Sumner v. Meier's Ready Mix, Inc.

126 P.3d 1127, 34 Kan. App. 2d 850, 2006 Kan. App. LEXIS 36
CourtCourt of Appeals of Kansas
DecidedJanuary 13, 2006
DocketNo. 93,546
StatusPublished
Cited by1 cases

This text of 126 P.3d 1127 (Sumner v. Meier's Ready Mix, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sumner v. Meier's Ready Mix, Inc., 126 P.3d 1127, 34 Kan. App. 2d 850, 2006 Kan. App. LEXIS 36 (kanctapp 2006).

Opinion

Marquardt, J.:

Chris A. Sumner, deceased, through his surviving wife (Claimant), appeals the denial of an award by the Workers Compensation Board (Board). We reverse.

On September 30, 2002, Sumner, a truck driver for Meier s Ready Mix (Meier’s), died as a result of a one-vehicle accident. Although Sumner was driving a company truck when he died, the parties stipulated that at the time of the accident, he was engaged in a personal errand with no business purpose. An administrative law judge (ALJ) found that Sumner’s death arose out of and in the course of his employment.

The case was appealed to the Board, which made the following findings of fact:

Sumner worked for Meier’s and lived in Council Grove. Meier’s allowed Sumner to keep its truck at his residence every night. On the day of the accident, Sumner left home around 3 a.m., picked up a load and delivered it to Emporia at approximately 7 a.m. At Meier’s plant in Sugar Creek, Sumner was instructed by Eric [852]*852Schneider, Meier s Ready Mix’s assistant manager, to deliver a load to Junction City. As Sumner was driving toward Junction City along 1-70, he received word that there was an emergency at his home.

Sumner told Schneider about the emergency, and Schneider gave Sumner permission to go home. It was agreed that Sumner would deliver his load to Junction City that day, if possible. Schneider testified that had Sumner exceeded the normal 12-hour workday, staying at home that night and dekvering the load the next day would have been acceptable.

The Board further found that Sumner’s accident occurred about 15 miles south of the I-70/K-177 intersection and about 13 miles north of Council Grove. In a 3-2 decision, the Board reversed the ALJ’s award.

On appeal, Claimant contends that this court has unlimited review, citing Smith v. Winfield Livestock Auction, Inc., 33 Kan App. 2d 615, 106 P.3d 94 (2005). However, Winfield clearly held that when facts are undisputed, this court has unlimited review. 33 Kan. App. 2d at 618. Claimant contests the facts arguing that Sumner was on his way home to stay when the accident occurred. An appellate court’s review of disputed facts in a workers compensation case is limited to whether the Board’s findings of fact are supported by substantial competent evidence, which is a question of law. Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004).

Whether there has been an accident injuiy arising out of and in the course of employment is a question of fact that will not be disturbed when there is substantial competent evidence to sustain it. Foos v. Terminix, 277 Kan. 687, Syl. ¶ 1, 89 P.3d 546 (2003). Substantial evidence in workers compensation cases is evidence that possesses something of substance from which the issue can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party at the Board level and does not reweigh the evidence or assess- the credibility of witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003).

The Workers Compensation Act, K.S.A. 44-501 etseq., provides compensation for injuries that arise out of and in the course of employment. K.S.A. 44-501(a). Injuries stemming from the going [853]*853to and coming from employment are generally not compensable. K.S.A. 2004 Supp. 44-508(f). However, there is an exception to the “going and coming” rule when travel upon the public roadways is an integral or necessary part of the employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995). Claimant’s argument seems to be that Sumner was within the scope of this exception because he was on his way home when the accident happened. Meier’s and Zurich U.S. Insurance Co. (Zurich) argue that Sumner was not within the scope of the exception because he was expected to deal with the personal emergency and then continue to Junction City later that day.

Whether an accident arises out of and in the course of employment depends on the facts peculiar to the case. Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 437-38, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984) (citing Newman v. Bennett, 212 Kan. 562, Syl. ¶ 3, 512 P.2d 497 [1973]). In Kindel, an employee who was transported to and from work in a company vehicle, died in a car accident. For a few hours after work, Kindel and several fellow employees went to a strip club. Kindel was driven home by an intoxicated employee. The court held that there was substantial competent evidence to support the conclusion that Kindel’s death occurred during the course of his employment. 258 Kan. at 284-85. The Kindel opinion seemed to focus on the fact that the deviation to the strip bar was minor and, when he died, Kindel was on his way home in a company vehicle. 258 Kan. at 284.

The Kindel court stated:

“A deviation from the employer’s work generally consists of a personal or non-business-related activity. The longer the deviation exists in time or the greater it varies from the normal business route or in purpose from the normal business objectives, the more likely that the deviation will be characterized as major. In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he or she has ceased the deviation and is returning to the business route or purpose.” 258 Kan. at 284.

Claimant cites Foos for support. Foos was an exterminator who was assigned a vehicle for a route that included several towns. He [854]*854performed some exterminations in the morning, then took a break for a “hole-in-one” contest at a sports complex. Although he planned to do some work that afternoon, the jobs were not performed. Later that evening, while on his way home, he was injured in the company vehicle. The court held that Foos had returned from a deviation and was on a direct route home on a public highway which was an activity contemplated by his employer. 277 Kan. at 692.

Claimant essentially presents two arguments. First, the Board ignored the evidence that established Sumner was on his way home to stay at the time of the accident. Second, Claimant contends that Sumner s employer s permission to go home makes the accident compensable.

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Related

Sumner v. Meier's Ready Mix, Inc.
144 P.3d 668 (Supreme Court of Kansas, 2006)

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Bluebook (online)
126 P.3d 1127, 34 Kan. App. 2d 850, 2006 Kan. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sumner-v-meiers-ready-mix-inc-kanctapp-2006.