PJC General Negligence 2024

PJC 17.7

W ORKERS ’ C OMPENSATION —C OURSE & S COPE OF E MPLOYMENT

PJC 17.7

Employee Injured While Traveling to or from Work— Instruction

Course and scope of employment does not include transportation to and from the place of employment unless— 1. the transportation is furnished as a part of the contract of employ ment or is paid for by the employer, or 2. the means of the transportation are under the control of the employer, or 3. the employee is directed in the employee’s employment to proceed from one place to another place. COMMENT When to use. If the worker was injured while traveling to or from work at a “fixed” place of employment, PJC 17.7 should be used in addition to PJC 17.1. See Evans v. Illinois Employers Insurance of Wausau , 790 S.W.2d 302 (Tex. 1990); Texas Mutual Insurance Co. v. Jerrols , 385 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Any part of the above instruction not raised by the evidence should be omitted. When not to use—dual-purpose doctrine. The dual-purpose doctrine applies to travel other than travel to and from work. See Leordeanu v. American Protection Insurance Co. , 330 S.W.3d 239 (Tex. 2010). If the dual-purpose doctrine applies, PJC 17.8 should be submitted. Source of instruction. See Tex. Lab. Code § 401.011(12)(A). Transportation furnished as part of employment contract or paid for by employer. In SeaBright Insurance Co. v. Lopez , 465 S.W.3d 637 (Tex. 2015), the employee was found to be within the course and scope of employment when he was assigned to a remote work location and the employer provided the vehicle, paid him per diem, and expected him to stay in a motel. In United States Fire Insurance Co. v. Eberstein , 711 S.W.2d 355 (Tex. App.—Dallas 1986, writ ref’d n.r.e.), the “gratuitous furnishing of transportation” did not bring the employee within the course and scope of employment. For “portal to portal time,” see Smith v. Dallas County Hospital Dis trict , 687 S.W.2d 69 (Tex. App.—Dallas 1985, writ ref’d n.r.e.); Texas Employers’ Insurance Ass’n v. Adams , 555 S.W.2d 525 (Tex. App.—Amarillo 1977, writ ref’d n.r.e.); and Texas Employers’ Insurance Ass’n v. Byrd , 540 S.W.2d 460 (Tex. App.—El Paso 1976, writ ref’d n.r.e.). See also Texas Property & Casualty Insurance Guaranty Ass’n v. Brooks , 269 S.W.3d 645 (Tex. App.—Austin 2008, no pet.).

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