Helen O'Neal v. Ector County Independent School District and the Commissioner of Education ( 2009 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR RECONSIDERATION EN BANC
NO. 03-06-00529-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
DISSENTING OPINION
Because the majority opinion in this case deviates from this Court’s precedent
regarding the “continuous coverage principle,” I believe that en banc review is warranted. See Aetna
Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex. App.—Austin 1986, writ ref’d n.r.e.) (holding
that employee whose work entails travel remains within course of employment continuously during
trip). As discussed in Justice Patterson’s substituted dissenting opinion, Leordeanu was a traveling
salesperson without a fixed place of employment, and was therefore subject to the “continuous
coverage principle.” See generally Orgon, 721 S.W.2d at 575; Texas Employers Ins. Ass’n v. Cobb,
118 S.W.2d 375, 379 (Tex. Civ. App.—El Paso 1938, writ ref’d) (holding that because traveling
employee had “the duty to go from place to place at the will of his employer” in the performance of
his employment, injury that occurred during overnight stay on business trip was “proper subject for
compensation under our Workmen’s Compensation Act.”); 99 C.J.S. Workers’ Compensation § 428
(2000) (collecting cases).1 Because I believe that the continuous coverage principle applies in the
present case, I adopt the reasoning of Justice Patterson’s dissent and respectfully dissent from the
denial of en banc consideration.
___________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Patterson, Puryear, Pemberton, Waldrop and Henson
Filed: February 13, 2009
1
In Orgon, this Court cited a number of cases from other jurisdictions to illustrate that the
“‘continuous coverage principle’ is the prevailing view throughout the United States.” Aetna
Cas. & Sur. Co. v. Orgon, 721 S.W.2d 572, 575 (Tex. App.—Austin 1986, writ ref’d n.r.e.). This
citation includes two cases involving facts similar to the present case, in which a traveling employee
was injured while returning home from a business trip. See Baldridge v. Inter-River Drainage Dist.
of Mo., 645 S.W.2d 139, 140 (Mo. App. 1982) (holding that coming-and-going rule does not apply
to “employees whose work entails travel away from the employer’s premises”); McGee v. Panhandle
Tech. Systems, Inc., 387 N.W.2d 709, 713 (Neb. 1986) (employee was acting in scope of
employment when injured during drive home from trip taken for purpose of studying marketing
techniques of similar businesses).
2