The opinion
Andree Layton Roaf, Judge, dissenting. I do not agree with the majority that David McKissick’s two accidents in nearly sixteen months of employment constitute “intentional misconduct” as this court has defined it, so as to disqualify him for unemployment benefits. The majority opinion sets forth the circumstances of both accidents and the reasons given by the employer for terminating McKissick. I will not repeat the facts other than to point out that McKissick was terminated after a minor second accident that occurred nearly a year after his first accident. The second accident occurred when a tanker truck attempted to pass McKissick in high winds, and the.two trucks sideswiped, causing $699 in damages; McKissick was ticketed for careless driving. However justified his termination may have been, these facts fall far short of the standard this court has articulated for misconduct in unemployment cases.
The majority opinion also correctly sets forth our definition of “misconduct” for purposes of unemployment compensation. See Kimble v. Director, 60 Ark. App. 36 , 959 S.W.2d 66 (1997); Rucker v. Director, 52 Ark. App. 126 , 915 S.W.2d 315 (1996). However, in Kimble, also involving a long-distance truck driver fired for excessive preventable accidents, this court said that five preventable accidents in a six-month period demonstrated a “recurring pattern of carelessness from which the Board was permitted to infer a manifest indifference that constitutes a substantial disregard for her employer’s interest.”
Here, McKissick’s employer discharged him because he had two accidents in a sixteen month period, both caused by his failure to slow down or stop his truck during “inclement weather.” The Board found that McKissick was “knowingly driving too fast for conditions” in the second accident, and that his conduct was reckless and manifested an intentional or substantial disregard of his employer’s interest.
It should be emphasized, however, that the inclement weather at issue in the respective accidents was markedly different. The first accident occurred in heavy fog; the second in high winds. This significant difference in weather conditions supports a finding, not of a “recurring pattern” but rather of a one-time error in judgment. I find this conclusion particularly inescapable because the second accident occurred when another professional truck driver was attempting to pass McKissick. Surely, all at-fault accidents will involve a violation of law and, in the case of a professional truck driver, a disregard of the employer’s rules. However, McKissick’s accident record in his sixteen months of employment simply does not present evidence of misbehavior of such a degree or recurrence as to fall within our definition of misconduct, and I would reverse for an award of benefits.
Robbins, C.J., joins.