Christian v. Nicor Drilling Co.

Christian v. Nicor Drilling Co.
1982 OK 76
653 P.2d 185
Case Number: 56490, 56491
Decided: 06/08/1982
Modified: 11/15/1982
Supreme Court of Oklahoma

STEVEN CHRISTIAN, PETITIONER,
v.
NICOR DRILLING COMPANY, OWN RISK, AND WORKERS' COMPENSATION COURT OF THE STATE OF OKLAHOMA, RESPONDENTS.

IN THE MATTER OF THE DEATH OF MARKUS CHRISTIAN, MAUDIE MAE CHRISTIAN, PETITIONER,
v.
NICOR DRILLING COMPANY, OWN RISK, AND WORKERS' COMPENSATION COURT OF THE STATE OF OKLAHOMA, RESPONDENTS.

Petition for review from the Workers' Compensation Court.

On Certiorari to the Court of Appeals, Div. 1.

¶0 Separate proceedings by two claimants to review orders of the Workers' Compensation Court, Dick Lynn, Judge - affirmed by an appellate panel (composed of Judges Patrick C. Ryan, Mary Elizabeth Cox and James M. Fullerton) and by the Court of Appeals - which deny compensation upon a finding that the common accident in controversy did not occur in the course of employment. On certiorari, proceedings were consolidated for disposition.

OPINIONS OF THE COURT OF APPEALS AND ORDERS OF THE TRIAL TRIBUNAL VACATED AND CAUSES REMANDED WITH DIRECTIONS.

Jack Gray, Oklahoma City, for petitioner.

Robert L. Roark, Chapel, Wilkinson, Riggs, Abney & Henson, Tulsa, for respondents.

OPALA, Justice:

[653 P.2d 186]

¶1 The dispositive issue presented for review is whether, under the facts of this case, an automobile accident en route to work, which resulted in injury to one employee and in the death of another, occurred in the course of their employment. We answer in the affirmative.

¶2 Two brothers, Steven and Markus Christian, were employed by Nicor Drilling Company [employer] as members of a crew at an oil well drilling site in southwestern Oklahoma. While en route to the workplace, they were involved in a one-car accident. Markus was killed and Steven severely injured. Both compensation claims were submitted on depositions. In neither case were the material facts in dispute. The trial judge denied the claims upon his finding that at the time of the accident the brothers were not in the course of their employment. The appellate panel of the Workers' Compensation Court affirmed this decision. The claimants brought proceedings for review. The Court of Appeals sustained the orders of the appellate panel, resting its opinions on the general rule that one who is en route to the workplace is not deemed to be in the course of his employment. The claimants seek certiorari. We consolidated the two proceedings for disposition by a single opinion.

¶3 Claimants contend that on the fateful morning the workers proceeded to the workplace in their personal vehicle on specific instructions from their supervisor. The employer-provided transportation was unavailable to them when they arrived too late to catch a ride with the carpool. The employer argues that en route to the drilling site the workers could not be considered covered unless they traveled with the driller in the carpool.

¶4 As a general rule, injuries sustained by an employee while going to, or returning from, his workplace are not compensable.

¶5 Once an employer has acknowledged a need to provide his personnel with transportation, it matters little what method is chosen

¶6 To resolve the dispositive issue here - if, at the time of the accident, the employees in the instant case were within the course of their employment - we must first determine whether their use of a self-provided vehicle was brought about by circumstances known to, and approved by, the employer or constituted an unauthorized and hence fatal departure.

¶7 It is undisputed that each driller at the job site had the sole supervisory responsibility for his own crew. This included hiring, firing and daily transportation. The driller, or some other person designated by him, would convey the crew to and from the workplace and then claim travel reimbursement in accordance with company policy. The day before the accident, the driller informed his crew members that Markus (the deceased worker) would be charged with driving his automobile for the carpool the following morning. When neither Steven nor Markus arrived by the scheduled departure time at the driller's house - the customary assembly point for the crew - the driller, unwilling to risk being late, took his own car, leaving the brothers behind. Conscious of his responsibility for getting all of his crew to work, the driller instructed his wife to tell the two tardy employees that they should proceed forthwith to the well site. Thereafter, Steven showed up at the assembly point. Upon talking with the driller's wife, he went on to his brother's house. In a car operated by Markus, the two then drove toward the workplace approximately 120 miles away. Their accident took place before they reached the job site destination.

¶8 The record is clear that the driller did intend - and left explicit instructions - for Markus to proceed on to the well site just as he was originally scheduled to do that morning. In fact, it is undenied that while en route with the carpool the driller stopped and telephoned his wife to inquire if the missing employees had already left from his house. He then learned that they had. When they failed to arrive at the destination when expected, he immediately assumed that they had run into car trouble on their way.

¶9 The clear and uncontroverted record is that, at the time of the accident, the workers, while en route to the workplace, were following the specific instructions of their direct supervisor - the driller. They were on a mission he instructed them to pursue, doing precisely what he intended for them to do in order to meet their job requirements.

¶10 Opinions of the Court of Appeals and the trial tribunal's orders are vacated and the claims are remanded with directions to find - from the undisputed evidence in the record - that both the injured worker and his deceased brother were, at the time of their accident, within the course of their employment.

¶11 IRWIN, C.J., BARNES, V.C.J., and HODGES, LAVENDER, HARGRAVE, and WILSON, JJ., concur.

¶12 SIMMS and DOOLIN, JJ., dissent.

¶13 On consideration of the Petition for Rehearing, rehearing is denied.

¶14 IRWIN, C.J., and HODGES, LAVENDER, HARGRAVE and OPALA, JJ., concur.

¶15 SIMMS and DOOLIN, JJ., dissent.

¶16 BARNES, V.C.J., and WILSON, J., disqualified in considering Petition for Rehearing.

Footnotes:

1 F.W.A. Drilling Co. v. Ulery, Okl., 512 P.2d 192, 194 [1973].

2 F.W.A. Drilling Co. v. Ulery, supra note 1; Novak v. McAlister, Okl., 301 P.2d 234, 235 [1956]; Flour Engineers & Contractors, Inc. v. Kessler, Okl., 561 P.2d 72, 74 [1977].

3 Konopka v. Jackson County Road Commission, 270 Mich. 174, 258 N.W. 429, 430 [1935]; Texas Employers' Insurance Assn. v. Inge, 146 Tex. 347, 208 S.W.2d 867, 869 [1948]; J.D. Dutton, Inc. v. Industrial Commission, 120 Ariz. 199, 584 P.2d 1190, 1192 [1978]; Liberty Mutual Ins. Co. v. Chesnut, 539 S.W.2d 924, 930 [Tx.Civ.App. 1976]; Nicolasi v. Sparagna, 135 N.J.L. 131, 50 A.2d 867, 868 [1947].

4 Austin Drilling Co. v. Rice, Okl.App., 616 P.2d 446, 450 [1980].

5 Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 483, 67 S. Ct. 801, 809, 91 L. Ed. 1028, 1039 [1947].

6 Okla. Natural Gas Corp. v. Union Bank & Trust Co., 149 Okl. 12, 299 P. 159, 162 [1931]; Yorkshire Indemnity Co. v. Gonzales, 210 F.2d 545, 547 [5th Cir. 1954]; Garbo v. P.M. Bruner Granitoid Co., 249 S.W.2d 477, 480 [Mo. App. 1952]; Hay v. Travelers Ins. Co., 106 So. 2d 791, 795 [La. App. 1958]; see e.g. Austin v. Payne, 51 O.B.J. 1690 (Okl.App. 1980), withdrawn from official publication.

7 Cornelius v. Brock, 275 N.Y.S.2d 632, 633 [N.Y.App. 1966]; Stadler Fertilizer Co. v. Bennett, 124 Ind. App. 524, 119 N.E.2d 26, 28 [1954]; Wells v. Cutler, 90 Colo. 111, 6 P.2d 459, 460 [1931]; Landry v. Louisiana Hwy. Comm., 153 So. 74, 76 [La. App. 1934]; Cohen v. Sloan, 138 Fla. 752, 190 So. 14, 15 [1939].

8 Cary v. State Indus. Comm., 147 Okl. 162, 296 P. 385, 386 [1931].

9 For other examples where the request or expectation of an employer was held to have the force of an instruction, see: Jett v. Turner, 215 Ala. 352, 110 So. 702, 704 [1926]; Johnson v. Pacific Employers Indemnity Co., 439 S.W.2d 824, 827 [Tex. 1969]; Liberty Mutual Ins. Co. v. O'Hearne, 66 F. Supp. 875, 877 [Dist. Court Hawaii, 1946]; Driscoll Const. Co. v. Industrial Comm. of Colorado, 94 Colo. 568, 31 P.2d 491, 492 [1934].