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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Buckley v. American Fast Freight, Inc. and Matthew S. Carroll (6/21/2019) sp-7380
Notice: This op inion is subj ect to correction bef ore p ublication in the PA CIFI C REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the App ellate Courts,
303 K Street, Anchorage, Alaska 99501, p hone (907) 264-0608, f ax (907) 264-0878, email
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THE SUPREME COURT OF THE STATE OF ALASKA
JOHN BUCKLEY, )
) Supreme Court No. S-16693
Appellant, )
) Superior Court No. 3AN-13-10647 CI
v. )
) O P I N I O N
AMERICAN FAST FREIGHT, INC. )
and MATTHEW S. CARROLL, ) No. 7380 - June 2 1, 2019
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Michael Cohn, Weidner & Associates, APC,
Anchorage, for Appellant. Susan Orlansky, Reeves Amodio
LLC, and Eric Sanders, Law Office of Eric Sanders,
Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A worker for a temporary employment service was injured while working
for a shipping company. At the time of injury he was performing a task prohibited by
the contract between the temporary employment service and the shipping company. The
injury resulted in loss of the worker's hand and part of his arm. After getting workers'
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compensation benefits from the temporary employment service, the worker brought a
negligence action against the shipping company and one shipping company employee.
The superior court decided on cross-motions for summary judgment that the exclusive
liability provision of the Alaska Workers' Compensation Act (Act)1 barred the action.
We reverse the grant of summary judgment because material issues of fact preclude it.
II. FACTS AND PROCEEDINGS
John Buckley started working for Labor Ready, Inc., a temporary
employment service, in 2009. According to Buckley, workers would go to the Labor
Ready office in the morning for assignments, and "there would be some days that [they]
would be sent out and some days when there would be no work." Workers with
assignments were given a "ticket" that they presented to the company using Labor
Ready's services. Labor Ready employees could get "repeat" tickets when a contracting
employer wanted Labor Ready to send those employees again, but Labor Ready did not
always honor such requests. Labor Ready workers had to get approval from Labor
Ready to work for a specific customer even if the customer and the worker both wanted
the worker to continue to work for that customer.
The "conditions of service" on the ticket prohibited Labor Ready
employees from engaging in specified activities without Labor Ready's "prior written
consent." For purposes of this case, the important restriction was that Labor Ready
workers were not allowed "to operate dangerous machinery, mobile equipment or
vehicles." Labor Ready paid the worker and provided workers' compensation coverage.
The customer was required to determine whether Labor Ready's workers were qualified
for the particular work assignment "during the first two hours of work" and "inform
Labor Ready of any changes in work assignment." The contract provided that Labor
1 AS 23.30.001-.400.
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Ready's employees were "under Customer's supervision, direction and control" and
required the customer to provide safety equipment, information, and briefing to Labor
Ready's employees. The contract did not specifically provide that a customer could fire
a worker supplied by Labor Ready.
Labor Ready's workers did not have to report for work every day; as
Buckley put it, it was "up to you to go." He testified that Labor Ready employees could
call beforehand to let Labor Ready know they would not be there, but if employees did
not, Labor Ready "didn't really care" and would "put somebody else" on the j ob.
Buckley, for example, did not work for several weeks in 2011 because he was helping
care for his mother.
During the time he worked for Labor Ready, Buckley reported to Labor
Ready's office in the morning and picked up a ticket with his j ob assignment. Buckley
prided himself on being a good worker and testified that Labor Ready at times sent him
to work for new clients to impress the clients even if another client had requested
Buckley for those days. In late 2011 Labor Ready at times assigned Buckley to work at
American Fast Freight as a general laborer; he worked 17 non-consecutive days for
American Fast Freight during the six weeks preceding the accident underlying this case.
Buckley enj oyed his work with American Fast Freight; "the goal was that
[Buckley] wanted to go to work as an employee of American Fast Freight . . . and
American Fast Freight was hoping to hire [him]." But Buckley also testified that Labor
Ready had sent him to work elsewhere, even when American Fast Freight had requested
him. When he worked for American Fast Freight his job mainly involved loading and
unloading freight. On any given day he might work in the warehouse or be assigned to
a particular truck to accompany the driver for deliveries. During the time Buckley was
assigned to American Fast Freight he got to know some of the drivers and had
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established relationships with some of them. Buckley indicated he could refuse to work
with a truck driver there and that he had done so.
On December 22, 2011, Labor Ready assigned Buckley to work at
American Fast Freight. A driver, Denny Hawkins, told Buckley to come with him to
deliver freight in the Wasilla area. Buckley grabbed "[his] stuff" - his "stuff" included
a box knife, warm clothes, and an extra pair of gloves - and went out to Wasilla with
Hawkins. After they completed their deliveries, Hawkins told Buckley he would treat
him to lunch. Hawkins told American Fast Freight's dispatcher that he and Buckley
were headed to lunch. According to Buckley, Hawkins got a call on his cell phone from
another driver, Matthew Carroll, asking Hawkins for assistance, and Hawkins agreed to
2
help him without informing the dispatcher. Carroll's tractor-trailer was stuck in a snow
3
berm near the Frontiersman newspaper office in Wasilla, and he was unable to move it.
Instead of going to lunch, Hawkins and Buckley headed to Carroll's truck.
Hawkins unhitched his trailer and drove his truck so it was facing Carroll's
truck; he then attached a tow chain to the trucks. In the meantime Buckley began to dig
out the stuck wheel, first using his hands and then a shovel, but Carroll's truck remained
stuck. The precise sequence of events that followed is difficult to discern because
2 The sequence of phone calls was disputed by the participants in this
accident, as was American Fast Freight's knowledge of Carroll's problem. This case is
unusual in that the superior court granted summary judgment to American Fast Freight
on both its motion for summary judgment and Buckley's cross-motion for summary
judgment. See note 9, inf ra. We review all facts in the light most favorable to Buckley
as the non-prevailing party on both motions. See Rockstad v. Erikson, 113 P.3d 12 15,
1222 n.19 (Alaska 2005) ("Reviewing a grant of summary judgment, this court views all
facts in the light most favorable to the non-p revailing p arty , not the non-moving party."
(emphasis in original) (citing Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska 1984))).
3 A diagram made by Hawkins shortly after the accident indicates that the
rear driver-side drive wheel of Carroll's tractor was stuck.
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witnesses gave inconsistent accounts at different times, but someone decided to use tire
chains to try to gain traction. American Fast Freight drivers sometimes laid tire chains
out on the ground, rather than put them around the tire, to improve traction when a truck
was stuck on snow or ice: Buckley said he had seen other American Fast Freight drivers
do so and had assisted them in the past; Carroll said he too had previously used chains
this way and had seen others do it; and Hawkins also indicated he had done this before.
Two company officials reported during the subsequent accident investigation that drivers
used chains this way at times, and company officials indicated that American Fast
Freight was aware of the practice - one official said he had himself used chains this way
as an American Fast Freight driver.
Buckley laid a tire chain in front of the wheel and used hand and verbal
signals to let the drivers know when he was clear of the truck. Carroll then tried to move
the truck to engage the chain and get traction. The method was not successful, and in
fact the wheel's spinning caused the tire chain to shoot out the back. The three men used
the same approach four times with no success. Buckley then thought of laying a second
chain behind the wheel, because he "noticed [Carroll] was rocking back a little bit." He
asked Carroll where another chain was and got a second chain from one of the trucks so
there would be a chain both in front of and behind the stuck wheel.
The accident happened on the fifth attempt to move the truck. The drivers
reported being focused on their trucks because they were concerned about a collision if
Carroll got traction. According to Buckley, he was in the process of positioning the
second tire chain behind the stuck wheel when Carroll gunned the truck engine; the
wheel turned and caught the tire chain Buckley was adjusting, pulling his arm under the
wheel. Buckley later said he had not given Carroll "any signal or indication . . . to move
the vehicle." Hawkins noticed something amiss, got out of his truck, ran toward
Buckley, and told Carroll to "put it in gear and spin it" because Buckley's hand was
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trapped. Hawkins went to the Frontiersman's office to get help. Buckley's arm was
sliced just below the elbow and, in every practical sense, severed - the two parts of his
arm remained barely attached. Buckley was also bleeding heavily. Frontiersman
employees and the two drivers assisted Buckley. One Frontiersman employee used his
belt as a tourniquet to staunch the bleeding until emergency medical personnel arrived;
Buckley credited him with saving his life. Buckley had multiple surgeries, and according
to American Fast Freight, his right arm was amputated above the elbow. He received
workers' compensation benefits, presumably from Labor Ready given the terms of the
contract between Labor Ready and American Fast Freight.
The Alaska Department of Labor & Workforce Development, Division of
Labor Standards & Safety, Occupational Safety & Health (AKOSH) conducted an
investigation that ultimately led to a $5,600 fine against American Fast Freight.
American Fast Freight indicated that Buckley should not have been engaged in any
activities related to freeing the truck and said "that for [the] future, [the] company has
specifically prohibited temporary employees from being involved with tire chain up and
stuck vehicles." According to AKOSH, the workers' actions during the incident
reflected a number of violations of company policy.
In November 2013 Buckley sued American Fast Freight, Carroll, and John
Does 1-5 for negligence. American Fast Freight and Carroll answered, denying liability
and raising the exclusive liability provision of the Act, AS 23.30.055, as a defense. No
one j oined Labor Ready.
The parties filed cross-motions for summary judgment. American Fast
Freight argued that it met all three tests for a special employer relationship set out in
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4
Anderson v. Tuboscop e Vetco, Inc. and that Buckley's suit was barred by AS 23.30.055
5
on that basis. Buckley's cross-motion sought to bring his case under Estate of Milos v.
Quality Asp halt Paving, Inc.,6 where we reversed a summary judgment on exclusive
remedy grounds because a material issue of fact remained about the "work-relatedness"
of the injury, i.e. whether it arose out of and in the course of employment.
Pertinent to the question of a special employment relationship, Buckley
argued that (1) no contract existed between himself and American Fast Freight;
(2) Tuboscop e was factually distinguishable from his case for various reasons, including
that he reported to Labor Ready rather than American Fast Freight; and (3) the special
employment doctrine did not apply to his case because Labor Ready continued to
exercise control over its employees' duties through its customer contract. And with
respect to his own cross-motion for summary judgment, Buckley contended that as a
matter of law the injury did not arise out of and in the course of the employment because
(1) he was on an unpaid lunch break when the accident happened; (2) using the tire
chains as the workers did amounted to operating dangerous machinery, a violation of the
contract between Labor Ready and American Fast Freight; (3) Hawkins's and Carroll's
actions violated company policy; and (4) he had personal motives for participating in the
activity. Buckley supported his assertion about operating dangerous machinery with a
mechanical engineer's expert opinion.
4 9 P.3d 1013 (Alaska 2000).
5 For Buckley's lawsuit to be barred under AS 23.30.055, American Fast
Freight must have been his employer and the injury must have arisen out of and in the
course of the employment. See AS 23.30.010(a), .045, .055.
6 145 P.3d 533 (Alaska 2006).
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In opposition to Buckley's motion, American Fast Freight said that for
purposes of summary judgment, it would assume several facts, including the
following: Carroll and Hawkins violated employer rules; "letting Buckley handle tire
chains . . . violated the contract between Labor Ready and [American Fast Freight]"; and
Buckley and Hawkins were on an unpaid lunch break at the time they went to assist
Carroll. It argued that even if those facts were true, Buckley's lawsuit was still barred
by the exclusive remedy provision.
The superior court granted summary judgment to American Fast Freight,
deciding it was shielded by the exclusive liability provision of the Act. The superior
7
court first considered the three-part test in Tuboscop e, deciding as a matter of law that
(1) Buckley had an implied employment contract with American Fast Freight; (2) his
work was done exclusively for the benefit of American Fast Freight; and (3) American
Fast Freight had the right to supervise Buckley. From these findings the court concluded
that American Fast Freight was Buckley's employer and was, in addition to Labor
Ready, liable for workers' compensation benefits for the accident.
The court then turned to whether Buckley's injuries arose out of and in the
course of his employment with American Fast Freight and decided as a matter of law that
8
they did. Applying factors discussed in Estate of Milos, the court decided that Buckley
being on an unpaid lunch break was immaterial because of the "strong nexus between
Buckley's action and his employment with [American Fast Freight]." It also decided that
Buckley's injury was "reasonably foreseeable from his employment" because "[a] truck
getting stuck in the snow is not an uncommon occurrence in Alaska" and "it was
7 Tuboscop e Vetco, Inc., 9 P.3d at 1017.
8 145 P.3d at 537-4 1.
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common practice for nearby [American Fast Freight] employees to be called to assist
other drivers."
The court decided that the following facts were immaterial to the question
of work-relatedness: ( 1) Buckley's activity was outside his job duties; (2) the activity
was prohibited by the contract between American Fast Freight and Labor Ready; and
(3) American Fast Freight admitted to AKOSH that Buckley was injured performing a
task "outside the scope of his duties." The superior court granted summary judgment to
American Fast Freight based on the exclusive remedy provision and denied summary
9
judgment to Buckley, dismissing the case and entering final judgment against Buckley.
Buckley appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.10 "Summary judgment
is proper if there is no genuine factual dispute and the moving party is entitled to
judgment as a matter of law."11 "[A] party seeking summary judgment has the initial
burden of proving, through admissible evidence, that there are no disputed issues of
material fact and that the moving party is entitled to judgment as a matter of law."12 If
the moving party makes that showing, "the burden shifts to the non-moving party 'to set
9 The superior court wrote that it granted American Fast Freight's summary
judgment motion and denied Buckley's cross-motion. But the court in fact also granted
summary judgment to American Fast Freight on the issue presented in Buckley's cross-
motion for summary judgment, whether the injury arose out of and in the course of the
employment. Rather than proceeding to trial on the issue raised in Buckley's motion -
the more common result of denial of summary judgment - the court dismissed the case
and ordered American Fast Freight to file a proposed final judgment.
10 Estate of Milos, 145 P.3d at 536.
11 Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 757 (Alaska 2008).
12 Id. at 760 n.25.
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forth specific facts showing that he could produce evidence reasonably tending to dispute
or contradict the movant's evidence and thus demonstrate that a material issue of fact
exists.' "13 "[A] material fact is one upon which resolution of an issue turns."14 "The
standard for finding a genuine issue of fact at summary judgment is lenient."15 Whether
a person is an employee for purposes of the Workers' Compensation Act is a mixed
question of law and fact.16
IV. DISCUSSION
A. Material Factual Disputes Precluded Summary Judgment On The
Special Employment Relationship.
The superior court granted American Fast Freight's summary judgment
motion, deciding as a matter of law that American Fast Freight was Buckley's special
employer under the test we adopted in Anderson v. Tuboscop e Vetco, Inc.17 In that case
we adopted a three-part test for special employment relationships from Larson's treatise
on workers' compensation:
When a general employer lends an employee to a special
employer, the special employer becomes liable for
workmen's compensation only if:
(a) the employee has made a contract of hire, express
or implied, with the special employer;
13 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)
(quoting State, Dep 't of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska 1978)).
14 Id. at 519.
15 Estate of Milos, 145 P.3d at 537.
16 Nickels v. Nap olilli, 29 P.3d 242, 247 (Alaska 2001).
17 9 P.3d 1013, 1017 (Alaska 2000).
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(b) the work being done is essentially that of the
special employer; and
(c) the special employer has the right to control the
details of the work.[18]
When these conditions are satisfied in relation to both the general employer and the
special employer, then both employers are liable for workers' compensation.19
Although Tuboscop e is our most recent decision about the special
employment relationship, we acknowledged in Tuboscop e that we had applied parts of
the special employment doctrine in prior cases.20 In Cluff v. NANA-Marriott, we stated
that "the requirements for finding an employment relationship for workers'
compensation purposes between a lent employee and a special employer are stricter than
the standards for finding an employment relationship between an employee and an
employer where there is only one employer."21
Determining whether an implied employment contract was formed involves
"considering all the factors in light of the surrounding circumstances."22 "An implied
employment contract is formed by a relation resulting from 'the manifestation of consent
by one party to another that the other shall act on his behalf and subj ect to his control,
and consent by the other so to act.' "23 In the special employment context, we have also
18 Id. (quoting 3 ARTHUR LARSON & LEX K. LARSON, LARSON 'S WORKERS'
COMPENSATION LAW § 48.00, at 8-434 (1997)).
19 Id.
20 Id.
21 892 P.2d 164, 168 (Alaska 1995).
22 Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska 1989).
23 Id. (quoting 9 W. JAEGER, WILLISTON ON CONTRACTS § 1012, at 4-5 (3d ed.
(continued...)
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noted Larson's "great emphasis on the importance of a contract for hire with a special
employer"24 because in a special employment relationship, the employee "loses the right
to sue the special employer at common law for negligence; and . . . the courts have
usually been vigilant in insisting upon a showing of a deliberate and informed consent
by the employee before employment relation will be held a bar to common-law suit."25
The parties here disagree about the existence of an implied contract of hire
between Buckley and American Fast Freight.26 Buckley has consistently argued that his
employment relationship with American Fast Freight is different from the employment
relationship described in Tuboscop e and that no special employment relationship existed
between himself and American Fast Freight. In contrast American Fast Freight has
argued that its relationship with Buckley falls squarely within the framework set out in
Tuboscop e.
23 (...continued)
1967)).
24 Cluff , 892 P.2d at 172.
25 Id. (quoting 1B ARTHUR LARSON, THE LAW OF WORKMEN 'S
COMPENSATION §§ 48.11 to 48.12, at 8-440 (1992)).
26 We disagree with American Fast Freight's contention that "Buckley waived
the right to claim on appeal that there were disputed facts." Buckley argued that
Tuboscop e was factually distinguishable from his case because, among other reasons,
Buckley did not report directly to American Fast Freight. He also contended that the
special employment doctrine should not apply to his case. Whether these arguments are
viewed as a dispute about material facts or the legal conclusions to be drawn from the
facts, we consider the point adequately preserved. Furthermore the party moving for
summary judgment must provide sufficient admissible evidence to establish its right to
judgment as a matter of law; it is only when the moving party makes this showing that
the nonmoving party must provide evidence to show a factual dispute. See Christensen
v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014).
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Tuboscop e involved two companies, Tuboscope Vetco, Inc. and Olsten
Staffing Services, that had "a continuing contract agreement for Olsten to provide
temporary employees to Tuboscope," including a category of employees called PTP
("personnel transfer plan") employees.27 "Tuboscope recruited, hired, placed, and
directly and exclusively supervised PTP employees; Olsten provided the payroll
administration, benefits, and workers' compensation coverage for PTP employees."28
A PTP employee was injured while working for Tuboscope; he received workers'
compensation benefits from Olsten and later sued Tuboscope.29 After adopting the three-
part test from Larson's treatise, we applied it to the facts of the case and held that
30
Tuboscope met all of the tests.
We stated, "If the temporary employer hires, trains, employs, directs, and
reserves the right to terminate the temporary employee, and the labor broker merely acts
in the capacity of a payroll and benefits administrator, an employment contract exists
between the temporary employer and the temporary employee."31 We noted in our
discussion that "[t]he contract between Olsten and Tuboscope regarding PTP employees
effectively provided that Tuboscope would interview, hire, train, and employ the PTP
employees."32
27 Anderson v. Tuboscop e Vetco, Inc., 9 P.3d 1013, 1015 (Alaska 2000).
28 Id.
29 Id. at 1016.
30 Id. at 1017-19.
31 Id. at 1018.
32 Id.
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The written contract between Labor Ready and American Fast Freight
lacked several of these provisions, and the only additional pieces of evidence American
Fast Freight submitted to the superior court were portions of Buckley's deposition
testimony, a copy of the work ticket from the day Buckley was injured, a copy of the
"Conditions of Service" in its contract with Labor Ready, and copies of some invoices
from Labor Ready to American Fast Freight, showing that Buckley had worked at
American Fast Freight on November 2 1.
Unlike the worker in Tuboscop e, Buckley did not "interview[] directly
with" American Fast Freight, and no evidence shows that American Fast Freight
33
recruited him. The uncontested facts showed that while American Fast Freight may
have requested Buckley as a worker, as the superior court noted, Labor Ready was
evidently not obligated to comply with the request and provide Buckley as a worker to
American Fast Freight. Buckley testified that Labor Ready had sent him to work for
34
other clients of Labor Ready, even when American Fast Freight had requested him.
Buckley's testimony does not establish that American Fast Freight could hire him as that
term is generally understood,35 nor does any testimony or other evidence indicate that
American Fast Freight had discretion to refuse workers Labor Ready sent to them under
the contract except where it determined within the first two hours of work that a sent
worker was not qualified.
33 See id. at 1015, 1018 (noting that injured worker "was recruited,
interviewed, and placed in his position by Tuboscope").
34 Buckley raised this issue in the superior court, arguing in his opposition to
summary judgment that he "did not report directly to [American Fast Freight] . . . and
was still subj ect to assignment to other entities that contracted with Labor Ready."
35 "Hire" means "[t]o engage the labor or services of another for wages or
other payment." Hire, BLACK 'S LAW DICTIONARY (10th ed. 2014).
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Neither the contract nor Buckley's testimony clearly indicates that
36
American Fast Freight retained the right to fire Labor Ready workers. The written
contract between Labor Ready and its clients required the client to determine within the
first two hours of a day whether a worker was qualified to perform the contracted work
but was otherwise silent about American Fast Freight's ability to fire Labor Ready
employees. The superior court cited Buckley's deposition testimony to support its
decision that American Fast Freight could fire Labor Ready employees, but when
Buckley was asked directly if, when "Labor Ready guys . . . messed up, they got fired
on the spot," Buckley replied, "I don't really know what happened to them" and
commented that he was told they were sent home.
Buckley's other testimony is equivocal; the only testimony based on his
direct observation37 indicated that Labor Ready employees "got sent home" after they
"didn't want to do that kind of work," with Buckley adding, "[T]hey would just leave
and say, 'The hell with it.' They wouldn't even take the ticket." While this may permit
an inference that American Fast Freight could fire the Labor Ready workers, it also
permits an inference that the Labor Ready employees just left the j ob or that American
Fast Freight determined the workers were not suitable during the first two hours of work.
There is also no evidence that Buckley specifically consented to the
formation of an employment relationship with American Fast Freight. In contrast to the
36 "Fire" means "[t]o discharge or dismiss a person from employment; to
terminate as an employee." Fire, BLACK 'S LAW DICTIONARY (10th ed. 2014).
37 The superior court cited generally to Buckley's deposition testimony,
including testimony about a "rumor," which Buckley could not verify, that some Labor
Ready employees "got picked up at the j ob site they were on" and sent home. In this part
of the deposition, Buckley also repeated statements made to him by a truck driver for
American Fast Freight.
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worker in Tuboscop e, who was recruited and interviewed by the special employer,38
Buckley was merely sent to provide general labor to American Fast Freight and did not
consistently work for that company. Although Buckley wanted to be hired permanently
by American Fast Freight, nothing in the record shows Buckley understood that by
working on assignment as a general laborer for Labor Ready, he was an employee of
American Fast Freight at the time of his injury.
In short, viewed in the light most favorable to Buckley and making
reasonable inferences in his favor, the evidence in the record does not establish as a
matter of law that Buckley had an implied employment contract with American Fast
Freight. We therefore reverse the grant of summary judgment on the special employment
relationship.
B. Material Factual Disputes Precluded Summary Judgment On The
Question Whether Buckley's Injury Happened In The Course And
Scope Of Employment.
Buckley filed a cross-motion for summary judgment, arguing that the injury
did not occur in the course and scope of his employment with American Fast Freight.
Based in part on factual concessions American Fast Freight made for purposes of the
summary judgment motion only,39 the superior court decided as a matter of law that the
injury arose in the course and scope of Buckley's employment with American Fast
Freight.
38 Tuboscop e Vetco, Inc., 9 P.3d at 1015.
39 For purposes of summary judgment only, American Fast Freight conceded
the following: Buckley's injuries resulted in part from negligence on the part of
American Fast Freight and its employees; Carroll and Hawkins violated company rules
when they tried to free the truck on their own and when they allowed Buckley to help;
allowing Buckley to use tire chains violated the contract between American Fast Freight
and Labor Ready because it involved operating dangerous equipment; and Buckley and
Hawkins were on an unpaid lunch break at the time of the accident.
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Buckley argues that under Estate of Milos v. Quality Asp halt Paving, Inc.40
there is a material factual dispute about whether the accident happened in the course and
scope of employment. He points to the following facts to support his argument: (1) he
was on an unpaid lunch break; (2) he was motivated to help his friends (the other truck
drivers); and (3) because the workers were violating company policy and the conditions
of service agreement between Labor Ready and American Fast Freight at the time of the
accident, their actions should not be considered to be in the course of their employment.
American Fast Freight maintains that it met the summary judgment standard
and there is no material factual dispute. It contends that Buckley's "clock status," i.e.
whether he was on or off shift, was irrelevant because other factual circumstances tied
his activities at the time of the accident to work with American Fast Freight: the accident
occurred in the middle of the work shift, on a lunch break, and at a location that should
be considered a j ob site because of the nature of the work. American Fast Freight argues
that the activity Buckley engaged in was work-related, not purely personal, and
benefitted American Fast Freight. It also asserts that the activity that caused the accident
was reasonably foreseeable.
The parties agree Estate of Milos governs this case. In that case we
reversed a summary judgment determining that an employee's death occurred in the
41
course and scope of his employment. We considered the definition of "arising out of
and in the course of employment" in AS 23.30.39542 and also identified the following
40 145 P.3d 533 (Alaska 2006).
41 Id. at 54 1.
42 In relevant part, AS 23.30.395(2) defines "arising out of and in the course
of employment" as including "activities performed at the direction or under the control
of the employer; and employer-sanctioned activities at employer-provided facilities; but
(continued...)
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factors from our precedent as being relevant to work-relatedness: (1) "whether 'the
accidental injury or death is connected with any of the incidents of one's
employment' ";43 (2) "whether the employee's activity is 'reasonably contemplated and
foreseeable by the employment situation' ";44 and (3) "whether the activity benefits the
employer in some way."45
Although our discussion in Estate of Milos focused on the employee's clock
status at the time of the accident, we also considered the nexus between the activity that
caused his death and his work.46 The accident in Estate of Milos happened at a work site
when an employee rode an employer-owned ATV to the top of a gravel pile underneath
a live power line; his head contacted the power line, and he was electrocuted.47 The
parties in Estate of Milos principally disputed whether the possibility that the worker was
"off-shift" at the time of the accident precluded summary judgment.48 But three
supervisors testified that the employee's use of the ATV was unauthorized - including
one who said he would have fired the employee for using it - so we also discussed the
42 (...continued)
excludes . . . activities of a personal nature away from employer-provided facilities."
43 Estate of Milos, 145 P.3d at 538 (quoting M-K Rivers v. Schleif man, 599
P.2d 132, 134-35 (Alaska 1979)).
44 Id. (quoting M-K Rivers, 599 P.2d at 136).
45 Id. (citing Luth v. Rogers & Babler Constr. Co., 507 P.2d 761 (Alaska
1973)).
46 Id. at 539-4 1.
47 Id. at 535.
48 Id. at 537.
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impact of the decedent's unauthorized use of the ATV on the question of work-
relationship.49
Like Estate of Milos, this case raises questions about clock status and
violations of work rules. And as in Estate of Milos, the superior court broadly construed
our precedent and determined that the work-relatedness of the accident made contested
50
issues immaterial. We did not need to decide in Estate of Milos whether the
unauthorized use of the ATV alone would have taken the accident outside of the Act's
coverage because we inferred that the estate conceded that "lack of authorization . . .
alone" would not do so.51 And the employer agreed there was a genuine factual dispute
about whether it authorized the ATV's use.52
Turning to Buckley's case, we agree with American Fast Freight that
Buckley's being on an unpaid lunch break does not determine whether the injury arose
in the course and scope of employment. In Estate of Milos we agreed with the employer
that an arbitrary line "making all post-shift accidents noncompensable" was
undesirable.53 And we looked at the "sensible compromise" in Larson's treatise, which
considers whether the employee's activities that led to the injury are " 'necessary' or
49 Id. at 535, 538-40.
50 See id. at 536 (noting that superior court determined estate's factual
contentions were immaterial because of strong relationship between employer's actions
and worker's accident).
51 Id. at 538 n.11.
52 Id. at 539 n.16.
53 Id. at 540.
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'reasonably incidental' to [his] work."54 Under this rule, the conceded fact that Buckley
was on an unpaid lunch break does not take the accident outside the course and scope of
employment. Larson's treatise indicates that lunchtime injuries occurring at a work site
generally are compensable because the "course of employment should extend to any
injury which occurred at a point where the employee was within range of dangers
associated with the employment."55 Buckley's work at American Fast Freight on the day
of the injury necessarily took him outside of the warehouse, so his work site included the
locations to which he accompanied Hawkins. The accident happened at such a location,
so his clock status was largely irrelevant.
Buckley's activities at the work site, however, are not so easily classified
as immaterial to the Act's coverage. In Estate of Milos we discussed both the statutory
definition of "arising out of and in the course of employment" and factors we had applied
in earlier cases related to this definition when discussing whether there was a "sufficient
nexus" between the employee's actions and his employment.56 Here the superior court
looked at the factors from Estate of Milos but did not separately consider the underlying
statutory definition. The factors complement the definition rather than displace it; we
focused on them in Estate of Milos because we determined that the statutory definition
54 Id. (quoting 2 ARTHUR LARSON & LEX LARSON, LARSON 'S WORKERS'
COMPENSATION LAW § 2 1.06[1][a] (2005)).
55 2 ARTHUR LARSON ET AL., LARSON 'S WORKERS' COMPENSATION LAW 13-1
(2018); see id. §§ 13.01[5], 13.05 (providing explanation of work-relationship of
accidents happening on unpaid lunch breaks and reasons for applying same rules to lunch
breaks as those that apply to time before and after work).
56 145 P.3d at 538-39, 54 1 (quoting AS 23.30.395(2)).
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"provide[d] little guidance" in resolving the question of work-relationship because of a
permissible inference that the activity had not been sanctioned by the employer.57
Under AS 23.30.395(2), "arising out of and in the course of employment"
includes "activities performed at the direction or under the control of the employer" and
"employer-sanctioned activities at employer-provided facilities." We have construed the
statute broadly, as the superior court noted, but we have never addressed the question
confronting us here: does an injury that happens when a worker engages in an expressly
prohibited activity fall within the statutory definition of "arising out of and in the course
of employment" as a matter of law? The superior court decided it was immaterial that
Buckley's activities violated the contract between American Fast Freight and Labor
Ready. It also deemed immaterial American Fast Freight's representations to AKOSH
investigators both that Buckley's duties were "limited to loading and stacking boxes and
sweeping [the] floor" and that "no one but [a] driver is allowed to put chains on." But
those facts and the reasonable inferences that can be drawn from them are material to the
question of work-relationship.
Our discussion in Estate of Milos suggests the outcome we reach here. In
Estate of Milos the employer argued that the worker's death arose out of and in the
course of his employment as a matter of law, but we questioned whether the employee's
actions could meet either part of the statutory definition as a matter of law.58 As we said
there, for an activity to fall within the statutory category of "activities performed at the
direction or under the control of the employer," "the activity must, at a minimum, be
57 Id. at 538-39.
58 Id. at 538-39.
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authorized by the employer."59 Similarly, the other statutory category - "employer
sanctioned activities" - presupposes that the employer allowed the activity. We cannot
see how an activity that is expressly prohibited can as a matter of law fall within either
category.
The superior court based its decision on its understanding of our precedent.
But the cases the superior court cited involved work activities that were not expressly
prohibited even if those activities were not part of the employee's regular j ob duties. In
those cases we considered whether the activity the employee engaged in was "reasonably
contemplated and foreseeable by the employment situation."60 For example, in applying
the "remote site" doctrine, we decided that an employee's trip to town to negotiate a
paycheck was reasonably foreseeable and that an injury that happened while en route
was thus compensable.61 In Witmer v. Kellen, a case discussed by the superior court
here, we decided that a car trip taken by William Witmer, the owner and sole shareholder
of a corporation, with an employee of his corporation was work-related as a matter of
law, despite Witmer's contention that the trip had no business purpose.62 We said that
Witmer's "position as president and sole shareholder . . . cannot be ignored" and
observed that he had "a great deal of flexibility and discretion regarding his daily
activities."63 In fact, we noted that as the employer Witmer "presumably ha[d] the sole
59 Id. at 539 n.16.
60 M-K Rivers v. Schleif man, 599 P.2d 132, 136 (Alaska 1979).
61 Id. at 134-36.
62 884 P.2d 662, 666-67 (Alaska 1994).
63 Id. at 666.
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authority to define or control his daily activities."64 In neither case was the employee's
activity expressly prohibited by contract or otherwise.
American Fast Freight asks us to adopt a "modern rule" from Larson's
treatise on workers' compensation that brings within workers' compensation coverage
"any activity undertaken in good faith by one employee to assist a co-employee in the
latter's performance of his work."65 The superior court quoted and applied this rule in
deciding that Buckley's injury arose out of and in the course of employment as a matter
of law. But Larson's treatise indicates that when an employee undertakes an action
"outside his regular duties [that] is positively prohibited, it will probably be held to be
outside the course of employment even if designed to advance the employer's work."66
American Fast Freight characterizes Buckley's activities as merely
"mov[ing] outside his regular j ob duties to assist a co-worker." But there is a difference
between performing work outside one's regular duties and engaging in actions that are
specifically prohibited by an employer. Larson's treatise provides a number of examples
and exceptions to the general rule,67 and it distinguishes between violations of rules that
"define the ultimate 'thing' which the claimant is employed to do" and violations of
those that "describe the methods which [a claimant] may or may not employ in
64 Id.
65 3 LARSON, sup ra note 55, § 27.01[1], at 27-2.
66 Id. § 27.01[4], at 27-6; see also id. § 33.01[4][a], at 33-7 (observing that
modern rule that brings work done outside regular duties within compensation coverage
"assumes that no prohibition is thereby infringed").
67 Id. §§ 27.01[4], 33.01[4], 33.02[1].
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accomplishing that ultimate 'thing.' "68 Only those actions encompassed in the first
category are with any consistency considered outside the scope of workers'
compensation.69
The distinction Larson's treatise makes is an important one. American Fast
Freight argues that the Act "establish[es] a reciprocal relationship between an employer
and employee" and that allowing employers and employees to avoid the Act "by
claiming that a term of the employment contract was breached would invite frequent
litigation," undermining the purposes of the Act. Deviations from work rules that result
in injuries may still occur within the course of employment, but the broad rule urged by
American Fast Freight that completely disregards the extent of the employee's departure
from his duties is contrary to the statutory definition in AS 23.30.395(2), which requires
a nexus between the terms of the employment and the activity resulting in the injury.
Here American Fast Freight conceded for purposes of summary judgment
only that the activity leading to Buckley's injury was prohibited by the contract between
American Fast Freight and Labor Ready because it involved operating dangerous
machinery. Furthermore American Fast Freight's representations to AKOSH that
Buckley's j ob duties were "limited to loading and stacking boxes and sweeping [the]
floor" and that "no one but [a] driver is allowed to put chains on" permit the inference
that Buckley's activities were expressly not allowed. The superior court decided that the
injury was reasonably foreseeable, but our precedent requires consideration of whether
68 Id. § 33.02[1], at 33-10; see also Merchant v. Pinkerton 's Inc., 407 N.E.2d
443, 445 (N.Y. 1980) (distinguishing between "rule defin[ing] what the employee's
duties are" and one defining "how those duties are to be performed").
69 3 LARSON, sup ra note 55, § 33.01[4], at 33-7.
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70
the activity leading to the injury was reasonably foreseeable. Thus the question here
is whether Buckley's participation in laying tire chains was reasonably foreseeable given
the prohibition in the contract and American Fast Freight's apparent rule that only
drivers could use chains.
We recognize that American Fast Freight might have benefitted from the
workers' actions had the accident not happened and had they freed Carroll's truck, but
we cannot disregard an employer's interest in exercising some control over its
employees' activities. We are unable to adopt a rule of law that brings expressly
prohibited activities within the statutory definition of "arising out of and in the course
of employment." There may be factual situations that could bring this type of action
within the scope of the Act - Larson's treatise summarizes cases illustrating the fine
lines courts have drawn between rules about duties and rules about methods71 - and it
is certainly possible that as a matter of fact Buckley's injury was not a violation of the
contract or was otherwise sanctioned by his employer. But because we are reviewing a
ruling on summary judgment that was granted on conceded facts, we must assume that
the actions leading to the injury were prohibited. We hold that such actions are not as
a matter of law within the Act's scope.
V. CONCLUSION
We REVERSE the grant of summary judgment to American Fast Freight
and REMAND the case to the trial court for further proceedings consistent with this
opinion.
70 See Estate of Milos v. Quality Asp halt Paving, Inc., 145 P.3d 533, 538
(Alaska 2006); M-K Rivers v. Schleif man, 599 P.2d 132, 136 (Alaska 1979); Marsh v.
Alaska Workmen 's Comp . Bd., 584 P.2d 1134, 1136 (Alaska 1978).
71 3 LARSON, sup ra note 55, §§ 27.01[4], 33.01[4], 33.02[1].
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