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Ferraton v. Bob Howard Auto Mall9/25/1998
COURT OF APPEALS OF OKLAHOMA
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
FERRATON v. BOB HOWARD AUTO MALL
Court of Appeals of Oklahoma
RELEASE FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS
PROCEEDING TO REVIEW AN ORDER OF A THREE JUDGE JUDGES OF THE WORKERS' COMPENSATION COURT
SUSTAINED
Petitioner Scott B. Ferraton (Claimant) seeks review of an order of a three-Judge panel of the Workers' Compensation Court reversing the order of the trial court awarding Claimant benefits for accidental injury arising out of and in the course of Claimant's employment with Respondent Bob Howard Auto Mall (Employer). In this proceeding, Claimant asserts the three-Judge panel erred in reversing the trial court's order, the evidence uncontrovertedly showing that Claimant sustained injury while operating a vehicle provided by Employer, i.e., where employer provided transportation to and from the place of employment, hence rendering Claimant's injury compensable as a matter of law.
Claimant suffered injury in a one-car accident while driving a vehicle provided by Employer from Employer's workplace to Claimant's residence in another town. Claimant filed a Form 3 asserting compensable injury arising out of and in the course of his employment.
At trial, Claimant testified that he lived in Enid, Oklahoma and worked for Employer as a car salesman at Employer's automobile dealership in Oklahoma City. Claimant further testified that when Claimant first went to work for Employer, Claimant drove his own vehicle to and from his workplace in Oklahoma City, but that recently, Claimant requested and Employer provided a demonstrator vehicle for Claimant to drive, not only during Claimant's regular hours at the workplace, but also to and from Claimant's residence in Enid. Claimant averred that driving the demonstrator benefitted Employer by providing a "rolling billboard" advertisement for Employer, and that Employer required him to show the car to prospective customers not only while at work, but also on his days off, after hours and while on personal business.
Claimant also testified however that driving a company vehicle was not mandatory, that Employer did not compensate him for mileage to and from his residence, that Claimant paid for the gasoline used in the vehicle and that although Employer maintained insurance on the vehicle, Claimant bore the responsibility to pay the $1,000.00 insurance deductible in the event of damage to the vehicle. Claimant admitted that he bore the ultimate responsibility to find transportation to and from work, and that he would have been driving his own vehicle to and from work (and particularly, at the time of the accident) had Employer not provided him with a vehicle to drive. Claimant ultimately admitted that he was not on a job-related mission at the time of the accident, but was simply on his way home from work.
Another of Employer's employees testified that Employer provided vehicles to salesmen for advertising purposes, that Employer required the salesmen to keep the cars clean for showing at any time, and that Employer proscribed use of the vehicles by any other members of a salesman's family. The employee also testified that provision of the demonstrator was not intended to compensate Claimant for mileage to and from work, and that although a "perk" of the job, salesmen were not required to drive a demonstrator.
On this evidence, the trial court concluded that Claimant had suffered a compensable accidental injury arising ou
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