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03/03/95 EDWIN H. KEWISH v. ALABAMA HOME BUILDERS

March 3, 1995

EDWIN H. KEWISH
v.
ALABAMA HOME BUILDERS SELF INSURERS FUND, ET AL.



Appeal from Jefferson Circuit Court. (CV-92-6477). Jack D. Carl, TRIAL JUDGE.

Rehearing Denied April 7, 1995. Certiorari Denied June 30, 1995.

Thigpen, Judge, Yates and Crawley, JJ., concur. Robertson, P.j., and Monroe, J., Dissent.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is a workmen's compensation case.

In August 1992, Alabama Home Builders Self Insurers Fund, et al. (Fund), filed a complaint for declaratory judgment, seeking a declaration of its obligations in relation to an injury claimed by Edwin H. Kewish. The Fund is the insurance provider for Vulcan Plumbing & Heating Company, Inc. (Vulcan). The Fund alleged that Kewish was an employee of Vulcan, and that he gave notice of an on-the-job injury on or about July 20, 1992. The Fund asserted that a controversy existed regarding whether Kewish's injuries were sustained while acting in the line and scope of his employment. Kewish answered, denying that a controversy existed and counterclaiming for workmen's compensation benefits by alleging that he was injured on July 20, 1992, while engaged in the line and scope of his employment.

Following ore tenus proceedings, the trial court made these findings:

"Even taking the evidence in the light most favorable to Mr. Kewish, the Court finds that the Defendant, Edwin H. Kewish, had deviated from the course of his employment at the time of the accident which caused his injuries. The accident occurred at a location which was neither going to nor coming from an area in which Mr. Kewish had reason to be in the course of his employment nor was it an area in which he might have been taking a short cut from one location to another."

Before denying any benefits to Kewish, the trial court concluded that the injuries sustained by Kewish "did not arise out of and were not sustained in the course of his employment." Kewish appeals from the judgment denying benefits on his workmen's compensation claim.

The only issue on appeal is whether the trial court erred in determining that Kewish's injuries did not arise out of, and were not sustained in, the course of his employment with Vulcan.

The record on appeal includes numerous and massive trial exhibits, including detailed maps, surveys, large still photographs, and video footage of the accident scene, together with significant testimony regarding or in connection with these exhibits. The record discloses that the witnesses often physically indicated to the trial court specific points on these exhibits. It is difficult for an appellate court reviewing the record to ascertain the exact points the witnesses indicated to the trial court, which had the benefit of observing firsthand all of these exhibits and hearing the related testimony.

Kewish is a quadriplegic as a result of the accident. His testimony at the trial was by deposition. Although Kewish was the president of Vulcan, his role within the company was that of an on-site supervisor. Because the Fund asserts that Kewish was present at the site of the injury for personal reasons, some background regarding a dispute between Kewish and the Jefferson County Commission (County) concerning Kewish's property is necessary to understand the controversy in this case.

In 1989, Kewish had a disagreement with the County concerning its proposed sewer line extension. A substantial part of the sewer line would extend directly across Kewish's property near where a dam and pond, the accident site, are located. Kewish refused to sell the property to the County for the sewer line because he disagreed with the proposed route, contending that it would interfere with his plans to build a dam to replace the existing one, a lake, and a residential development on his property. Although the County initiated condemnation proceedings, the parties reached an agreement regarding a major change in the proposed route to accommodate Kewish's plan regarding the lake, the dam, and future development. The sewer line, however, still extended over a portion of Kewish's property.

The County accepted bids for the sewer line project, including an unsuccessful bid from Vulcan. In the process of preparing its bid package, Vulcan dug some "test holes" along the right-of-way of the proposed sewer line site. By way of a letter dated June 12, 1992, the County notified Vulcan that it was not qualified to bid. On July 20, 1992, the successful bidder, Ellard Contracting Company (Ellard) notified Vulcan that it would be entering Kewish's property to commence work on the project. Kewish testified that after receiving this call, and without any request from Ellard, he went to the project site to assure that any test holes dug by Vulcan had been properly filled and were safe to protect Vulcan from any potential liability. He testified that this was a normal procedure in ...


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