Case: 15-40539      Document: 00513682572         Page: 1    Date Filed: 09/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                      No. 15-40539                                  FILED
                                                                            September 19, 2016
                                                                               Lyle W. Cayce
NEW HAMPSHIRE INSURANCE COMPANY,                                                    Clerk

                            Plaintiff - Appellant Cross-Appellee

v.

EFRAIN DOMINGUEZ, Deceased; PERLA CASTILLO-GARCIA,
Claimant/Beneficiary,

                            Defendants - Appellees Cross-Appellants



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 1:12-CV-107


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This case stems from a commercial bus crash on March 16, 2010, that
resulted in the death of passenger and bus company employee, Efrain
Dominguez (“Dominguez”), as he tried to help the driver. The parties dispute,
inter alia, (1) whether New Hampshire Insurance Company (“NHIC”) has
standing to contest the Texas Department of Workers’ Compensation’s (the
“DWC”) determination that NHIC did not provide workers’ compensation


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-40539
coverage for Dominguez’s employer on the date of the accident, and (2) whether
Dominguez was acting in the course and scope of his employment at the time.
The district court held that NHIC lacked standing and that Dominguez was
acting in the course and scope of his employment. Based on oral argument and
our review of the briefs, the record, and the applicable law, we REVERSE and
REMAND on the standing issue and AFFIRM the district court’s course and
scope determination.
                                        I.
      Dominguez’s wife filed a wrongful death lawsuit against Americanos,
USA, LLC, which was Dominguez’s employer, and others. The affirmative
defense of workers’ compensation was raised, and NHIC stepped in to assert
its coverage of benefits before the DWC. The DWC concluded as a matter of
law, however, that NHIC’s policy did not provide workers’ compensation
coverage for Americanos on the date of the accident because, through an
oversight, Americanos was not then a named insured in the policy (the
“Policy”).
      NHIC filed suit in federal district court to challenge the DWC’s
determination that Americanos was not covered under the Policy. The parties
filed cross-motions for partial summary judgment on the issue. The district
court sua sponte dismissed the coverage claim for lack of subject matter
jurisdiction, primarily because the DWC decision freed NHIC from any liability
arising out of the bus crash. The district court concluded that NHIC did not
satisfy the standing requirement because it was not “aggrieved by a final
decision of the [DWC] appeals panel.” See Tex. Lab. Code Ann. § 410.251 (West
2006).
      A district court’s decision to dismiss for lack of subject matter jurisdiction
is reviewed de novo. Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714
(5th Cir. 2012).   Standing is a jurisdictional prerequisite, K.P. v. LeBlanc,
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729 F.3d 427, 436 (5th Cir. 2013), and presents a legal question that we review
de novo. Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015).
      On appeal, NHIC asserts a number of reasons why it was “aggrieved” by
the DWC’s decision and therefore has statutory standing. The district court
relied on Texas case law that arguably prescribes a narrow interpretation of
“party aggrieved.” See Ins. Co. of the State of Penn. v. Orosco, 170 S.W.3d 129,
132–33 (Tex. App.—San Antonio 2005, no pet.); Just Energy Tex. I Corp. v. Tex.
Workforce Comm’n, 472 S.W.3d 437, 441–43 (Tex. App.—Dallas 2015, no pet.);
Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 814–
15 (Tex. App.—Fort Worth 2006, no pet.); In re Tex. Mut. Ins., 331 S.W.3d 70,
77 (Tex. App—Eastland 2011, no pet.); Covenant Healthcare Sys. v. Dean Foods
Co., No. 07-09-0348-CV, 2011 WL 3717056 at *4 (Tex. App.—Amarillo 2011,
no pet.); see also In re Coho Energy Inc., 395 F.3d 198, 202 (5th Cir. 2004) (“The
‘person aggrieved’ test is an even more exacting standard than traditional
constitutional standing.”). Nonetheless, standing is based on a factual inquiry
dependent on the circumstances of each case. Fort Bend Cnty. v. Tex. Parks
& Wildlife Comm’n, 818 S.W.2d 898, 900 (Tex. App.—Austin 1991, no writ)
(“Whether a person is aggrieved by the agency’s final decision is generally a
fact question to be decided upon the facts and circumstances of the particular
case.”) (internal quotation marks and citations omitted).
      Here, the parties had no opportunity to fully brief and argue the standing
issue in the district court because the court reached its conclusion sua sponte.
To be clear, we do not take issue with the court raising standing on its own
initiative. See Barret v. Comput. Servs., 884 F.2d 214, 219–220 (5th Cir. 1989).
It is apparent however, that the standing determination in this case involves
factual disputes beyond this appellate court’s capacity to resolve.         NHIC
asserts that it is aggrieved because the DWC’s decision allegedly resulted, inter
alia, in the possibility of NHIC’s having to refund Americanos’s insurance
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premiums and in forfeiting the workers’ compensation benefits it paid to the
bus driver as a result of this accident. Accordingly, we reverse and remand for
further proceedings to determine, based on all the facts and a comprehensive
review of the case law, whether NHIC has standing to seek judicial review of
the DWC’s “no coverage” determination. We do not reach the question whether
NHIC’s retroactive coverage of Americanos was enforceable.
                                      II.
      The DWC concluded that Dominguez was acting in the course and scope
of his employment at the time of the accident. His wife counterclaimed in the
district court challenging the DWC’s course and scope determination. The
district court granted summary judgment in favor of NHIC, explaining that on
the day of the accident, Dominguez was on-the-clock as an employee, he
assisted with a passenger seating dispute during the bus trip, and he tried to
assist the bus driver in the rapidly evolving safety matter that led to the bus
crash.
      This court reviews motions for summary judgment de novo.             EEOC
v. WC&M Enters., 496 F.3d 393, 397–98 (5th Cir. 2007). A moving party is
entitled to summary judgment if no material facts are disputed and that party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
      The Texas Labor Code defines course and scope of employment as “an
activity of any kind or character that has to do with and originates in the work,
business, trade, or profession of the employer and that is performed by an
employee while engaged in or about the furtherance of the affairs or business
of the employer.”    Tex. Lab. Code § 401.011(12) (West 2009). The initial
determination of course and scope thus encompasses an “origination” prong
and a “furtherance” prong. Seabright Ins. Co. v. Lopez, 465 S.W.3d 637, 645
(Tex. 2015). There is no bright line rule in the fact-intensive “course and scope”
inquiry. See Tex. Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619, 627 (Tex. App.—
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Houston [14th Dist.] 2012, no pet.). When considering whether an employee
was acting in the course and scope of employment while traveling, courts
consider the nature of the employee’s job, the circumstances of the travel, and
any other relevant facts. Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730–
31 (Tex. App.—Austin 2011, pet. denied); Meyer v. W. Fire Ins. Co., 425 S.W.2d
628, 628–29 (Tex. 1968). Generally, “if the injury is the result of any activity
that originates from employment and is received while the employee is actually
engaged in furthering the employer’s business, the injury is deemed to have
been sustained within the course and scope of employment.” ESIS, Inc. v.
Johnson, 908 S.W.2d 554, 557 (Tex. App.—Fort Worth 1995, no writ) (citations
omitted); see also Dunlap-Tarrant v. Ass’n Cas. Ins. Co., 213 S.W.3d 452, 454
(Tex. App.—Eastland 2006, no pet.).
       Simply put, the ultimate question is whether Dominguez was working
for Americanos at the time of the accident. 1                   See Tex. Lab. Code Ann.
§ 401.011(12) (West 2009). Although Dominguez’s complimentary bus ticket
listed “personal” as the reason for issuance, we agree with the district court
that no genuine issue of material fact was raised to refute that he was in the
course and scope of employment when the bus accident ended his life.
       For purposes of the “origination” prong, an injury “originates in the work,
business, trade, or profession of the employer,” McVey, 339 S.W.3d at 728
(quoting Tex. Lab. Code Ann. § 401.011(12)), “when it results from a risk or



       1There are two statutory exceptions to be considered in the “course and scope” of
employment determination.            The “coming and going” exception, Tex. Lab. Code
§ 401.011(12)(A)(i), (ii), (iii) (West 2009), is inapplicable here because the facts do not involve
a person travelling to or from his place of employment. The “dual purpose” exception, Tex.
Lab. Code § 401.011(12)(B)(i), (ii) (West 2009), is also inapplicable because there is no
evidence that Dominguez was travelling for any reason (i.e., for the purpose of his business)
other than his personal affairs. See id. Additionally, Dominguez was not travelling from
work to a place other than his home. See Leordenau v. American Prot. Ins. Co., 330 S.W.3d
239, 244–45 (Tex. 2010).
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hazard which is necessarily or ordinarily or reasonably inherent in or incident
to the conduct of such work or business.” Id. at 733. The undisputed evidence
here is that one of Dominguez’s job duties was to evaluate drivers; that he
assisted in seating passengers; that he was standing behind driver Irma
Morado (“Morado”) while the bus was traveling at highway speed; and that he
was assisting and directing her in diagnosing the bus malfunction. Dominguez
also attempted to help Morado steer the bus. After hearing an unusual noise,
a mere passenger would likely not have stood up from his seat, walked up
behind the driver, directed her actions in diagnosing the noise, and attempted
to help the driver. Thus, the evidence shows that Dominguez’s conduct at the
time of the accident originated from his employer’s business, and he incurred
a risk that was not one shared by the general public, see McVey, 339 S.W.3d at
730. Accordingly, the district court correctly found no genuine issue of material
fact as to the origination prong of the “course and scope” determination.
      Second, the evidence showed that Dominguez was acting in furtherance
of Americanos’s affairs. Dominguez had not requested time off from work and
was on the clock the day of the accident.       Dominguez conducted several
business calls during the trip. He called another Americanos manager and
participated in a conference call with his supervisor and other co-workers.
Additionally, Morado testified that she was under the impression that
Dominguez was working on the day of the accident, he intervened at Morado’s
request in resolving a passenger seating dispute, and he rapidly became
involved in attempting to diagnose the unusual noise. In fact, there is no
evidence even suggesting that Dominguez was doing anything other than
working on the day of the accident. Consequently, the district court did not err
in holding that that no genuine issue of material fact existed as to the
“furtherance” prong of the “course and scope” inquiry.


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                               No. 15-40539
                                  III.
      For the foregoing reasons, we conclude that further development of the
facts is needed on the question whether NHIC is a “person aggrieved” by the
DWC’s determination that NHIC’s policy did not cover this accident, but we
affirm the district court’s summary judgment on “course and scope.” We thus
AFFIRM the judgment in part, and REVERSE and REMAND in part with
instructions.




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