecting plaintiffs’
arg ument that For

tune was liable under

the doctrine of re spondeat super ior bec ause “ For tune paid
a tra vel allowanc e to one member of t he drilling cre w ea ch day ”); cf. Painter , 2018 WL 2749862,
at *7 (holding that defe ndant was not entitled to summary judgme nt as to responde at superior claim when plaintiff “pre sented evidenc e that one of his specific duties as a driller—and one for which he was paid additional money over his reg ular salary —was to provide the cre w t ranspor tation to and from the drilling sit e”) ; Arbelaez v. Just Brakes Corp. , 1 4 9 S

. W .3d 717, 723 (Tex. App.—Austin 2004, no pet.) (“J ust Br akes cites two case s for the pr oposition that an employ er’ s reimburse ment of g as money to an employ ee does not cre ate a fac t issue on course and scope of employ ment. These

case s, t o o, are easily distinguishable in that they involve employ ees commuting to or from work, wher e the reimburse ment of g as money was the only fac t o r supporting a contention that the employ ee was within the course and scope of employ ment.”). Otherw ise, an employ ee whose fuel

was paid for by his employ er would always be acting within the course and scope of his employ ment during ever

y commute, eve n if his actions during the commute we re c ompletely outside the scope of his authority

and the r equire ments of his employ ment. The ultimate question in deter mining whether P al m at ee r was acting in the course

an d s co p e of his authority is whether Palmateer was “wa s acting within the scope of his g eneral
7authority in further ance of [Enerpipe’s] business and for the acc omplishm ent of the object for which

[ P al mateer ] was hired.” See Painter , 2018 WL 2749862, at *7. Nothing in the rec ord b ef o re u s indicates that Enerpipe hired Palmateer to transp o rt p eo p l e betwee n work and home or that Palmateer was fulfilling any function for Enerpipe or acting within the scope of his authority when he dec ided on his own to show an old frie nd a future work sit e af ter c oncluding their day ’s work. 2
There fore , we conclude that Her vey failed to prese nt any evidenc e that Palmateer was acting in the

course and scope of his employ ment at the time of the collision—an essential element of his claim
ag ainst Enerpipe

. Acc ordingl y , we h old that the trial court did not err in g ranting Enerpipe ’s noevidenc e motion for summary judgme nt, and we overr ule Herv ey ’s second throug h six th issues.
Moreove r, beca

use this holding require s us to aff irm the trial court’s judgme nt, we need not addre ss Her vey ’s first issue, which c oncer ns Enerpipe ’s traditional motion for summary judgme nt.

CONCLUSION We affir m the trial court’ s final summary judgme nt.

Her vey arg ues that Palmateer was eng ag ed i n a “spec ial mission” at the time of the 2 collision. Texas courts have rec og nized an exception to th e gen er al ru l e that an employ er is not liable for the acts of its employ ees while trav el i n g to and from work “whe n an employ ee has underta ken a specia l mission at t he direction of hi s employ er or is otherwise performing a service in further ance of [hi s] employ er’ s business with the express or implied approva l of [hi s] employ er.” Painter v. Ame rimex D rilli ng I, Ltd. , No. 16-0120, 2018 W L 2749862, at *7 (Tex . Apr. 13, 2018) (cle aned up). As discussed above, Her vey prese nted no evidenc e that Enerpipe direc ted Palmateer to show Hobbs the future work site or that Her vey ’s decision to briefly show Hobbs the site further ed Enerpipe ’s business with Enerpipe ’s express or implied approva l. Acc ording ly , we reje ct Her vey ’s arg ument that the trial court err ed in deny ing Enerpipe ’s no-evide nce summary -judg ment motion on the basis of the “ specia l missi on” doctr ine. 8__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med Filed: Aug ust 1, 2018

9