Gordon R. Trice (Deceased) v. James A. Thomas Co. ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
GORDON RAY TRICE (DECEASED),
TERESA TRICE,
BENJAMIN CODY TRICE (A MINOR) AND
CHRISTOPHER GAIGE TRICE (A MINOR)
MEMORANDUM OPINION* BY
v. Record No. 2230-01-2 JUDGE JAMES W. BENTON, JR.
MARCH 26, 2002
JAMES A. THOMAS t/a JAMES A. THOMAS
CO. 1 AND UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Leila H. Kilgore (Benjamin M. Smith, Jr.;
Kilgore & Smith, on brief), for appellants.
Wesley G. Marshall for appellee James A.
Thomas, t/a James A. Thomas Co.
No brief or argument for appellee Uninsured
Employer's Fund.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
This proceeding began as a claim by Gordon Ray Trice
against his employer "James A. Thomas Co." The employer's first
report of accident designates the employer as "James Thomas
d/b/a James A. Thomas Co." The commission's file denotes the
employer as "James A. Thomas T/A James A. Thomas Company." At
the evidentiary hearing, Thomas testified, however, that the
business was incorporated "six or seven years ago." The deputy
commissioner then remarked "we've got the wrong style of the
case if that's the case" and inquired of Thomas's attorney about
the status of the business entity. Thomas's attorney responded,
"We have it, Deputy Commissioner, as James A. Thomas Co., Inc.,"
and agreed to amend the style of the case. Throughout the
ensuing proceedings, however, and in this Court, the parties
have continued to designate the employer "James A. Thomas t/a
James A. Thomas Co." Because the record does not indicate that
the commission changed the employer's designation, we will refer
to the entity as "employer."
The sole issue raised by this appeal is whether the
Workers' Compensation Commission erred in ruling that Gordon Ray
Trice was not in the course of his employment when he was
involved in a fatal accident while driving his employer's truck.
I.
The record shows that Trice worked for the employer as a
carpenter. On the early morning of May 26, 2000, Trice drove
from his home in Spotsylvania County to the home of James A.
Thomas, where he left his vehicle and obtained a truck
registered to his employer. Trice drove the truck to the City
of Charlottesville where he performed work for the employer.
That afternoon, while driving from Charlottesville to the
employer's shop in Spotsylvania, Trice was involved in an
accident. Trice died three days later.
At the evidentiary hearing, Trice's wife testified that
Trice generally drove himself to work. She also testified that
Trice had worked in Charlottesville on another occasion within
the two weeks prior to the accident and that her husband had not
driven their vehicle. She did not know who drove on that day.
She testified that "If they were going to like Charlottesville,
I know that they would meet and they would all drive together
rather than ride their own separate vehicles." She further
testified as follows:
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There was a time when they all rode
together. Mr. Thomas had a van then and I
know he used to meet and ride with him, but
that hasn't been for quite a few years, so
just recently when he was working for him,
I'm assuming he drove himself.
Larry Bishop worked nine months, "off and on," for the
employer as a carpenter. In May 2000, he was working for the
employer in Fairfax County. He testified that during his
employment he worked at "remote job sites, places other than
where Mr. Thomas lived or had his business." On those
occasions, he drove himself to work or "rode with somebody
else." The employer did not pay for his travel time or
expenses.
Chester Didion, who had worked three years for the employer
as a carpenter, testified that he worked with Trice the day of
Trice's accident and that, two weeks before the accident, he had
also worked with Trice in Charlottesville. On that previous
occasion, Didion had driven the employer's truck to
Charlottesville. Didion testified that when they worked at a
job site away from the employer's office, "[e]very once and
awhile [the employer would] offer to let us use his [vehicle] so
we didn't have to drive ours." He indicated that he used the
employer's truck only to get to job sites that were "a hundred
and some miles one way." According to Didion, however, if they
"worked in [Washington] D.C. or Alexandria, or [locally, the
employees] . . . used [their] own vehicles."
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Didion further testified that the employer's "business was
basically off and on" and that he had driven the employer's
truck only two or three times. In response, however, to a
question about the frequency of use of employer's vehicle,
Didion testified that it was "probably about fifty/fifty."
Didion also testified that the employer did not reimburse any
employees for travel time or mileage.
Thomas testified that he is the only officer of the
corporation and that he hired carpenters to do specific jobs for
a specified period. He testified that the business was
sporadic, averaging jobs two or three months a year. When asked
how his employees "usually" got to remote job sites, Thomas
testified: "Most of them drove. If it was convenient we met
and rode together. It depends on if they wanted to get out of
bed." He also testified that he did not pay the employees for
travel time or reimburse for travel expenses and that Trice was
not being paid for his travel time. He further testified that
Trice had no duties to perform at the employer's shop after
leaving Charlottesville.
The deputy commissioner found that "[t]he evidence suggests
that the . . . employer occasionally accommodated its employees
by allowing them to travel to a remote work site in a company
vehicle" and that "no persuasive evidence [proved] . . . that
this was done on a routine basis or that the furnishing of such
transportation was made a part of any employment contract."
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Thus, the deputy commissioner ruled that the evidence failed to
prove an exception to the general rule that an injury sustained
while going from work did not occur in the course of employment.
On review, the commission's findings included the
following:
There can be no doubt that [Trice]
benefited from using the employer's truck -–
it saved him from the expenses associated
with using his own car. . . . [W]hile the
employer occasionally accommodated employees
by allowing them to drive to a remote work
site in a company vehicle, this was not done
on a routine basis nor did it arise out of a
contract of employment. . . . There is no
persuasive evidence that the employer
benefited from allowing employees to take
the company truck to remote sites.
The commission, therefore, affirmed the deputy commissioner's
ruling that Trice was not in the course of his employment when
the accident occurred, and the commission denied the request for
benefits.
II.
"As a general rule 'an employee going to or from the place
where [the employee's] work is to be performed is not engaged in
performing any service growing out of and incidental to [the]
employment.'" Kendrick v. Nationwide Homes, Inc., 4 Va. App.
189, 190, 355 S.E.2d 347, 347 (1987) (citation omitted). The
Supreme Court has "recognized three exceptions to the general
rule." LeWhite Constr. Co. v. Dunn, 211 Va. 279, 282, 176
S.E.2d 809, 812 (1970). The first exception, which Trice
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contends is the dispositive issue in this case, applies "[w]here
in going to and from work the means of transportation is
provided by the employer or the time consumed is paid for or
included in the wages." Id.
In Bristow v. Cross, 210 Va. 718, 173 S.E.2d 815 (1970),
the Supreme Court specifically addressed this exception as
follows:
[A]n injury sustained by [an employee] who
is provided with transportation when going
to and from his [or her] work, is considered
as arising out of [the] employment when such
transportation is the result of an express
or implied agreement between the employer
and [the] employee; or where the
transportation is furnished by custom to the
extent that it is incidental to and part of
the contract of employment; or when it is
the result of a continued practice in the
course of the employer's business which is
beneficial to both the employer and the
employee.
Id. at 720-21, 173 S.E.2d at 817 (emphasis added). See also
Dunn, 211 Va. at 282, 176 S.E.2d at 812 (noting that "[m]ost of
the decisions applying the first exception have been based upon
agreements, express or implied, that the employer will furnish
the [employee] free transportation to and from his work").
Relying on Didion's testimony, the appellants contend that
"[t]here [was] credible evidence to show that it was the custom
of the Employer to furnish transportation to remote job sites."
On appeal, our task is not to determine whether credible
evidence exists which is contrary to the commission's decision,
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but rather to determine whether there is credible evidence which
supports the commission's ruling. C.D.S. Services v. Petrock,
218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978); Rusty's Welding
Service, Inc. v. Gibson, 29 Va. App. 119, 131, 510 S.E.2d 255,
261 (1999) (en banc). "According to well established
principles, '[f]actual findings of the commission that are
supported by credible evidence are conclusive and binding upon
this Court on appeal.'" Boys and Girls Club of Va. v. Marshall,
37 Va. App. 83, 90, 554 S.E.2d 104, 107 (2001) (citation
omitted). A ruling by the commission, "however, that an injury
arose . . . in the course of employment is a mixed finding of
law and fact and is properly reviewable by this Court." City of
Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261
(1985).
The evidence is undisputed that the employees routinely
drove their own vehicles when the employer required them to
perform work in the cities of Alexandria and Washington.
Appellants contend, however, that the employer customarily
furnished transportation when the employees were required to
work "at a remote job site," such as Charlottesville. Although
appellants note that Didion testified the employer's truck was
used fifty percent of the time when going to "remote" locations,
Thomas testified that most employees drove their own cars to
"remote" locations. Bishop, who also worked for the employer,
testified that when they worked in "remote" job sites "sometimes
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[the employees] drove ourselves" and "sometimes [an employee]
rode with somebody else." Trice's wife also testified that when
Trice worked at remote job sites, he "generally drove himself."
No testimony established that Thomas and Bishop did not
include Charlottesville when they spoke of "remote" locations.
Trice's wife testified that "[i]f they were going to like
Charlottesville, . . . they would meet and . . . would all drive
together rather than ride in their own separate vehicles." Her
testimony also does not establish that the employer was
regularly providing transportation to Charlottesville.
Moreover, even if Didion and other employees used the employer's
vehicle fifty percent of the time to go to Charlottesville, the
finder of fact could infer, based on the testimony, that "most"
employees drove themselves to such places. Indeed, no evidence
proved how Didion got to Charlottesville on the day of Trice's
accident or that he was in the truck during the accident. Thus,
the record contains credible evidence to support the
commission's factual findings that the employer did not provide
a vehicle to the employees as a custom or regular practice and
that the provision of a vehicle was not either expressly or
impliedly part of any employment contract.
The Supreme Court has held "that an employee furnished
transportation by his employer, absent express or implied
agreement or custom incidental to the employment contract, is
not covered by the Act unless such transportation is beneficial
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to the employer." Dunn, 211 Va. at 283, 176 S.E.2d at 812-13.
In view of the evidence that the employees regularly traveled to
distant locales without their time or expenses being reimbursed,
the commission could reasonably find that the employer received
no benefit as a result of Trice driving its vehicle. The
commission's finding that "no persuasive evidence [established]
that the employer benefited from allowing [Trice] to take the
company truck to remote sites" supports an inference that "the
free transportation for [Trice] was merely a favor to him which
provided no benefit to his employer." Id. at 283, 176 S.E.2d at
813. Indeed, Didion testified that Thomas allowed him to use
the truck on those "special occasions . . . so [Didion] didn't
have to put miles on his vehicle." We hold that credible
evidence supports the commission's rulings.
For these reasons, we affirm the commission's decision.
Affirmed.
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