Personal Deviation Sinks Mississippi Salesman’s Claim
Construing the “dual purpose” rule, as utilized in Mississippi, the state’s Court of Appeals, in a deeply divided (6-4) decision, affirmed a decision of the Mississippi Workers’ Compensation Commission that denied benefits to a salesman who sustained injuries in a vehicle crash on Oct. 21, 2016, and suffered a heart attack the next day [Sims v. Delta Fuel, 2020 Miss. App. LEXIS 82 (en banc, Mar. 17, 2020)]. The majority of the court acknowledged that at the time of the accident, the salesman was a “traveling employee,” and that generally such traveling employees enjoyed a broad “course of employment” analysis, but the majority found substantial evidence supported the Commission’s finding that at the time of the accident, the salesman had been engaged in a substantial, personal deviation from his employment.
Background
Sims worked as a traveling salesman for the employer, which provided oil, lubricants, and fuel to commercial clients. Sims’s job was to secure and service business accounts in the southeastern part of Mississippi. He routinely made sales calls to existing customers as well as potential new ones.
Sims’s older brother, Rodney Sims, was also employed by the employer, working in its Ferriday, Louisiana office. The record reflected that Rodney would sometimes assist his brother with the names of potential clients and product information. They communicated in person, by telephone, through email, or by text messaging.
Sims was involved in a motor vehicle accident on October 21, 2016, as he was turning off Highway 469 onto a private drive at Huckleberry Hill, property which was owned or leased by Rodney, and used for recreational deer hunting. Before the accident that day, Sims made sales calls at in Ellisville, MS, and in Florence, MS. Sims also testified at the hearing that he planned to make a final business call in south Jackson, MS, but did not make the call because of the accident.
Headed Southwest, Instead of North
Critical to the case was Sims’s driving pattern after his sales call in Florence, Mississippi. Had Sims driven in a straight path from Florence to Jackson, he would have traveled north on Highway 49. Instead, he traveled southwest on Highway 469 toward Crystal Springs and toward the Huckleberry Hill property that was owned or leased by Rodney.
Huckleberry Hill was used for recreational deer hunting. Sims testified that he and Rodney intended to plant food plots at Huckleberry Hill on Saturday, October 22, 2016, the day after the accident. Sims traveled to Huckleberry Hill on Friday afternoon, at Rodney’s request, to deliver a four-wheeler in preparation for the Saturday planting of the food plots. Sims and his supervisor at the time, Steve Whittington, acknowledged at the hearing that delivering the four-wheeler to Huckleberry Hill was not related to Sims’s employment with Delta Fuel. The collision occurred when Sims turned off Highway 469 onto a private drive at the Huckleberry Hill property.
Was There Also a Business Purpose for the Trip
At the hearing, Sims testified that he also drove to the Huckleberry Hill property to deliver a product list to his brother. On cross-examination, Sims admitted that he knew his brother would not be at the property until Saturday. Sims also testified at the hearing that in addition to delivering a product list to Huckleberry Hill, he intended to drive to his home in Crystal Springs, after leaving Huckleberry Hill, to pick up a form he would need for his business call in Jackson. Sims’s supervisor testified, however, that the employer provided Sims with a computer and portable printer for his truck, that the form was online, and the simplest thing would be to print the form in Sims’s truck.
Subsequent Heart Attack
After the accident, Sims sought medical treatment at a clinic in Richland, Mississippi. He then met Rodney and other family members at Jerry’s Catfish House in Florence, Mississippi, for dinner that evening. On Saturday morning, Sims met Rodney, as well as another brother and others, to plant food plots and hang a deer stand. While hanging the deer stand, Sims experienced acute chest pain. He was ultimately transported to the University of Mississippi Medical Center, where he was treated for a heart attack.
Administrative Judge & Commission Findings
An administrative judge found that neither Sims’s motor vehicle accident nor his heart attack arose out of and in the course of employment. Following oral argument on the case, the Commission adopted and affirmed the AJ’s order.
Appellate Decision: The Dual Purpose Test
Presiding Judge Virginia Carlton wrote for the majority. Acknowledging that a traveling employee, such as Sims, is held to be within the course of his or her employment continuously during the trip — except when a distinct departure on a personal errand is shown — Judge Carlton also observed that in E & M Motel Management Inc. v. Knight, 231 So. 2d 179, 182-83 (Miss. 1970), the Mississippi Supreme Court articulated the test for compensability when an employee’s travel has a dual purpose (i.e., one that is employment-oriented and one that is personal). Under this “dual-purpose test,” if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.
Here, Sims needed to deliver the four-wheeler on Friday afternoon to his brother’s property. Judge Carlton stressed that Sims did not testify and there was no evidence to support a finding that his business mission of delivering the product list to Rodney would have compelled the journey if his personal mission of delivering the four-wheeler had been cancelled. He did not need to personally deliver the product list to Huckleberry Hill on Friday afternoon. He could have delivered the list to Rodney when they had dinner together Friday evening or when they met the next morning at Huckleberry Hill. Moreover, Sims could have electronically delivered the product list; he admitted that he and his brother routinely sent each other text messages and photos.
Based on the foregoing, the majority found that the AJ’s order, affirmed and adopted in full by the Commission, was supported by substantial evidence and that the dual-purpose test was properly applied.
Commentary on the Dissent
Space does not allow a full presentation of the dissenting opinion. While I’m open to counter-arguments, particularly from members of the Mississippi bar, much of the dissent is inapposite. Certainly, Mississippi courts have allowed recovery for traveling employees when the injury occurred during activity that was not specifically oriented to the employment. That, however, isn’t the case here. Sims wasn’t traveling to the property to deliver the product list; he was delivering the four-wheeler. The dissent’s argument would eviscerate the dual purpose rule. If you think otherwise, let me know.