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Brittain v. H&H Chevrolet Llc

Court of Appeals of Nebraska

April 29, 2014

DONALD L. BRITTAIN, APPELLANT,
v.
H & H CHEVROLET LLC AND MID-CENTURY INSURANCE COMPANY, APPELLEES

Appeal from the Workers' Compensation Court: DANIEL R. FRIDRICH, Judge.

AFFIRMED.

Joseph W. Grant and Michael R. Peterson, of Hotz, Weaver, Flood, Breitkreutz & Grant, for appellant.

Stacy L. Morris, of Lamson, Dugan & Murray, L.L.P., for appellees.

INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.

OPINION

Page 620

[21 Neb.App. 987] Pirtle, Judge.

INTRODUCTION

Donald L. Brittain appeals the order of dismissal issued by the Nebraska Workers' Compensation Court on April 10, 2013, in which the court found that Brittain's injury did not occur in the scope and course of his employment and that his injury did not arise out of his employment with H & H Chevrolet LLC (H& H). For the reasons that follow, we affirm.

BACKGROUND

Brittain worked as a lot porter for H& H, an automobile dealership located in Omaha, Nebraska. The owners of H& H purchased the dealership in January 2010, but Brittain had worked at the dealership's location for approximately 7 or 8 years. One of his job duties was to remove trash from the service building and dispose of it in Dumpsters located on the premises. Other duties included washing cars, sweeping floors, and driving people to locations and picking them up.

Brittain had a hobby which included scavenging discarded metal from various sources and selling it to a local scrapyard. He stored the metal in his home for approximately 3 months and then sold the metal to a recycling center, making about $20 to $30 per load.

On the morning of February 27, 2012, Brittain loaded a cart with two trash cans from the service building and wheeled the cart across the parking lot to a Dumpster. While dumping the trash, Brittain noticed a piece of metal in one of the trash cans. Brittain decided to salvage the piece of metal he found in the trash can that morning. He removed it from the can and began wheeling the cart back toward the service building.

Brittain stopped at his personal vehicle, a truck, to load the metal so he could take

Page 621

it home and sell it. Brittain stopped the cart near the front of his truck. Brittain testified that the parking lot was clear of snow and ice that day, except for the area near the back of his truck where H& H had piled plowed snow. Despite the snow and ice, Brittain walked toward the back of his truck to deposit the metal in the truck bed. Brittain's [21 Neb.App. 988] onsite incident report stated he stood on a " block of ice" while trying to put something in the truck bed. He ...


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