Texas Supreme Court Dodges Answering Important Question in In re Rudolph Automotive, LLC

By Donna Peavler, J.D., Director, PeavlerBriscoe


A lingering question in nonsubscriber law is to what extent workers’ compensation concepts relating to “course and scope of employment” issues carry over into the nonsubscription realm. This is an important issue, because the Texas Supreme Court has long directed Texas courts to interpret the phrase “course and scope of employment” more broadly in workers-compensation cases than in non-workers’-compensation cases, because the policies underlying the different types of cases are different. In workers’-compensation cases, the worker has given up the right to sue, so coverage should be interpreted broadly. In nonsubscriber and vicarious-liability (third-party) cases, on the other hand, employees and third parties have intact their ability to sue and hence still have available remedies, so there is no need to interpret “course and scope” so broadly.


In In re Rudolph Auto., LLC, No. 21-0135, 2023 WL 4035804 (Tex. June 16, 2023), the Texas Supreme Court had the opportunity to address the interplay between workers’-compensation and non-workers’-compensation cases, but it largely dodged the question by deciding the case on other grounds. In Rudolph, a car dealership manager and his team of employees stayed after hours to drink beer and talk. The employees clocked out at 8 p.m., consumed some beers, and then one employee, Irma Villegas, walked toward her car but changed course and walked over to a different area of the dealership. At the same time, employee Christian Ruiz got into his truck and headed for the exit. In doing so, however, he accidentally struck Villegas, causing her to suffer catastrophic injuries that ultimately resulted in her death after seven years in a nursing home. An El Paso jury awarded Villegas’ family over $4 million in damages – but considering that award to be insufficient, Villegas’s family filed a motion for new trial, which the trial court granted. The defendant appealed.


The trial court cited four reasons for overturning the verdict, only one of which is directly relevant to nonsubscription. With regard to that grounds , the trial court concluded that the Texas Supreme Court’s decision in Painter v. Amerimex Drilling, which was issued the same day as the jury verdict “was important law” that affected the trial Court’s rulings and the parties’ positions. It concluded, “[b]ased on the Painter opinion… it appears to this [trial] Court that it needs to reconsider whether [the driver and pedestrian] were injured in the course of employment as a matter of law.”


In the Painter decision, the Texas Supreme Court discussed the interplay between workers’-compensation law and other the law governing “course and scope” in non-workers’-compensation cases, noting that historically the two concepts have been kept separate. Even so, the Court adopted the workers’-compensation-derived “coming and going” rule in third-party/vicarious-liability cases; that rule provides that an employee is not in the course and scope of employment when merely coming to or going home from work. It then went further and adopted one of the workers’-compensation-derived exceptions to that rule called the “special mission” exception, which provides that coming to or going home from work is not within the employee’s course and scope of employment unless the employee is on a special mission (i.e., running an errand for) the employer. Further, in Painter, the Court generally redefined how “course and scope of employment” is determined:


The course-and-scope inquiry …  involves an objective analysis, hinging on whether the employee was performing the tasks generally assigned to him in furtherance of the employer’s business. That is, the employee must be acting with the employer’s authority and for the employer’s benefit.


Several nonsubscribers filed an amicus brief in the Rudolph Supreme Court appeal because the appellate court in Rudolph read the Painter decision to not just adopt the “special mission” exception, but ALL workers’-compensation-related exceptions to the coming-and-going rule, including the “access doctrine.” Under the workers’-compensation “access doctrine,” if an employee is still on the employer’s premises after clocking out, then he is still acting in the course and scope of his employment. The amici argued that the “access doctrine” should not be adopted in non-workers’-compensation cases, because doing so would unduly enlarge an employer’s liability both to its employees and to third parties injured by its employees, even though the employee is no longer acting for the employer’s benefit after being clocked out.


The Texas Supreme Court somewhat dodged the issue, simply holding that the Painter decision was not a proper ground for overturning the verdict. It stated, “It is true that this Court issued its opinion in Painter on the same day the verdict in this case was reached. But we cannot see, and the new-trial order does not explain, how that coincidence of timing could have any material effect.” It then expressly held, however, that the Painter case does not foretell how the Court would rule on application of the access doctrine in a non-workers’-compensation setting:  


Both Painter and this case address whether an employee was acting within the course and scope of employment, but here, the jury found for plaintiffs on that point involving a far different fact pattern and upon very pro-plaintiff instructions. The jury found that Flores [the manager] was acting within the scope of his employment and that Ruiz [the driver] and Villegas [the pedestrian] were not, but it is not plausible that Painter’s holding could have changed that outcome. This Court’s decision in Painter turned on our rejecting of a “task-by-task” test in determining when the course-and-scope standard is met. Painter has no material bearing on any question pertinent to this case, such as the application of the access doctrine with the course-and-scope question.


This statement is helpful to nonsubscribers because by saying the Painter is irrelevant to the access-doctrine issue—and by saying the Painter decision would not have changed the jury’s findings that Ruiz and Villegas were not in the course and scope, it effectively overruled that part of the Rudloph Court of Appeals decision that held the Painter decision called for a wholesale adoption of all workers’-compensation-related doctrines when interpreting the course-and-scope issue. As a result, at least for now, it appears that if an employee is “off the clock,” when injured, the employee is not acting within the course and scope of employment, even if the injury occurs while the employee is still on the employer’s property. In other words, the “access doctrine” is still limited to workers’-compensation cases and cannot currently be used to transform an off-the-clock injury into an “on-the-job” injury.


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