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Witmer v. G. Kellen and Wit-Rey, d/b/a Kentucky Fried Chicken (11/25/94), 884 P 2d 662
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM G. WITMER and )
MARY J. WITMER, )
) Supreme Court No. S-5883
) Superior Court No.
) 4FA-92-2174 Civil
) O P I N I O N
GEORGE M. KELLEN and WIT-REY, )
INC. d/b/a KENTUCKY FRIED ) [No. 4148 - November 25, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Mary E. Greene, Judge.
Appearances: Robert A. Sparks, The Law
Office of Robert A. Sparks, Fairbanks, for
Appellants. Ann S. Brown and Shauna F.
Morris, Guess & Rudd, Fairbanks, for Appellee
Kellen. Christopher E. Zimmerman, Call,
Barrett & Burbank, Fairbanks, for Appellee
Wit-Rey, Inc., d/b/a Kentucky Fried Chicken.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
MOORE, Chief Justice.
EASTAUGH, Justice, with whom RABINOWITZ,
Justice, joins, dissenting.
William G. Witmer is the president and sole shareholder
of Wit-Rey, Inc., d/b/a Kentucky Fried Chicken ("Wit-Rey").
Witmer was injured in November 1990 while riding as a passenger
in a vehicle driven by George M. Kellen, the manager of the
Fairbanks Kentucky Fried Chicken restaurant. William and his
wife, Mary J. Witmer, brought this personal injury action against
Kellen and Wit-Rey, asserting that Kellen's negligence resulted
in William's injuries and that Wit-Rey was liable under the
doctrine of respondeat superior.
The superior court, Judge Mary E. Greene, granted
summary judgment in favor of Kellen and Wit-Rey after finding as
a matter of law that William's injuries arose out of and in the
course of his employment as defined under AS 23.30.265(2). As a
result, the court held that the Alaska Workers' Compensation Act
provides the Witmers' exclusive remedy. The sole question on
appeal is whether William's injuries "arose out of and in the
course of employment"as a matter of law. We affirm.
In the fall of 1990, William Witmer was the president
and sole shareholder of Wit-Rey, which at that time operated 6
Kentucky Fried Chicken franchises in Anchorage and Fairbanks. In
his deposition, William testified that it was his usual practice
to work seven days a week, six to twelve hours per day. He spent
roughly two-thirds of his time in the Fairbanks business.
As manager of the Fairbanks franchise, George Kellen
was responsible for the daily operation of that business. This
responsibility included scheduling and supervising employees.
William testified in his deposition that he liked his store
managers to have their own cars so that they could respond to any
emergencies at the store, deliver orders to customers, and
sometimes pick up employees who needed transportation to work.
William stated that this last item was left to the manager's
discretion; the manager could leave to pick up an employee for
work or he could elect to work shorthanded for the shift.
In the afternoon of November 25, 1990, Kellen was
preparing to drive to an assistant manager's house to help the
assistant jump start his car so he could get to work. William
decided to go along for the ride. He stated: "It was just a
dreary afternoon. There was nothing doing so I thought, heck,
I'll ride over with him if he doesn't object." William stated
that he did not plan to assist Kellen in jump starting the car,
and he had no business purpose in going for the ride. According
to William, his sole reason for riding with Kellen was to take a
break from work.
En route to the assistant manager's house, Kellen's
truck was involved in an accident with another vehicle, and
William sustained injuries. William and his wife then brought
this negligence action against Kellen and Wit-Rey. In pursuing
Wit-Rey under the doctrine of respondeat superior, the Witmers
acknowledged that Kellen was acting within the course and scope
of his duties at the time of the accident. Despite Kellen's work-
related purpose in the errand, however, the Witmers argued that
William was not acting in the course of his duties in
accompanying Kellen. Instead, he was simply on a break for
personal enjoyment. As a result, the Witmers argued that the
exclusive remedy provision of the Workers' Compensation Act did
not apply. See AS 23.30.055.
The superior court conducted two inquiries to resolve
the defendants' argument that workers' compensation provides the
Witmers' exclusive remedy. Applying AS 23.30.240, the court
first found as a matter of law that William was an employee of
Wit-Rey.1 This finding has not been appealed. The court next
addressed whether William's injuries "arose out of and in the
course of employment"as defined in AS 23.30.265(2). Relying on
Luth v. Rogers & Babler Construction Co., 507 P.2d 761 (Alaska
1973) and Marsh v. Alaska Workmen's Compensation Board, 584 P.2d
1134 (Alaska 1978), the court concluded that even if William was
on a break at the time of the accident, the trip with Kellen was
closely related to William's employment. In light of this fact,
the court found that reasonable people could not disagree that
William's injuries arose out of and in the course of his
employment, and it granted Kellen's motion for summary judgment.
The Witmers appeal this determination.
We review a grant of summary judgment de novo. McGrath
v. University of Alaska, 813 P.2d 1370, 1371 n.1 (Alaska 1991).
We must determine whether any material issue of fact exists and
whether the moving party is entitled to judgment as a matter of
law. Darling v. Standard Alaska Prod. Co., 818 P.2d 677, 679 n.5
(Alaska 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1176
(1992). In making this determination, we will draw all
reasonable inferences in favor of the non-moving party. Korman
v. Mallin, 858 P.2d 1145, 1148 (Alaska 1993).
Alaska's Workers' Compensation Act provides a
comprehensive system of compensation for injuries to employees.
See AS 23.30.005-.270. Under AS 23.30.055, workers' compensation
is an employee's exclusive remedy against an employer and any
fellow employees for work-related injuries.2 The Workers'
Compensation Act defines an "injury"to include an "accidental
injury or death arising out of and in the course of employment."
AS 23.30.265(17). "Arising out of and in the course of
employment"is defined to include "employer-required or supplied
travel to and from a remote job site; activities performed at the
direction or under the control of the employer; and employer-
sanctioned activities at employer-provided facilities; but
excludes activities of a personal nature away from employer-
provided facilities." AS 23.30.256(2).
The Witmers argue that William was on a personal outing
when he was injured. They contend that William's injury "did not
occur at the employer's premises, no evidence exists that any of
[William's] acts were performed under the direction or control of
the employer and there is no evidence that the injury occurred at
any employer-sanctioned activities or at employer-provided
facilities." They further cite to William's deposition testimony
that his reasons for riding with Kellen were personal, not
business-related, and claim that this testimony is "controlling
and dispositive"of this case.
Even viewing William's testimony about his purpose in
the light most favorable to the Witmers, however, the Witmers
cannot overcome the strong business connection inherent in
William's presence on Kellen's work-related errand. This court
has stated on numerous occasions that the concept of work
connection establishes coverage under our Workers' Compensation
Act. "The test is that 'if the accidental injury or death is
connected with any of the incidents of one's employment, then the
injury or death would both arise out of and be in the course of
such employment.'" M-K Rivers v. Schleifman, 599 P.2d 132, 134-
35 (Alaska 1979) (quoting Northern Corp. v. Saari, 409 P.2d 845,
846 (Alaska 1966)); see also Luth, 507 P.2d at 764 ("Workmen's
compensation benefits turn solely upon whether the employee was
injured while performing an activity related to his job -- and
'relatedness' is usually a function of benefit to the
An employee's activity that has both personal and
business elements is not per se noncompensable under the workers'
compensation rules. Marsh, 584 P.2d at 1136; Anchorage Roofing
Co. v. Gonzales, 507 P.2d 501, 504-07 (Alaska 1973). If the
activity is "reasonably foreseeable and incidental"to the
employment, it falls under the workers' compensation system.
Marsh, 584 P.2d at 1136; Anchorage Roofing, 507 P.2d at 505; see
also Northern Corp., 409 P.2d at 846.
Thus, in Marsh, this court determined that a
bartender's injuries were not compensable since they resulted
from a fight after the bartender kissed a patron's wife while on
a break, an activity "wholly unconnected to [the bartender's]
employment." 584 P.2d at 1136. Similarly, in M-K Rivers, 599
P.2d 132, we suggested that to exclude an injured worker from
workers' compensation benefits, the "line is drawn only at those
cases where an employee had become 'so thoroughly disconnected
from the service of his employer that it would be entirely
unreasonable to say that injuries suffered by him arose out of
and in the course of his employment.'" Id. at 135 n.4 (quoting
O'Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 362
(1965)). Accordingly, we held that an employee injured while
driving 30 miles from a remote worksite to a nearby town to cash
his paycheck was covered by workers' compensation, since the
drive was "reasonably contemplated and foreseeable by the
employment situation." 599 P.2d at 136. See also LeSuer-Johnson
v. Rollins-Burdick Hunter, 808 P.2d 266, 267 (Alaska 1991) (per
curiam) (employee's injury sustained while playing on employer-
sponsored softball team arose out of and in the course of
employment); Anchorage Roofing, 507 P.2d at 504-07 (pilot's
detour from a business flight to explore terrain for a future
hunting trip did not render the trip a personal one outside the
scope of workers' compensation coverage); Northern Corp., 409
P.2d at 846-47 (worker's death arose out of and in the course of
employment where the worker was killed while returning to a
remote worksite after using nearby employer-arranged recreational
In this case, William's decision to accompany Kellen on
his job-related errand was both reasonably foreseeable and
contemplated by his employment. Prior to November 1990, William
had accompanied Kellen on other errands Kellen ran for Wit-Rey.
According to William, these errands consisted largely of going to
Castle Warehouse, where Kellen would pick up supplies for the
restaurant. William characterized these outings as purely
personal and added that his presence would not have aided Kellen
in performing Kellen's duties. William stated, "I've probably
ridden with him just to get the hell out of the restaurant but .
. . there wouldn't be any advantage to him. That wouldn't be any
help." However, the point is not whether William's presence
would have assisted Kellen in discharging his managerial duties,
but whether William's presence was related to his employment. In
this case, there is clearly a sufficient work connection to
support such a conclusion as a matter of law. As Kellen's boss,
William's presence on his employee's business errand necessarily
relates to William's employment and will invoke workers'
compensation coverage, even if William considered his break to be
wholly unrelated to Wit-Rey's business.
Other considerations also support this result. First,
William testified that prior to the accident, he and Kellen did
not socially interact outside of work, and that William's only
real social interaction with Kellen occurred when William would
accompany Kellen on his job-related errands. This suggests that
William's relationship with Kellen was in fact a professional
one, and William's trips accompanying Kellen were connected to
his work. Equally important is the obvious fact that any action
by Kellen in furtherance of his managerial duties directly
benefits William, as a senior employee who is ultimately
responsible for the conduct of his subordinate employees.3
In addition, William's position as president and sole
shareholder of Wit-Rey cannot be ignored. Due to his executive
role, William had a great deal of flexibility and discretion
regarding his daily activities, including the tasks that he
performed for the business. For this reason, the Witmers'
observation that William's presence with Kellen was not directed
or controlled by the "employer"is unpersuasive. Since William
is the president and sole shareholder of Wit-Rey, he is the
"employer"and presumably has the sole authority to define or
control his daily activities.
William also had the authority to make decisions
regarding the tasks of his subordinate employees, including
Kellen. As Kellen argued before the superior court, it would be
reasonable for Kellen to feel that he could not decline his
boss's request to ride along on a job-related errand. While on
that errand, William necessarily would observe Kellen's job
performance, thereby obtaining insights and information that
could be meaningful to other job-related matters, such as
Kellen's performance evaluations or overall job security. This
is true even if William did not assist Kellen or otherwise
participate in the errand itself.
For these reasons, William's presence with Kellen at
the time of the accident simply cannot be characterized as an
event unrelated to William's employment. Despite the fact that
William derived some personal satisfaction in accompanying Kellen
on his errands, there is a strong nexus between William's
employment and his injuries. Accordingly, we conclude that
William's injuries "arose out of and in the course of
In sum, William's activities were contemplated by and
closely connected to his employment with Wit-Rey. Accordingly,
even viewing the evidence in the light most favorable to the
Witmers, reasonable people could not dispute whether William's
injuries arose out of and in the course of his employment.
William's activities satisfy this requirement as a matter of law.
Workers' compensation therefore provides the Witmers' exclusive
remedy, and the superior court properly granted summary judgment
in favor of Kellen and Wit-Rey.
EASTAUGH, Justice, with whom RABINOWITZ, Justice, joins
I dissent because, in my view, there is a genuine
dispute about why William Witmer was riding in George Kellen's
automobile at the time of the accident.
At his deposition, Witmer testified that he was riding
in the vehicle more for social purposes than for business
purposes. In his affidavit, Witmer stated that he had already
decided to take a break from work and was preparing to go for a
walk when he heard that Kellen would be leaving shortly to jump
start a co-employee's car. He explained in his affidavit that he
went with Kellen because "he was leaving at the right time as I
was preparing to leave and it was convenient for me to ride with
him, rather than take a walk myself or ask around for a ride from
someone else." Witmer further affied that when he accepted the
ride with Kellen, and while he rode in Kellen's car before the
accident, he did not consider himself at work or performing any
work for the company. Witmer did not file a workers'
compensation claim after the injury.
Witmer's testimony is equivocal. He did not squarely
deny that his presence in the vehicle may have been motivated in
at least small part by some purpose of advancing the business. A
jury might choose to reject Witmer's testimony altogether and
could find that he actually accompanied Kellen at least in part
for reasons directly or indirectly related to his course of
employment. Likewise, a jury might decide that Witmer harbored a
joint purpose in accompanying Kellen and was not motivated
exclusively by personal or social reasons. A jury might conclude
he also intended to check on the status of the Wit-Rey employee
whose car Kellen intended to jump start, or intended to observe
Kellen in a work-related activity, or even intended to associate
with his employees to build morale. The jury's conclusions might
well turn on Witmer's credibility.
Nonetheless, given Witmer's deposition testimony and
affidavit, reasonable jurors would not be compelled to find that
his injuries arose out of his employment or were suffered in the
course of it. Witmer's explanation is not so improbable as to be
incredible. In my view, Witmer's testimony creates a genuine
issue of material fact which cannot be resolved on summary
It is of no consequence that, for purposes of asserting
a workers' compensation claim, an employee who has been injured
while engaged in a recreational break may be able to argue
successfully that the injury arose out of and was suffered in the
course of employment. LeSuer-Johnson v. Rollins-Burdick Hunter
of Alaska, 808 P.2d 266 (Alaska 1991); M-K Rivers v. Schleifman,
599 P.2d 132 (Alaska 1979). Moreover, the statutory presumption
of compensability may substantially aid a workers' compensation
claim. AS 23.30.120(a)(1).5
Authority interpreting the Alaska Workers' Compensation
Act does not establish that the Alaska Workers' Compensation
Board would have been obliged to rule for Witmer if he had filed
a workers' compensation claim, nor does it establish that
Witmer's tort claim against his employer is barred as a matter of
law by the exclusive liability section of the Alaska Workers'
Compensation Act. AS 23.30.055. Given the evidence, there are
issues of fact which must be resolved by the appropriate fact
finder. If the employee brings a tort suit, the appropriate fact
finder is the trial jury. If the worker files a workers'
compensation claim, the appropriate fact finder is the Alaska
Workers' Compensation Board.
In short, Witmer's deposition testimony and affidavit
create sufficient question about his purpose that they present a
genuine fact dispute which must be resolved by a fact finder.
I would consequently reverse the summary judgment
entered in favor of Kellen and Wit-Rey.
1 AS 23.30.240 states in part: "An executive officer
. . . is an employee of the corporation under this chapter.
However, an executive officer of a corporation may waive coverage
under this chapter, subject to the approval of the commissioner
of labor . . . ." There is no dispute that William is an
executive officer of Wit-Rey and that he did not file a waiver of
workers' compensation coverage pursuant to this section.
2 AS 23.30.055 states in part:
The liability of an employer prescribed
in AS 23.30.045 is exclusive and in place of
all other liability of the employer and any
fellow employee to the employee, the
employee's . . . wife . . . and anyone
otherwise entitled to recover damages from
the employer or fellow employee at law or in
admiralty on account of the injury or death.
3 In response to the question "Do you supervise the store
managers?", William stated, "I'm ultimately responsible for
everything they do."
4 The Witmers argue that the superior court erroneously
concluded that Kellen's work-related purpose was dispositive of
the question whether William's injuries were work-related. This
characterization of the court's ruling is inaccurate. The trial
court found that Kellen was clearly acting within the course and
scope of his duties at the time of the accident. This finding
was simply to highlight the business-related nature of the outing
as well as the resulting business-related benefit accruing to
William in his capacities as Kellen's supervisor and as sole
shareholder of Wit-Rey. The court further relied on William's
past errands with Kellen to conclude that William's presence at
the time of the accident was foreseeable and reasonably
contemplated by his employment. Thus, the court's discussion of
Kellen's status and job responsibilities was to emphasize the
strong work connection arising from William's presence during
Kellen's errand, not to suggest that Kellen's status is
controlling of the result in this case.
5 But compare the definition of "arising out of and in
the course of employment"found in AS 23.30.265(2):
(2) "arising out of and in the course
of employment"includes employer-required or
supplied travel to and from a remote job
site; activities performed at the direction
or under the control of the employer; and
employer-sanctioned activities at employer-
provided facilities; but excludes activities
of a personal nature away from employer-
(Emphasis added.) I do not consider Kellen's car to be an