## IN THE SUPREME COURT O F TEX AS

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. 14-0272

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### S E A 

### B R IG H T 

### I N S U R A N C E 

### C O M P A N Y 

### , P E T IT IO N E R 

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v . 

### M A X IM IN A 

### L O P E Z 

### , B E N E F IC IA R Y O F 

### C A N D E L A R IO 

### L O P E Z 

### , D E C E A S E D 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Argued Mar ch 26, 2015

J U S T I C E G R E E N delivere d the o p i nion of the Court, in which C H I E F J U S T I C E H E C H T , J U S T I C E W I L L E T T , J U S T I C E G U Z M A N , J U S T I C E L E H R M A N N , J U S T I C E B O Y D , J U S T I C E D E V I N E , and J U S T I C E B R O W N joined. J U S T I C E J O H N S O N filed a dissenting opinion. This worke rs’ compensa tion case require s us to deter mine whet h er s u mmary judgme nt

ev i dence conclusively established that an employ ee was acting in the course and scope o f h i s employ ment when he died in an automobile acc ident while trave ling to a job site. A contested case hear i n g o ff

i cer for the Texas Depa

rtment of I nsuranc e, Workers’ Compensation Division, hear d evidenc e and deter

mined that t he employ ee suffe red a compensa ble injury , and a three -member appellate panel affirme d. The insurer soug ht judicial revie w, and the t rial court g rante d summary judgme nt f

or the claimant and aff

irmed the administrative decision. The court of appea ls likew iseaf

firmed. 427 S.W .3d 442, 450–51 (Tex. App.—San Antonio 2014). We ag ree that conc l u s i v e evidenc e established that the employ ee was acting in the course and scope of his employ ment at the time of his death and a ffirm the c ourt of appe als’ judg ment. I. F actual and Proc edural Backgroun d The rele vant fac ts o f t h i s ca s e are undisputed. I nterstate Treating, I nc., a company that fabr icated and installed materia ls for the oil and g as proce ssing industry , hired Candelar io L opez in 199 9

. I nterstate Trea

ting’ s primary office and fabr ication depar tment was in Odessa, Texas. 1
I nterstate Treating provided its installation service s at other, often remote, locations. L opez resided in Rio Gra

nde City , Texas, w ith his wife, Ma x imina L opez, but he never worke d in the vicinity of Rio Gra nde City during his employ ment with I nterstate Treating. When I nterstate Trea ting assig ned
L opez to work at re mote job sites, L opez made his own living a rra ng ements—usually

stay ing in a motel—and I nterstate T rea ting pa id L opez an hourly wag e plus per diem for his lodging and food
expenses. I nterstate Trea

ting also would provide L opez with a company vehicle to use at the remote job locations, but L opez was not paid for any time travelingto or from the job site.
I n September 2007, I nterstate Trea ting assigne d L opez to work on the installation of a gas proce ssing plant near

Ridge , Texas—a distance the par ties estimate to be 450 miles from L opez’s home i n Rio Gra

nde C ity

. Although I nterstate Trea t i n g ex pecte d L opez to stay in a mot el, L opez had full control of

which motel he stay ed in while working at the Ridg e job site. He c hose to stay approximately forty miles from Ridge at a motel in Marlin, Texas. I nterstate Treating allowed L opez

L o p e z w o r k e d t e m p o r a r y a s s i g n m e n t s f o r I n t e r s t a t e T r e a t i n g . T h e r e c o r d i n d i c a t e s t h a t t h e r e w e r e t i m e s 1 b e t w e e n t e m p o r a r y a s s i g n m e n t s t h a t L o p e z w a s n o t w o r k i n g . 2to use a company vehicle to drive betwee n h i s m o t el i n M arlin and the Ridge job site. I nterstate

Treating paid the vehicle’ s insurance and provided L opez with a cre dit car d so that he could fuel the vehicle. L opez drove from his motel in Marlin to the Ridge job site ever y day , often allowing other
I nterstate Trea

ting employ ees to ride with him. Although I nterstate Treating had no express policy
reg arding car

pooling, the use of company vehicles to transport employ ees to and from remote job sites was a common occur renc e. On t he morning of September 11, 2007, L opez was t ranspor ting
two other I nterstate Trea

ting employ ees to the Ridge job site when he died in an automobile acc ident. Maxi mina soug ht death benef its from I nterst a

te T r e a ting’ s worke rs’ compensa tion insurance

car rier, SeaB rig ht I nsuranc e Co. SeaB rig ht denied cover ag e, taking the position that L opez was not acting in the course and scope of his em p l o y m en t at t h e time of the acc ident. Maxi mina then initiated an admini s t ra t i v e p roce eding to challeng e SeaB rig ht’s denial of benef it pay ments. The parties participa ted in a contested case hear ing under Texas L ab o r Code section 410.151, and the hear ing office r deter

mined that L opez was acting in the course and scope of his employ ment and order ed SeaB rig ht to p ay d eath benef its. A three -member appea ls panel aff irmed the hear ing office r’s de cision. SeaB rig ht soug ht independe nt judicial revie w of the administrat ive decision. SeaB rig ht’s petition challeng ed four

administrative deter

minations:

C L opez’s work involved tra vel awa y from I nterstate T rea ting’ s premises;

C L opez was eng ag ed in or further ing the aff airs or business of I nterstate Treating at the time of his fata l vehicle a ccide nt on September 11, 2007;

C L opez sustained damag e or harm to the phy sical structure of his body in the course and scope of his employ

ment at the time of his fa tal vehicle a ccide nt on September 11, 2007; and
3C L opez sustained a compe nsable injury on September 11, 2007. Both pa rties filed motions for summary judgme nt on the issue of whe ther L opez was ac ting in the

course and scope of his employ ment at the time of the acc ident. The trial court g rante d Maxi mina’s motion and denied SeaB rig ht’s motion, affirming the administrative dec ision. SeaB rig ht appea led , and the court of appea ls aff irmed. 427 S.W .3d at 450–51. The court of appea ls beg an its opinion by noting that “[f]or an employ ee’ s injury to be considere d in the course and scope of employ

ment, it must (1) rela te to or orig inate in the employ er’ s business, and (2) occur in the further ance of the employ er’ s business.” Id. at 447. I n analy zing the first element, the court of appea ls conclude d that the acc ident occ u rr ed during L opez’s commute from his employ erprovided housing to the job site, in an employ er- provided vehicle, and in an are a of the state he would not have been in but for his employ ment with I nterstate Treating. Id. at 450. This evidenc e of the re lationship betwee n L opez’s trave l and his employ ment with I nterstate Treating was “so close it can fairly be said the injury had to do with and orig inated in the work, busi n es s , t ra d e, or profe ssion of I nterstate [Treating ].” Id. (citation omitted). Citi ng this Court’s opinion in Leordeanu

v. American Protection Insurance Co. , 330 S.W .3d 239, 242 (Tex. 2010), the court of appea ls held that L opez’s trave l to the job site met the second element b ec au s e such trave l alway s further s the employ er’ s busine s s . 4 27 S.W .3d at 447–48. Ultimately , the court of appea ls aff irmed the trial court’s judgme nt, finding the summary judgme nt evidenc e established that L opez was acting in the

course and scope of his employ ment at the time of the a ccide nt as a matter of law. Id. at 450–51.

4SeaB rig ht petitioned this Court for revie w. We g rante d the petition. 58 T E X
. S U P
. C T
. J

. 369

(F eb. 23, 2015). II. Discussion We revie w a g rant of summary judgme nt de novo. State v. Ninety Thousand Two Hundred Thirt y-Fiv e Dollars & No Cents in U.S. Currency ( $90,235) , 390 S.W .3d 289, 292 (Tex. 2013). A party moving for traditional summary judgme nt has the burden to prove that there is no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law. T E X
. R. C I V
. P. 166a(c ); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 2 8 9 S.W .3d 844, 848 (Tex. 2009). We revie w summary judgme nt evidenc e “in the l ight most favor able to the party ag ainst whom t h e s u m m ar y judgme nt was rende red, cre diting ev i d ence favor able to that party if rea sonable jurors could, and disreg arding contra

ry evidenc e unless rea sonable jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. , 289 S.W .3d at 848 (citing City of Keller v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005)). Wh en b o t h s i d es move for summary judgme nt and the trial court g rants one motion and denies the other, we revie w the summary judgme nt evidenc e prese nted by both sides, deter mine all questions prese nted, and rende r the judgme nt the trial court should have rende red. Comm’rs Court of Tit us Cnty. v. Agan , 940 S.W .2d 77, 81 (Tex. 1997)

. “Th e Texas L eg islature enac ted the [Tex as Workers’ Compensation] Act in 1913 in response
to the needs of worke rs, who, despite esca lating industrial acc idents, wer e incre asing ly being denied

rec overy .” Kroger Co. v. Keng , 23 S.W .3d 347, 3 49 (Tex. 2000) (citation omitted). I n order to balanc e the competing interests of providing “compe nsation for injured employ ees while protec ting employ ers from the costs of litigation, the L eg islature provided a mecha nism by which worke rs
5could rec over from subscribing em p loy ers without reg ard to the worke rs’ own neg lige nce while

limit ing the employ ers’ exposure to uncer tain , possibly high damag e awa rds permitted under the

common law.” In re Poly-Am ., L.P. , 262 S.W .3d 337, 350 (Tex. 2008) (citations omitted). The Act ultimately struck a barg ain that allows employ ees to rec eive “a lower, but more cer tain, rec overy than would have been possible under the common law.” Kroger Co. , 23 S.W .3d at 350 (citation omitted). We liberally

construe the Act in f

avor of injured worke rs to e ffe ctuate these purposes. In re Poly

Am., L.P. , 262 S.W .3d at 350. The Act provides for employ ee compensa tion when injuries “ar ise[] out of and in the course and scope of em p l o y

m en t for which compensa tion is pay able.” T E X
. L A B
. C O D E § 401.011(10) (def ining “compe nsable injury ”). Whil e deter mining whether an injury is compensa ble may involve

o t h er inquiries, the only issue the parties prese nt in this case is whether L opez was acting i n t h e

course an d s co p e of his employ ment at the time of his death. See id. §§ 401.011(10), (12); 410.302(b) (“A tr i al [ re v i ewing a final decision of the appeals panel reg arding compensa bility ] is limit ed to issues decide d by the appea ls panel and on whi ch j udicial revie w is soug ht.”). The
L eg islature def

ined “c ourse a

nd scope of

employ ment” to mean: [A] n activity of any kind or char acte r that has to do with and orig inates in the work, business, trade , or profe ssion of the employ er and that is perf ormed by an employ ee while eng ag ed in or about the further ance of the aff airs or business of the employ er. The term includes an activity conducte d on the premises of the employ er or at other locations. Id. § 401.011(12). We have previously stated that a simil ar statutory definition of “cour se and scope of employ ment” require d the injury to “(1) rela te to or orig inate in, and (2) occur in the further ance of, the e mploy er’ s business.” Leordeanu , 330 S.W .3d at 241.
6Reg arding t h e o ri gi n at i on element, “[a]n employ ee’ s trave l to and from work

. . . cannot

ordinari l y be said to orig inate in the [employ er’ s] business

. . . beca use ‘[t] he risks to which employ ees are exposed while trave ling to and from work are share d by society as a whole and do not arise as a result of the work of employ ers.’ ” Id. at 242 (quoting Evans v. Ill. Emp’rs Ins. of W ausau , 790 S.W .2d 302, 305 (Tex. 1990)). Howeve r, a distinction can be made if “the rela tionship betwee n the trave l and the employ ment is so close that it can fairly be said that the injury had to do with and orig inated in the work, business, trade or profe ssion of the employ er.” Shelton v. Standard Ins. Co. , 389 S.W .2d 290, 292 (Tex. 1965)

. This inquiry is sa tisfied if the employ ee’ s trave l was “pursua nt
to express or implied conditions of his emp l o y ment contra ct.” Mey er v. W

. Fire Ins. Co. , 425 S.W .2d 628, 629 (Tex. 1968) (citations omitted). Courts have g ener ally employ ed a fac t-intensive analy sis to deter

mine whether an employ ee’ s trave l orig inated in the employ er’ s business, focusing

on the nature of t he employ ee’ s job, the circumstances of the t rave l, and any other relevant facts. See, e.g. , Tex. Mut. Ins. Co. v. Jerrols , 385 S.W .3d 619, 630 (Tex. App.—Houston [14t h Dist.] 2012, pet. di sm’d); Zurich Am. Ins. Co. v. McVey , 339 S.W .3d 724, 730 (T ex . Ap p . — Aus tin 2011, pet. denied) ; see also Am. Home Assur. Co. v. De Los Santos , No. 04-10-00852- CV, 2012 WL 4096258, at *4 (Te x . App.—San Antonio Sept. 19, 2012, pet. denied) (mem. op.). The fac ts of this case are most simil ar to those of Texas Employe rs’ Insurance Ass’n v. Inge , 208 S.W .2d 867 (Tex. 1948). I n that case , the employ ee, I ng e, worke d at a drilling site in an isolated part of Pecos County , Texas, that was 31.5 miles from the near est city

. Id. at 867–68. I ng e was paid hourly wag es while working at the drilling site, but was not paid fo r trave l time to and from the drilling site. Id. at 868. Howeve r, the employ er expected one of its employ ees to transport the other
7worke rs to and from the drilling site and paid that employ ee seven cents per mile for doing so. Id.

The employ er allowed the worke rs to deter mine which employ ee was to drive, and the g roup chose
I ng e. Id. The e mploy er pa id I ng e the seven cents per mile, but did not pay for g asoline or ve hicle
repa irs or exercise control over I ng e’s r oute, spee d, manner of driving , or schedule

. Id. I ng e later died in a car acc ident on a return trip from work. Id. The parties stipulated to the above fac ts, and the trial court conclude d that I ng e was acting in the course and scope of his employ ment. Id. at 867. We aff irmed, noting that the “loca tion of the drilling site in an uninhabited are a made it essential that [t he employ er] furnish transporta tion to his employ ees,” and that “this [free transporta tion] was an important part of the ir contra ct of e mploy ment.” Id. at 869. Whil e Inge was not decide d on a motion for summary judgme nt, we revie wed the trial court’s application of the law to the stipulated fac ts de novo. See id. at 867 (“[T]he only matters in dispute

wer e the leg al questions whether I ng e, at the time of his death, wa s ac t i ng in the course of his employ ment

. . . .”); see also Amaro v. W ilson Cnty. , 398 S.W .3d 780, 784 (Tex. App.—San Antonio 2011, no pet.) (r eviewing a trial c ourt’s application of the law to stipulated fac ts de novo); Marke l Ins. Co. v. Muzy ka , 293 S.W .3d 380, 384 (Tex. A pp.—For t Worth 2009, no pet.) (sa me); Panther Creek Ventures, Ltd. v. Colli n Cent. Appraisal Dist. , 234 S.W .3d 809, 811 (Tex. App.—Dallas 2007, pet. d en i ed ) (same) ; Alma Group, L.L.C

. v. Palmer , 143 S.W .3d 840, 843 (Tex. App.—Corpus Christi 2004, pet. denied) (same)

. “A trial court has no discretion in deciding the law or its prope r application.” Alma Group, L.L.C

. , 143 S.W .3d at 843 (citation omitted); accord In re D. W ilson Constr. C o. , 196 S.W .3d 774, 781 (Tex. 2006) (orig . proce eding ).

8Her e, we likewise re v i ew t h e application of law to the summary judgme nt evidenc e to

deter mine whether the relationship betwee n L opez’s trave l and employ ment is so close that it can fairly be said that his injury had to do with an d o ri gi n at ed in I nterstate Trea ting’ s work, business, trade , or profe ssion. S

ee S h el t o n , 3 89 S.W .2d at 292. Our starting point is to deter mine what
I nterstate Treating’ s business was. I nterstate Treating’ s president testified in a deposition that, at the time of the acc ident, I nterstate Trea ting had roug hly 150 employ ees. About half of those employ ees worke d at I nterstate Treating’ s Odes s a office fabr icating equipment. The other half worke d on a temporar y assig nment installing a g as proce ssing plant near Ridge

. The location of installation employ ees was never perma nent, and I nterstate Treating installed equipment in multipl e states. Although I nterstate Trea ting could have hir ed loca l employ ees a t eac h temporar

y , remote job site, its g ener al prac tice was to hire people who had worke d on pre v i o u s i n s t al lation jobs. Fr om the evidenc e in the rec ord, we conclude that I nterstate T re ati ng ’s business called for employ ing specia liz ed, non-loca l work cre ws in constantly chang ing, remote locations on t em p o rar y assig nments. W e n ex t ad d ress the nature of L opez’s employ ment. L opez had worke d on previous installation jobs for I nterstate Trea ting, and he was hired as a civil fore man at the temporar y job site

near Ridge

. His job require d him to overse e the installation of all of the plant’s concr ete foundations and the place ment of the plant’s equipment. Whil e working at a temporar y , remote job site like the

one near Ridge , L opez and his cowor kers wer e paid per diem to offse t lodging and food expenses. Although L o p ez co u l d stay at any motel he wished, I nterstate Trea ting expected him to secur e temporar y lodging rathe r than commute 450 miles from his home in Rio Gra nde City

. Upon L opez’s
9reque st, I nterstate Trea ting provided him with a company vehicle to dr ive t o and from the j ob site and paid the vehicle’ s fuel and insurance expenses. L opez was d ri v i n g himself and two of his

cowor kers f rom the motel to the Ridge job site in the company -provided ve hicle whe n he died. The ultimate inquiry under the orig ination element is to deter mine if the rela

tionship betwee n L opez’s trave l and his employ ment with I nterstate Treating “is so close that it can fairly be said that the injury had to do with and orig inated in the work, business, trade or profe ssion of the employ er.” Id. As discussed above, we conclude t h at I nterstate Trea ting’ s business called for employ ing specia liz ed, non-loca l work cr ew s in constantly chang ing, remote locations on temporar y assig nments. I nterstate Trea ting’ s business require d its inst allation worke rs, like L opez, to obtain temporar y housing and trave l from that temporar y housing to that temporar y , remote location.
L opez’s trave l from h i s temporar y housing to the Ridge job site and, more importantly , the risks associate d with such trave l wer e dictated by I nterstate Trea tin g ’s business model and enable d by
I nterstate Trea

ting’ s provision of the vehicle and pay ment of per diem and other expenses. See Mey er , 425 S.W .2d at 629 (stating that an employ ee’ s trave l injuries fall in the course and scope of employ ment if the trave l is “pursua nt to express or implied conditions of his employ ment contra ct”)

. As with the employ ee in Inge , who was not pr ovided a company car or fuel expenses but w ho was paid per mile to transport other employ ees to a remote work location, the provision of transporta tion
to the temporar

y , remote work location was an essential part of L opez’s employ ment. L opez’s trave l is more akin to those “employ ees such as delivery men, messeng ers, collector s, and others, who by the very nature of the work they have contra cted to do are subjected to the perils and hazards of the streets.” Smith v. Tex. Emp’rs’ Ins. Ass’n , 105 S.W .2d 192, 193 (Tex. 1937). Acc ording ly , we hold
10that the rela tionship betwee n L opez’s trave l and his employ ment “is so close that it can fairly be said that the injury had to do with and orig inated in the work, business, trade or profe ssion” of I nterstate Treating. Shelton , 389 S.W .2d at 292. Maxi mina conclusively established the orig ination element. Reg arding the further ance element, we have rec og nized that “[a]n employ ee’ s trave l to and from work makes employ

ment possible and thus further s the employ er’ s business.” Leordeanu , 330 S.W .3d at 242. Her e, it is undisputed that L opez was trave ling to the Ridge job site when he died.
L opez’s trave l makes “employ ment possible a

nd thus f urthers” I nterstate Treating’ s business. See id. Maxi mina conclusively established the f

urthera nce e lement. Even if an employ ee is eng ag ed in actions that orig inate in and further the employ er’ s b u s i n ess at the time of injury , the employ ee may not be acting in the course and scope of hi s employ ment if his actions fall in one of two statutory exclusions. The phrase “cour se and scope of employ ment” does not include : (A) tr ansportation to and f rom the plac e of e mploy

ment unless: (i) the transporta tion is furnished as a par t of the contra ct of employ ment or is paid for by

the employ er; (ii) the means of the transporta tion are under the control of the employ er; or (iii) the employ ee is direc ted in the employ ee’ s employ ment to proce ed from one plac e to another

place ; or (B ) t ra v el by the employ ee in the further ance of the aff airs or business of t h e employ er if the trave l is also in further ance of p er s o n al o r private aff airs of the employ ee unle ss: (i) the tra vel to the place of occur

renc e of the injury

would have be en made even had there been no persona l o r p ri v ate aff airs of the employ ee to be

11further ed by the trave l; and (ii) the trave l would not have been made had there been no aff airs or business of the e mploy er to be further ed by the trave l.
T E X
. L A B
. C O D E § 401.011(12)( A)–(B ). “[S] ubsection (A) applies to trave l to and from the pl ace of employ ment,” and “subsec tion (B ) applies to other dual-purpose trave l.” Leordeanu , 330 S.W .3d at 248 (footnote omitted). Both the or igina tion and further ance elements must be satisfied e ven if an employ ee qua lifies for one of the e x ceptions to an e x clusion under subsec tions (A) or ( B)

. See id. at 244, 249; Freem an v. Tex. Comp. Ins. Co. , 603 S.W .2d 186, 192 (Tex. 1980) (stating that the exceptions to the ex clusion do “not enlar g e the de finition of ‘course of employ ment’”)

. Her e, it is undisputed that L opez was trave ling only to his place of employ ment, rathe r than further ing any of his persona l or private aff airs. There fore , L opez’s trave l implicates the exclusion in subsection (A) and not subsection (B ). See Leordeanu , 330 S.W .3d at 248. I t is also undisputed that I nterstate Trea

ting provided L opez with a company vehicle to drive to and from the job site and paid the vehicle’ s fuel and insurance expenses. These undisputed fac ts c onclusively establish that
I nterstate Trea

ting paid for L opez’s transporta tion. Maxi mina there fore conclusively established the

ex ce p tion to the exclusion in subsection (A)( i). See T E X
. L A B
. C O D E § 401.011(12)( A)(i). W e there fore hold that L opez was acting in the course and sc ope of his employ ment at t he ti me of the September 11, 2007 a ccide nt. III. Conclusi on Maxi mina conclusively established that L opez’s trave l to the Ridge job site orig inated in and further ed I nterstate T rea ting’ s business, satisfy ing the statutory definition of “course and scope of

12employ

ment.” Be cause I nterstate T rea ting furnished and paid for L opez’s transporta tion, the statutory exclusion i n subsection (A) does not apply

. There fore , we hold tha t L opez w as acting in
t h e course and scope of his employ ment when he died, and Maxi mina is entitled to benef its. W e aff irm the court of

appea ls’ judgme nt.

______________________________ Paul W. Green J ustice

OPI NI ON DEL I VERED: J une 12, 2015

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