Th is op inion is sub j ect to rev ision b efore final p u b lication in th e Pacific Rep orter
2014 UT 23

I N TH E 

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## C O U R TO FT H E 

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## U T A H

D ANA D

. C O LV I N and S HA W N C OLV I N Plaintiffs and Appellants,

v. J OS E PH G I GUE RE, Defendant and Appellee.

No. 20120809 Filed June 20, 2014

Four th Distr ict, S p anish For k The Honor a ble Donald J. Eyr e, Jr

.

No. 110300141

Attor n eys: Kent A. Higgins, Pocatello, ID for appellants
Richar d K. Glauser , Michael W. Wr i ght, S andy, for appellee

J UST I CE P ARRI SH

author ed the opinion of the Cour t, in which C H I E F J UST I C E D URR ANT, A SS O C I AT E C H I E F J UST I C E N E H RI N G, J UST I C E D U R

HAM , and J UST I CE L E Ejoined.

J UST I C E P ARRI SH, opinion of the Cour t :

INTRODUCTION ¶ 1 While r etur ning to Utah fr om a wor k p r oject in Mar yland, Kelly Colv in was killed in an automobile accident. Joseph Giguer e, Colv in’s c owor ker
, w as dr i v ing t h e v ehicle in which Colv in was a p a s s e n ger w hen the accident occur r ed. Colv in’s widow and s o n br ought this action against Gigue re, ar guing that Giguer e’s negligence caused the accident

. The distr ict cour t gr a nted summary judgment in fav or of G iguer e, r uling that the accident occur red in the cour s e of Colv in and Giguer e’s employ m e nt, r e n der ing wor ker s’ compensation the Colv ins’ exclusiv e r emedy. The Colv ins appeal. ¶ 2 Although employees ar e gener ally not w i t hi n the cour s e of their employment while tr av eling to or fr om their p l a ce of wor k, Giguer e and Colv in wer e not mer ely commuting dur ing their r etur n tr ip fr om Mar yland, but wer e on a special er r and for their employer

. Because the accident that killed Colv in occur r ed while he and Giguer e wer e car r ying out the spe c ial er r and, wor ker s’ compensa-C O LV I N v

. G I G UE R E Opinion of the Cour t

tion i s the Colv ins’ exclusiv e r emedy. We ther efor e affir m summary judgment dismissing the Colv ins’ suit.

FACTUAL AND PROCEDURAL BACKGROUND ¶ 3 K e l ly C o l v i n a nd J o s e p h Gi guer e w er e emplo y e e s o f Adv a nce d M illwor k Installation (Adv anced), a custom millwor k company located in Lehi, Utah. Colv in had w or ked for Adv anced since 2006 and acted as Adv anced’s for eman. In August of 2009, Adv a nced sent Colv in and a second employee to Vir ginia and Mar yland to complete two cabinet-installation pr ojects. Colv in and the second employee d r o v e to Vir ginia in a v an owned by Adv anced’s owner , Richar d Thompson. The v an had Adv anced’s logo pr inted on it, and Adv anced paid fo r t h e van’s insur ance and claimed either the v an’s mi leage or its depr eciation as a business expense. Colv in was the only scheduled dr i v e r on the v an’s insur ance policy, and Thompson allowed Colv in to d riv e the v an f or both business and per sonal use. ¶ 4 A f t e r a b o u t a m o n t h o f w o r k i n g o n t h e Vi r g in ia a n d Mar yland pr ojects, the second employee quit. Adv anced then sent Giguer e to Vir ginia to assist i n completing the pr ojects. At some point pr ior to depar ti ng f o r o r after r etur ning fr om the E a st Coast pr ojects, Giguer e signed an employmen t contr act w ith Adv anced, which pr ov i ded i n par t tha t A d v a n c e d would pay for the fuel and
t ime it takes an employee to tr av el to a n out-of-town job s i t e , b u t would not pay for the time it takes to tr av e l b ack fr om the job site. Consistent with the contr act, Adv a nced paid for Giguer e t o fly to Vir ginia but had not made explicit plans f or Giguer e’s r etur n tr ip to Utah once the pr ojects wer e completed. T hompson testified, howev er , that he had a lways intended f or Giguer e to r etur n to Utah with Colv in in the company v an. ¶ 5 S h or tly befor e Colv in and Giguer e finished the Mar yland pr oject, Thompson called Colv i n a n d asked him if he w ould be willing to fix some pr obl e m s o n an Adv anced pr oject in S panish For k, Utah, befor e r etur ning to his home in P ocatello, Idaho. Colv in agr eed. Ther eafter h e and Thompson decided that Colv in and Giguer e would d r i v e to Utah together , that Colv i n w ould dr op off Giguer e at his home in S pr ingv ille, Utah, and th a t C o l v i n would then head to S panish For k to complete the Adv anced pr oject befor e dr iv ing home to Pocatello. ¶ 6 O n October 11, 2009, a t a r o u n d t h r e e o ’ c l o c k i n t h e

mor ni n g, Colv in and Giguer e finished the pr oject in Mar yland. Appr oximately two hour s later
, they began their r etur n tr ip to Utah.

2Cite as: 2014 UT 23 Opinion of the Cour t

To facilitate a quick retur n, Colv in instr ucted Giguer e t h a t they would dr iv e s tr aight thr ough to Utah without stopping to r est and that each w ould take tur ns dr iv ing while the other slept. At 4:36

a.m. on October 12, 2009, Giguer e was dr iv ing thr ough Kansas while Colv in was sleeping in the passenger seat. G iguer e testified that he thought h e s aw something the size of a lar ge dog enter i n g t he highway in fr ont of the v an and swer v ed to miss it, causing the van to r oll one-and-a-half times befor e landing on the dr iv er ’s side in a ditch. The police accident r epor t ind i c a t e s t hat it had b een lightly

r a in ing and that the r oad was w et when the accident occur r ed. Colv in was fatally injur ed in the accident. ¶ 7 I n N ov ember of 2009, Giguer e submitted a n a p p l i c a t i o n f o r bene fi t s w i th A u t o

- O w ne r s Insur ance Company ( Auto-Owner s ), the company that insur ed Adv anced’s v an, to cov er his accident-r elated medical expenses. On the application, Gigu e r e a n s w er ed “no” to the question of whether he was in the cour se of his employment at the time of the accident. Mr s. Colv in also filed a claim with the insur

ance pr ov ider

. Auto-Owner s d enied Mr s. Colv in’s c laim after concludin g that her husband’s death was a wor k-r elated injur y

cov er ed under wor ker s’ compensation. In Mar c h 2010, Thompson pr epar ed and submitted wor ker s’ compensation claims on behalf of both Giguer e and Mr s. Colv in. ¶ 8 T h e W o r k e r s C o m pe n s a t i o n F u n d ( W C F ) a c c e p t e d Mr s

. Colv in’s claim as v ali d a n d o n Mar ch 18, 2010, tender ed her

wor ker s ’ compensation benefits. But Mr s

. Colv in, under the adv ice of counsel, r efused the tender “ pending final r esolution of planned civ il litigation against [Giguer e].” Ov er one year l a t er , the W CF infor med Mr s. Colv i n by letter that the fund “had been giv en the go ahead by [Mr s. Colv in’s counsel] to pr oceed with the pr ocessing of benefits.” Mr s. Colv in h as b een r eceiv i ng monthly wor ker s’ compensation benefits since that date. 1 ¶ 9 On Febr u ar y 15, 2011, the Colv ins filed their complaint in this m atter

. T h e complaint alleged that Colv in’s d eath was pr oximately c a used by Giguer e’s negligent dr iv ing. After some discov

er y, Giguer e filed a motion f or summary judgment, ar guing that he and Colv in wer e coemployees in the cour se of their employment at the time of the a ccident and that the exclusiv e remedy pr ov ision of the Wor ker s’ Compensation Act bar r ed this suit. See U TAH C O D E

1 The r ecor d does not r eflect whether Auto-Owner s or the W CF accepted Giguer e’s applications forbenefits.

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. G I G UE R E Opinion of the Cour t

§ 34A-2-105. The C o lv i n s filed a cr oss motion for summary judgment on the s am e i s s u e

. They ar gued that, because G i guer e was dr iv ing home at the time of the a ccident, h e w as not in the cour se of his employment and the exclusiv e r eme d y pr ov ision does not apply. ¶ 10 Following a hear ing, the distr ict c our t gr a n t e d Giguer e’s motion for summary judgment and denied the Colv ins’ motion. It

r ecognized that Utah cour ts hav e adopted the going-and-coming

r ul e , which pr ov ides that wor ker s’ compensation does not cov er accidents that occur while employees ar e coming to or going home fr om their wor kplace. But i t r u led that two exceptions to the r ule apply in this c a s e

. S p ecifically, the distr i ct cour t held that Colv in

a n d Giguer e f ell “squar ely within” the special er r a nd an d t h e continuous c o v e r age exceptions to the going-and-coming r ule and ther efor e “would hav e been consider ed to be within the c our se and scope of their employment” at the time of the accident. The distr ict

cour t ther eafter d ismis s e d the suit, r uling that the Wor ker s’ Compen s a t ion Act’s exclusiv e r emedy p r ov ision bar r ed the Colv ins’ negligence action against Giguer e. ¶ 11 The Co l v i ns a p p e a l

. T h e y ar gue that the d i str ict cour t

er r ed in r u ling that Giguer e and Colv in wer e i n the cour se of their employment a t the time of the accident. We d isagr ee and ther efor e affir m the distr ict cour t’s or der di s missing this suit. We hav e jur i sdiction pur suant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW ¶ 12 In this case, the distr ict cour t r uled on summary judgment that Colv i n and Giguer e wer e on a special er r and for their employer
at the time of the accident. S ummar y judgment is appr opr iate only when “ ther e is no genuine issue as to a ny m a t e r i al fact and

. . . the

mov ing par ty i s entitled to a j udgment a s a matter of law.” U TAH R. C I V

. P. 56(c). Because entitlement to summary judgment is a m atter of law, we r ev iew a summary judgment for cor r ectness, giv i n g no defer ence to the distr ict cour t. Nyman v. Anchor Dev., L.L.C. , 2003 UT 27, ¶ 7, 73 P.3d 357. We also “ v i e w t h e f a cts and all r easonable in f e r e nces dr awn ther efr om in the light m ost fav or able to the

nonmov ing par ty

. ” Id. (inter nal quotation mar ks omitted). Ev en wher e the “under lying objectiv e facts” ar e not in dispute, summary judgment may not be a ppr opr iate wher e the infer ences dr awn fr om the under lying facts ar e disputed. TSC Indus., I nc. v. Northway, Inc. , 426 U.S

. 438, 450 (1976). Howev er , summary judgment will still be appr opr iate if “r easonable minds cannot differ ”as to the infer ences to be dr awn fr om the undisputed facts. Id.

4Cite as: 2014 UT 23 Opinion of the Cour t

ANALYSIS ¶ 13 The Wor ker s’ Com p e nsation Act (WCA or Act) pr ov ides that compensation under the Act is an employee’s or an employee’s family or heir s’ “ exclusiv e r emedy against the em p l o y er

. . . [and any] employe e o f t h e e mployer

. . . on a ccount of any a ccident or injur y or death” sust a i n e d b y the employee “in the cour se of or b e c ause of or a r ising out of the employee’s employment, and a n action at law may not be maintained a g a i nst an employer or

. . . [any] employee of the employer based upon any accident, injur y, or death of an employee.” U TAH C OD E § 3 4A-2-105(1). The WCA itself does not d efine the phr ase “in the cour se of or because of or ar ising
out of” an employee’s employment. H owev er , o u r c a se law has consider ed whether v ar ious wor k-r elated activ ities ar e “ w ithin or beyond a per s o n’s ‘cour se of employment,’” and w e hav e dev eloped
tests to assist i n m a k i n g such deter minations. Jex v. Utah Labor Comm’n , 2013 UT 40, ¶ 17, 306 P.3d 799. ¶ 14 One s uc h t e s t i s t h e g o i n g

- a n d

- c o m i n g r u l e , w h i c h

r ecognizes that “tr av eling to and fr om wor k i s [gener a lly] not par t of the employm ent and is not c ov er ed by Wor kmen’s Compensation.” Lundberg v. Cream O’Weber/Federated Dairy Farms, Inc. , 465 P.2d 175, 176 (Utah 1970). We hav e , h o w e v er , r ecognized c er tain cir cumstances under which employees tr av eling to or fr om wor k ar e in the c our se of their employment, and a n accident occur r ing under these cir cumstances w ill be within the scope of the WCA’s cov er a ge. In this case, the distr ict cour t concluded that two s uch exceptions 2 to the going-and-coming r ule apply. S p ecifically
, i t held that Colv in and G iguer e wer e on a speci a l e r r a nd f or their employer d u r ing their

r etur n dr i v e fr om the East Coast and w er e ther efo r e within the

cour se of their employment at the time of the accident. See State Tax Comm’n v. Indus. Comm’n of Utah
, 685 P.2d 1051, 1054– 55 ( Utah 1984) (defining the special er r and exception). The distr i ct cour t also held that b ecause Colv in and Giguer e’s wor k entailed tr av el away fr om

2 We agr ee with the Ar kansas S upr eme Cour t that “[t]he ‘going

a n d coming’ r ule is best v iewed as an analytical tool” that i s “subor dinate to the pr eeminent consider ation, which i s whether the employee was dir ectly or indir ectly adv an c in g t h e inter ests of the employer at the time of the injur y.” Moncus v

. Billingsley Logging & Am. Ins. Co. , 235 S .W.3d 877, 881– 8 2 (Ar k. 2006). Ther efor e, the socalled exceptions to the going-and-coming rule simply descr ib e situations in which an employee’s jour n ey to or fr om his place of

wor k adv ances the inter ests of his employer

.
5C O LV I N v

. G I G UE R E Opinion of the Cour t

their employer ’s pr emise, they fell within the continuous cov er age exception, r ender ing them “within the cour se of their employment continuously dur ing the tr ip” to and fr om Utah. Buczynski v. Indus. Comm’n o

f Utah
, 934 P .2d 1169, 1173 ( U t

. C t

. A pp. 1997) (inter nal quotation mar ks omitted). Based on these two excepti o ns , t h e distr ict cour t held that Giguer e was i mm un e f r om suit under the WCA’s exclusiv e r emedy pr ov ision. ¶ 15 T h e C o l v in s c o n t e n d that the distr ic t c o u r t e r r e d i n applying the exclusiv e r emedy p r ov ision. They fir st ar gue that the distr ict cour t dismissed “ t o o s w i ftly” the r elev ance of the wr itten
contr act between Giguer e and Adv anced in deter m ining whether Gig u e r e w a s in the cour se of h is employment at the time of the accident. The Colv ins r ely on a pr ov ision of Giguer e’s employment
contr act that states, “ Adv anced

. . . w ill pay for fuel and the time it takes to dr iv e to [an out-of-town] job site,” but “doesn’t pay for the time it takes t o d r iv e b a ck.” B ecause Giguer e was not being paid dur ing the retur n tr ip, the Colv ins a r gue he could not hav e been in the cou r s e o f h i s employment. The Colv ins a lso a r gue that ev en if Giguer e’s employment contr act is not contr olling, the distr ict cour t

er r ed in holding that the special er r and a nd continuous cov er age exceptions to the going-and-coming r ule apply in this case. ¶ 16 We uphold the d i s t r i c t c o u r t ’ s d e ter m ination that both Giguer e and Colv in wer e in the c o ur se of their employment at the time of t he accident. 3 Notwithstanding the language of Giguer e’s

3 Und e r the plain language of the WCA’s exclusiv e r emedy pr ov ision, it c ould be ar gued that the “in the cour s e of or because of

or ar ising out of” clause r efer s to the injur ed employee (in this case Colv in) b ut not the fellow employee (in this c ase Giguer e). See U TAH C O D E § 3 4 A

- 2

- 1 05(1) (pr ov iding that the WCA is an injur ed

e m ployee’s exclusiv e r emedy against any fellow employee for a n accident that occur r ed in the cour se of or because of or ar ising out of the injured employee’s employment). In other wor ds, to be immune fr om suit, Giguer e n e e d not show that he was in the cour s e of his employment a t the time of the accident, but r ather only that he met the statu tor y definition of “employee.” See id. § 3 4A-2-104(1)(b) (defining “ employee” as “a p er son in the ser v ice of any employer

. . . under any contr act of hir e”); see also Kobak v. Sobhani
, No. 94764, 2011 WL 94496, at *3 ( Ohio Ct. App. Ja n

. 6 , 2 011) ( a pplying a similar

wor ker s ’ c ompensation statute and explaining that, t o r eceiv e the (continued...)

6Cite as: 2014 UT 23 Opinion of the Cour t
employment contr act, Giguer e and Colv in wer e e n g a ged in the impor tant activ ity of r etur ning Adv anced’s assets to Utah. Fur ther

mor e, Giguer e was assisting Colv in i n the o n e r o us t ask of dr iv ing

acr o s s the c ountr y s o that Colv in could ar r i v e a t the S panish For k pr oject m or e q u i c k ly

. Ther efor e, Colv in and Giguer e wer e on a special er r and for their e m p l o y e r a nd wer e in the c our se of their employment at the time of the accide n t

. 4 B ecause we hold that Giguer e and Colv in wer e in the c our se of their employment under the special er r a n d exception, w e need not consider whether the continuous cov er age exception also applies.
I. GIGUERE’SEMPLOYMENT CONTRACT IS NOT DIS POS ITIVE OF WHETHER HE WASIN THE COURS E OF HISEMPLOYMENT AT THE TIME OF THE ACCIDENT ¶ 17 W e f i r st a d d r e s s t h e C o l v in s’ ar gument that whethe r G iguer e was in the cour se of his employment at the ti m e o f t h e

a c c i dent “hinges on [his] employment contr act.” The Colv ins r ely

on the pr ov ision of Giguer e’s employment contr act that denied him pay for time spent r etur ning fr om an out-of-town jo b a n d r eason that, because Giguer e w as not being paid at the time of the accident, he was not in the cour se of his employment. ¶ 18 A l t h o u g h contr ac t u a l p r o v i s io n s ma y b e r e l e v a n t i n assessing w or ker s’ compensation c ov er age, they ar e not necessar i ly deter min a t iv e. Rather
, the par ties’ actual dealings ar e the best

3 (...continued) pr ot e c tion of the exclusiv e r emedy pr ov ision, a fellow employee need not show that h e was in the cour se of hi s e m ployment at the time of an accident, b u t o n l y that he was an employee of the employer at that time). Because n either par ty has r ais e d this

ar gument and because we conclude that Giguer e s atisfies the m or e demanding bur den of showing that b oth he and Colv in wer e in the

cour se of their employment at the time of the accident, we need not under take this analysis.

4 W e note that Mr s. Colv in’s r eceipt of w or ker s’ compensation benefits is consistent with our holding that Colv i n was i n the cour s e of his employment at the time of the acci d e n t

. A s we explained in Stamper v. Johnson
, “[b]y definition, if an employee [ or his family] is collecting wor ker s’ compensation benefits under the Act, his injur y

o c c u r r e d within the c our se of his employment because that is a pr er equisite to the r eceipt of benef it s

. ” 2010 UT 26, ¶ 1 6, 232 P.3d 514.

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ev idence of the scope of a wor ker ’s employment. See, e.g., Averett v. Grange , 909 P .2 d 246, 250 (Utah 1995) (“In w or ker s’ compensation
cases, the most i mpor tant factor in d eter mining w hether an employer -employee r elationship exists is not what r elationship the par ties i ntended to cr eate, but what r elationship w as in fact cr eated.”). ¶ 19 In Utah Home Fire Insurance Co. v. Manning , we wer e asked
t o d e t e r mi ne w h e ther an employment contr act that defined a wor k e r

as an independent contr actor was contr olling for wor ker s’ compensation pur poses. 1999 UT 77, 985 P.2d 243. Manning, a tempor ar y employee of a ge n e r a l c o n t r actor , was i njur ed on the job. Id. ¶ 3. After r eceiv i ng w or ker s’ compensation, Ma nning br ought a negligence suit against an allege d i ndependent c ontr actor , Gr een, who had also w or ked for the gener al contr actor

. Id. ¶¶ 2 –4

. Manning ar gued that the negligence action w as n ot bar r ed because Gr een , a s an i ndependent contr actor , did not hav e immunity fr om suit under the WCA’s exclusiv e r emedy pr ov i sion. Id. ¶¶ 5– 6. We disagr eed, explaining that when deter mining a w or ker ’s status, we consider not only “whatev er agr eements exist” between the wor ker and th e e mp l oyer , but also “the actual dealings between the p ar ties.” Id. ¶ 11. T h u s, despite a contr act pr ov ision def i n i n g Gr een as an independent contr actor , the actual dealings between Gr een and the gen e r a l contr actor manifested the existence of an employer -employee r elationship. Id. ¶ 15. And because Gr een and Manning wer e both employees of the gener al contr actor , Manning’s n egligence suit against Gr een was b ar r ed by the e x c l u siv e r emedy pr ov ision. Id. ¶¶ 18, 25. Manning thus makes clear that, although an employment
contr act m a y p r ov ide relev a nt infor mation r egar ding an employee’s duties and the par ameter s of the employment r elationship, i t cannot

ov e r r i de the actual facts a nd cir cumstances that deter mine the existence of that r elationship. ¶ 20 In this c ase, the r e l e v a n t c o nt r a c t p r o v i s ion states that Giguer e would not be p a i d f o r time spent tr a v eling home fr om an out-of-town job site. B ut the fact that Adv a nced had no contr actual duty to pay Giguer e dur ing his retur n tr ip is n o t dispositiv e of whether Giguer e w as within the cour se of h is employme n t dur ing such unpaid tr av el. Although pay for tr av el time “is one of the most

r eliable ways of making a case for the compensability of a going or coming tr ip,

. . . the fact that the employee i s not paid for tr av el time does not m ean that the tr i p was not in the cour se o f e m p l o yment.” 1 A R THU R L AR

S O N , L AR S O N’ S W O RKE R

S’ C OMPE N

SAT I O N L AW § 14.06[3] (2012).

8Cite as: 2014 UT 23 Opinion of the Cour t
¶ 21 Instead of r elying solely on ev idence of pay to deter mine whether tr av el time is within the scope of a wor ker ’s employment,

we look to othe r , m or e p er suasiv e factor s , such as whether the emp l o y er benefitted fr om the tr ip and the extent to w hich the tr ip

was c ontr olled by the employer

. See Jex v. Utah Labor Comm’n
, 2013 UT 40, ¶ 19, 3 06 P .3d 7 99. 5 And while r eceiv ing pay for tr av el time pr ov ides str ong ev i dence that a n employee’s tr ip w as under the
contr ol and for the benefit of the employer
, the lack of pay for such
tr av el does not necessar ily suggest that the employer n either benefitted fr om nor contr olled the tr av el. And the fact that an employment co ntr act, like the one in this case, explicitly contemplates extended tr av el tends to suppor t t h e c o nclusion that such
tr av el is for the benefit of the employer and i s th e r e f o r e within the scope o f the wor ker ’s employment. See Madden v. Mountain W. Fabricators
, 977 P .2d 861, 8 6 4 (Colo. 1999) (en banc) (including “whether the tr a v el was contemplated by the employment contr act”

as a factor i n d e t e r m ining whether such tr av el fits w ithin an exception to the going-and-coming r ule). ¶ 22 We ther efor e hold that the pr ov ision of Giguer e’s employment contr act denying pay for the time s pent retur ning fr om an outof-town job site is not dispositiv e of whether the accident that killed Colv in occur r ed in the cour se of Giguer e’ s e m p l oyment. 6 Instead,

we look to the cir c u mstances s ur r o u nd i n g the r etur n tr ip and conclude that it was within the scope of both Colv i n’s and Giguer e’s

5 In Jex v. Utah Labor Commission , we a nalyzed the instr umentality exception to the going-and-coming rule. 2013 UT 40, ¶ 1 9, 306 P.3d 799. G iguer e h as not ar gued for the a p plication of this excepti on, and n either par ty has b r iefed it. Ther efor e, while we do not r ely on Jex in this case, we acknowledge that t h e two key f actor s of the i n s t r u mentality exception—benefit and contr ol—ar e als o r e l e v a nt t o other exceptions to the going-and-coming r ule.

6 The Colv ins also r ely on the fact that Giguer e answer ed “no” to the question of whether he was in the c our se of his employment at the time of the accident on hi s a pplication for b enefits with AutoOwner s. But “ in the c our se of employment” is a statutor y ter m of

ar t, a nd we ca n no t i mpose on a ll employees the bur den of under standing the legal meaning of such a ter m. Like infor mation found in a contr act pr ov i s i o n, i nfor mation found in an application for benefits is less r elev ant to d eter min ing the scope of an employee’s employment than the actual facts and cir c u m s tances

sur r ounding an accident.

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employment beca u s e i t constituted a special er r and for their employer

. II. COLVIN AND GIGUERE WERE ON A S PECIAL ERRAND FOR THEIR EMPLOYER AND WERE THEREFORE IN THE COURS E OF THEIR EMPLOYMENT

AT THE TIME OF THE ACCIDENT ¶ 23 In State Tax Commission v. Industrial Commission of Utah , we descr i b ed a s pecial er r and as “‘[a]n act outside an e m p l oyee’s

r egula r d u t i es which is under taken in good faith to adv ance the employer ’s inter ests, w hether or not the employee’s own assigned

wor k is ther eby fur ther ed.’” 685 P.2d 105 1 , 1 0 5 4 ( U t a h 1 9 84) (quoting 1A A R THU R L AR

S O N , L AR S O N’ S W O RKME N

’ S C O MPE N

SAT I O N L A

W , § 27.00 ( 1982)). We held in St a t e T a x C o mmission that an employee who was dr iv ing to a job-r elated tr aining pr ogr a m was on a s pecial

er r a nd for her employer and was thus in the cour s e of her employment when she w as inv olv ed in an automobile accident dur ing that dr iv e. Id

. a t 1054– 55. We found it r elev a nt to the special er r and deter mination that, despite not r eceiv ing pay for her tr a v el time, the employee had p ar ticipated in the tr aining “with the knowledge and per mission” of her employer
, her employer “would hav e benefitted fr om h er tr aining,” and the winter d r i v e t o and fr om the tr aining

was “hazar dous” a nd “extr aor dinar y r ather than nor mally incident to the employment.” Id. ¶ 24 In D ra k e v

. In d u s trial Commission of Utah
, we ar ticulated thr ee factor s to be consider ed when deter mining whether a j our ney constitutes a s pecial er r and: (1) “ the relativ e r egular ity or unusualness of the p ar ticular jour ney,” (2) ”the r elativ e bur den or oner ousness of the jour ney on the employee” i n c om p a r i s on to “the extent of the task to be per for med at the end of the j our n ey,” and (3) “ the suddenness of t h e assignment fr om the employer .” 939 P.2d 177, 183– 84 (Utah 1997) (inter n al quotation mar ks omitted). ¶ 25 A p p l y i ng these factor s to this case, i t is clear that Colv in and Giguer e wer e on a speci a l er r and for Adv anced a t the time of the accident. Fir st, although Colv in and Giguer e had tr av eled to the East Coast to complete pr ojects that wer e par t of their r egular duties (i.e., cabinetr y wor k), the pr ojects wer e unusual in that Adv anced

w o r k e d m ainly in Utah and Idaho, and the East Coast pr oject s

r equir ed tr av el of a longer d i stance th a n a n y p r i o r Adv anced pr oject. ¶ 26 S econd, when consider i ng the oner ousness of the jour ney,

we take into account “not only the length of the jour ney, but also any other cir cumstances u nder whi c h it is made, e.g., conditions of

10Cite as: 2014 UT 23 Opinion of the Cour t

tr av el, time of day, or day of week.” I d. at 1 8 4. Extended ov er time

wor k pr ior beginning a tr ip is also r elev ant t o t h e o n er ousness inquir y. See 1 A R

THU R L AR

S O N , L AR S O N ’ S W O RKE R

S’ C O MPE N

SAT I O N L A W § 14.05[4] (2012) (explaining th a t the special er r and exception may apply w her e “the ov er time wor k extended so far into the night

as to tr ansfor m the jour ney home into a substantially mor e inconv enient or hazar dous tr ip”); Falls v. Union Drilling Inc. , 6 72 S .E.2d 204, 213 (W. Va. 2 0 0 8 ) (collecting cases that hav e inv oked the s pecial

er r a nd exception w her e “the tr i p was made danger ous d ue to the fact that ov er time or ir r egular hour s wer e requir ed to be wor ked”).

¶ 27 In this case, the jour ney back to Utah was oner ous not only because of its distance, but also b e c a u s e of the time of day (the j o u r n ey began at appr oximately 5:00 a.m. on October 11 an d continued until 4 : 2 6 a.m. on October 1 2 , when the accident occur r ed) and the pace of the tr i p (Colv in had r equested that he and Giguer e dr iv e str aight thr ough t o U t ah without s topping to rest). Fur ther

mor e, C o lv i n and Giguer e had wor ked an appr oximately s ixteenh o u r s h ift just pr ior to beginning the dr iv e home. S uch long wor k hour s and the resulting fatigue undoubtedly “made the homewar d
tr ip mor e hazar dous.” L AR S O N , supra , § 14.05[4]. ¶ 28 Finally, the sudde n n e ss of the tr i p home is m ade ev ident by the fact that the day befor e Colv in and Giguer e began the r etur n tr ip, Colv i n expr essed his n eed to r etur n q uickly to the S panish For k pr oject. It was at that point that Colv in instr ucted Giguer e that they would begin the dr iv e home immediately upon completing the Mar yland pr oject and that they would not stop to r est along the way. Ther efor e, although the r etur n jour ney was for eseeabl e in that Colv in and G iguer e knew that it would take place upon finishing the Mar yland pr oject, the decision r egar ding its specifi c timing and pace was made hastily. ¶ 29 I n a d d i t i o n t o s a tisfying the thr ee Dr a k e f a c t o r s , t h e cir cumstances sur r ounding Colv in and Giguer e’s dr iv e to Utah also
meet the State Tax Commission definition of special er r and in that the

r etur n tr ip adv a nced the inter ests of Colv i n a nd G igu e r e ’ s e mp loyer

. 685 P.2d at 1054. Fir st, the r etur n tr ip benefitted Adv a nced because Colv in and Giguer e wer e tr a nspor ting Adv anced ass e t s

— the

c o m p a ny v a n and Adv anced-owned tools—to Utah fr om the East Coast. See Haynes Guardian Sec. Bureau v. Jordan
, 520 P.2d 1050, 1051 (Colo. App. 1974) (explaining that “ the r esponsibility for custody of [an] employer ’s supplies and equipment and for tr a nspor ting these items

. . . pr ov ide[s] a substantial s e r v ice for [the] employer fr om

11C O LV I N v

. G I G UE R E Opinion of the Cour t

which the emplo y e r clear ly der iv e[s] b enefit”). Mor eov er , the decision to depar t immediately upon finishing the Mar yland pr oject and to dr iv e str a ight thr ough to Utah w as made to p r o mote Adv anced’s inter est i n hav ing Colv in r e t u r n t o Utah to complete the S panish For k pr oject as quickly as possible. ¶ 30 T h e C o l v in s a r g u e t h at although Adv anced may ha v e benefitted fr om Colv in’s r etu r n t r ip, Giguer e’s inv olv ement i n the
t r i p did not c ontr i bute to the b enefit because Giguer e was mer e l y catching a r ide home. Thus it was Giguer e, n ot Ad v a n c e d, who benefitted fr om Giguer e dr iv ing home with Colv i n. But “[f]inding

a benefit to the employee in the tr i p

. . . s h ould not b e decis i v e against compensability, if the elements of the special er r and r ule ar e satisfied.” L AR

S O N , supra , § 14.05[5]. Her e, the elements of a s pecial

er r a nd ha v e been met. Fur ther m or e, although Giguer e per sonally b e n e f it ted fr om dr iv ing home with Colv i n, Colv in and Adv anced also expected to r eceiv e a benefit fr om Giguer e’s assistance. Indeed, by shar i ng in the task of dr iv ing back to Utah, Giguer e was a dv ancing Colv in a nd Adv anced’s inter est i n completing the S panish For k pr oj e c t a s s o o n as possible. And “it would b e contr ar y not only to human natur e but to the employer ’s best inter ests” to claim that an employee is not within the WCA’s cov er age wher e he “under take[s] in good faith . .

. to assist a c o-employee i n the latter ’s p er for mance of his wor k.” Id. § 27.01[1],[2]. ¶ 31 B e c a us e A d v anced benefitted fr om b o t h C o l v i n’ s a n d Giguer e’s par ticipation in the tr ip to Utah, and because the tr ip was unusual, oner ous, and sudden, it satisfies the r equir ements o f the special er rand exception to the going-and-coming r ule. Wher e the infer ences d r a wn fr om the undisputed facts s o s tr ongly suppor t a finding that Colv in a nd Giguer e wer e on a special er r and, we conclude that r easonable minds could not differ on th i s issue. S ummar y judgment was ther efor e appr opr iate. We thus con clude that the distr i ct cour t cor r ectly held that the accident occur r ed in the

cou r s e o f b o th C o l v i n’ s and Giguer e’s employment and the exclusiv e

r emedy pr ov i sion of the WCA bar s this suit.

CONCLUSION ¶ 32 We affir m the distr ict cour t’s dismissal of this s ui t under the WCA’s exclusiv e r emedy pr ov ision. Although an employment

c o ntr act may b e r elev ant in defining the par ameter s of the empl o y e r

e mp l o y e e r e l a t i o n s h i p, it is n ot deter minativ e of whether a p ar t i c u l a r task ar ises out of or is per f or med i n the cour se of a wor ker ’s employment f or p ur poses of deter mining the existence of cov er age

12Cite as: 2014 UT 23 Opinion of the Cour t

under the WCA. The mer e fact that Giguer e’s employment c ontr act denied him pay for retur n tr av el time does not deter mine whether he was in the cour se of his employment while he was dr iv ing home fr om Mar yland. Instead, the actual facts a n d c i r cumstances

sur r ounding Colv in and Giguer e’s r etur n tr ip demonstr ate that the
two employees wer e on a special er r and for their emplo y e r

. We

accor dingly hold that they wer e in the cour se of their employment when the accident occur r ed and that this action i s bar r ed under the WCA’s exclusiv e r emedy pr ov ision.

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