Opinion
No. 14-02-00643-CV
Memorandum Opinion filed November 6, 2003.
On Appeal from the 127th District Court, Harris County, Texas, Trial Court Cause No. 99-19033
Reversed and Remanded
Panel consists of Chief Justice BRISTER and Justices FOWLER and FROST.
MEMORANDUM OPINION
In this workers' compensation case, appellant Texas Workers' Compensation Insurance Fund asserts the trial court reversibly erred by erroneously charging the jury regarding the definition of "course and scope of employment." We agree, reverse the trial court's judgment, and remand for a new trial.
I. Factual and Procedural Background
William Zellars worked as a construction supervisor for Ameriway Construction Company. On April 18, 1997, Zellars was working in West Columbia, Texas, about eighty miles from his home in Spring. He used his personally owned truck to travel to and from work. Ameriway had purchased a construction trailer, and Zellars used his truck to pull the trailer to and from work sites. Zellars used the trailer to haul tools and equipment, some of which belonged to him and some to Ameriway.
On the way home from West Columbia, Zellars experienced problems with his truck. Zellars arranged for his truck, with the trailer attached, to be towed to a grocery-store parking lot about ten miles from his home. Zellars's wife testified that Zellars called her that night and told her that he planned to use the generator in the trailer to jump start the battery in his truck. The next day, Zellars was found dead in the trailer. He had died of asphyxia from carbon monoxide inhalation. The generator in the trailer was out of gas.
Zellars's wife and two sons — appellees Kathy Zellars Bridwell, Justin P. Zellars, and William Joshua Zellars (collectively, "Claimants") — filed a claim for workers' compensation death benefits. At every administrative level in the workers' compensation system, their claim was denied because Zellars's injuries were determined not to have been sustained in the course and scope of his employment. The Claimants sought review in the district court.
The parties entered into the following stipulations, among others:
(1) Ameriway provided hotel or motel accommodations while Zellars was on company business out of town.
(2) Zellers's compensation from Ameriway included a $500 monthly "automobile allowance" that Zellars could use as he saw fit, a $140 "travel allowance" that was paid at the start of work at each new job site, a $300 monthly "auto phone allowance," and a $115 "auto insurance allowance."
(3) Zellars suffered accidental death due to "asphyxia from carbon monoxide poisoning."
(4) Ameriway did not tell Zellars to which job site he should report each day, did not specify the time he should begin or end his work day, and did not require him to travel on any particular route.
There was evidence at trial to support the following propositions:
(1) Ameriway did not pay for gasoline or repairs for Zellars's truck and did not provide any maintenance for the truck.
(2) Ameriway did not require Zellars to provide receipts to show how Zellars used his automobile allowance.
(3) Zellars's travel allowance was unrelated to transportation and was actually a per diem payment.
(4) Zellars supervised projects in up to three different communities at once, and it was within his discretion to determine where he would work each day.
(5) it was not required as a term of Zellars's employment that he haul the trailer.
(6) the trailer had no lights, electricity, or plumbing.
(7) Ameriway never authorized, encouraged or knew of people sleeping in the trailer.
(8) Zellars owned the gas generator.
(9) Kathy Zellars Bridwell believes the generator was owned by Ameriway.
The trial court did not define "course and scope of employment" using the definition found in section 401.011(12) of the Texas Labor Code. The trial court's definition did not contain the last sentence of the statutory definition. The jury, in a 10-2 verdict, found that Zellars's injuries were sustained in the course and scope of his employment.
II. Issues Presented
Appellant Texas Workers' Compensation Insurance Fund (the "Fund") argues the trial court reversibly erred in its instruction on the definition of "course and scope of employment."
III. Standard of Review
Although this court generally reviews the trial court's decisions as to how to charge the jury under an abuse-of-discretion standard, once the trial court has decided to define a term in the charge for the jury, this court determines whether the definition accurately states the law under a de-novo standard of review. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2003) (stating appellate court reviews propriety of definition used in charge under de-novo standard of review); Texas Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) (general abuse-of-discretion standard of review).
IV. Analysis
The Texas Labor Code provides the following definition of "course and scope of employment":
"Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.
The term does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee's employment to proceed from one place to another place; or
(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:
(i) 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
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
Texas Labor Code § 401.011(12).
The trial court's definition of "course and scope of employment" must accurately state the law. See Mandlbauer, 34 S.W.3d at 912. The trial court's charge defined "course and scope of employment" using the first two sentences of the above statutory definition verbatim. The Fund requested the trial court to define this term using all three sentences of the statutory definition; however, over the Fund's objection, the trial court refused to define "course and scope of employment" using all three sentences of the statutory definition. In the third sentence of the statutory definition, the Legislature excluded two specifically described situations from the general definition of "course and scope of employment." The evidence at trial raised genuine issues of material fact regarding the applicability of these exclusions. We hold that the trial court erred by failing to charge the jury on all three sentences of the statutory definition in section 401.011(12) of the Texas Labor Code. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474-81 (Tex. 2001) (holding trial court erred in giving jury instructions that were incomplete under applicable statute); Gray v. West, 608 S.W.2d 771, 775-77 (Tex.Civ.App.-Amarillo 1980, writ ref'd n.r.e.) (holding trial court erred by failing to charge the jury on all elements that plaintiff needed to prove as to joint-adventure theories).
In performing a harm analysis regarding this charge error, we examine the entire record. See Quantum Chem. Corp., 47 S.W.3d at 480. The only contested issue at trial was whether Zellars was in the course and scope of his employment when he sustained the injuries that resulted in his death. The trial was contested, and the evidence was conflicting. The Claimants argued the erroneous definition in their closing argument. The evidence at trial raised genuine issues of material fact regarding the applicability of the exclusions contained in the omitted portion of the statutory definition. The erroneous definition prevented the Fund from arguing these exclusions to the jury. After reviewing the entire record, we conclude that the trial court's error probably caused the rendition of an improper judgment. See Tex.R.App.P. 44.1(a); Quantum Chem. Corp., 47 S.W.3d at 480; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
The Claimants assert that, because the Fund has not challenged the sufficiency of the evidence, it cannot seek reversal of the trial court's judgment and remand for a new trial based on error in the jury charge. The Claimants cite no authority for this proposition, and we find it lacks merit. To seek a new trial based on jury charge error, a party need not challenge the sufficiency of the evidence to support the jury's verdict under the allegedly erroneous charge. The Claimants also assert that the parties' stipulations removed any fact issues regarding the third sentence of the statutory definition, but this is not supported by the record. Therefore, we find this argument also lacks merit.
V. Conclusion
Because the trial court committed reversible error by refusing to charge the jury based on the entire statutory definition, we sustain the Fund's first issue, reverse the trial court's judgment, and remand for a new trial in accordance with this opinion.
Because we have granted all the relief the Fund seeks on appeal, we need not address the Fund's other issue.