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Estate of Coe v. Willmes Trucking12/3/2004
had had one previous accident that occurred when he fell asleep at the wheel. Thus, the record supports the compensation court's conclusion that Coe knew of and appreciated the substantial risk presented by driving for as long as he did without resting, but decided to undertake that risk anyway.
The appellants argue that despite Coe's violation of the federal regulation, they can recover benefits because the appellees had acquiesced in Coe's past violation of the regulation. We agree that an employer's knowledge of and acquiescence in an employee's violation of a government safety regulation is a factor that a court should consider in deciding whether the employee was willfully negligent. See 2 Larson & Larson, supra, ยง 35.04. See, also, Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000) (holding that employer's failure to enforce its own safety rule is factor to be considered in whether employee's violation of safety rule is willful negligence). But we disagree that the appellees acquiesced in Coe's violation of the federal regulation.
Generally, Ronald Willmes, who, unlike Sharon Willmes, was actively involved in running the Company, did not track Coe's progress when Coe was on a trip. Coe sent his logbooks to Freedom, and Ronald Willmes usually did not see them. The Company, however, was paid by the number of bushels that Coe hauled, and thus Ronald Willmes would have had at least a general idea of the hours Coe was driving. Further, Ronald Willmes testified that he had some concern with the amount of hours Coe would drive in a day. But the record does not suggest that Ronald Willmes, upon learning that Coe had probably exceeded the federal regulation on a few occasions, acquiesced in the violations. Rather, Ronald Willmes testified that once or twice, he told Coe to "slow her down." While this is not overwhelming evidence of Ronald Willmes' enforcing the government safety regulation, it is enough to support the compensation court's decision under our deferential standard of review.
CONCLUSION
The appellees' failure to carry workers' compensation insurance did not preclude them from raising the willful negligence defense, and the compensation court did not err in concluding that Coe had been willfully negligent. As a result, it is unnecessary for us to consider the appellants' final assignment of error.
Affirmed.
Wright, J., not participating.
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