Mersch v. Zurich Insurance Co.

781 S.W.2d 447, 1989 Tex. App. LEXIS 3091, 1989 WL 155097
CourtCourt of Appeals of Texas
DecidedDecember 6, 1989
DocketNo. 2-88-019-CV
StatusPublished
Cited by3 cases

This text of 781 S.W.2d 447 (Mersch v. Zurich Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mersch v. Zurich Insurance Co., 781 S.W.2d 447, 1989 Tex. App. LEXIS 3091, 1989 WL 155097 (Tex. Ct. App. 1989).

Opinion

OPINION

KELTNER, Justice.

The issue in this appeal is whether appellant was in the course and scope of her employment when she was injured during a softball game at a company-sponsored picnic. The trial court granted a summary judgment in favor of the worker’s compensation insurance carrier. We affirm the judgment of the trial court under the peculiar facts of this case.

Cindy Mersch was employed by North American Mortgage Company as an assistant loan officer. She was injured while playing softball at a company-sponsored picnic. She brought a worker’s compensation suit to recover benefits for her disability from the injury. The insurance carrier filed a motion for summary judgment contending that the uncontradicted summary judgment evidence established that Mersch was not in the course and scope of her employment when she was injured.

In a summary judgment case, the issue on appeal, is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); TEX.R.CIV.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Ins. Co. v. San Antonio Plumbing Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the non-movant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the non-movant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference [449]*449from the evidence must be indulged in favor of the non-movant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence which favors the movant’s position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47.

The only summary judgment evidence before us on appeal is portions of Mersch’s deposition attached to the motion for summary judgment, an affidavit of Mike Taliaf-erro, a manager with North American Mortgage Company, the affidavit of Susan Hurst, Mersch’s supervisor at North American Mortgage Company, and the insurance carrier’s answers to requests for admissions and responses to written interrogatories.1

The summary judgment evidence reveals that North American sponsored a picnic for its employees and their families. The picnic was held at a recreation ranch, away from the company’s premises. Additionally, the picnic was not held during working hours, but on Sunday, when all employees were off work. The affidavits of Hurst and Taliaferro reveal that the employees were informed their attendance was voluntary and none were required to attend. Additionally, no employee was discriminated against for not attending and no form of coercion was used to secure any employee’s attendance. There was uncon-troverted evidence that no company business was conducted and the outing was only for the entertainment and morale of the employees who decided to attend.

In her deposition, Mersch testified that attendance at the picnic was “totally voluntary.” She admitted that she would not fall into disfavor or suffer criticism or loss of stature if she did not attend. However, she testified she felt an obligation, “just on my own because I am the oldest employee in my office and other people do kind of look up to me” to attend the picnic. Nonetheless, she testified this feeling was not imposed upon her by the company but was merely her own feeling.

Mersch was injured at a softball game during the picnic. She testified the game was one of several scheduled events. It was left to the discretion of each attendee to decide in which, if any, of the events they would participate.

In two points of error, Mersch contends the trial court erred in granting summary judgment for the insurance company because the evidence demonstrated, alternatively, that her injury occurred in the course and scope of her employment or raised fact questions for the jury. We disagree and overrule both points of error.

The Texas Worker’s Compensation Act defines the term “injury sustained in the course of employment” as follows:

The term “injury sustained in the course of employment,” as used in this Act, shall not include:
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(4) An injury caused by the employee’s wilful intention and attempt to injure himself, or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employee whether upon the employer’s premises or elsewhere.

TEX.REY.CIV.STAT.ANN. art. 8309, sec. 1 (Vernon 1967) (emphasis added).

As a result, a claimant under the Texas Worker’s Compensation Act must show not only that the injury was received in the course of his or her employment, but also that the injury was of a kind and character that had to do with and originated in the employee’s work, trade, business or profession. Shelton v. Standard Insurance Company, 389 S.W.2d 290, 292 (Tex.1965).

Texas courts had many opportunities to decide whether an employee at his or her employer’s social function was in-[450]*450jured “in the course and scope of employment.” Texas case law holds that an injury occurring while an employee is engaged in a recreational or social activity sponsored by his employer, is not in the course and scope of employment unless (1) participation in such activity is expressly or impliedly required by the employer; (2) or the employer derives some benefit from the activity, other than the health and morale of the employee; (3) or where the injury takes place at the place or immediate vicinity of employment while the employee is required to hold himself or herself in readiness for work, and activity takes place with the employer’s express or implied permission. Yeldell v. Holiday Hills Retire. & Nursing Ctr., Inc., 701 S.W.2d 243, 245 (Tex.1985) (held that employee injured on employer’s premises while making a personal telephone call, which was allowed by employer, was in the course and scope of employment); Fidelity & Guaranty Insurance Underwriters, Inc. v. Rochelle, 587 S.W.2d 493

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Bluebook (online)
781 S.W.2d 447, 1989 Tex. App. LEXIS 3091, 1989 WL 155097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mersch-v-zurich-insurance-co-texapp-1989.