AUSTIN – A deadly auto accident involving an oil field crew returning to the company bunkhouse after work is raising high-stakes issues of employer liability in a case pending before the Texas Supreme Court.
The case involves a July 2007 accident that killed two workers and seriously injured another.
The crew worked for Amerimex Drilling 1 Ltd., which had been hired by Sandridge Energy Inc. to drill wells on the Longfellow Ranch south of Fort Stockton. The trio’s crew leader, J.C. Burchett, was driving his personal truck at the end of the crew’s sixth daily 12-hour shift when he struck a car.
Part of the daily rate Sandridge paid Amerimex included a $50 per day bonus for Burchett to drive the crew to the well location from an Amerimex bunkhouse about 30 miles away. And Steven Painter, the injured crew member, along with the survivors of the two workers who died in the crash, sued Burchett, Amerimex, Sandridge and the driver of the other car involved in the accident.
Burchett, who also was seriously hurt in the accident, sought worker’s compensation benefits, contending he was injured in the course and scope of his employment. After a contested case hearing, the Texas Department of Insurance found that Burchett’s injury was covered because he was paid to transport his crew to and from the worksite and the company bunkhouse.
Amerimex initially contented in the lawsuit that all of the employees were in the course and scope of employment but that state law prohibited the injury and wrongful death claims. The company alternatively claimed that none of the employees, including Burchett, were traveling in the course and scope of their employment.
The trial court granted Amerimex’s summary-judgment motion, finding the company not liable for Burchett’s negligence because it did not have the right to control Burchett’s driving. The 8th Court of Appeals in El Paso agreed in a November 2015 decision. One member of the three-judge panel dissented without issuing an opinion.
During oral arguments last month, the Supreme Court justices peppered lawyers for both sides with questions about the driving arrangement and bonus payment.
Peter Kelly, who represents Painter and the family members, said the payment was not mileage reimbursement, but rather payment for Burchett’s assigned duty to make sure the crew showed up for work.
“The task for getting the rest of the crew out there was assigned to him. We don’t have to get into turn-by-turn control,” said Kelly of Houston’s Kelly, Durham & Pittard.
Justices Jeffrey Boyd and Paul Green noted that there was no assigned task to take the crew home and that they could have gone to dinner or other locations instead of directly to the bunkhouse. Kelly said it would make no sense for Amerimex to provide a one-way ticket to work.
“What is the interest in returning home?” asked Green.
“So they could get back home and get sleep and get back to work the next day,” said Kelly.
S. Anthony Safi, who represents Amerimex , said the company exerted no control over the crew once they clocked out. “They could go wherever they wanted. The threshold issue remains control,” he said.
Justices Eva Guzman said the issue of whether the $50 bonus included transport home seems to be a fact question for a jury.
“I don’t believe it’s a material fact question. You still have the issue of control,” said Safi, of El Paso’s Mounce, Green, Myers, Safi, Paxson & Galatzan.
Chief Justice Nathan Hecht asked whether an accident on the way to work would be under the scope of the men’s employment.
“It would definitely be a closer question,” said Safi. “At least then their destination was fixed and the employer expected them to arrive there on time ready to work.”
In its brief, the Texas Trial Lawyers Association cited Section 7.07 of the Restatement (Third) of Agency, which the Supreme Court has relied on to determine scope of employment in claims against the government.
“Section 7.07(2) provides that ‘[a]n employee acts within the scope
of employment when performing work assigned by the employer or engaging in a
course of conduct subject to the employer’s control.’ Whether or not Amerimex controlled Burchett’s conduct, Amerimex is still vicariously liable because it assigned to Burchett the work of transporting the crew members,” the brief states.
The Texas Association of Defense Counsel said the El Paso Court correctly concluded that scope of employment is founded on actual control or a right to control the employee’s conduct at the time and place of an alleged tort. Imposing vicarious liability on employers for employees’ travel to and from work would “pose immense problems, many of which the employer cannot effectively control.”
“The employer may be forced to specify who may drive, review qualifications to drive, specify routes and times to drive, approve which private vehicles may be used, set standards for vehicle maintenance, etc. There is also the difficult problem of liability insurance,” the brief states.
Watch the arguments in Painter v. Amerimex here.