Mastec North America, Inc. v. Henry Edward Sandford ( 2014 )

FOURTH DIVISION
DILLARD, J.,
BOGGS and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
November 12, 2014
In the Court of Appeals of Georgia
A14A1121. MASTEC NORTH AMERICA, INC. v. SANDFORD
et al.
BOGGS, Judge.
In this interlocutory appeal, Mastec North America, Inc. (“Mastec”) and
DirecTV, Inc.(California) (“DirecTV”) appeal from the trial court’s order denying
their motion for summary judgment. They contend that no genuine issues of material
fact exist as to whether a field technician was acting in the course and scope of his
employment at the time he ran a stop sign and collided with another vehicle. For the
reasons explained below, we agree and therefore reverse.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the movant is entitled to judgment as a matter of law. We review a trial
court’s grant of summary judgment de novo, construing the record and all reasonable
inferences in favor of the nonmoving party.” (Citation and punctuation omitted.)
Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 (629
SE2d 501) (2006). So viewed, the record shows that Warnock was employed by
Mastec as a field technician to go to the home of DirectTV customers to install and
repair satellite TV equipment provided by DirectTV. At the time of the accident,
Warnock was driving a Mastec work van. Warnock authorized Mastec to deduct $40
per week from his paycheck for the privilege of driving the work van to and from his
home at the start and end of each workday.
Warnock’s personnel file included documents in which he acknowledged the
following:
“WORKING TIME” is time spent performing any activities for the
benefit of MasTec, such as:
1. Performing warehouse activities;
2. Performing Office Work;
3. Time spent training;
4. Performing installation or service actions at a customer
location;
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5. Door tagging a customer if not home during designated
appointment window;
6. Travel time between jobs;
7. Attending company meetings;
8. Participating in training activities;
9. Traveling from the office to your first job and back to office
after completing your last job.
The following activities are typically “NON-WORKING TIME”:
1. Meals or other breaks lasting 30 minutes or longer;
2. Time spent getting to work in the morning;
3. Time spent traveling home after work.
Questions and Answers
Q. When does my work day begin?
A. The beginning of your work day usually begins when you arrive at
the warehouse or the location where you receive your daily work orders
from your supervisor. If you do not report to the facility or a remote
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location, your work day typically begins when you arrive at the location
of your first work order.
Q. If I do not go by the office, but drive directly from my house to my
first job, is that drive time working time?
A. No. In that case, the drive time is non-work time.
...
Q. When does my work day end?
A. Your work day ends when you have completed all your work related
activities for the day. If you report to warehouse at the end of the day,
you should include travel time to the warehouse as working time. If you
drive home after your last job, the time spent driving home [is] non-
working time.
Q. I forgot to call in and close my last job, but remember and close it
after I arrive at home. Is that working time?
A. Yes. Please include the time calling in and closing your work order
on your timesheet. But, it is MasTec policy and your duty to close all
work orders before leaving the customer’s house. Failing to do so may
result in disciplinary procedures.
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Warnock testified that on the day of the accident, his two scheduled work
orders “had fallen through.” He received a telephone call from his supervisor
directing him to a new job on Creekview Drive in Newnan, Georgia. Information
about this job was also entered into a computer system that Warnock could access
through a hand-held device. Warnock did not have a preprinted work order for this
job, because it was assigned after the start of the work day.
When Warnock completed his assigned work at a customer location, he was
required to make an entry into his hand-held device before leaving the customer
location to close out the job. Warnock testified that he closed out the Creekview
Drive job on his hand-held device; he did not recall any other paperwork associated
with this job. Warnock testified that he could not recall ever closing out a job on his
hand-held after returning home from his last job.
With regard to the time sheet that he was required to complete on a daily basis,
Warnock testified that completing his time sheet was his last work activity of each
work day. Warnock acknowledged that “most of the time” he completed his time
sheet in his work van when the job was completed. When asked if he ever completed
his time sheet after he arrived at home after the last job, Warnock replied, “I vaguely
can say possibly that that could have happened. I remember, you know, in the van - -
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that we basically completed each job. And at the of - - end of that job as our working
time ended, we completed the time sheet. I remember most.” He could not recall any
specific occasion when he completed a time sheet at home.
An eyewitness to the accident testified that when she was picking up loose
papers on the ground after the accident, Warnock told her, “don’t worry about that
paperwork, we do so much as it is, we have so much paperwork to do I get that
whenever.” Additional questioning during her deposition elicited the following
response:
Q. And did Mr. Warnock say - - the driver of the DirecTV van - -
A. Uh-huh.
Q. - - say something to you about that he had more paperwork to
do to finish - -
A. Yes. He said don’t worry about that paperwork, I have more
paperwork to do. We have so much to do. I’m not worried about that
right now.
Q. Okay. And he indicated to you that he had more paperwork to
do to finish his work?
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A. I guess to finish his work.
Q. Okay. Well, that’s what he said to you, correct?
A. Yes. Got more paperwork to do so . . .
Q. Okay. To finish his work?
A. To finish out his job, yes.
A Green Road Central Records satellite tracking device was installed on
Warnock’s work van that collected data about the start and stop time of a “trip” and
whether high speeds were detected. The record includes a Green Road trip report for
the date and time of the accident with an identification number of “57556” that does
not include a driver’s name for the date of the accident. It states the trip began at 6:59
p.m. and ended at 7:22 p.m. A 911 call reporting the accident was made at 7:23 p.m.
While the trip report appears to have been produced by Mastec in discovery, no
testimony or other evidence in the record explains how the trip data was collected or
how the Green Road trip reports should be interpreted.
Mastec produced in discovery a weekly time sheet signed by Warnock with a
handwritten date of “9/10/09” in the blank beside an entry for “Signature Date.”
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Warnock also handwrote an “end time” of 7:17 p.m. for his work on the date of the
accident, which was September 10, 2009. Warnock testified that he did not have a
specific recollection of his location when he signed the time sheet and he did not
remember which of multiple potential clocks he may have looked at to determine the
time before making his entry. He stated that he stopped at a gas station to get a snack
after leaving the last customer’s home before continuing on his way home. He
explained that “perhaps [he] may have made a telephone call to [his] supervisor at
some point.” He stated that he would have signed the time sheet at 7:17 p.m. on
September 10, 2009. After repeated questioning during his deposition, Warnock
stated he did not have a recollection of where and at what time he completed the time
sheet.
Frank Casto, a DirecTV employee who worked with Warnock on his last job
before the accident,1 testified that he witnessed the accident as he was following
Warnock in a separate vehicle. He testified that both he and Warnock were headed
home at the time of the accident. Casto testified that he did not see Warnock complete
any paperwork at the conclusion of the job and agreed that it was possible to conclude
that Warnock may have completed his time sheet at home after the accident. He stated
1
Casto is also Warnock’s father-in-law.
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that he would occasionally close out a job on his hand-held device at home because
he could not get a signal on it at the customer location.
Following the accident, Henry and Tina Sandford filed a complaint against
Mastec, DirecTV, and Warnock, alleging negligence and gross negligence against
Warnock and seeking a recovery from Mastec and DirecTV under a theory of
respondeat superior. The trial court initially granted summary judgment in favor of
Mastec and DirecTV on the issue of respondeat superior, but later changed its mind
and denied summary judgment on this issue. After the trial court granted a certificate
of immediate review, this court granted Mastec and DirecTV’s application for
interlocutory appeal.
1. Appellants contend that they are entitled to summary judgment in their favor
because the undisputed evidence shows that Warnock was not acting within the
course and scope of his employment at the time of the accident. We agree.
“When a servant causes an injury to another, the test to determine whether the
master is liable is whether or not the servant was at the time of the injury acting
within the scope of his employment and on the business of the master. [Cits.]”
(Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257
SE2d 186) (1979). Generally, an employee traveling to or from work “is not in the
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course of his employment but rather is engaged in a personal activity.” (Citations and
punctuation omitted.) Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710
SE2d 839) (2011).
Where a tort occurs as a result of a vehicle collision in which the
employee was driving his employer’s vehicle, however, the employer’s
liability must be analyzed under the burden-shifting framework
espoused by the Supreme Court of Georgia in Allen Kane’s Major
Dodge, [supra]. Under this framework, a presumption arises that the
employee was acting in the course and scope of his employment at the
time of the collision, and the burden is then on the employer to show
otherwise. An employer may overcome this presumption as a matter of
law by presenting uncontradicted evidence showing that the employee
was not acting in the course and scope of his employment. The employer
is thereafter entitled to summary judgment unless “other facts” are
proffered — that is, additional evidence other than the fact that the
vehicle was owned by the employer — from which a jury could
reasonably infer that the employee was acting within the course and
scope of his employment when the accident occurred. Where the “other
facts” are direct evidence, such is sufficient for the case to go to the jury.
Where the “other facts” are circumstantial, however, such evidence will
not defeat the employer’s motion for summary judgment, unless it is
sufficient to support a verdict in the plaintiff’s favor.
(Citations and punctuation omitted.) Dougherty Equipment Co. v. Roper, 327 Ga.
App. 434, 436 (1) (a) (757 SE2d 885) (2014).
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Here, the appellants rebutted this presumption with testimony from Warnock
and Casto that Warnock was driving home from his last job at the time of the
accident. See CGL Facility Mgmt. v. Wiley, Ga. App. (Case No. A14A0455, decided
July 16, 2014). The circumstantial evidence appellees rely upon to show that
Warnock may not have been driving home is insufficient to overcome such direct
evidence. Specifically, appellees point to evidence showing that Warnock should
have turned left to drive directly home, rather than straight, at the intersection where
the accident occurred. Warnock testified that he was using a GPS device to provide
directions home after he completed his last job and that he “would not have gone
straight if it wouldn’t have told me to.” “When a party attempts to create a jury issue
using circumstantial evidence to counter uncontradicted direct testimony as to a
certain fact, the circumstantial evidence must be inconsistent with the direct
testimony and must tend to establish the conclusion projected while rendering less
probable all inconsistent conclusions.”(Citations and punctuation omitted.) Target
Corp v. Amerson, 326 Ga. App. 734, 743 n. 29(1) (h) (755 SE2d 333) (2014). Here,
the circumstantial evidence was not inconsistent with the direct evidence that
Warnock was driving home at the time of the accident, because the GPS device could
have provided Warnock with directions for a different route to his home.
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Appellees argue that issues of fact as to whether Warnock had outstanding
paperwork to complete once he arrived home from his last job also preclude summary
judgment on the issue of respondeat superior. This argument has no merit, because
appellees must show that Warnock was acting within the scope of his employment at
the time of the accident. In Elam v. Ins. Co. of North America, 134 Ga. App. 169 (213
SE2d 546) (1975), we rejected a similar argument and concluded that an employee
was not acting within the scope of his employment while driving home, even though
he intended to complete paperwork once he arrived at home. We stated,
Even if the employee be considered “at work” when he reached his
home where he worked on his employer’s business, at most he was still
only “en route to or from his work” at the time of the collision under the
above authorities, there being no showing that he was in continuous
employment, as a traveling salesman. [Cit.]
Id. at 170.
Appellees assert that we should affirm the trial court based upon our decision
in Littlefield Constr. Co. v. Bozeman, 314 Ga. App. 601, 603-604 (1) (725 SE2d 333)
(2012). We disagree. In Littlefield, the employer allowed employees to drive a
company vehicle home provided they “kept the vehicle clean,” and an employee
drove a company vehicle home in order to wash it over the weekend, as well as to use
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the vehicle and its trailer hitch on a personal errand. We concluded that an issue of
fact existed as to whether the employee was driving the vehicle for the “employer’s
business at the time of the collision because although [the employee] had made a
personal stop on the way home, at the time of the collision, [the employee] was
driving the truck to his home so that it could be washed the next morning.” (Emphasis
supplied.) Id. at 605. Significantly, we noted that the exception to the general rule
applies “where the employer has provided the employee a vehicle which enables the
employee more conveniently to perform a duty for the employer.” (CItations,
punctuation and footnote omitted.) Id.In contrast, here, Warnock was driving the truck home for his own convenience
and he paid $40 a week to his employer for this privilege. And company policy
clearly stated that he would only be paid for the time spent completing paperwork at
home, not his driving time, if he failed to complete all of his paperwork before
departing from the location of his last customer for the day as required by company
policy. Based upon these distinguishing facts, we conclude that Littlefield does not
control the outcome of this case.
Finally, we reject appellees’ contention that Warnock was performing a special
mission within the scope of his employment at the time of the accident. An exception
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to the general rule that an employee is not acting within the scope of their
employment while driving to and from work applies “where the employee undertakes
a special mission at the direction of the employer.” Wright v. Pine Hills Country
Club, 261 Ga. App. 748, 751 (583 SE2d 569) (2003).
Where the employee, before or after customary working hours, is on his
way home after performing, or on the way from his home to perform,
some special service or errand or the discharge of some duty incidental
to the nature of his employment in the interest of, or under direction of,
his employer, and an injury arises en route from the home to the place
where the work is performed, or from the place of performance of the
work to the home, such injury is considered as arising out of and in the
course of the employment.
(Citation and punctuation omitted.)Id. In this case, Warnock’s last job involved
performing his usual work and cannot be considered a special mission. See Hargett’s
Telephone Contractors v. McKeehan, 228 Ga. App. 168, 170-171 (491 SE2d 391)
(1997).2
2
Our decision in Patterson v. Southeastern Newspapers, 243 Ga. App. 241(533 SE2d 119) (2000), does not require a different result. In Patterson, we
concluded that issues of fact existed as to whether the employee was driving home
from a special errand because the employee had been called in to work on a scheduled
day off. 243 Ga. App. at 243-244 (1). Here, there was no evidence that Warnock was
asked to work on a scheduled day off.
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2. Appellants’ remaining enumeration of error contesting the trial court’s
authority to grant a motion for reconsideration of a summary judgment decision is
rendered moot by our holding in Division 1.
Judgment reversed. Dillard, and Ray, JJ., concur.
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