Lucille Cotham, et al. v. Perry County, Etc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the appellants insist the trial court erred in summarily dismissing the claim. As discussed below, the panel has concluded there is no genuine issue as to a material fact and that the employer is entitled to judgment of dismissal as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR. SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J. Honey Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the appellant, Lucille Cotham Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the appellees, Perry County and Perry County Sheriff's Department MEMORANDUM OPINION This civil action to recover workers' compensation benefits was initiated by the former wife, Pamela Jean Honey, of the deceased employee, Ricky Dale Cotham, to recover workers' compensation benefits for two of his dependent children. His widow, Lucille Cotham, intervened. The trial court granted summary judgment of dismissal. The plaintiff and intervening plaintiff have appealed. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21). The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense. Mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The complaint avers that the deceased employee, Mr. Cotham was killed in an automobile accident which arose out of and in the course of his employment as a deputy sheriff. The employer answered that the injury did not occur in the course of employment because the employee was off duty and on his way home from work at the time of the accident. The undisputed evidence presented before the trial court was that on the day of the accident, the employee was scheduled to work from 7: a.m. to 5: p.m.. Near the end of the shift, he returned his patrol car, went off duty, picked up his personal vehicle and headed home. On his way home, still armed and in uniform, Deputy Cotham was involved in a fatal accident. The appellants contend that it could be inferred from the facts that the employee was in the course of employment at the time of the accident, because a police officer is on call at all hours. However, our examination of the record reveals no evidence that Deputy Cotham was responding to a call when the accident occurred. He was simply on his way home after work The appellee relies on the general rule that employees are not covered by the Workers' Compensation Act while traveling to and from work. However, in Mayor and Alderman of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 84 (1937), cited by the appellants, the Court held that a police officer, who was killed by a drunk driver while walking home from work, was entitled to workers' compensation benefits. In that case, the Supreme Court, finding material evidence to support the trial court's finding that Ward was on duty at the time of his fatal accident, affirmed an award of benefits. The case is clearly distinguishable from the one before this tribunal, as the trial court duly noted, on the facts. Summary judgment is almost never an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. -2-