Court of Appeals of Texas, Fourth District, San Antonio
Melissa FUENTES, Individually, and as Next Friend of Victor Robert Fuentes and Isabella Elaine Fuentes, Minors, Appellant
TEXAS MUTUAL INSURANCE CO., Appellee
the 112th Judicial District Court, Sutton County, Texas Trial
Court No. 5910 Honorable Pedro Gomez, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice. Rebeca C.
Martinez, Justice Irene Rios Justice.
ON MOTION FOR REHEARING
motion for rehearing is denied. This court's opinion and
judgment dated November 1, 2017 are withdrawn, and this
opinion and judgment are substituted. We substitute this
opinion to clarify our reasoning for affirming the trial
court's summary judgment in favor of appellant, Texas
Mutual Insurance Company.
underlying proceedings, Melissa Fuentes filed a death
benefits claim arising from the death of her husband, Robert
Estrada. Texas Mutual Insurance Company denied the claim, and
Fuentes sought administrative review by the Texas Department
of Insurance, Division of Workers' Compensation
("DWC"). After both the DWC contested case hearing
officer and the DWC appeals panel agreed with Texas Mutual,
Fuentes sought judicial review in district court. At trial,
Fuentes and Texas Mutual filed competing motions for summary
judgment. The trial court granted Texas Mutual's motion,
denied Fuentes's motion, and Fuentes now appeals. The
dispositive issue in the proceedings below and on appeal is
whether Estrada was in the course and scope of his employment
when he was killed in an automobile accident while driving
from his home to his employer's office.
parties filed the following stipulated facts in the trial
court. Bryant Electric, Inc. employed Estrada on the date of
the fatal accident. Texas Mutual provided workers'
compensation insurance coverage to Bryant Electric. Estrada
lived in Sonora, Texas; and Bryant Electric's office is
located in San Angelo, Texas. Bryant Electric hired Estrada
to work at its jobsite located at Goodfellow Air Force Base
in San Angelo, Texas. In addition to an hourly wage, Bryant
Electric paid Estrada a $75 per week stipend. Bryant Electric
did not require or maintain records on how its employees
spent their stipends.
worked as a foreman, and his job duties included laying out
the day's work, overseeing his crew, answering questions,
scheduling material deliveries, tracking employee time, and
submitting crew timesheets to Bryant Electric. Bryant
Electric allowed Estrada to submit the timesheets in one of
three ways: (1) by use of a fax machine located at
Goodfellow, (2) give them to Dial Ortiz, another Bryant
Electric employee, who made daily trips between the office
Goodfellow, or (3) hand deliver the sheets to an inbox at
Bryant Electric's office. Bryant Electric ran its payroll
every Thursday morning.
usual route to work was to drive north on U.S. Highway 277
from his house to Bryant Electric's office or past the
offices directly to Goodfellow. On the morning of Thursday,
November 1, 2012, Estrada left his house, and was travelling
on Highway 277 when an oncoming vehicle struck Estrada's
vehicle head-on, resulting in Estrada's death. The
accident occurred between Estrada's residence and about
one mile south of Bryant Electric's office.
later filed a workers' compensation claim seeking death
benefits as Estrada's surviving common-law wife. After
Texas Mutual denied the claim, Fuentes initiated a contested
case proceeding before the DWC. The sole issue before the DWC
hearing officer was whether Estrada "sustain[ed] a
compensable injury on November 1, 2012, resulting in his
death." The hearing officer entered the following
findings of fact: Estrada's "transportation to the
office and to the worksite was not furnished or paid for by
his employer"; his "travel to the office or to the
worksite from his home was not pursuant to an express or
implied requirement of his employment contract"; at the
time of his fatal injury, Estrada "was not directed by
his employer to proceed from one place to another (from his
home to the company office or to the worksite) and was not on
a special mission of the employer"; and Estrada
"did not sustain his fatal injury while in the course
and scope of his employment with his employer." The
hearing officer concluded Estrada "did not sustain a
compensable injury on November 1, 2012, resulting in his
death." Therefore, the hearing officer ordered that
Texas Mutual was not liable for benefits. Fuentes then
requested review by the DWC appeals panel, which affirmed the
hearing officer's decision.
subsequently sought judicial review in district court, and
the parties filed competing motions for summary judgment. In
her motion for summary judgment, Fuentes argued that, at the
time of his death, Estrada was furthering Bryant
Electric's affairs, Estrada's work originated in
Bryant Electric's business, and Bryant Electric paid for
Estrada's transportation to and from work. In its motion
for summary judgment, Texas Mutual argued Estrada's
travel to work did not originate in Bryant Electric's
business, and the "coming-and-going" rule precluded
recovery for Estrada's death during his commute to work.
Texas Mutual also argued Fuentes did not raise the "paid
transportation" argument before the DWC; therefore, the
trial court lacked jurisdiction to consider that argument.
The trial court granted Texas Mutual's motion for summary
judgment and denied Fuentes's motion for summary
apply the same standards of review to appeals from
workers' compensation panel decisions as we do to appeals
in other civil cases. Safford v. Cigna Ins. Co. of
Tex., 983 S.W.2d 317, 319 (Tex. App.-Fort Worth 1998,
pet. denied). We review a trial court's granting of a
summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When, as here,
both parties move for summary judgment on the same issues and
the trial court grants one motion and denies the other, we
review both parties' summary judgment evidence and
determine all questions presented. Id.; FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872 (Tex. 2000). To prevail on a traditional motion for
summary judgment, the movant must show "there is no
genuine issue as to any material fact and the [movant] is
entitled to judgment as a matter of law." Tex.R.Civ.P.
166a(c); see also Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Each party bears
the burden of establishing it is entitled to judgment as a
matter of law. City of Santa Fe v. Boudreaux, 256
S.W.3d 819, 822 (Tex. App.- Houston [14th Dist.] 2008, no
pet.). In reviewing a traditional summary judgment, we take
as true all evidence favorable to the non-movant, indulging
every reasonable inference and resolving any doubts in the
non-movant's favor. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 157 (Tex. 2004).
determine the trial court erred, we render the judgment the
trial court should have rendered. Valence Operating,
164 S.W.3d at 661; FM Props., 22 S.W.3d at 872. If,
as here, the trial court's order does not specify the
grounds for its summary judgment ruling, we affirm the
summary judgment if any of the theories presented to the
trial court and preserved for appellate ...