TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-529-CV
American Protection Insurance Company, Appellant
v.
Liana Leordeanu, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-04-001199, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
OPINION
American Protection Insurance Company appeals a district court judgment awarding
workers’ compensation benefits to appellee Liana Leordeanu based on a jury’s finding that
Leordeanu sustained a compensable injury while in the course and scope of her employment with
American Protection’s insured, Schering Plough, Inc. The issue presented involves the application
of section 401.011(12)(B) of the Texas Workers’ Compensation Act which is known as the “dual
purpose rule.” This section governs the compensability of injuries sustained by an employee while
traveling for both personal and business purposes. See Tex. Lab. Code Ann. § 401.011(12)(B)
(West 2006). American Protection argues that there is no evidence to support the jury’s finding that
Leordeanu’s injury was compensable and that the trial court erred as a matter of law in applying the
dual purpose rule of section 401.011(12)(B). We conclude that there is no evidence to support
the jury’s finding that Leordeanu sustained a compensable injury under the Texas Workers’ Compensation Act. Accordingly, we reverse the judgment of the district court and render judgment
that Leordeanu take nothing on her claims for workers’ compensation benefits.
At the time of her injury, Leordeanu worked for Schering Plough as a pharmaceutical
sales representative. Her job duties required that she spend a significant portion of her time traveling
to pharmacies and doctors’ offices within a designated area. Schering Plough provided Leordeanu
with a car and with a storage unit for storing drug samples and marketing materials. Leordeanu’s
storage unit was located at a storage facility next door to the apartment complex where she lived.
In addition, Leordeanu testified that she maintained a business office in her apartment. From time
to time as part of her job, Leordeanu would entertain doctors and their staff at local restaurants and
pay for their drinks and food.
On March 21, 2003, Leordeanu met with a doctor and members of his staff for dinner
at La Feria Restaurant in south Austin. After dinner and on her way home from the restaurant,
Leordeanu was involved in a single car accident and sustained serious injury. According to
Leordeanu, she had intended to stop at the storage unit next door to her apartment complex on her
way home from the restaurant and then to finish job-related paper work at her home office.
American Protection, the workers’ compensation carrier for Schering Plough, denied
Leordeanu’s claim for compensation for the injuries she sustained in the accident. Leordeanu then
submitted the dispute to the Texas Department of Insurance Workers’ Compensation Commission
Division. The Division held a contested case hearing and determined that Leordeanu did not have
2 a compensable claim because she was not in the course and scope of employment at the time of the
accident.1 An appeals panel of the Division affirmed.
Leordeanu sought judicial review of the appeals panel’s decision. American
Protection filed a motion for summary judgment arguing that the dual purpose rule of the Workers’
Compensation Act barred Leordeanu’s claim for benefits “because there has been no evidence
offered that Ms. Leordeanu would not have gone home (that she would have abandoned the trip
home) absent a business reason for going to the [storage unit] . . . .” The district court denied
American Protection’s motion for summary judgment, and the case was tried to a jury. The jury
found that Leordeanu sustained a compensable injury, and the district court entered judgment in
favor of Leordeanu.
On appeal, American Protection argues that there is no evidence to support the jury’s
finding that Leordeanu sustained a compensable injury. In reviewing no evidence points, we
consider only the evidence and inferences that tend to support the finding and disregard all evidence
and inferences to the contrary. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992). If there is more
than a scintilla of evidence to support the finding, the no evidence challenge must fail. Id. We will
sustain a no evidence point of error when (1) the record discloses a complete absence of evidence
of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than
1 The Division also concluded that “the carrier [American Protection] is relieved of liability for compensation because the claimed injury occurred while the claimant [Leordeanu] was in a state of intoxication.” However, on judicial review of the Division’s decision, a jury found that Leordeanu was not intoxicated at the time of the accident. This finding is not challenged on appeal.
3 a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Juliette Fowler Homes, Inc.
v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990) (citing Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
Under the Texas Workers’ Compensation Act, an insurance carrier is liable for
compensation for an employee’s injury if the injury arises out of and in the course and scope of
employment. Tex. Lab. Code. Ann. § 406.031 (West 2006). Generally, an employee is not in the
course and scope of his employment while driving his own vehicle to and from his place of work.
Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2000,
no pet.); Upton v. Gensco, Inc., 962 S.W.2d 620, 621 (Tex. App.—Fort Worth 1997, pet. denied).
The reasoning underlying this general rule is that injury incurred in such travel does not arise out of
that person’s employment, but rather is suffered due to the dangers and risks to which all traveling
persons are exposed. Evans v. Illinois Employers Ins., 790 S.W.2d 302, 304 (Tex. 1990). Stated
another way, the general rule is that travel to and from work, without some special instruction or
“special mission” from the employer directing the employee to proceed from one place to another,
is considered travel for personal purposes rather than travel for business purposes. See id. Thus,
travel for exclusively business purposes is considered within the course of employment and travel
for exclusively personal purposes is not within the course and scope of employment under the
Workers’ Compensation Act. See Tex. Lab. Code Ann. § 401.011(12).
A different situation is presented when an employee is engaged in travel that has both
personal and business-related purposes. The dual purpose rule is designed to address whether an
4 employee is in the course and scope of employment for the purpose of coverage when injury occurs
during travel that is for both personal and business purposes. See Tex. Lab. Code Ann.
§ 401.011(12)(B). The rule provides that injuries incurred during travel for the dual purpose of
furthering the affairs or business of the employer and of furthering the employee’s personal or private
affairs shall not be deemed in the course of employment unless (1) the travel to the place of
occurrence of the injury would have been made even had there been no personal or private affairs
of the employee to be furthered by the travel; and (2) the travel would not have been made had there
been no affairs or business of the employer to be furthered by the travel. Id.; Janak v. Texas
Employers’ Ins. Assoc., 381 S.W.2d 176, 179 (Tex. 1964). In order to be entitled to workers’
compensation benefits in dual purpose situations, the employee or his survivors must satisfy both
prongs of section 401.011(12)(B). Janak, 381 S.W.2d at 180; Tramel v. State Farm Fire & Cas. Co.,
830 S.W.2d 754, 756 (Tex. App.—Fort Worth 1992, writ denied). This means that the travel would
have occurred even if the personal purpose were removed from the analysis and the travel would not
have occurred if the business purpose of the travel were removed from the analysis. See Tex. Lab.
Code Ann. § 401.011(12)(B).
It is undisputed that Leordeanu was injured while traveling from the business-related
dinner meeting to her apartment and the storage unit next door to her apartment. Leordeanu testified
that upon leaving the restaurant on the night of the accident, she intended to travel first to the storage
unit next door to her apartment and then to her apartment to finish certain job-related paper work.
These tasks furthered the business affairs of Leordeanu’s employer, Schering Plough, and were,
therefore, business purposes for the travel.
5 Leordeanu also testified that when she left La Feria Restaurant on the night of the
accident, she was “planning on going first to the storage unit and then to the office, to my home.”
She gave the following testimony during cross-examination:
[Counsel]: Now, I understand that you left the restaurant and you drove from La Feria on Loop 360; is that correct?
[Leordeanu]: Uh-huh.
...
[Counsel]: And then you would turn west on Highway 22; is that correct?
[Leordeanu]: Yes, sir.
[Counsel]: And you would do those things to go to your home; is that correct?
[Leordeanu]: I would do those things to go in the direction of first the storage unit, as well as the direction of home as well as the office, yes.
[Counsel]: And I understand your testimony is that you were going to the storage locker.
[Leordeanu]: That’s right.
[Counsel]: And I’m asking you about if you were leaving La Feria and going home and not going to the storage locker, that’s the same route you would take, correct?
[Counsel]: So the routes are identical at that point in time in the travel, leaving the restaurant and going to either the storage unit or your apartment?
6 [Counsel]: Now, did you intend to spend the night at home that night?
[Leordeanu]: Yes.
[Counsel]: So you were also going home as well as going to the storage locker?
Leordeanu added that she intended to stay at her apartment after finishing her work
there. Thus, she was also traveling home from the restaurant—a personal purpose for the same
travel. See Evans, 790 S.W.2d at 305 (stating employee’s trip from work to home was “purely
personal”); Tramel, 830 S.W.2d at 757 (noting that employee’s trip from home to work serves
“private, personal purpose”). Leordeanu’s travel from the restaurant that night was, therefore, for
both business and personal purposes, and the question of whether she was acting in the course and
scope of employment is governed by the dual purpose rule of section 401.011(12)(B).
Under the dual purpose rule of section 401.011(12)(B), it is not enough that
Leordeanu intended to finish certain job-related paper work upon returning to her apartment for her
injury to be compensable. Rather, under the rule, Leordeanu was required to show that she would
not have made the travel that resulted in her injuries had there been no business of her employer
to be furthered by the travel. In other words, Leordeanu had to show that she would not have
returned home after dinner on the night of the accident, but for the need to complete business-related
paperwork. However, there is no evidence in the record to that effect.
Leordeanu urges this Court to view her intended travel on the night of the accident
as two separate, single purpose segments of travel—from the restaurant to the storage unit and from
7 the storage unit to her apartment—and to analyze each segment of her travel separately. She argues
that the first phase of her intended travel, from the restaurant to the storage unit, was not dual
purpose travel because she had no personal reason for going to the storage unit. She contends that
the dual purpose aspect of the trip did not occur until the second phase of her intended travel, from
the storage unit to her apartment, because she had both a business reason (finishing her paper work)
and a personal reason (going home) for traveling from the storage unit to her apartment. Thus,
according to Leordeanu, because the accident occurred during the first phase of her travel and
because that phase of the travel was not a dual purpose trip, she was in the course and scope of
employment at the time of the accident.
The San Antonio Court of Appeals adopted a similar approach to dual purpose travel
in St. Paul Fire & Marine Insurance Co. v. Confer, 956 S.W.2d 825 (Tex. App.—San Antonio 1997,
pet. denied). In that case, Dr. Ronald Confer was killed in an automobile accident while traveling
home from work. He had left work early so that he could also run a business errand to purchase
computer supplies for use at his office. See id. at 827. The route to the computer supply store was
along Dr. Confer’s normal route home, and Dr. Confer intended to continue home after running the
business errand. See id. However, Dr. Confer was killed before he reached the computer supply
store.2 See id. Dr. Confer’s widow sued for death benefits under the Workers’ Compensation Act,
and a jury found that Dr. Confer was in the course and scope of his employment at the time he was
killed. See id. The issue on appeal was whether the evidence adduced at trial satisfied both prongs
2 Interestingly, the Confer court expressly found that Dr. Confer’s travel at the place of occurrence of the injury was dual purpose travel and section 401.011(12)(B) was applicable. See 956 S.W.2d at 829.
8 of the dual purpose rule of the Workers’ Compensation Act. See id. at 828. The court addressed
several cases concerning injuries sustained by employees while traveling from home on a business
errand. See Evans, 790 S.W.2d at 305 (holding employee’s death not compensable where employee
was on way from home to pre-work safety meeting); Meyer v. Western Fire Ins. Co., 425 S.W.2d
628, 629 (Tex. 1968) (holding injury compensable where employee was involved in accident on way
to work after having taken work-related telephone calls from home); Janak, 381 S.W.2d at 182
(holding injury compensable where accident occurred on way to work after employee had deviated
from his normal route in order to pick up ice for use during work). It then distinguished the facts
presented in Dr. Confer’s case as follows:
the controlling issue in cases such as this is during what segment of a trip did the injury occur; the segments being home to business errand and business errand to work. These segments are reversed in the present case. In other words, Dr. Confer’s fatal trip consisted of segments including work to business errand and business errand to home. Applying the logic of the cases discussed above, an injury occurring between work and the business errand would be compensable because the employee has not completed work, while an injury occurring between the business errand and home would not be compensable because the employee’s work would be finished.
Id. at 830.
We are of the view that the approach taken in Confer—separating dual purpose travel
into “business related” and “personal related” segments—departs from the mandatory requirements
of the dual purpose rule as set out in the Workers’ Compensation Act. Section 401.011(12)(B),
when it applies, does not contemplate analyzing a claimant’s dual purpose travel and determining
whether particular segments or portions of that travel are for a single, business-related purpose. If
travel is exclusively for a business-related purpose, section 401.011(12)(B) does not apply at all.
9 Section 401.011(12)(B) only applies whenever the travel is for both business and personal purposes
(dual purpose) and the travel cannot be ascribed a single purpose.
When travel is dual purpose, the dual purpose rule requires the court to determine the
answers to two questions: (1) would the travel during which the claimant was injured have occurred
even if there were no personal purpose; and (2) would the travel not have occurred if there were no
business purpose.3 If the answer to either of these questions is “no,” then the employee is not
deemed to be in the course and scope of employment. If the answers to both questions are “yes,” the
employee is deemed to be in course and scope of employment and the injury is potentially
compensable. The statute does not allow a court to approach the analysis of compensability of dual
purpose travel in any other way.
3 Part of the difficulty with this statute is that the provisions of section 401.011(12)(B)(i) and (ii) are exceptions to the general rule of section 401.011(12)(B) which is itself an exception to the general definition of “course and scope of employment.” This difficulty is compounded by the fact that the requirements of section 401.011(12)(B)(i) and (ii) are conjunctive, but section 401.011(12)(B)(ii) is drafted in the form of a double negative—“the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.” Thus, to address an issue such as the one presented by this case, the courts and lay juries are faced with a rule that (translated) looks something like this:
An employee is in the course and scope of employment when engaging in any activity of any kind that has to do with the business of the employer while the employee is engaged in the furtherance of the affairs of the employer except when the employee is traveling for both business and personal purposes unless the travel would have been made even if there were no personal purpose involved and the travel would not have been made had there been no business purpose involved.
Although semantically challenging, the rule can be deciphered and appears to work when applied correctly. However, the way it works is not readily apparent. Expecting juries to consistently and knowledgeably apply a charge instruction based on the structure of this statute is problematic.
10 The dual purpose rule, applied correctly, can be an effective mechanism for ferreting
out whether dual purpose travel is primarily business travel or primarily personal travel, and the
pertinent questions can be posed and answered for any point in a claimant’s travel. The dual purpose
rule as it is currently formulated in the Workers’ Compensation Act does not, however, allow for
assigning single purpose segments or phases to dual purpose travel. Evidence as to whether a person
is on the “business-related segment” of dual purpose travel when an accident occurs is not relevant
to the analysis because it does not answer either question set out in section 401.011(12)(B), the key
inquiries of the dual purpose rule. Rather, the evidence must support answers to the questions in
section 401.011(12)(B)(i) and (ii), regardless of whether the business purpose for the travel had been
completed at the time of the accident.
The Confer court articulated its reasoning as follows:
The evidence supports a finding that Dr. Confer would not have been on Interstate 35 at 4:20 p.m. if he had not been going to Altex [a business errand for his employer]. The fact that Altex happens to be along the same route as his route home should be of little consequence. Why should the result be any different if Altex had been located somewhere off of Interstate 35, forcing Dr. Confer to travel away from his regular route? The controlling issue should be whether the employee is traveling on behalf of his employer at the time of the accident, not on what road he happens to be traveling.
956 S.W.2d at 830 (emphasis in original). This approach basically concludes that, since the portion
of Dr. Confer’s travel from the office to Altex (the stop on the business errand) had a business-
related component, such travel would be in the course and scope of employment even though it
was also personal travel to the doctor’s home. The portion of the travel from Altex to Dr. Confer’s
home then lacks any business-related component and is, therefore, not in the course and scope of
11 employment, even though the personal travel home would necessarily include both portions of the
trip if Dr. Confer were not stopping at Altex.
The Confer approach adopts a policy position to the effect that if a claimant is
traveling for a business purpose at all, even if there is also a personal purpose, then the travel is in
the course and scope of employment and any injury incurred during the travel compensable. This
might arguably be a reasonable policy position. It would allow injuries to be compensable any time
there is a business-related component to travel no matter how incidental. However, this is not the
policy position that the Legislature has taken in section 401.011(12). The statute mandates that if
the travel has dual purposes—both business and personal—it is only within the course and scope of
employment and, therefore, compensable, if it meets the requirements of section 401.011(12)(B).
If the Confer approach were correct, section 401.011(12)(B) would not exist. The
statute would simply provide that if travel had any business purpose at all, it is in the course and
scope of employment. There would not be a dual purpose rule because there would be no special
treatment of dual purpose travel. Dual purpose travel would, by definition, have a business purpose
component and, therefore, would always be travel in the course and scope of employment. Thus,
if we are to grant section 401.011(12)(B) any meaning at all, we cannot take the approach proposed
in the Confer opinion.
The answer to the Confer court’s rhetorical question “Why should the result be
any different if Altex had been located somewhere off of Interstate 35, forcing Dr. Confer to travel
away from his regular route?” is twofold: first, the statute expressly declines to adopt the policy of
allowing coverage whenever there is any business-related component to travel, and it mandates a
12 different result for dual purpose travel based on specific statutory criteria; second, the statutory
scheme has a rational basis in that a policymaker could well come to the conclusion that dual
purpose travel should not be compensable unless it is predominately for a business-related purpose
rather than predominately for a personal purpose with an incidental business-related component.
Section 401.011(12)(B) appears to be an attempt to create a statutory system for distinguishing
between predominately business-related travel and predominately personal travel. Consequently,
in Dr. Confer’s case, the result would be different if Altex were not located on Interstate 35 because
Dr. Confer’s travel to Altex would then not have happened at all but for the business purpose. Since,
instead, Dr. Confer was on his route home when the accident happened, it was travel that he would
have made in any event and the business purpose of stopping at Altex was incidental. Under the
language of section 401.011(12)(B), this travel was not in the course and scope of Dr. Confer’s
employment. The notion that the timing of the travel is significant—i.e. leaving early from work in
order to make the business stop and get home at the usual time—appears nowhere in the statute.
In applying the dual purpose rule, we ask the statutory questions about the travel at
the point that the claimant is injured.4 In this case, we know that Leordeanu was traveling to both
her home and the storage unit at the point at which she was injured. The route of travel to both
destinations was identical. Thus, her travel at that point was dual purpose and the provisions of
section 401.011(12)(B) apply. We then ask the statutory questions. First, would her travel have
been made even had there been no personal or private affairs to be furthered by the travel? In this
4 Section 401.011(12)(B)(i) of the Texas Labor Code refers to the “travel to the place of the occurrence of the injury.”
13 case, Leordeanu concedes she was going home for the evening from the restaurant, but was going
to drop off some items at the storage unit on the way. There is nothing in the evidence to suggest
that Leordeanu would have traveled to the storage unit even if she were not going home. Thus, on
this record, the answer to the first question, rather than being a conclusive “yes,” is, at best,
equivocal.5 Second, would the travel not have been made had there been no affairs or business of
the employer to be furthered by the travel? Once again, Leordeanu concedes that she was going
home for the evening from the restaurant. There is no evidence that Leordeanu would not have made
this travel if she did not intend to drop off items at the storage unit.6 On the contrary, Leordeanu
concedes that she was going home whether or not she dropped items off at the storage unit.
Therefore, on this record, the answer to the second question is “no,” and it precludes a finding that
Leordeanu was in the course and scope of her employment at the time of her injury.
We conclude that there is no evidence in the record to satisfy the second prong of the
dual purpose rule which requires that the travel would not have occurred if the business purpose of
the travel were removed from the equation. There is no evidence that Leordeanu would have
5 Since there is insufficient information in the record to answer the question posed by the first prong of section 401.011(12)(B) “yes,” one could argue that Leordeanu has failed to satisfy either prong of the statute. However, the case was briefed and argued as a failure by Leordeanu to satisfy the second prong of section 401.011(12)(B), and even if we assume the answer to the first prong of section 401.011(12)(B) is “yes,” the lack of evidence as to the second prong of the statute is dispositive. 6 Here the problem of the double negative in the statute comes up again. Dealing with a question that involves a double negative and to which the answer is “no” can create confusion. Here the question can be rephrased: “If Leordeanu had not planned to drop by the storage unit, would she have cancelled (or not made) the travel?” The answer to this question is more easily seen to be “no” because she concedes that she was going to go home in any event and the route of travel to both the storage unit and her apartment at the time of the injury was the same.
14 been traveling on some other route to her home when she was injured had she not intended to stop
by the storage unit next door to her apartment. The evidence is conclusive that Leordeanu’s travel
from the restaurant to her home at the point where she was injured would have been identical
whether she had intended to stop by the storage unit or not. There is no evidence that she would not
have made the travel that resulted in her injuries had there been no business of her employer to be
furthered by the travel.
The dual purpose rule of the Workers’ Compensation Act bars Leordeanu’s claim for
workers’ compensation benefits. Therefore, we conclude that there is no evidence to support the
jury’s finding that Leordeanu sustained a compensable injury. Accordingly, we reverse the judgment
of the district court and render judgment that Leordeanu take nothing on her claims for workers’
compensation benefits.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop; Dissenting Opinion by Justice Patterson
Reversed and Rendered
Filed: August 2, 2007