Lumbermens Mutual Casualty Company v. Brenda Green, Beneficiary of Robert Green

Affirmed and Memorandum Opinion filed February 28, 2006

Affirmed and Memorandum Opinion filed February 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00631-CV

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LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant

V.

BRENDA GREEN, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2001-24848

M E M O R A N D U M   O P I N I O N

In this worker=s compensation case, appellant Lumbermens Mutual Casualty Company (ALumbermens@) appeals the judgment of the trial court, which affirmed the jury=s award of death benefits to appellee Brenda Green, the decedent=s widow.^[1]  In two points of error, appellant contends that the evidence is legally and factually insufficient to support the trial court=s judgment.  We affirm.

Background

On April 11, 2000, decedent Robert Green was employed by Cargo Airport Services (ACargo@) as a cargo traffic agent.  Trial testimony suggested that Green worked primarily in Cargo=s warehouse, which stored inbound and outbound freight. According to Green=s longtime friend and co-worker Jorge Gorjon, Gorjon and Green were usually the first two employees to arrive for the morning shift.

Gorjon testified that his morning routine involved filling out paperwork in his office, which opened directly into the warehouse.  According to Gorjon, Green typically waited for Gorjon to finish his paperwork, and then the two of them would walk from Gorjon=s office into the warehouse.  A second small office, which contained a telephone, a desk, and a computer, was located inside the warehouse.

Gorjon testified that when he and Green entered the warehouse on the morning of April 11, 2000, they noticed that someone had turned off the light in the small office. According to Gorjon, this was unusual because the light in that office normally stayed on overnight.  Gorjon testified that both he and Green walked toward the office to investigate; however, Green reached the office first because Gorjon paused to deposit some dirty uniforms in a nearby laundry bin.

Gorjon testified that as Green reached for the doorknob, a hand brandishing a gun emerged from beneath the knob.  Gorjon testified that a man walked out of the office and pointed the gun at Green=s chest; Gorjon did not recognize the man because his body was completely covered with clothing, including a ski mask and gloves. According to Gorjon, Green began walking backwards while the man continued to point the gun at him.  Green then told Gorjon to run and call the police.

Gorjon testified that he was running back to his office when he heard a gunshot. Startled, Gorjon fell and lay on the floor for about a minute.^[2]  Gorjon testified that he tried to hide because he feared that the assailant would chase him; however, the attacker did not pursue Gorjon.  Gorjon called 911 and eventually ran to the warehouse next door; he did not see the attacker again.

Gorjon testified that Green was very friendly and well-liked, and that he had many friends.  Gorjon also stated that he was unaware of any employees who had harbored ill feelings toward Green.  Finally, Gorjon  testified that he did not know where Green kept his money and that he had never seen Green=s money clip during the years they had worked together.

Louis Cavelli, Cargo=s operations manager, testified that Cargo shipped many different types of items, some of which were expensive.  Cavelli also testified that some of the warehouse doors did not have locks.  However, Cavelli testified that a robbery had never occurred at the warehouse before, and he stated that he was unaware of any cargo reported missing after Green=s murder.  Cavelli testified that he had known Green for many years and knew that Green carried a money clip.  Cavelli opined that it was probably common knowledge that Green carried large sums of money on his person, but he was unaware of anyone who harbored a vendetta against Green.

Investigating officer Sergeant Jerry Novak of the Houston Police Department testified by deposition.  Novak testified that Green had died from a bullet wound to the head; when he examined Green=s body, Novak noticed that Green=s front pants pockets were inside-out but his wallet remained undisturbed. According to Novak, police recovered Green=s empty money clip just outside the warehouse.  Officers also discovered various articles of clothing, including a ski mask, gloves, and a sweatshirt or windbreaker.  Novak also testified that while they did not discover any signs of a break-in, officers learned that one of the warehouse=s bay doors had been left partially open overnight. 

Novak believed that Green had been the target of the robbery because many people knew that he carried large amounts of cash in his money clip.  According to Novak, the discovery of the empty money clip and intact wallet and the assailant=s failure to pursue Gorjon supported this theory.  Novak also opined that the assailant, who remained unidentified at the time of trial, must have been familiar with the warehouse and with Green=s and Gorjon=s morning routine.  Novak acknowledged that numerous valuable items were stored in the warehouse; however, he asserted that the assailant=s desire to steal Green=s money clip was the only possible explanation for the attack.

At the close of the evidence, the sole question presented to the jury was: ADid Robert Green receive his fatal injury in the course and scope of his employment on or about April 11th of 2000?@ The trial court instructed the jury that A>course and scope of employment= means activity having to do with and originating in the work, business, trade, or profession of the employer performed by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer=s premises or elsewhere.=@  The court also instructed the jury that Aan injury is not in the course and scope of employment if it is caused by the act of another person intended to injure the employee because of reasons personal to the employee and not directed against him as an employee or because of his employment.@ Finally, the trial court informed the jury that the Texas Workers= Compensation Commission Appeals Panel had found that Green=s death Awas the result of a compensable injury sustained in the course and scope of his employment.@

The jury found that Green received his fatal injury in the course and scope of his employment, and the trial court entered judgment accordingly.  On appeal, Lumbermens  asserts that (1) Green=s death was not compensable as a matter of law; and (2) the greater weight of the evidence supports a finding that Green=s death was not compensable.

Standards of Review

At trial, as the party appealing a decision of the appeals panel regarding compensability or death benefits, Lumbermens had to prove by a preponderance of the evidence that Green=s death was not compensable.  Tex. Lab. Code Ann. ' 410.301 (Vernon 1996); ' 410.303 (Vernon 2005); Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922, 928 (Tex. App.CEl Paso 2005, no pet.).  Now, as the party attacking the legal sufficiency of the jury=s adverse finding, Lumbermens must demonstrate that the evidence establishes as a matter of law all vital facts in support of the compensability issue, namely that a third party attacked Green for reasons unrelated to Green=s employment.  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

 In a legal sufficiency challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.  Id.  A jury=s finding will be upheld if more than a scintilla of evidence supports it.  Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).  More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.  Id.  If there is no evidence to support the jury=s finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law.  Francis, 46 S.W.3d at 241.  The point of error should be sustained only if the contrary position is conclusively established.  Id.

Additionally, as the party attacking the factual sufficiency of the jury=s adverse finding, Lumbermens must demonstrate that the adverse finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.  Id. at 242.  The court of appeals must consider and weigh all of the evidence, and it can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.  If the court of appeals sets aside a verdict, it must detail the relevant evidence and Astate in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.@  Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).  The jury as trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Banner Life Ins. Co. v. Pacheco, 154 S.W.3d 822, 829 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Because the reviewing court is not the fact finder, it may not substitute its own judgment for that of the trier of fact.  Id.

ACourse and Scope of Employment@ and the Personal Animosity Exception

The Texas Workers= Compensation Act (ATWCA@) provides the exclusive remedy for an employee=s injury sustained in the course and scope of employment.  Tex. Lab. Code Ann. ' 406.034(a) (Vernon 1996); Walls Reg=l. Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex. 1999).  An injury is sustained in the course and scope of employment if it is of the kind or character that has to do with and originates in the work, business, trade, or profession of the employer and occurs while the employee is engaged in or about the furtherance of the affairs or business of the employer.  Tex. Lab. Code Ann. ' 401.011 (Vernon Supp. 2005); Texas Workers= Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 768 (Tex. 1997).

However, an injury is not compensable under the TWCA if it Aarose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.@  Tex. Lab. Code Ann. ' 406.032 (Vernon Supp. 2005); Bomar, 9 S.W.3d at 806.  Known as the Apersonal animosity exception,@ this provision bars compensation for those injuries Aresulting from a dispute which has been transported into the place of employment from the injured employee=s private or domestic life, at least where the animosity is not exacerbated by the employment.@  Nasser v. Sec. Ins. Co., 724 S.W.2d 17, 19 (Tex. 1987).  However, A[w]henever conditions attached to the place of employment or otherwise incident to the employment Aare factors in the catastrophic combination, the consequent injury arises out of the employment@ and compensation is not barred.  Id.

In Nasser, a jury awarded benefits to a restaurant manager who was stabbed by a customer=s ex-boyfriend.  Id. at 17.  Evidence showed that Marianne Dawes dined frequently at a restaurant where Nasser was the manager, and that Nasser would talk with her while she ate.  Id. at 18.  At some point, Dawes= ex-boyfriend, Victor Daryoush, saw Nasser sitting with Dawes and became jealous.  Id. One day, Daryoush entered the restaurant, ordered a Coke, and left; Daryoush returned a short time later to confront Nasser, but Nasser told him that he was busy.  Id.  Later that day, while Nasser was in his office, an employee informed him that someone wished to speak with him.  Id. As soon as Nasser left his office, Daryoush attacked him.  Id.

 Reasoning that Nasser=s case fell within the personal animosity exception, this court reversed and rendered a take-nothing judgment against Nasser. Id. at 17.  However, the Supreme Court of Texas reversed and remanded, holding that we had applied the legal sufficiency standard incorrectly and that there was some evidence to support the jury=s finding that Nasser was injured in the course of his employment.  Id. at 18-19.  The supreme court reasoned that Nasser was entitled to benefits because his managerial duties included interacting with customers and keeping them satisfied.  Id.  Therefore, some evidence existed that Nasser was acting in the course and scope of his employment when he ate with Dawes and when he left his office to meet unwittingly with Daryoush.  Id. Furthermore, the supreme court reasoned that the personal animosity exception did not apply because Athe dispute, if any, between Nasser and Daryoush was not one that was transported from Nasser=s private life into the workplace.  The dispute, if any, arose in the workplace or was exacerbated by, or in the very least, was incidental to, a duty of Nasser=s employment.@  Id.

On remand, we found the evidence to be factually sufficient to support the award of benefits.  Sec. Ins. Co. v. Nasser, 755 S.W.2d 186, 192 (Tex. App.CHouston [14th Dist.] 1988, no pet.).  Noting that the supreme court had Anarrowed considerably the applicability of the personal animosity exception in cases involving intentional assault,@ we rejected the argument that the relevant inquiry should be the motivation of the attacker.^[3]  Id. Instead, we explained that Aif there is a real employment-related causative factor, the injury is within the course of employment notwithstanding that there may be some personal motivation for the third-party assault.@  Id.

Legal and Factual Sufficiency Analysis

As in Nasser, the primary issue in this case is whether Green=s death occurred while he was in the course and scope of his employment or whether the personal animosity exception bars his recovery. Having examined only the evidence supporting the judgment in favor of appellee, we hold that the evidence is legally sufficient because there is more than a scintilla of evidence to support the jury=s finding that Green=s death occurred in the course and scope of his employment, and the personal animosity exception does not apply.

The morning of the attack, Green arrived to work his usual shift.  Gorjon=s testimony revealed that Green worked in the warehouse area where the company stored valuable cargo. Gorjon also testified that the light in the warehouse office was usually left on overnight, but he and Green noticed that the office was dark.  Apparently both men found this to be odd because they approached the office to determine why the light had not been left on overnight.  Although Lumbermens argues that there is no evidence that Green=s job required him to investigate or that his duties placed him in a position of harm, the jury could reasonably infer from Gorjon=s testimony that Green was suspicious and wished to investigate because he worked in the warehouse and knew that valuable goods were stored there.   See Walters v. Am. States Ins. Co., 654 S.W.2d 423, 426 (Tex. 1983) (stating that the jury is entitled to make inferences if they are reasonable and based on the facts proved).

Additionally, because the personal animosity exception does not apply, it does not remove Green=s injury from the course and scope of his employment.  The personal animosity exception does not apply because there is no evidence that Green=s death was the result of a personal disagreement that was transported into the workplace. 

Section 406.032 of the TWCA provides that an insurance carrier is relieved from liability if an employee is injured by a third party for a Apersonal reason@; as Lumbermens correctly states, the language of the statute does not require Apersonal animosity@ to exist between the injured party and the assailant. Nonetheless, according to the supreme court in Nasser, the personal animosity exception does not apply unless the injury Aresult[ed] from a dispute that has been transported into the place of employment from the injured employee=s private or domestic life.@ 724 S.W.2d at 19.  Similarly, in our opinion on remand, we emphasized the causal connection between the employee=s injuries and his duties, notwithstanding that there may be some personal motivation for the assault.  755 S.W.2d at 192.

Accordingly, we conclude that there is more than a scintilla of evidence to support the jury=s implied finding that Green=s death was not the result of a dispute that was transported from his private life into his place of employment.  Although Novak surmised that the assailant attacked Green in order to steal the money he reputedly carried, there is no evidence that Green and the unknown assailant had interacted with each other prior to the attack.   Rather, the conflict arose in the workplace and was arguably incidental to an inferred duty of Green=s employment: investigating why the light was turned off. Thus, under Nasser and other relevant case law, there is more than a scintilla of evidence to support the jury=s finding that Green=s death occurred in the course and scope of his employment. See Bomar, 9 S.W.3d at 806 (holding that in motion for summary judgment in a negligence suit, defendant hospital established as a matter of law that plaintiff nurses= injuries did not fall within the personal animosity exception because sexual harassment by doctor occurred only at the hospital and the conflict was not transported into the workplace from their private lives); Urdiales v. Concord Technologies Del., Inc., 120 S.W.3d 400, 405 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (holding in summary judgment case that personal animosity exception did not apply when supervisor punched employee who had returned late from lunch because nothing in the record indicated that the supervisor assaulted the employee Abecause of an event or a relationship outside of work@).  But see Liberty Mut. Ins. Co. v. Upton, 492 S.W.2d 623, 625  (Tex. App.CFort Worth 1973, no pet.) (applying the personal animosity exception and reversing award of death benefits to children of deceased employee who was shot at work by ex-husband because the shooting occurred for reasons personal to the employee and the ex-husband).

Additionally, after considering and weighing all of the evidence, we find it to be factually sufficient.  Although Cavelli testified that many people knew that Green carried large sums of cash in his money clip, Gorjon testified that he had worked with Green for many years and had never seen a money clip.  As the trier of fact, the jury is the sole judge of witnesses= credibility and the weight to be given to their testimony; as the reviewing court, we cannot second-guess the jury=s decisions on such matters.  Pacheco, 154 S.W.3d at 829.  Similarly, Novak opined that the attacker=s failure to pursue Gorjon or steal items from the warehouse indicated that stealing Green=s money clearly was the assailant=s objective; however, the jury was free to draw other reasonable inferences from these facts.  Walters, 654 S.W.2d at 426.  Accordingly, we hold that Lumbermens has failed to demonstrate that the jury=s adverse finding is so against the great weight and preponderance of the evidence that it is clearly unjust.  Because we find the evidence to be legally and factually sufficient to support the award of death benefits to appellee, we overrule both of appellant=s points of error and affirm the judgment of the trial court.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 28, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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^[1]  The presiding officer at the initial hearing determined that Robert Green=s death was the result of a compensable injury sustained in the course and scope of his employment.  Lumbermens appealed, and the Texas Workers= Compensation Commission Appeals Panel No. 67 affirmed.  Plaintiff Lumbermens then brought the issue before the 164th District Court, and defendant Brenda Green requested a jury trial.  The jury found that Green=s death was the result of a compensable injury sustained in the course and scope of his employment, and the trial court entered judgment accordingly.  Lumbermens now brings this appeal.

^[2]  Gorjon testified that he injured his knee, mouth, tooth, and hand when he fell and that he received worker=s compensation for his injuries.

^[3]  In Nasser, there was also evidence that Daryoush was mentally ill and that his ability to form a  rational intent was at issue.  755 S.W.2d at 192.  In its factually sufficiency review, we discussed the jury=s implied finding that Daryoush was incapable of forming a rational intent and noted that such a finding precludes the applicability of the personal animosity exception.  Id. However, before delving into this analysis, we explicitly noted that Aour finding of sufficient evidence to support the causative-factor standard makes the . . . element concerning rational intent moot in this case.@  Id.