Construction in the Courts

August 2018

ASA Files Amicus Brief in Texas Court Case of Importance for Employers Related to Transportation of Employees to/from Workplace

by American Subcontractors Association

In a “friend-of-the-court” brief filed on July 31, ASA asks the Supreme Court of Texas to reconsider its underlying decision in a case of importance for all employers who pay employees whose normal duties do not include transportation any amount to transport other employees to and from the workplace.

ASA submitted the amicus brief in support of respondent Amerimex’s motion for rehearing in the case of Steven Painter; Tonya Wright, Individually and as Representative of the Estate of Earl A. Wright, III, Deceased; Virginia Weaver, Individually and as Next Friend of A.A.C., a Minor; and Tabitha R. Rosello, Individually and as Representative of the Estate of Albert Carillo, Deceased, (Petitioners) v. Amerimex Drilling I, Ltd., (Respondent).

In the underlying case, Steven Painter, J.C. Burchett, Earl Wright and Albert Carillo were working the night shift for Amerimex Drilling, drilling a well for Sandridge Energy on an oil and gas drilling rig in Pecos County. The prime contract between Sandridge and Amerimex provided that Amerimex was to perform the drilling and provide the drilling crews. Due to some Sandridge restrictions, the bunkhouse for the Amerimex crew was not as close as they normally would have been, located about 30 miles from the remote drilling site. The prime contract provided that the driller for each crew would receive $50 per day for transporting the crew between the bunkhouse and the drilling site.

On July 28, 2007, after the Amerimex crew’s shift ended, Burchett, the driller, was driving the crew back to the bunkhouse and on the trip, he fell asleep and the truck carrying the crew rolled over, ejecting all four members, injuring Painter and Burchett and killing Wright and Carillo.

Burchett received workers’ compensation for his injuries after the Texas Department of Insurance determined that his injuries were covered because, the department concluded, Burchett “was paid to transport his crew to and from the worksite and the company bunkhouse.” The trial court granted Amerimex’s motion for summary judgment, dismissing the claims because “Amerimex is not vicariously liable for the negligence of JC Burchett.” The Eighth Court of Appeals, El Paso, Texas, denied the appeal. However, in an April 13, 2018, opinion, the Texas Supreme Court reversed and remanded the case to the trial court, relying on workers’ compensation precedent holding that where an employee transports others to and from the place of employment as either part of the contract of employment or for payment by the employer, the work is within the scope of employment for purposes of the coverage and protections of the workers’ compensation statute. Citing that case law, the Texas high court reversed and remanded the lower courts for a determination whether Burchett was acting in the course and scope of his employment at the time of the accident.

In the brief, ASA explains that Amerimex is not vicariously liable for the actions of Burchett because even if Burchett was considered to be an employee at the time of the accident, he was outside the course and scope of employment. “An employer will only be held vicariously liable for the actions of its worker if: (1) the worker was an employee; and (2) was acting in the course and scope of employment. Neither requirement is satisfied in this case. If a worker is determined to be an employee, the question is whether the employee was within the course and scope of his employment. Even if Burchett was an employee at the time of the accident, he was not within the course and scope of his employment when driving crew back to the bunkhouse. This Court has stated ‘vicarious liability arises only if the tortious act falls ‘within the scope of employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.’’ Traveling to and from work, even though arguably for the employer’s benefit, has been consistently held to be outside the course and scope of employment.”

ASA adds that travel reimbursement does not create an exception to the “coming and going” rule. “The contractual $50 per day Driver’s Bonus paid to the driller of each crew was a travel reimbursement,” ASA writes. “Travel reimbursements create no exception to the ‘coming and going’ rule, which states travel to and from a job location is not within the course and scope of employment. The Driver’s Bonus was to reimburse workers for the costs associated with a remote drill site, similar to the $50 per day Subsistence Bonus that compensated crew for daily expenses and the $50 per day Bottom Hole Bonus available to crew who remained employed from the well’s spud date through its completion.”

“The lower courts,” ASA continues, “correctly applied the principle from Pilgrim [Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982, 987 (5th Cir. 1981)] that an employer compensating travel does not create an exception to the coming and going rule. Similar to Pilgrim, Amerimex exercised no control and had no right of control over Burchett once he completed his shift. The remote location of the drill site does not affect the coming and going rule, and in fact lends support to the argument that Amerimex is simply trying to reimburse crew members for their added personal costs due to the remote well location. The Court made an unnecessary and incorrect distinction between: (i) a contract requiring Amerimex to hire drivers to provide transportation, and Amerimex deciding to offer that extra work to Burchett; and (ii) the actual contract contemplating that Amerimex would assign the driving task to specific individuals, the drillers.”

“While Amerimex had the right to control Burchett regarding his employment as a driller,” ASA writes, “once Burchett’s shift ended and Burchett left the well location, Amerimex no longer exercised control over him. The driving ‘job’ assigned to Burchett was wholly separate and unrelated to Burchett’s employment as a driller. It, therefore, must be analyzed separately to determine whether Amerimex exercised sufficient control over Burchett’s actions as a driver to impose vicarious liability on Amerimex. Even if Burchett was required to drive the crew back to the bunkhouse in the evenings, Amerimex exercised no control over Burchett completing this job. Amerimex had no right of control over the employees after their shift ended. They were not on the payroll and the company did not direct or instruct its employees in any regard as to how they commuted to and from work. Regardless of Plaintiff’s contentions, a travel reimbursement is not being ‘on the payroll’. At most, Burchett was an independent contractor, and an independent contractor’s negligence does not impose liability on an employer for respondeat superior purposes.

Brian K. Carroll, Sanderford & Carroll, P.C., prepared the brief for ASA. ASA’s Subcontractors Legal Defense Fund financed the brief. Contributions to the SLDF may be made online.

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