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KINDEL v. FERCO RENTAL8/4/1995
The opinion of the court was delivered by
A worker was killed on his return trip home from work. The worker's surviving spouse and minor children claimed death benefits. The Administrative Law Judge (ALJ) denied their claim, finding that the worker had abandoned his employment and therefore the accident did not arise out of and in the course of his
employment. On review, the Workers Compensation Board (the Board) reversed the ALJ, finding that the worker 's death arose out of and in the course of his employment. The employer appealed. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Donald L. Kindel was employed by Ferco Rental, Inc. (Ferco). On October 11, 1991, Kindel was transported in a company pickup truck from his home in Salina, Kansas, to a construction job site in Sabetha, Kansas. James Graham, Kindel's supervisor, was the driver of the truck. The company truck had been checked out to Graham to transport Kindel and other employees to and from the job site.
On the way to Sabetha, Graham and Kindel passed a former employee of Ferco. Kindel held up a note inviting the former co-worker to join them at the Outer Limits, a "striptease" bar adjacent to Interstate 70 on the west side of Topeka. At approximately 3:30 p.m., after completing the day's work at the job site in Sabetha, Graham and Kindel proceeded back toward Salina. On the way, the two men stopped at the Outer Limits for approximately four hours, where they became inebriated.
Graham suffers from amnesia and cannot recall any of the events occurring after they stopped at the Outer Limits. Graham testified, however, that it was Kindel's idea to stop at the Outer Limits; that Kindel made the arrangements to meet the former co-worker at the Outer Limits after work that day; and that if Kindel would have wanted to proceed straight home, Graham would have done so.
At approximately 8:50 p.m., the Kansas Highway Patrol received a call of a motor vehicle accident on Interstate 70 near mile marker 337. When Trooper McCool arrived at the accident scene, he observed the Ferco truck overturned and lying in the south ditch of the westbound lane near an entrance to a rest area. Graham, who was driving, and Kindel had been partially ejected out of the truck's windshield. Kindel was deceased. Subsequent tests determined that Graham and Kindel had blood alcohol levels of .225 and .26, respectively.
Prior to the accident, Graham and Kindel were aware that Ferco had a policy that, except to obtain food or fuel, company vehicles
were to be used only to go directly from the shop to the job site. Company vehicles were not to be used for personal pleasure or business. Ferco had a comprehensive drug and alcohol policy in place at the time of the accident which, among other things, prohibited workers from using the company equipment while under the influence of alcohol. Employees were not authorized to use a company vehicle to stop at a bar to consume alcohol. Kindel signed off on this policy on December 8, 1990. The employer asserted that when the employees stopped at the bar, authorization to use the company vehicle ceased and any further use of the company vehicle was not part of their employment.
At the time of the accident on October 11, 1991, Graham possessed a valid Kansas driver's license. Ferco was aware of Graham's propensity for drinking and driving. Graham had been charged with DUI some six days prior to this incident and had a previous conviction for which he had had his driver's license suspended. Graham understood that he was prohibited from drinking while using company equipment. Graham t
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