Boyko v. Parker

Filing 66

MEMORANDUM DECISION denying 45 Motion for Summary Judgment ; granting 50 Motion for Summary Judgment ; finding as moot 61 Motion for Jury Trial. Signed by Judge David Sam on 05/02/2013. (asp)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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ANNA BOYKO,
)
Case No. 2:10CV1191 DS
Plaintiff,
)
v.

)

NICHOLAS J. PARKER
Defendant.

MEMORANDUM
DECISION

)
)

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I. INTRODUCTION
This case arises from a motor vehicle accident that occurred on July 3, 2006, near
Blanding, Utah on State Route 191. Defendant Nicholas Parker, an employee of Defendant
Aramark Sports and Entertainment Services, LLC, was driving a van with four other passengers,
including Ms. Boyko, who were also off-duty Aramark employees on a shopping trip, when he
lost control of the vehicle, left the roadway and rolled the vehicle. Ms. Boyko was ejected from
the vehicle and suffered serious injuries as a result. Aramark, through its workers’ compensation
insurer, has paid all of Ms. Boyko’s past medical expenses related to the accident. In their
Answer to the Amended Complaint, Aramark and Parker have asserted as an affirmative defense
that “Ms. Boyko’s claims are barred by the exclusive remedy provision of the Utah Workers’
Compensation Act, Utah Code Ann. §34A-2-105(1).”1 Ms. Boyko now moves the Court for an
order of partial summary judgment with respect to this affirmative defense. Defendants Parker
and Aramark have filed a cross-motion for summary judgment, arguing that as a matter of law,
Ms. Boyko’s claims are barred by the exclusive remedy provision.

1

See Defendants’ Answer to Amended Complaint

II. SUMMARY JUDGMENT STANDARD
A party may move for partial summary judgment as to an affirmative defense by
identifying the defense on which summary judgment is sought.2 Such a motion for “partial
summary judgment may be used by the Court to dispose of affirmative defenses.”3

“The court

shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”4 The material facts of
this case are straightforward and are undisputed. What is disputed is how those facts should be
characterized relative to whether the accident occurred in the course and scope of Mr. Boyko’s
employment, and thus whether Aramark’s Exclusive Remedy Defense is appropriate. The court
agrees with Ms. Boyko that there is no genuine issue of fact for the jury, and whether or not Ms.
Boyko’s injuries arose in the course and scope of her employment is purely a legal question to be
determined by the Court.
Ms. Boyko has asserted repeatedly in her briefing that this court regards Defendant’s
exclusive remedy defense as not persuasive and has held that Ms. Boyko’s proposed claims are
not barred by the exclusive remedy provision of the Act. However, Ms. Boyko misrepresents the
court’s prior order. The order to which she refers, Order Granting Plaintiff’s Motion for Leave to
File an Amended Complaint, states: “Accepting these allegations as true for the purposes of this
motion, the court finds that Ms. Boyko’s injuries may have been non-work related, so her claims
against Aramark would not be limited by the exclusive remedy provision of the Act” (emphasis

2

Fed. R. Civ. P. 56(a)

3

Int’l Ship Repair & Marine Services, Inc. v. St. Paul Fire & Marine Ins. Co., 944 F. Supp.
886, 891 (M.D. Fla. 1996).
4

Fed. R. Civ. P. 56(a).
2

added). Clearly that order applied only to the court’s decision to allow Ms. Boyko to amend her
complaint, and has nothing to do with the current motions for summary judgment.

III. ANALYSIS

A. Workers’ Compensation Exclusive Remedy Provision and the Coming-andGoing Rule
Under the Utah Worker’s Compensation Act (“WCA”), the right to recover workers’
compensation benefits “is the exclusive remedy against the employer and . . . against any . . .
employee of the employer” for any injury “incurred by the employee in the course of or because
of or arising out of the employee’s employment.”5 However, Utah case law has made it clear
that for the exclusive remedy provision to apply, the injuries must be suffered within the course
and scope of employment.6 The Utah Supreme Court has often expressed support for the
“coming-and-going” rule, which is that injuries that occur in transit to or from work are not
typically covered by the Act: “As a general rule, injuries sustained by an employee while
traveling to and from the place of employment do not arise out of and in the course of
employment and are, therefore, not covered by workers’ compensation.”7 Ms. Boyko argues that
because she was injured while traveling from her work location on a recreational shopping trip,

5

Utah Code Ann. § 34A-2-105(1).

6

See Smith v. Am. Exp. Travel-Related Services, 765 F. Supp. 1061, 1063 (D. Utah
1991)(“The employee is, therefore, not bound by the exclusive remedy limitation if his or her injury
does not arise out of or in the course of employment.”)
7

VanLeeuwen v. Industrial Com’n of Utah, 901 P.2d 281, 284 (Utah App. 1995). See also
Barney v. Industrial Comm’n, 29 Utah 2d 179, 506 P.2d 1271 (1973) (Stating that the “wellestablished rule” is that “traveling to and from work is not part of the employment and is not covered
by Workmen’s Compensation.”).
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and because it was her day off and she performed no duty or task related to her employment, she
was not acting within the scope of her employment.
B. Exceptions to the Coming-and-Going Rule
i. The Bunkhouse Rule
Because of the unique conditions of Ms. Boyko’s employment, however, several
exceptions to the coming-and-going rule apply. Several states have recognized an exception to
the coming-and-going rule, called the bunkhouse rule, which provides that when an employee is
required to reside on the employer’s premises and the employee sustains injuries while
reasonably using the premises, those injuries are compensable under the bunkhouse rule. Courts
have also applied the bunkhouse rule to injuries sustained off the employer’s premises, taking
into consideration factors such as the remoteness of the location, the amount of control the
employer exercised over the activity, and whether the errand was reasonable.
In Hamilton v. W.C.A.B., an employee living onsite at a remote location, was injured
while traveling after work hours from his remote work site to purchase cigarettes. The court held
that “it was within the contemplation of the parties that employees would leave the center after
work hours to purchase [personal] items,” making the employee’s injuries compensable under
the bunkhouse rule.8 In another case, an employee was injured while working in Guam. The
company provided vehicles for its employees to travel around the island, because there was no
public transportation. While traveling from a nearby air base, the employee and her supervisor
made a purely recreational detour, during which they were involved in an accident. The court
held that the accident occurred within the course of the employee’s employment.9 The court held

8

9

Hamilton v. W.C.A.B.,187 Cal.App.3d 718, 231 Cal. Rptr. 917 (Ct. App. 1986).
Self v. Hanson, 305 F.2d 699 (9th Cir. 1962).
4

that although the employee was not performing her duties and not being paid, she was using
company transportation because she had no reasonable alternative. Even if the detour was purely
recreational, recreation was necessary for employees living on a remote island and the company
facilitated it by providing vehicles and indicating where the employees could go.10
In this case, Ms. Boyko was required to live at her remote location. She testified that
there was no other option for housing. She did not have a means of transportation, and although
there was a small store onsite, it did not offer groceries or basic personal supplies. If Ms. Boyko
and other similarly situated employees wanted to leave their remote location for shopping or
recreation, or any other reason, they depended entirely on Aramark to make the necessary
arrangements. So even if the nature of the trip was purely recreational, the conditions of Ms.
Boyko’s employment would bring the accident within the scope of the bunkhouse rule.
This court recognizes that Utah has not adopted the bunkhouse rule, and that the cases
applying the bunkhouse rule do not have precedential authority in this case. However, Utah
courts have not rejected the bunkhouse rule either. They have simply not addressed the issue.
The 10th Circuit has stated, “Where the state’s highest court has not addressed the issue
presented, the federal court must determine what decision the state court would make if faced
with the same facts and issue.”11 Under the unique factual circumstances of this case, the court
finds the reasoning behind the bunkhouse rule to be persuasive, especially in light of the
following Utah cases.

10

Id. at 702-03.

Rash v. J. V. Intermediate, Ldt., 498 F.3d 1201, 1206 (10th Cir. 2007) (internal quotation
marks omitted.)..
11

5

ii. Transportation furnished by the employer to the benefit of the employer
The Utah Supreme Court has specifically recognized an exception to the coming-andgoing rule in cases “where transportation is furnished by the employer to the benefit of the
employer.”12 In several cases, when articulating the coming-and-going rule, the Utah Supreme
Court has used language that at least suggests that the rule is limited to situations in which the
employee provides his or her own transportation. In Whitehead v. Variable Annuity Life Ins. Co.,
the court held that, “As a general rule, an employee is not acting within the course and scope of
his employment when he is traveling in his own automobile to and from work.”13 Another case
held that generally an employee is not in the course and scope of his employment for purposes of
workmen’s compensation “when he furnishes his own transportation and is injured while going
to or coming from his place of employment.”14 When deciding coming-and-going cases, Utah
courts have specifically considered whether the employer provided the transportation. In Cross
v. Board of Review, the court decided that the accident did not occur in the course and scope of
the employee’s employment, in part because the employer “did not undertake the responsibility

12

State Tax comm’n, 685 P.2d at 1035; see also Denver & R.G.W.R. Co. v. Indus. Comm’n,
269 P.[] 512, 513 (Utah 1928) (“If . . . the employee lost his life by accident while being transported
by his employer to his place of work pursuant to the terms and conditions of his employment, the risk
of such accident was annexed to the employment, and the award should be sustained.” (emphasis
added)).
13

Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 934, 935 (Utah 1989)(emphasis

14

Higgins v. Industrial Commission, 700 P.2d 704, 707 (Utah 1985)(emphasis added).

added).

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of providing transportation for [the employee].”15 The court also considered the fact that the
employer in that case did not “commit to paying [the employee’s] transportation expenses to and
from the . . . project.16
In this case, Aramark did “undertake the responsibility of providing transportation” for
Ms. Boyko. Ms. Boyko was not driving to or from her place of employment in her own vehicle.
She did not even have a car or a license to drive. Aramark provided a van that it owned and
insured for the trip, assigned and paid Mr. Parker to drive the van, and covered the costs of the
trip.
Ms. Boyko argues that the defendants have not offered any testimony or evidence that
Aramark benefitted in any tangible way from this trip. She asserts that Aramark’s argument is
theoretical and that the claimed benefits to Aramark are intangible and legally insufficient to link
a recreational activity to the employment. Aramark, however, points out the benefit that it
receives from having its employees onsite and readily available when needed, rather than many
miles away in the nearest cities and towns. In order to recruit and retain employees to work and
live at such a remote location, Aramark must accommodate employee needs and recreation,
which includes some offsite trips. Another relevant factor that courts consider when applying
exceptions to the coming and going rule is the control exercised by the employer over the trip.17

15

Cross v. Board of Review, 824 P.2d 1202, 1205 (Utah Ct. App. 1992), superseded by
statute on other grounds as stated in Murray v. Labor Comm’n, 2012 UT App 33, ¶ 18, 271 P.2d
192.
16

Id.

17

See Whipple v. Hill, 2012 WL 2711544, at *2 (“Relevant factors that courts consider when
applying [exceptions to the coming-and-going rule] include control and benefit to the employer.”).
7

In this case, Aramark exercised significant, if not complete control over Ms. Boyko’s trip.
Addressing the issue of control, the Utah Supreme Court found that an employee was not in the
course of his employment when he was injured while traveling home from work, based on the
fact that “[g]oing to the theatre from [the employee’s] home and returning home from the theatre
were matters that were within his own control and convenience as to time, place, or manner,
road, direction or means of conveyance. On those matters he exercised his own judgment and
pleasure.”18 In this case, on the other hand, Aramark dictated the time, place, and means of
conveyance for the trip. Aramark chose the time for the trip, and told the employees when they
would go. Aramark also provided transportation and paid for all the travel costs. Ms. Boyko
made the initial request to go, but beyond that, she had no control of the trip, which indicates that
she was in the course and scope of her employment.
C. Evidence of the Settlement Agreement May Not be Used
In her argument that the accident did not occur within the course of her employment with
Aramark, Ms. Boyko relies heavily on language used in a settlement agreement between
Aramark and Mr. Parker. She admits that the settlement agreement may not be used to prove the
validity of her claim or for impeachment purposes, but argues that it can be used as evidence that
Aramark knew that she was not acting within the scope of her employment at the time she was
injured and nonetheless chose to make voluntary payments for her medical expenses on her
behalf.
It is undisputed that the language Ms. Boyko has quoted is from a settlement agreement.
The document, entitled “Compromise Settlement of a Disputed Claim,” resulted from

18

Vitagraph, Inc. v. Industrial Commission, 85 P.2d 601, 606 (Utah 1938).
8

negotiations between Mr. Parker and Aramark to resolve Mr. Parker’s workers’ compensation
claim. Under Rule 408 of the Federal Rules of Evidence, compromise offers and negotiations
are not admissible “either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or contradiction.” The Rule also applies to completed
settlement agreements. The advisory committee note to Rule 408 states, “While the rule is
ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be
taken with respect to completed compromises when offered against a party thereto.”
It is also clear that in the Tenth Circuit, a settlement agreement and its language may not
be admitted as an admission under rule 801: “[c]ompromise or settlement offers are not
admissions of liability.”19 Plaintiff argues that she intends to use evidence of the settlement
agreement only to show that Aramark knew that Plaintiff was not acting within the scope of her
employment at the time she was injured and nonetheless chose to make voluntary payments for
Plaintiff’s medical expenses on her behalf. Since this is irrelevant in determining whether or not
Ms. Boyko was acting within the scope of her employment, the court will not reach this issue.

III. CONCLUSION

Under the circumstances of this case, the court finds that Ms. Boyko’s injuries did occur
within the course and scope of her employment with Aramark. As a result, Ms. Boyko’s claims
are barred by the exclusive remedy provision of the Utah Workers’ Compensation Act, Utah
Code Annotated § 34A-2-105(1). Therefore, the court hereby denies Ms. Boyko’s Motion for
Partial Summary Judgment (Doc. #45), and grants Defendants Parker and Aramark’s Cross-

19

Signature Dev. Cos. v. Royal Ins. Co of Am., 230 F.3d 1215, 1223 (10th Cir. 2000).
9

motion for Summary Judgment (Doc. #50). As a result, Defendant’s Motion for Jury Trial (Doc.
#61) is rendered moot.

SO ORDERED.
DATED this 2nd day of May, 2013.
BY THE COURT

_____________________
DAVID SAM
SENIOR JUDGE
U.S. DISTRICT COURT

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