Reversed and Remanded and Opinion filed September 6, 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
2

O P I N I O N

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 

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.
3

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

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.

 

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

point.
4

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 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 

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 nonmovant’s favor. Nixon, 690 S.W.2d at 548-49.
5

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 

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 
6

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 

“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.
7

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 

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”
8

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 

“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 
9

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 

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 
10

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 regarding 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 errand is shown.” Shelton, 389 S.W.2d at 293; see also Zurich Am. Ins. Co., 339 

S.W.3d at 731-32.

3

 

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.

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 
11

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.

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, 

 

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.). 
12

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 

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 
13

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 

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 

 

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 

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).
14

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.

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, 
15

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 

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.
16

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 

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 
17

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 

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 
18

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 

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.” 
19

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 luncheating 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 

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 
20

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 

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 
21

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 afterhours 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 Midwesternowned 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 

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 
22

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 

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.
23

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 workrequired 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. 

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 
24

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. The 

claimants asserted that their supervisor determined they would eat at the Town &

Country.

5

 Texas Mutual points to testimony indicating the claimants could exercise their 

 

5 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 
25

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 

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.6

 

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.

6

Senior Justice Margaret Garner Mirabal sitting by assignment.