Many employers depend on employees being able to get to work from remote locations, or encourage car pool or van pools for economic or environmental reasons. Some will even pay the driver of the car pool or van pool for their transportation services. Complex issues arise if there’s a traffic accident and injury going to and from work, raising the question of employer liability under both tort and workers’ compensation law.
A recent state court case in Texas addresses these issues in Painter v. Amerimex Drilling, 40 IER Cases 1516 (Texas Court of Appeals, Nov. 3, 2015). In this case, Amerimex (the employer) paid each driver a bonus of $50 a day to drive their crew to and from the work site. There was no requirement the employees ride with the driver, and on one occasion there was a wreck and the driver and the passengers were killed or seriously injured.
The driver sought workers’ compensation benefits, necessarily contending he was injured in the course and scope of employment at the time of the accident. For reasons addressed later, Amerimex also urged the driver was in the course and scope of his employment. The workers’ compensation division in Texas found the driver’s injury was compensable under workers’ compensation because he was paid to transport the employees to and from the work site and was directly furthering the business interests of the employer.
None of the passengers, however, filed claims for workers’ compensation benefits. Amerimex actually attempted to initiate benefit proceedings on behalf of their employee passengers, contending when an employee driver of the vehicle is in the course and scope of employment, so too would any employee passenger. The Texas Workers’ Compensation Division found the employer lacked standing to initiate such benefit proceedings, and even if it did, the employee passengers did not sustain compensable injuries under workers’ compensation law.
Two employees were killed in the crash, and a third seriously injured. The three passengers sued the driver, the employer and various other entities for negligently causing the accident of running into the back of another vehicle. The employer contended all of the employees were in the course and scope of employment and their exclusive remedy was under the Texas worker’s compensation laws, otherwise barring claims against the employer. Alternatively, they claimed in defense none of the employees, including the driver, were in the course and scope of employment and thus it owed no duty to them and there was no liability.
The court noted there were limitations to employer liability under tort law, as the employer may only be held liable for the tortious acts of an employee committed within the course and scope of employment. An employee traveling to and from work is generally not in the course and scope of his employment, but instead has risks attendant to transportation which are not unique to the workplace, but are shared by the motoring public as a whole.
The court noted the workers’ compensation laws represent a statutorily imposed compromise between the worker and employer whereby workers forfeit their right to sue the employer in exchange for certain, but more limited benefits. It is liberally construed in favor of the employee. Therefore, the statutory definition of course and scope of employment found in the workers’ compensation laws may lead to different outcomes than those based upon vicarious liability tort laws on one party for the conduct of another, a concept which is generally a pure policy question of allocation of risk.
Regarding the issue of tort liability, the court found that a plaintiff seeking to impose vicarious liability on an employer for the acts of a traveling employee needs to show not only that the transportation originated and furthered the employer’s business, but also that the employer controlled in some way the transportation as to the details of the work (the drive) through such means as directing the route.
In the Amerimex case, the court found if the employer was liable for the driver’s conduct while carpooling simply because it passed along payments for that carpooling, or even having encouraged it, the employer would have every incentive to end that practice. Generally, the employer owes no duty for the actions of its off-duty employees.
The only exception is where the employer exercises control over the off-duty employee. Therefore, the court found that the employer would need to retain the right to exercise some control over how the driver transported his crew, as a predicate to shifting the risk of any accident and to hold the employer liable under the tort law theory of vicarious liability.
The court ruled for the employer on the basis that there was no evidence the employer had or exercised any control over the manner of transportation – the type of vehicle used, qualifications of the driver, number of passengers or any other issues that might implicate the right of control that justifies shifting the risk of loss from one party to another.
Editor’s note: This was a close case under Texas state law, and it should also be noted the laws of each state may vary somewhat in the application of these principles. It’s possible courts in other states could reach different holdings. The main point of discussing the case is to sensitize the employers to the issue, as many employers encourage carpooling, van pooling and shared rides for a variety of reasons.