The surviving spouse of an oil worker killed in an automobile collision while being driven to work by the chief of his oil drilling crew brought an action against the driver. The crew chief claimed fellow servant immunity under the Workers’ Compensation rule that an injured employee cannot sue a fellow employee for damages incurred during the course of the employment.
The plaintiff argued that the fellow servant rule did not apply because neither the decedent nor the defendant were “in the course of employment” since, under the “coming and going rule” a worker is ordinarily not within the scope and course of employment while traveling to and from work. The decedent and the defendant were part of a carpool driving to a worksite 90 miles away. The decedent was asleep when the collision occurred and was not being paid for driving time. The crew chief was being paid mileage but not for driving time. It is customary, but not required, in the oil drilling industry for crew chiefs to be responsible for getting their crew to job sites. Often, this is accomplished by carpools so that everyone arrives at the same time. Most of this crew’s job sites were more than 100 miles away from home.
At trial, the jury found that, pursuant to the “coming and going rule,” neither the decedent nor the defendant were in the course of employment when the accident occurred so the defendant was not covered by fellow servant immunity. Judgment was entered for the plaintiff.
On appeal, the Kansas Supreme Court held that whether the decedent was in the course of employment was not relevant for the purpose of determining the defendant’s immunity. The important consideration was whether the driver was in the course of employment. Because travel to work was an intrinsic part of the crew chief’s job, the “coming and going rule” did not apply in this case. Therefore, the crew chief was within the course and scope of employment so the plaintiff’s action was barred by fellow servant immunity. The trial court’s judgment was vacated and the case was remanded for entry of an order dismissing all claims.
See: Scott v. Hughes, 2012 WL 1564015 (Kan. May 04, 2012) (not designated for publication).