Courtless v. Jolliffe & Princess Beverly Coal
Annotate this CaseJanuary 1998 Term
__________
No. 24435
__________
GLADYS JEANETTE COURTLESS, INDIVIDUALLY, AND AS GUARDIAN
AND NEXT FRIEND OF BOBBIE THOMAS COURTLESS,
Appellant
v.
DAVID CLYDE JOLLIFFE AND PRINCESS BEVERLY COAL COMPANY,
Appellees
__________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene Berger, Judge
Civil Action No. 95-C-3122
REVERSED AND REMANDED
__________________________________________________________________
Submitted: May 6, 1998
Filed: July 15, 1998
Charles M. Johnstone, II,
Esq. Christopher
P. Bastien, Esq.
Johnson W. Gabhart,
Esq. Tammy
R. Harvey, Esq.
Thaxton &
Johnstone Bastien
& Martin
Charleston, West
Virginia Charleston,
West Virginia
Attorneys for
Appellant Attorneys
for Princess Beverly
Coal Company
Francis M. Curnette, Esq.
R. Brandon Johnson, Esq.
Dodrill, Brison & Curnutte
Charleston, West Virginia
Attorneys for David Clyde Jolliffe
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "A
circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. "The
question to be decided on a motion for summary judgment is whether there is a genuine
issue of fact and not how that issue should be determined." Syl. Pt. 5, Aetna
Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963).
3. "A party
who moves for summary judgment has the burden of showing that there is no genuine issue of
fact and any doubt as to the existence of such issue is resolved against the movant for
such judgment." Syl. Pt. 6, Aetna Casualty & Surety Co. v. Federal Ins. Co. of
New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
4. "'"A
motion for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus
Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl.
Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
5. "An
agent or employee can be held personally liable for his own torts against third parties
and this personal liability is independent of his agency or employee relationship. Of
course, if he is acting within the scope of his employment, then his principal or employer
may also be held liable." Syl. Pt. 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65,
281 S.E.2d 499 (1981).
6. "An act
specifically or impliedly directed by the master, or any conduct which is an ordinary and
natural incident or result of that act, is within the scope of the employment."
Syllabus, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931).
7. "'When
the evidence is conflicting the questions of whether the relation of principal and agent
existed and, if so, whether the agent acted within the scope of his authority and in
behalf of his principal are questions for the jury.' Syl. pt. 2, Laslo v. Griffith, 143
W.Va. 469, 102 S.E.2d 894 (1958)." Syllabus, Cremeans v. Maynard, 162 W.Va. 74, 246 S.E.2d 253 (1978).
8. "An
injury incurred by a workman, in the course of his travel to his place of work and not on
the premises of the employer, does not give right to participation in such (Workmen's
Compensation) fund, unless the place of injury was brought within the scope of employment
by an express or implied requirement in the contract of employment, of its use by the
servant in going to and returning from his work." Syl. Pt. 2, De Constantin v. Public
Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914).
9. "Although
our standard of review for summary judgment remains de novo, a circuit court's order
granting summary judgment must set out factual findings sufficient to permit meaningful
appellate review. Findings of fact, by necessity, include those facts which the circuit
court finds relevant, determinative of the issues and undisputed." Syl. Pt. 3, Fayette
County Nat'l Bank v. Lilly , 199 W.Va. 349, 484 S.E.2d 232 (1997).
Per Curiam:See footnote 1 1
Gladys Jeanette Courtless, individually
and as guardian and next friend of Bobby Thomas Courtless (hereinafter
"Appellant") appeals the Circuit Court of Kanawha County's stay of discovery and
grant of summary judgment in favor of Appellee Princess Beverly Coal Company (hereinafter
"Princess"). The Appellant contends that Princess was properly included in the
Appellant's theory of liability through the doctrine of respondeat superior and that the
lower court erred in dismissing Princess on summary judgment. We reverse and remand.
I. FACTS
On May 16, 1995, Bobby Courtless, while
riding his bicycle, was struck by a vehicle driven by David Clyde Jolliffe. Bobby was
rendered permanently disabled due to the injuries sustained in that accident and is now a
paraplegic. Mr. Jolliffe was employed by Princess and was en route to work at the time of
the accident. While traveling from his home to the Princess mine site, Mr. Jolliffe had
stopped to buy shocks for his vehicle.
On August 31, 1995, the Appellants
filed a civil action against both Mr. Jolliffe and Princess, alleging that Princess was
liable under the doctrine of respondeat superior. Discovery was initiated, and it was
confirmed that although Mr. Jolliffe owned the vehicle, Princess paid Mr. Jolliffe $400
monthly, the amount of the monthly payment on the truck. Princess also paid maintenance
and repair costs on Mr. Jolliffe's truck, and Mr. Jolliffe had free use of gasoline from
the Princess gas tanks. In exchange, Mr. Jolliffe used the vehicle at the Princess sites
on a daily basis.
On December 4, 1995, Princess filed a
motion for summary judgment, alleging that Mr. Jolliffe was not acting within the scope of
his employment at the time of the accident. On April 25, 1996, the lower court stayed
additional discovery regarding Princess pending Mr. Jolliffe's deposition. On October 2,
1996, the lower court ruled as follows, by letter:
This Court does
not find that the deposition testimony and/or interrogatory responses support an exception
to the "coming and going" rule. In other words, although Mr. Jolliffe stopped to
get shock absorbers, which were ultimately paid for by his employer, and although he used
his vehicle on the job, it is my finding that no genuine issue of material fact exists as
to whether or not Mr. Jolliffe was acting in the scope of his employment at the time of
this accident.
On November 12, 1996, the lower court entered summary judgment in favor of Princess,
incorporating the October 2, 1996, letter by reference.
II. ASSIGNMENTS
The Appellant appeals the judgment of the
lower court, contending that the court erred in granting summary judgment where sufficient
evidence existed to raise a jury question regarding whether Mr. Jolliffe was acting within
the scope of his employment at the time of the accident. The Appellant further contends
that the lower court erred in preventing additional discovery regarding Princess and that
such action prevented the development of additional facts, such as the tax treatment of
the vehicle, which could have potentially supported a finding of vicarious liability.See footnote 2 2
We review this summary judgment issue
under the standard of syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), as follows: "A circuit court's entry of summary judgment is reviewed de
novo." We also remain cognizant of the fact that "[t]he question to be decided
on a motion for summary judgment is whether there is a genuine issue of fact and not how
that issue should be determined." Syl. Pt. 5, Aetna Casualty & Surety Co. v.
Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In syllabus point six
of Aetna, we explained: "A party who moves for summary judgment has the burden of
showing that there is no genuine issue of fact and any doubt as to the existence of such
issue is resolved against the movant for such judgment." Syl. Pt. 6, Aetna Casualty
& Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
" '"A motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty
& Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247
(1992)." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329
(1995).
III. RESPONDEAT SUPERIOR AND SCOPE OF EMPLOYMENT
The Appellants instituted their action
against Princess under the doctrine of respondeat superior. As we have recognized,
"[t]he fundamental rule in West Virginia is that if it can be shown that an
individual is an agent and if he is acting within the scope of his employment when he
commits a tort, then the principal is liable for the tort as well as the jagent."
Barath v. Performance Trucking Co., Inc, 188 W.Va. 367, 370, 424 S.E.2d 602, 605 (1992).
As we stated in syllabus point three of Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981):
An agent or
employee can be held personally liable for his own torts against third parties and this
personal liability is independent of his agency or employee relationship. Of course, if he
is acting within the scope of his employment, then his principal or employer may also be
held liable.
In Griffith v. George Transfer & Rigging, Inc. 157 W.Va. 316, 201 S.E.2d 281
(1973), we explained:
The universally recognized rule is that an
employer is liable to a third person for any injury to his person or property which
results proximately from tortious conduct of an employee acting within the scope of his
employment. The negligent or tortious act may be imputed to the employer if the act of the
employee was done in accordance with the expressed or implied authority of the employer.
157 W. Va. at 324-25, 201 S.E.2d at 287. In Griffith, we discussed this Court's judgment
in Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931), and noted the following
language from Mechem on Agency, Second Edition, 1879:
[A] servant is acting within the course of
his employment when he is engaged in doing, for his master, either the act consciously and
specifically directed or any act which can fairly and reasonably be deemed to be an
ordinary and natural incident or attribute of that act or a natural, direct and logical
result of it. If in doing such an act, the servant acts negligently, that is negligence
within the course of the employment.
In Cochran, this Court emphasized the need to examine the relation which the act bears
to the employment and, in the syllabus, explained that "[a]n act specifically or
impliedly directed by the master, or any conduct which is an ordinary and natural incident
or result of that act, is within the scope of the employment."
As we noted in Griffith, "'[s]cope
of employment' is a relative term and requires a consideration of surrounding
circumstances including the character of the employment, the nature of the wrongful deed,
the time and place of its commission and the purpose of the act." 157 W. Va. at 326,
201 S.E.2d at 288. In Barath, for instance, we reversed the lower court's summary judgment
determination and remanded for the accumulation of additional facts where the victim of a
beating brought an action against the tortfeasor's father's trucking company. 188 W. Va.
at 371, 424 S.E.2d at 606. We found that the evidence raised a genuine issue of material
facts regarding whether the tortfeasor was acting within the scope of his employment when
he committed the battery and explained as follows:
While the evidence
on this point was exceedingly indirect, this Court believes that it did suggest that union
unrest might have caused financial losses to Performance Trucking Co., Inc., that David
Cook, Sr., as manager of the company, was aware of and felt the losses and had developed
animosity toward the appellant, and as a consequence had directed his son to
"beat" the appellant. Overall, it is suggested, but certainly not proven, that
David Cook, Jr., who might have been an employee of Performance Trucking Co., Inc., at the
time of the battery in this case, might have been acting within the scope of his
employment at the time of the battery.
. . .
As previously
stated, this Court has held that summary judgment should be granted only when inquiry
concerning the facts is not desirable to clarify the application of the law. In this case,
the facts were not sufficiently developed for the Court to determine what the situation
was. Accordingly, this Court believes that the summary judgment entered by the circuit
court should be set aside, and this case should be remanded for additional development.
Id.
In the syllabus of
Cremeans v. Maynard, 162 W.Va. 74, 246 S.E.2d 253 (1978), we stated that "'[w]hen the
evidence is conflicting the questions of whether the relation of principal and agent
existed and, if so, whether the agent acted within the scope of his authority and in
behalf of his principal are questions for the jury.' Syl. pt. 2, Laslo v. Griffith, 143
W.Va. 469, 102 S.E.2d 894 (1958)."
IV. GOING AND COMING RULE AND SPECIAL ERRAND EXCEPTION
In the case sub judice, Princess contends
that the lower court was accurate in basing its determination upon the "going and
coming rule," which essentially declares that the doctrine of respondeat superior is
not typically applicable while the employee is coming or going to work. The "going
and coming rule" has its foundations in workers compensation lawSee footnote 3 3 and is articulated as follows in
syllabus point two of De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88
(1914):
An injury incurred
by a workman, in the course of his travel to his place of work and not on the premises of
the employer, does not give right to participation in such (Workmen's Compensation) fund,
unless the place of injury was brought within the scope of employment by an express or
implied requirement in the contract of employment, of its use by the servant in going to
and returning from his work.
As the Appellants emphasize, however, the "going and coming rule"
traditionally applies where the only evidence linking the employer to the accident was the
fact that the employee was coming or going to work. Various nuances of the rule may serve
to alter its application where additional evidence exists linking the employer to the
accident. For instance, in Harris v. State Workmen's Compensation Commissioner, 158 W.Va.
66, 208 S.E.2d 291 (1974), we noted the general rule that injuries incurred through the
ordinary use of streets and highways while going or coming to work are not considered
within the scope of employment "'[u]nless such use is required of the employee in the
performance of his duties for the employer.'" 158 W. Va. at 70, 208 S.E.2d at 293,
quoting Buckland v. State Compensation Commissioner, 115 W.Va. 323, 326, 175 S.E. 785, 787
(1934). That exception was designated as the "special errand" exception to the
"going and coming rule" and was held inapplicable in Harris due to the absence
of any requirement that the employee return home to retrieve tools while en route between
job sites. Id.
Professor Larson, in
Larson's Workmen's Compensation Law, addresses the special errand rule, as follows:
When an employee,
having identifiable time and space limits on his employment, makes an off-premises journey
which would normally not be covered under the usual going and coming rule, the journey may
be brought within the course of employment by the fact that the trouble and time of making
the journey, or the special inconvenience, hazard, or urgency of making it in the
particular circumstances, is itself sufficiently substantial to be viewed as an integral
part of the service itself.
1 Larson's Workmen's Compensation Law s 16.10 (1972).
In Standley v. Johnson, 276 So. 2d 77 (Fl.App. 1973), a case addressing the "going and coming" rule within the context of a respondeat superior claim, an employee had traveled to a drugstore to purchase medicine for his wife on his way to work. 276 So. 2d at 78.
After getting the medicine, he went to
a gas station across the street from the drugstore and purchased a gallon can of gas for
use in the lawn mower at the nursery. Johnson then dropped the medicine off at his home
and proceeded to work, stopping at another service station to purchase gas for his truck.
As Johnson pulled out of this second service station, he turned into the oncoming traffic,
striking Mrs. Standley's car. Part of Johnson's work at the nursery was keeping the lawn
mower filled with gas and his truck was used in his work for hauling dirt and fertilizer.
At the time of the accident, Johnson also had some of Mr. White's tools in his truck which
he had carried home that weekend.
Id.
The plaintiff in Standley maintained
that the lower court erred in "determining as a matter of law that no material issue
of fact exists as to whether employee Johnson was within the scope of his employment at
the time the accident occurred, thereby rendering employer White vicariously liable for
Johnson's negligence," and the court in Standley agreed. Id. The Standley court
reasoned as follows:
It is the well
recognized rule that an employee driving to or from work is not within the scope of
employment so as to impose liability on the employer. This is true even though the car
driven by the employee is used in his work and partly maintained by the employer, Foremost
Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946).
However, in the
case at bar, Johnson was doing more than merely driving to work. He adduced evidence that
he had been instructed to keep the lawn mower filled with gas and was in fact transporting
gas to the nursery as part of his job and for the benefit of his employer.
Id.
In Skinner v. Braum's Ice Cream Store,
890 P.2d 922 (Ok.App. 1995), the Oklahoma Supreme Court acknowledged exceptions to the
"going and coming rule." "Liability is imposed upon the employer if the
employee is rendering a service, either express or implied, to the employer with his/her
consent. An exception also exists if the trip involves an incidental benefit to the
employer not common to ordinary commuting trips of the work force." Id. at 924.
The issue on the motion for summary
judgment in the present case concerned the presence or absence of a genuine issue of
material fact regarding whether Mr. Jolliffe was acting within the scope of his employment
at the time of the collision that caused Bobbie Courtless' injuries. That inquiry
necessarily involved a determination of the scope of employment, leading to evaluation of
the coming and going rule and its application to the facts of this case. To develop a
complete and exhaustive determination of that application, all facts surrounding Princess'
connection to the truck involved in the accident and the purposes for the travel
undertaken by Mr. Jolliffe on the day of the accident must be discovered. The granting of
summary judgment prematurely discontinued that gathering process.
We have not previously had occasion to
wander extensively through the vicissitudes of the "going and coming rule," nor
to delineate whether the rule as it has been interpreted in the workers compensations
context is equally applicable to the tort context. Without a more complete factual record,
we decline to render any judgments on these issues at this juncture. As we explained in
syllabus point three of Fayette County National Bank v. Lilly , 199 W.Va. 349,
484 S.E.2d 232 (1997), "[a]lthough our standard of review for summary judgment
remains de novo, a circuit court's order granting summary judgment must set out factual
findings sufficient to permit meaningful appellate review. Findings of fact, by necessity,
include those facts which the circuit court finds relevant, determinative of the issues
and undisputed." While the lower court's order included a finding regarding the
perceived absence of a genuine issue of material fact as to whether Mr. Jolliffe was
acting within the scope of his employment, we conclude that additional discovery regarding
potential application of the "going and coming" rule within the scope of
employment and respondeat superior should have been permitted prior to a determination on
the motion for summary judgment. Particularly where this Court may be compelled to render
judgment on an evolving area of law in this state, complete development of an underlying
factual record must be undertaken. Further proceedings will improve upon the record,
facilitating appropriate resolution and clarification of this area of law which
potentially affects significant employer/employee issues. In Atchison, Topeka &
Santa Fe Railway Co. v. Buell, 480 U.S. 557 (1987), wherein summary judgment had been
granted for the employer, the United States Supreme Court determined that the record was
insufficient to determine whether particular damages were available. Id. at 567 . The
Court, recognizing the necessity for complete factual development prior to pronouncements
of legal principles, explained:
[The issue to be decided] is not
necessarily an abstract point of law or a pure question of statutory construction that
might be answerable without exacting scrutiny of the facts of the
case. . . . [and] might rest on a variety of subtle and intricate
distinctions related to the nature of the injury and the character of the tortious
activity. . . . In short, the question . . . may not be susceptible to an all-inclusive
"yes" or "no" answer. As in other areas of law, broad pronouncements
in this area may have to bow to the precise application of developing legal principles to
the particular facts at hand. Buell, 480 U.S. at 568-70.
Resolving any doubt as to the existence of
a genuine issue of material fact against Princess as the movant for summary judgment, we
find that the lower court erred in granting summary judgment and we remand for further
proceedings. In so doing, we express no opinion regarding the appropriate ultimate
resolution of this matter. We find only that a genuine issue of material fact exists and
inquiry concerning the facts is desirable to clarify the application of the law.
Reversed and remanded.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992).
Footnote: 2 2 The Appellant maintains that the primary remaining issue of material fact, precluding summary judgment, is whether Mr. Jolliffe was acting within the scope of his employment at the time of the collision. The facts and circumstances necessary to arrive at a conclusion regarding that issue of material fact, the Appellant contends, have not yet been fully developed. Further, the Appellant argues that once those facts and circumstances are discovered, the weighing of that evidence is for the jury and is not a question properly resolved by the court. The outstanding issues for development, according to the Appellant, include the tax treatment of the vehicle; depositions of Mr. Jolliffe's supervisors regarding the company policy on issues relating to use of private vehicles for company purposes; compensation for wear and tear on personal vehicles used for company business; and whether Mr. Jolliffe's monthly truck allowance and the cost of gasoline, maintenance, and repairs were deducted as business expenses.
Footnote: 3 3 Commentators have cautioned
against unbridled application of the same "going and coming" principles to
workers compensation cases and tort matters. "Workers' compensation law takes a
different approach to exceptions to the going-and-coming rule.... [W]orkers' compensation
cases are not controlling with respect to exceptions to the going-and-coming rule in cases
involving respondeat superior.... Workers' compensation and respondeat superior law are
driven in opposite directions based on differing policy considerations. Workers'
compensation has been defined as a type of social insurance designed to protect employees
from occupational hazards, while respondeat superior imputes liability to an employer
based on an employee's fault because of the special relationship.... Further, courts heed
statutory admonitions for a liberal construction favoring coverage in workers'
compensation cases which are not present in respondeat superior law." Blackman v.
Great American First Savings Bank, 233 Cal. App. 3d 598, 604-605 (1991) (citations
omitted).
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