Davis v. Labor Commission

2018 UT App 71

THE UTAH COURT OF APPEALS

GENEINNE ELLEN DAVIS,
Petitioner,
v.
LABOR COMMISSION; AIR SYSTEMS INC.; AND ACUITY, A MUTUAL
INSURANCE COMPANY,
Respondents.

Opinion
No. 20161081-CA
Filed April 26, 2018

Original Proceeding in this Court

Benjamin T. Davis, Attorney for Petitioner
Mark R. Sumsion and Cody G. Kesler, Attorneys for
Respondents Air Systems Inc. and Acuity, a Mutual
Insurance Company

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 A construction worker (Worker) employed by Air
Systems, Inc. (Air Systems) crashed a company truck while
commuting to work one morning, sustaining fatal injuries. His
wife, Geneinne Ellen Davis (Davis), filed a claim for workers’
compensation benefits. Subsequently, both an administrative
law judge (ALJ) and the Utah Labor Commission (the
Commission) denied Davis’s claim, determining that at the time
of his death Worker was not acting in the course and scope of his
employment and that Davis was therefore not entitled to
workers’ compensation benefits. Upon review, we decline to
disturb the Commission’s determination.
Davis v. Labor Commission

BACKGROUND

¶2 Worker was employed by Air Systems to install air-
conditioning units and ductwork in various construction projects
in the Salt Lake City and Park City areas. Air Systems allowed
Worker to drive a pickup truck owned by Air Systems back and
forth each day from his home to the various worksites, and Air
Systems allowed Worker to choose the route he took to the
worksites each day. Air Systems paid the cost of fuel for the
truck as well as all maintenance costs. Worker was sometimes
accompanied by another Air Systems employee while
commuting to work, and would sometimes use the truck to pick
up materials and equipment from supply vendors or from Air
Systems’ office on his way to the worksites. Worker was not paid
for the time he spent commuting to and from work in the truck,
but was paid for time spent picking up materials and equipment.

¶3 On August 15, 2015, Worker left his home to commute to
a jobsite in Park City, where he had been working periodically
for several months. On that particular morning, Worker was not
accompanied by any other employees, did not stop at Air
Systems’ office or any supply vendors, and was not transporting
company materials or equipment.1 Also, on that particular
morning, Worker chose to travel to Park City over Guardsman
Pass, a narrow high-mountain road, instead of using the more
conventional (and quicker) route up Parleys Canyon on
Interstate 80. While traveling over Guardsman Pass, the truck
went off the side of the road on a sharp curve and rolled down a

1. If Worker had stopped on his way to work to pick up
materials before proceeding to Park City, Davis may have been
able to invoke the “special errand” exception to the “going and
coming” rule. See Drake v. Industrial Comm’n of Utah, 939 P.2d
177, 183–84 (Utah 1997). However, Worker was not transporting
any such materials during the commute in question and,
accordingly, Davis makes no argument that the “special errand”
exception ought to apply in this case.

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steep mountainside. Worker was ejected from the truck and
fatally injured.

¶4 Following Worker’s death, Davis filed a claim with Air
Systems seeking compensation for Worker’s funeral and burial
expenses. Air Systems responded by asserting that Worker was
not acting “in the course and scope of his employment” at the
time of the accident. Davis then applied for a hearing with the
ALJ, who agreed with Air Systems and denied Davis’s claim,
determining that Worker was not acting within the course and
scope of his employment at the time of the accident because,
even though Worker was driving a company truck, Worker was
commuting to work. Davis subsequently sought review with the
Commission, which affirmed the ALJ’s decision. Davis now
seeks judicial review of the Commission’s determination.

ISSUE AND STANDARD OF REVIEW

¶5 Davis raises a single issue for our review: whether the
Commission erred in denying Davis’s claim for workers’
compensation benefits related to Worker’s death. Whether the
Commission correctly denied benefits is a mixed question of law
and fact. Jex v. Utah Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d
799. “The standard of review we apply when reviewing a mixed
question can be either deferential or non-deferential,” depending
on whether the fact-finder is “in a superior position” to decide
the question than the appellate court. Id. (citation and internal
quotation marks omitted). In cases which turn on the “fact-
intensive” determination of whether to apply the “going and
coming” rule excluding employee commutes from the course
and scope of a worker’s employment, we apply the more
deferential standard. Id. ¶ 16. This is because, given the case-by-
case nature of the inquiry, such questions “do[] not lend
[themselves] easily to consistent resolution through a uniform
body of appellate precedent,” and because the ALJ and the
Commission “have firsthand exposure to the evidence in such

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cases,” thus rendering their view of the matter “superior” to
ours. Id. (citation and internal quotation marks omitted).

ANALYSIS

¶6 Under Utah law, when an employee dies in an accident
“arising out of and in the course of the employee’s
employment,” compensation shall be paid for “loss sustained on
account of the . . . death,” including “the amount of funeral
expenses.” Utah Code Ann. § 34A-2-401(1)(a), (b)(iii) (LexisNexis
2015). Our legislature, however, has never defined “course of . . .
employment,” and therefore the term has come to be defined in
terms of judicially-created “rules and exceptions that offer
shorthand grounds for deeming various activities either within
or beyond a person’s ‘course of employment.’” Jex, 2013 UT 40,
¶ 17.

¶7 One of these judicially-adopted “subsidiary rules” that
helps to define “course of . . . employment” is a “principle
known as the ‘going and coming’ rule.” Id. ¶¶ 18, 21. That rule
establishes generally that workers injured while commuting are
not entitled to workers’ compensation benefits because “an
employee’s injury does not arise out of and occur in the course of
employment if the injury is sustained while going to or coming
from work.” Salt Lake City Corp. v. Labor Comm’n, 2007 UT 4, ¶ 19,
153 P.3d 179; see also VanLeeuwen v. Industrial Comm’n of Utah, 901
P.2d 281, 284 (Utah Ct. App. 1995) (stating that “[a]s a general
rule, injuries sustained by an employee while traveling to and
from the place of employment do not arise out of and in the
course of employment and are, therefore, not covered by
workers’ compensation”).

¶8 However, there are several exceptions to the general
“going and coming” rule, among them the “so-called
‘instrumentality’ exception,” whose application depends upon
whether the vehicle in question is an “instrumentality of the
employer’s business in light of the employer’s benefit from and

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control over it.” Jex, 2013 UT 40, ¶ 19 (citation and internal
quotation marks omitted). Davis concedes that Worker was
commuting to work when his accident occurred, and that the
facts of this case therefore generally fall within the “going and
coming” rule. However, Davis contends that the
“instrumentality exception” to the “going and coming” rule
applies in this case.

¶9 When analyzing whether a vehicle is an instrumentality
of an employer’s business, our supreme court has identified two
critical factors: (1) the degree of control the employer exercises
over the employee’s use of the vehicle; and (2) the benefit the
employer derives from the employee’s use of the vehicle. Id.
¶ 37. These two factors are evaluated “on a sliding scale,” so that
if one factor is only weakly present, a strong showing of the
other factor will be necessary in order to establish that a vehicle
is an instrumentality. Id.; see also id. ¶ 37 n.7 (stating that
“[w]here employer control is lacking, a greater showing of
benefit is required”). Thus, in order to demonstrate that
Worker’s accident occurred in the course and scope of his
employment, Davis must demonstrate that Air Systems
exercised such control over the company truck and reaped such
benefits from Worker’s use of the truck as to make the truck an
instrumentality of Air Systems’ business.

¶10 Before turning to an analysis of these factors under the
facts of this case, it is important to note the breadth of the
instrumentality exception to the “going and coming” rule. While
other exceptions (such as the “special errand exception”) are
narrowly analyzed on a trip-by-trip basis and, if applicable,
bring only a particular day’s commute within the course of
employment, the instrumentality exception is “all-purpose,”
such that, if it applies, “every work commute” taken in a
particular vehicle will fall within the course of employment. Id.
¶¶ 19 & n.2, 20, 48. Thus, in order for the instrumentality
exception to apply in this case, Davis must demonstrate that Air
Systems controlled Worker’s use of the truck and/or reaped such
a benefit from Worker’s use of the truck to such a degree that

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every drive Worker took in the truck fell within the course of his
employment.

A

¶11 We first analyze the “control” factor, and conclude that
Davis makes only a moderate showing that Air Systems
exercised control over his use of the truck.

¶12 Davis first points out that Air Systems owned the truck
(and took possession of it after the accident) and paid fuel and
maintenance costs. We grant Davis’s point with regard to
ownership—certainly ownership is a crucial indicator of at least
the right to control. Indeed, the fact that Air Systems owned the
vehicle gave it the right to place restrictions on its use and even
gave it the right, if it wished, to remove the truck from Worker’s
possession entirely. Company ownership of the vehicle is,
without question, a fact that demonstrates at least the potential
for control.

¶13 But the fact that Air Systems paid for the fuel and
maintenance costs related to the truck’s use does not go very far
toward indicating control. Ensuring that a vehicle is fueled and
regularly maintained is part and parcel of vehicle ownership and
operation, regardless of whether someone else is allowed to
borrow or use the vehicle. Indeed, Air Systems would have had
to pay fuel and maintenance costs on the truck even if it had
elected to require the truck to be parked on its property every
night. Similarly, had Worker used his own vehicle to commute
to and from job sites, Worker would have needed to fuel and
maintain that vehicle. We are unpersuaded that Air Systems’
decision to pay for the fuel and maintenance costs associated
with the truck meaningfully supports the conclusion that Air
Systems controlled Worker’s use of the truck.

¶14 It is also important here that, even though Air Systems, by
virtue of its ownership of the truck, had the right to exercise
control over its use, as a factual matter it did very little to

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actually impose any restrictions on Worker’s use of the truck.
The only specific restriction to which Davis can point is the fact
that Worker was not free to drive the truck wherever he wanted;
rather, Air Systems only allowed Worker to use the truck to
travel between his home, jobsites, Air Systems’ offices, and
various locations to pick up materials. There are other
restrictions Air Systems could have imposed, but did not. For
instance, Air Systems placed no restrictions on what Worker had
to wear when operating the truck, or on what Worker had to
take with him in the truck when driving it. Likewise, Air
Systems placed no restrictions on Worker’s ability to invite
passengers to ride with him in the truck, and did not ever
mandate that Worker transport other employees to worksites.
See Jex, 2013 UT 40, ¶¶ 42–43 (stating that “providing a ride for
[other employees] was . . . not a requirement of [worker’s]
employment, but a mere request”). Air Systems placed no
restrictions on when Worker had to begin or end his commute.
Moreover, and significantly for present purposes, Air Systems
made no effort to dictate to Worker what route he had to take
when traveling to and from his home in the truck. The hands-off
approach taken by Air Systems in this case can be contrasted
with more restrictive approaches taken by employers in other
cases in which employers elected to place heavy restrictions on a
vehicle’s use. See, e.g., Salt Lake City Corp., 2007 UT 4, ¶ 7 (noting
that the employer required the worker “to carry a service gun,
police radio, identification, flashlight, ticket book, report forms,
and flares and wear appropriate attire in the vehicle at all times,”
and placed restrictions on when and under what circumstances
passengers could ride in the vehicle).

¶15 In summary, Air Systems owned the truck and, as owner,
did have the right to control its use. But in order for this factor to
weigh heavily in favor of Worker, more must be shown than
simple company ownership of the vehicle. In this case, we do not
view the level of control exercised by Air Systems as particularly
high, and conclude that Air Systems’ “control over [worker] was
no greater than its control over any other employee traveling to
and from work.” See VanLeeuwen, 901 P.2d at 285. Accordingly,

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we conclude that Davis has made, at best, only a moderate
showing with regard to the “control” factor. Especially
considering the deferential standard of review we apply here,
we have no reason to take issue with the Commission’s
determination that the “control” factor does not weigh strongly
in favor of applying the instrumentality exception here.

B

¶16 Next, we analyze the “benefits” factor, and conclude that
Air Systems realized only minimal or incidental benefits from
Worker’s use of the truck, and that Davis has made only a
relatively weak showing with regard to this second factor. This
conclusion is guided by our supreme court’s holding in Jex, in
which it held that “[m]ere incidental benefit is not sufficient,
standing alone, to sustain invocation of the instrumentality
exception.” Jex, 2013 UT 40, ¶ 33.

¶17 Davis first points out that Air Systems benefitted from
Worker’s use of the truck because Worker would more reliably
get to work on time and because Worker would occasionally use
the truck to give other Air Systems employees a ride to work.
However, as our supreme court has noted, “the benefit of having
employees show up to work is not a meaningful one in light of
the ‘going and coming’ rule.” Id. ¶ 49. This is true even if an
employee uses a vehicle to ensure that more than one employee
arrives at work on time. Id.

¶18 Davis further argues that Air Systems received a benefit
from Worker’s use of the truck because Worker sometimes
stopped at a vendor or at the Air Systems office on his way to
the worksites to pick up tools or equipment for one of the jobs he
was working on. Indeed, during the administrative proceedings,
a representative of Air Systems stated that he perceived
Worker’s capacity to haul tools and equipment to be the primary
benefit Air Systems reaped from Worker’s use of the truck.
While the fact that Worker was able to use the company truck to
haul materials he might not have been able to haul in a company

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car is a fact that demonstrates some benefit to Air Systems, this
benefit did not depend on Worker’s use of the truck for
commuting purposes.2 In fact, Air Systems could have required
Worker to drive his personal vehicle to a company parking lot
and transfer to the company truck each day before picking up
materials, and could have thereby reaped substantively the same
benefit.

¶19 Finally, Davis asserts that Air Systems received a benefit
from Worker’s use of the truck because Worker, in driving the
truck to his home every day, would have been more motivated
to care for the truck as if it were a personal vehicle rather than
treating it like a rental vehicle, thus improving the maintenance
of the vehicle. While we do not doubt that this could
theoretically have been the case, Davis cites no record evidence
to support her contention that the truck was better maintained
due to Worker’s use of it, and in any event any benefit realized
by Air Systems as a result of marginally better maintenance is a
rather small benefit.

¶20 In summary, there is no question that Air Systems did
realize some incidental benefit from allowing Worker to
commute in the company truck: Worker arrived at work on time
more reliably, maintenance may have been accomplished more
regularly, and Worker could stop on his way to work and pick
up materials. However, we do not view these benefits as
particularly significant, and conclude that Davis has made only a
relatively weak showing with regard to the “benefits” factor. We
therefore have no reason to take issue with the Commission’s

2. Davis asserts, for the first time on appeal, that Air Systems
benefited from Worker’s use of the truck because Worker was
“essentially ‘on-call’” while using the truck and could be
directed at any time by Air Systems to perform work-related
errands using the truck. However, Davis cites no evidence in the
record that Worker was ever asked to perform any such tasks in
his off hours.

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determination that “Air Systems’ . . . benefit from [Worker’s use
of] the truck [was] minimal.”

C

¶21 Applying these two factors on a sliding scale, we
conclude that Davis has failed to make the showing necessary to
convince us that the instrumentality exception applies here.
Davis cannot make a particularly strong showing on either part
of the test. Accordingly, we simply cannot conclude that Air
Systems’ control over and benefit from Worker’s use of the truck
was such that “every work commute” Worker took in the truck
should be considered within Worker’s “course of employment.”
See Jex, 2013 UT 40, ¶ 48.

¶22 In fact, we find this case materially indistinguishable from
our decision in VanLeeuwen, in which a landscaping company
provided one of its supervisors with a company truck for use
during his commutes, but placed no meaningful restrictions on
the employee’s use of the truck. See VanLeeuwen, 901 P.2d at 283.
After the employee was injured in an accident that occurred
during one of his commutes, we declined to disturb an
administrative determination that the employee was not acting
within the course of his employment at the time of the accident,
and we rejected the employee’s attempt to invoke the
instrumentality exception to the “going and coming” rule. Id. at
285. We noted that, even though the supervisor consistently
used the truck to commute to work, an employee’s “mere arrival
at work is not considered a substantial benefit to the employer”
for purposes of this analysis. Id. Further, we noted as follows:

[The supervisor] was not performing any service
arising out of and in the course of his employment
on the morning of the accident. [The employer] did
not require [him] to perform any job-related service
or use the vehicle as a business instrumentality
while traveling to or from work. [The supervisor]
was not on an employment related “special

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errand” or “special mission” at the time of the
accident. [He] was not being compensated for his
time spent traveling between his home and [the
company’s] office. The accident did not occur on
[the company’s] premises, nor did [the
supervisor’s] duties require him to be at the place
where the accident occurred. The risk that caused
the accident was one common to the traveling
public and was not created by duties connected
with his employment.

Id. We also noted that the supervisor “chose his own route” on
the day of the accident, and that his employer’s control over him
“was no greater than its control over any other employee
traveling to and from work.” Id.3

3. Davis argues that VanLeeuwen is inapplicable here because, as
part of our discussion in that case, we included an analysis of the
benefits that accrued to the employee (as opposed to the
employer) from the employee’s use of the truck. Davis correctly
points out that the supreme court, in Salt Lake City Corp., made
clear that any benefits received by the employee “are largely
irrelevant to this scope-of-employment inquiry,” and that “[t]he
benefits conferred on the [worker] cannot be used to offset or
diminish the significance of the benefits derived by the”
employer. Salt Lake City Corp. v. Labor Comm’n, 2007 UT 4, ¶ 25,
153 P.3d 179; see also Jex v. Utah Labor Comm’n, 2013 UT 40, ¶ 38,
306 P.3d 799 (explaining that “the ultimate question . . . must be
answered by considering and balancing both the benefit to the
employer and the nature and extent of the employer’s control”
(emphasis added)). We acknowledge that, after Salt Lake City
Corp. and Jex, the extent to which the worker realized benefits
from the use of the truck is not relevant to the analysis.
However, our vestigial discussion in VanLeeuwen about
employee benefits was brief, and does not appear to have played
(continued…)

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¶23 And, contrary to Davis’s arguments, we find the facts of
Salt Lake City Corp. to be readily distinguishable from this case.
In that case, the employer received a much higher level of
benefits than were realized in this case, see Salt Lake City Corp.,
2007 UT 4, ¶ 24 (stating that the “City benefitted from the
program by having more officers available for immediate
response, from better care of patrol cars, and from increased
police visibility”), and, as noted above, exercised a much higher
degree of control over the employee’s use of the vehicle, id. ¶ 7
(requiring the employee “to carry a service gun, police radio,
identification, flashlight, ticket book, report forms, and flares
and wear appropriate attire in the vehicle at all times,” and
placing restrictions on when and under what circumstances
passengers could ride in the vehicle).

CONCLUSION

¶24 We see no infirmity in the manner in which the
Commission applied the two-factor test for application of the
instrumentality exception to the “going and coming” rule. There
is ample support, both in the record and in the law, for the

(…continued)
a critical role in the result reached. In fact, while we mention
benefits to the employee twice in VanLeeuwen, the bulk of our
analysis concerned the supervisor’s assertion “that [the
employer] received a substantial benefit” from the employee’s
use of the truck, and our examination of whether the supervisor
was “under the control and supervision of [the employer]”
during his commutes. VanLeeuwen v. Labor Comm’n of Utah, 901
P.2d 281, 285 (Utah Ct. App. 1995). Indeed, our ultimate
conclusion rested on the resolution of those two factors, without
discussion of any potential benefits to the employee. Id. We
consider that decision still robust; indeed, Davis concedes that
neither Salt Lake City Corp. nor Jex called into question the
vitality of VanLeeuwen’s ultimate holding.

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Commission’s conclusions that Air Systems did not exercise a
high degree of control over Worker’s use of the truck, and that
Air Systems derived only minimal or incidental benefits from
Worker’s use of the truck. Accordingly, we decline to disturb
both the Commission’s determination that the truck was not an
instrumentality of Air Systems’ business, and its ultimate
conclusion that Worker was not acting in the course of his
employment at the time of the accident.

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