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Employers Mutual Casualty Co. v. Boiler Erection and Repair Co.

December 12, 2008

EMPLOYERS MUTUAL CASUALTY CO., APPELLANT
v.
BOILER ERECTION AND REPAIR CO., INC., KENNETH KLINGER AND KENNETH KERR
KENNETH R. KERR, APPELLANT
v.
BOILER ERECTION AND REPAIR COMPANY, INC. AND KENNETH JAMES KLINGER



Appeal from the Order Entered July 28, 2005, in the Court of Common Pleas of Montgomery County Civil Division at No. 03-21988. Appeal from the Order Entered May 30, 2007, in the Court of Common Pleas of Philadelphia County Civil Division at No. August Term, 2003, No. 2422.

The opinion of the court was delivered by: Ford Elliott, P.J.

Petition for Reargument Filed December 23, 2008

BEFORE: FORD ELLIOTT, P.J., ALLEN AND KELLY, JJ.

OPINION

¶ 1 These consolidated appeals stem from a single-vehicle accident that occurred on August 30, 2001, on Interstate 95 outside of Baltimore, Maryland. Kenneth James Klinger ("Klinger") was the driver of the vehicle, a pick-up truck owned by Boiler Erection and Repair Co., Inc. ("Boiler Erection"). Both Klinger and Kenneth R. Kerr ("Kerr"), the passenger, were employees of Boiler Erection and sustained serious injuries as a result of the accident. At the time of the accident, Klinger and Kerr were returning to Pennsylvania from a job in Baltimore. Before leaving Baltimore, they had stopped at a seafood restaurant for dinner where both consumed alcoholic beverages.

¶ 2 In addition to filing a claim petition for workers' compensation benefits, Kerr brought a third-party tort claim in Philadelphia County against Klinger and Boiler Erection. Employers Mutual Casualty Company ("EMC"), Boiler Erection's insurer, filed a declaratory judgment action in Montgomery County, asking the court to declare that EMC was not obligated to defend or provide coverage to any party as a result of Kerr's injuries.

¶ 3 By order entered July 28, 2005, the Honorable Richard J. Hodgson granted in part and denied in part EMC's motion for summary judgment. The motion was granted only to the extent that the Workers' Compensation Exclusion in the policy applied to preclude duplication of recovery damages that may have been paid under any workers' compensation and did not serve to limit liability damages. The remainder of EMC's motion for summary judgment was denied.*fn1

¶ 4 EMC timely filed a notice of appeal, and Boiler Erection filed a motion to quash the appeal as interlocutory. On December 5, 2006, a divided panel of this court remanded the case for further proceedings. We instructed the trial court to specifically address several questions, including "Whether the underlying personal injury action of Kerr was brought and/or is governed by the laws of Pennsylvania or Maryland"; "Whether appellee Klinger was operating the employer's vehicle within the scope of his employment for purposes of eligibility for workers' compensation benefits"; and "Whether the order of July 28, 2005, that is currently under appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion such that 'an immediate appeal from the order may materially advance the ultimate termination of the matter,' pursuant to 42 Pa.C.S. § 702(b)?"*fn2 Employers Mutual Casualty Co. v. Boiler Erection and Repair Co., Inc., Kenneth Klinger and Kenneth Kerr, No. 2328 EDA 2005, unpublished memorandum at 4-5 (Pa.Super. filed December 5, 2006).*fn3

¶ 5 On January 23, 2007, Judge Hodgson filed a supplemental opinion. In response to the questions posed by this court, the trial court determined, inter alia, that Pennsylvania law applied and that for purposes of eligibility for workers' compensation benefits, Klinger's consumption of alcohol prior to driving the company vehicle took him outside the scope of his employment, relying on Atlantic States, supra. The trial court also determined that an immediate appeal from the trial court's order would advance the ultimate termination of the matter. The trial court requested that an appeal be permitted from its interlocutory order dated July 28, 2005.*fn4

¶ 6 Turning to the appeal at No. 1582 EDA 2007, Kerr appeals the order entered May 30, 2007, granting Klinger's motion in limine. Following an evidentiary hearing, the Honorable Frederica A. Massiah-Jackson determined that Kerr was barred from pursuing the tort litigation by the exclusivity provision of the Workers' Compensation Act. The court concluded that Klinger was acting within the course and scope of his employment at the time of the motor vehicle accident. As stated supra, summary judgment was granted in favor of Boiler Erection on July 27, 2005, and appellant Kerr does not contest that ruling.

¶ 7 Timely notice of appeal was filed on June 1, 2007. Kerr was not ordered to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 7, 2007, Judge Massiah-Jackson filed a Rule 1925(a) opinion, relying on her findings of fact and conclusions of law in support of the order granting Klinger's motion in limine. On September 25, 2007, this court consolidated the two appeals sua sponte.

¶ 8 We address the Philadelphia appeal first, because if we agree with Judge Massiah-Jackson's conclusion that despite having consumed alcohol prior to the accident, Klinger was acting within the scope of his employment and Kerr's third-party claim is statutorily barred by the Workers' Compensation Act ("the Act"), then the appeal at No. 2328 EDA 2005, regarding the coverage issue, is easily decided. Kerr has raised the following issues for this court's review:

1. Whether the trial court erroneously determined that Appellee, Klinger, was acting within the course and scope of his employment for his employer, Boiler Erection and Repair Co., Inc., on August 30, 2001, when he caused a single vehicle collision, effectively bar[r]ing his co-employee and passenger, Appellant, Kenneth R. Kerr, from pursuing his tort litigation against said Appellee, even though Klinger had violated the law and company policies by consuming alcohol prior to his operating said vehicle?

2. Whether the trial court committed error when it refused to apply the doctrine of collateral estoppel to Appellee, Klinger's claim that he was within the course and scope of his employment at the time of the August 30, 2001, accident, when said issue had already been decided by the Honorable Richard J. Hodgson of the Montgomery County Court of Common Pleas when Judge Hodgson decided same in a prior related matter?

3. Whether the trial court erred in concluding that Defendant Klinger violated the law by consuming alcohol prior to operating his employer's vehicle on August 30, 2001, but that his violation of the law was not the cause of the within accident?

Kerr's brief at 4 (emphasis in original).

¶ 9 We will examine these issues seriatim. First, we set out the relevant standard of review:

Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law.

Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d 1034, 1038 (Pa.Super. 2005), quoting Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-550 (Pa.Super. 2004), appeal denied, 583 Pa. 667, 876 A.2d 392 (2005) (citations omitted).

¶ 10 The parties stipulated that Pennsylvania law controls and that Kerr and Klinger were co-employees of Boiler Erection. (Trial court opinion, 5/30/07 at 1.) The parties also agreed that Judge Massiah-Jackson, sitting without a jury, could make the determination of the scope of Klinger's employment. (Id.) Additionally, the parties acknowledged that if Klinger was acting within the scope of his employment, Kerr's suit is barred by the Act. (Id. at 2.)

¶ 11 The trial court, following an evidentiary hearing held May 24, 2007, made the following findings of fact:

1. On August 30, 2001, Kenneth J. Klinger and Kenneth R. Kerr were sent by their employer, Boiler Erection and Repair Co., Inc. to make repairs to a boiler in Baltimore, Maryland.

2. Mr. Klinger was one of two field service employees who was permitted to drive the company truck to his home each day. This enabled him to leave early in the morning so that he could arrive at the customer's location 'as close to 7:00 a.m. as possible[.]' He was a Mechanic Foreman.

3. On August 30, 2001, Mr. Klinger met Mr. Kerr, the Field Technician, at a location in Chester, Pennsylvania.

4. In the early morning of August 30th, Mr. Kerr left his brother's home and drove his truck to Chester where he parked it at a parking lot. This was the 'rendezvous point' where Mr. Klinger met Mr. Kerr. Mr. Kerr was the passenger on the trip to Baltimore.

5. At some point after lunch, the men determined that they did not have certain parts to complete the work on the boiler. Mr. Klinger spoke by telephone to his boss, John Carey, Jr., at about 1:30 p.m. It was agreed that Mr. Klinger and Mr. Kerr would leave Baltimore, Mr. Klinger would get the parts in Pennsylvania, and then the two men would return to Baltimore the next morning.

6. Mr. Carey and Mr. Klinger did not discuss whether Mr. Klinger and Mr. Kerr would stop for dinner on the way back to Pennsylvania.

7. The two men worked more than four hours that day and were paid for eight hours pursuant to union rules. They were no longer 'on the clock' when they left the customer's work site and ...


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