## NUMBER 13

- 1 8

- 002 36

- CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRIST I

– EDINBURG

MICHAEL A. GARZA

, Appellant,

v.

WELL MED MEDICAL MANAGEMENT, INC., Appellee.

On appeal from the County Court at Law No. 3

of Nueces County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Justice Perkes

Appellant Michael A. Garza sued a ppellee Well Med Medical Management, Inc.

( Well Med ) for personal injuries suffered in a collision with Joanne Garcia, an employee

of Well Med

, asserting a cause of action for negligence under the doctrine of respondeat2

superior. The trial court granted a traditional motion for summary judgment in favor of

Well Med , which Garza contests i n his sole issue on appeal

. We affirm.

I. B ACKGROUND

On or about October 27, 2015, Garcia ’ s vehicle struck a vehicle occupied by

Garza. Garza claims that Garcia told him shortly after the collision that she had been

reviewing papers for her employer, Well Med

, while she was driving

.

Garza filed suit against Garcia

, alleging that her negligence proximately caused

the accident, and against Well Med under the doctrine of respondeat superior, alleging

that Garcia had acted in the course and scope of her employment. Following an answer

and general denial, Well Med filed a traditional motion for summary judgment

, asserting

that Garcia was not acting in the course and scope of her employment at the time of the

accident. Well Med ’ s summary judgment evidence included Garcia ’ s deposition and

sworn affidavit.

During her deposition, Garcia stated that when the accident occurred : she was

traveling from home to work in her personal vehicle; she had not been running an errand

or executing any duties on behalf of Well Med ; she was in no way compensated for her

t ravel by Well Med; and Well Med did not dictate the route she took. Garcia claimed sole

responsibility for the accident :

Q. Okay. can you tell me in your own words, how the accident

happened?

A. It was a very busy day. We were driving down [

— ] there ’ s a two lane

road headed towards Crosstown. Actually, [I] went over the

intersection, and I saw the flow of vehicles driving. And I do

remember looking down, and then I looked up, that ’ s when I hit him.

. . . .3

Q. Okay. You said just before the accident you were looking down?

A. Uh

- huh. I had

— I don ’ t know if I had a newspaper or papers on my

car. I usually check my mail every day, so I don ’ t know what I had on

my car. I just know they were sliding forward, and I reached over to

stop those.

Q. Okay. You were checking your mail, you said?

A. No, no, no, no. I wasn ’ t checking my

— I usually check my mail

everyday before I leave for work.

. . . .

Q. Okay. So as you sit here today, you can ’ t tell me exactly what papers

you were looking at, at the time you were looking down before the

accident?

A. I didn ’ t look at them, I reached over because they were falling off the

seat

—

Q. Okay.

A.

— so I reached to stop them from falling off the seat, and that ’ s

—

Q. But you don ’ t remember what kind of papers those were?

A. No

.

. . . .

Q. Do you know if they were Well Med papers?

A. No, sir.

Q. Okay. No, you don ’ t know or they

—

A. No. They weren ’ t Well Med papers.

Q. Okay.

A. No. Not that I recall.4

Q. Okay. So let me go back to the accident a little mor e, and ask you

who ’ s at fault in causing the accident?

A. I was at fault.

With respect to Garcia’s employment duties, Garcia stated that though Well Med

authorized Garcia to work from home and outside of normal working hours, “ after hours ”

work was not reported, and any work completed was at the employee ’ s discretion. Well

Med has also never explicitly disapproved of Garcia working under certain out

- of

- office

conditions:

Q. And Well[]Med has never told you, and it ’ s rare that you hear an

em ployer say it: “ Don ’ t you dare work an extra minute past 5:00

p.m.?

A. No, sir.

Q. They never told you that?

A. No.

Q. Okay. And do they ever say, “ Don ’ t you dare do any work at your

house ” ?

A. No, sir.

Q. Have the y ever said to you, “ Don ’ t you dare do any work in your car ” ?

A. No, sir.

Garza argued that Garcia ’ s statement made to him shortly after the collision that

she was “ looking at paperwork for work ” prior to impact, combined with her deposition

statements that Well Med allowed her to work outside office hours, evidence s that she

was acting in the course and scope of her employment at the time of the accident

.

The trial court granted Well Med ’ s motion for summary judgment. This appeal

followed.5 II. S UMMARY J UDGMENT

A. Standard of Review

We review de novo a trial court ’ s granting of a motion for summary judgment

. Fort

Worth Transp. Auth. v. Rodriguez

, 547 S.W.3d 830, 837 (Tex. 2018) ; Dorsey v. Raval

,

480 S.W.3d 10, 18 (Tex. App.

— Corpus Christi

– Edinburg 2015, no pet.). The movant in a

motion for summary judgment has the burden to show that there is no genuine issue of

material fact and that the movant is entitled to judgment as a matter of law. T EX

. R. C IV

.

P. 166 a (c); Painter v. Amerimex Drilling I, Ltd.

, 561 S.W.3d 125, 130 (Tex. 2018). If the

movant carries this burden, the burden shifts to the non

- movant to raise a genuine issue

of material fact precluding summary judgment. Lujan v. Navistar, Inc.

, 555 S.W.3d 79, 84

(Tex. 2018) (citing Centeq Realty, Inc. v. Siegler

, 899 S.W.2d 195, 197 (Tex. 1995)). In

deciding whether a genuine issue precludes summary judgment

, we must treat all

evidence favorable to the non

- movant as true and indulge every reasonable inference

and resolve all doubts in its favor. Lightning Oil Co. v. Anadarko E&P Onshore, LLC

, 520

S.W.3d 39, 45 (Tex. 2017).

B. Applicable Law

Under the doctrine of respondeat superior, “ an employer is vicariously liable for its

employee ’ s negligent acts if those acts are within the course and scope of his

employment. ” Painter

, 561 S.W.3d at 131. In the “ course and scope of employment ”

means “ within the scope of the employee ’ s general authority in furtherance of the

employer ’ s business and for the accomplishment of the object for which the employee

was hired. ” Id. (quoting Goodyear Tire & Rubber Co. v. Mayes

, 236 S.W.3d 754, 757

(Tex. 2007)). Additionally, the employee ’ s act must be of the same general nature as, or6

incidental to, authorized conduct. Id. In other words, if an employee deviates from the

performance of her duties for her own purposes, her employer is not responsible for what

occurs during that deviation. Id.

In the context of a vehicle collision

, “ employers generally are not liable for

accidents involving their employees while the employees are traveling to and from work

. ”

Ten Hagen Excavating, Inc. v. Castro

- Lopez

, 503 S.W.3d 463, 476 (Tex. App.

— Dallas

2016, pet. denied) ; see, e.g.

, Gant v. Dumas Glass & Mirror, Inc. , 935 S.W.2d 202 , 212

(Tex. App.

— Amarillo 1996, no writ) ( finding that defendant was not in course and scope

of his employment at the time of collision when “ evidence revealed that [the defendant]

was

. . . eating lunch en route to work ” ) ; J & C Drilling Co. v. Salaiz , 866 S.W.2d 632 , 637

(Tex. App.

— San Antonio 1993, no writ) ( holding that evidence was not sufficient to raise

an issue of course and scope of employment when the “ accident occurred as [the

defendant] was returning from his personal errand

, ” despite evidence that he was on

- call

24 hours a day and was driving his company vehicle ); Wilson v. H.E. But t Grocery Co

.,

758 S.W.2d 904, 907 (Tex. App.

— Corpus Christi

– Edinburg 1988, no writ) ( providing that

the employer was entitled to summary judgment where facts indicated the employee had

completed her work and was driving home in her own vehicle when the accident

occurred).

Courts , however, have recognized a general excepti on to the traveling to and from

work rule where “ an employee has undertaken ‘ a special mission at the direction of his

employer ’ or is otherwise performing ‘ a service in furtherance of [his] employer ’ s business

with the express or implied approval of [his] employer. ’” Painter

, 561 S.W.3d at 1367

(quoting J & C Drilling Co.

, 866 S.W.2d at 636 ; Gebert v. Clifton

, 553 S.W.2d 230, 232

(Tex. App.

— Houston [14th Dist.] 1977, writ dism ’ d)).

C. Analysis

Neither party disputes that Garcia is an employee of Well Med

. The parties,

however, disagree whether she was acting in the course and scope of her employment

at the time of the collision.

Well Med present ed evidence that : (1) Garcia was driving from home to work in

her personal vehicle ; (2) Garcia ’ s job responsibilities had not yet begun ; (3) Garcia was

not in the course of regularly or specifically assigned duties ; and ( 4 ) Well Med did not

control any manner or means of Garcia ’ s transportation. Painter

, 561 S.W.3d at 139 ( “ [A]n

employee is generally not acting within the scope of his employment when traveling to

and from work

. . . . However, we also recognize an exception when such travel involves

the performance of regular or specifically assigned duties for the benefit of the

employer. ” ). Conversely, Garza relie d on Garcia ’ s statement made to him after the

accident that she was “ looking at paperwork for work ” at the time

— coupled with her

deposition concession s that her job as a senior marketing specialist required her to review

documents and that she was not prohibited from w ork ing outside of the office or outside

of normal working hours

— as evidence of Well Med ’ s implied approval of her actions

.

Accepting Garza ’ s evidence as fact, see Lightning

, 520 S.W.3d at 45, there

remains no evidence that Garcia ’ s alleged actions

— “ looking at paperwork for work ” while

en route to work

— was a “ regular or specifically assigned dut [y]

. ” See Painter

, 561 S.W.3d

at 131. Moreover, this case is distinguishable from cases cited by Garza, in which8

employees exercised said duties as dictated by their employers

. 1 For example, in

Arbelaez v. Just Brakes Corp.

, our sister court reversed a trial court ’ s summary judgment

in favor of the employer where the evidence indicated that at the time of the car accident,

the defendant was “ on the clock

, ” he had been directed by a supervisor to pick up

breakfast for co

- workers, the “ breakfast run ” was a daily routine, and he was paid gas

money weekly to run this errand

. 149 S.W.3d 717, 718 (Tex. App.

— Austin 2004, no pet.);

s ee Laverie v. Wetherbe

, 517 S.W.3d 748, 753 (Tex. 2017) (noting the traditional scope

of

- employment analysis in respondeat

- superior cases “ concerns only whether the

employee is discharging the duties generally assigned to her ” ) ; s ee also

, e.g.

, Mayes

,

236 S.W.3d at 757 ( holding that summary

- judgment evidence was insufficient to raise a

fact issue regarding course and scope of employment when employee was on a personal

errand, driving the company truck loaded with company products for delivery, was

available via pager twen ty

- four hours a day, and was not restricted from using truck for

personal business )

. Here, the evidence did not show that Well Med , in authorizing Garcia

to work from home or after hours , also authorized, asked, or directed Garcia to review

documents while driving, nor did it show that Well Med was even aware of her actions

.

1 In his brief, Garza cites past cases in which we held that

w here a servant is permitted, at his own discretion, to mix his own private affairs with those

of the master, or even to attend to both at substantially the same time, the courts will not

undertake to make nice distinctions and fix with precision the line that separates the act of

the servant from the act of the master.

Gilgon, Inc. v. Hart

, 893 S.W.2d 562, 568 (Tex. App.

— Corpus Christi

– Edinburg 1994, writ denied) (citing

Smith v. Koenning

, 398 S.W.2d 411, 417 (Tex. App.

— Corpus Christi

– Edinburg 1965, writ ref ’ d n.r.e.) ). But

the Texas Supreme Court has more recently held : “ [I] f an employee deviates from the performance of his

duties for his own purposes, the employer is not responsible for what occurs during that deviation. ” Painter

v. Amerimex Drilling I, Ltd.

, 561 S.W.3d 125, 131 (Tex. 2018) ; see Goodyear Tire & Rubber Co. v. Mayes

, 236 S.W.3d 754, 757 (Tex. 2007); see also Grogan v. Elite Metal Fabricators, Inc.

, No. 02

- 18

- 00048

- CV,

2018 WL 6424216, at *6 (Tex. App.

— Fort Worth Dec. 6, 2018, no pet.) (mem. op.) (acknowledging the

court ’ s “ long history of absolving a corporation of negligence when its employee embarks on a frolic of his

own ” ).9

We have found no authority, and Garza provides us with none, to support a finding of

implied acquiescence of specific conduct

— working while driving

— base d on an

employer’s prior authorization of only tangentially

- related conduct, namely, working past

5 p.m. or working from home.

Absent evidence of a genuine issue of material fact , we conclude that the trial court

did not err in granting summary judgment to Well Med on Garza ’ s claims of liability under

the respondeat superior doctrine

. See T EX

. R. C IV

. P. 166a (c). We overrule Garza ’ s sole

issue on appeal.

I I I. C ONCLUSION

We affirm the trial court ’ s judgment.

GREGORY T. PERKES

J u stice

Delivered and filed the

5th day of March , 2020.