You Be the Judge

Worker Dies in Company Truck: Can the Widow Claim Benefits?

When a worker dies while driving a company truck to work, the court is asked to decide if the going and coming rule bars his wife from claiming benefits.
By: | June 18, 2018 • 3 min read

A construction worker for Air Systems worked to install air conditioning units and ductwork in various construction projects. Air Systems allowed the worker to drive a company truck back and forth each day from his home to the various work sites.

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The worker chose the route he took to the work sites, and Air Systems paid for the truck’s fuel and maintenance costs. The worker sometimes drove a coworker to work and also sometimes used the truck to pick up materials and equipment on his way to the work sites.

The worker was not paid for the time he spent commuting to and from work in the truck, but he was paid for time spent picking up materials and equipment.

The worker left his home to commute to a work site. He was not driving any coworkers or company materials or equipment. He chose to travel over a narrow high-mountain road. While traveling, the truck went off the side of the road on a sharp curve and rolled down a steep mountainside. The worker was ejected from the truck and died from his injuries.

The worker’s widow filed a claim for workers’ compensation benefits. The Labor Commission denied the claim, finding that the worker was not acting within the course and scope of his employment at the time of the accident because, even though he was driving a company truck, he was commuting to work. The widow appealed.

Did the commission properly deny the claim for the worker’s accident?

  • A) No. The widow made a strong showing that Air Systems exercised control over the worker’s use of the truck.
  • B) Yes. The widow failed to show that the instrumentality exception to the going and coming rule applied.
  • C) No. Air Systems benefitted greatly from the worker’s use of the truck.

How the Court Ruled

A is incorrect. The court found that the widow made a moderate showing that Air Systems exercised control over the worker’s use of the truck, and this was insufficient to show that the instrumentality exception applied.

The court found that Air Systems’ control over the worker was no greater than its control over any other employee traveling to and from work.

C is incorrect. The court found that Air Systems realized only minimal or incidental benefits from the worker’s use of the truck. The worker arrived at work in time more reliably, maintenance may have occurred more regularly, and the worker could stop on his way to work to pick up materials.

However, these benefits were insufficient for the court to conclude that the instrumentality exception applied.

B is correct. In Davis v. Labor Commission, No. 20161081-CA (Utah Ct. App. 04/26/18), the Utah Court of Appeals held that the commission properly denied the widow’s claim for benefits.

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The court concluded that the instrumentality exception to the going and coming rule did not apply, and the worker was not acting in the course of his employment at the time of the accident.

The court explained that the instrumentality exception to the going and coming rule would apply if the widow demonstrated that Air Systems controlled the worker’s use of the truck and/or reaped a benefit from the worker’s use of the truck that every drive he took in the truck fell within the course of his employment.

The court found that the widow failed to show that the instrumentality exception applied. &

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]