DALE v TRADE STREET INC
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NO. 92-114 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 DAVID DALE, Claimant and Respondent, -vTRADE STREET, INC. and STATE COMPENSATION MUTUAL INSURANCE FUND, Employer, APPEAL FROM: Defendant and Appellant. Workers' Compensation Court For the State of Montana The Honorable Timothy Rceardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Laurence Insurance For Hubbard, State Compensation Fund, Helena, Montana Respondent: Thomas C. Bulman, For Mutual Amicus Attorney at Law, Missoula, Montana Curiae: at Law, Helena, Montana Oliver H. Goe, Attorney (for Montana Motor Carriers Association, Inc.) -. Submitted on Briefs: February 18, 1993 ri ' Decided: April 1, 1993 Filed&%% 1-1 Justice Fred This is judgment Weber delivered an appeal that course There 1. the and scope the are three Did the David the from concluding during that J. the was the his of Court. Compensation David Court Dale, was of a injured We reverse. employment. Compensation Worker's the on appeal: Worker's Dale Worker's claimant, of issues Opinion Court in course injured the err in and determining scope of his employment? 2. Did 71-407(3), Did costs 20, two Dale As part nights apply § 39- City, a long 1991 haul brother's 22, the 1991, his truck of in where Dale Mount at he stayed at the It to the Townsend, to Trade Street on March Montana to be Michigan. He then at his sister's home for Flying J Truck had previously truck is stop difficult to neither Dale nor remember what occurred p.m. accident. that evening The accident his into tell to Stop near meet him. Miles City in between were what happened Lester brother, when they occurred 2 arranged and rode and 9:30 car failing Montana Clemens, (Buddy), afternoon in for Missoula, lumber drove brother truck. because Jr. err trucker he left up a load Montana where his thereafter was 25, Court and a day. left single correctly appellant? employment, by March Dale Dale (Dale) to Billings, Compensation the of his On March Miles Worker's 1991 and picked delivered drove the against David Inc. Court MCA? 3. assess Compensation "Buddy" 3:30 p.m. involved approximately that in one mile a from the Flying the Flying J Truck Buddy, for the driving content Stop of the the "Our the Court Ins. portion of to support overturn (1992), the apply to the our scope reach our own conclusions. 309, State argues that accident law is not of the court. Workers' evidence Where there Compensation Garcia v. alcohol be presented that 198, accident substantial v. 832 P.2d so limited Court, State 770, 771-772. findings of and we remain Anaconda Copper Comp. fact free to Co. (1985), Fund (State 909. Compensation Dale will or how particular Wassberg 697 P.2d Appellant, to opinion. Workers' 196, the is decision." 253 Mont. one of law, City blood decision and conclusions is the the there question of a the at facts of reviewing When the Fund) Other is to determine cannot 215 Mont. 0.14. if Fund Miles claimants's evidence substantial from was cited findings the Mut. at for Court to support this road and the following standard Compensation only vehicle, influence (BAC) was measured in on the Stop. driver under as necessary is J Truck Mutual had deviated under from his consideration. Workers' Compensation conclude that Dale 1987, the legislature to the general Insurance employment Dale Court had substantial was injured within time that the contends evidence the at the course from which and scope of to his employment. In exceptions occurring within when employees the course and amended workers' are scope MCA, to codify compensation rule that actions to going of § 39-71-407, from work are This statute their 3 or coming employment. not provides in pertinent part: Liability of insurers - limitations. (1) Every insurer is liable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any. i3j An employee who suffers an injury or dies while traveling is not covered by this chapter unless: (a) (i) the employer furnishesthetransportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement; and (ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or (b) the travel is required by the employer as part of the employee's job duties. . . . Section 39-71-407, We will of Issue issue II discuss the 1987 statutory below. However, in this existing MCA. law in our discussion our determination case is discussed case additions in Issue interpretations of of the controlling I below the and is course and based on scope of employment. I. Did the Workers' claimant was injured Axiomatic is that his the injured in Montana that they during worker Section traveling limitation, are involved. Court the course to a determination employment. without Compensation err 39-71-407(l), in the MCA. compensation course regardless of the conduct See, e.g., Correa v. coverage and scope of It is well-established employees are not covered 4 that and scope of his employment? of workers' be injured in determining 24 hours or activity Rexroat Tile a day, in which (1985), 217 Mont. 126, and scope 703 P.2d of employment be compensable. Here, time, deviated from Court also lumber en route Although the the State Townsend for of factors its his to scope out of the the 723 P.2d In from employment (3) the employment (2) the degree at Dale which the the the be within the a load Clemens, of Michigan. 1991, Dale does law not cites 515, was not 723 within injured. substantial (1) not Compensation It case determining whether of 25, the had and to to Mount "the for he was hauling 222 Mont. context: extent to had picked the Ogren v. 944, as P.2d the Ouren whether support course declares and the a deviation from enough the to take an employee amount of time taken deviation deviation increases in deviation terms caused the of the up by risk geography; injury. of and Oaren, 948. Oqren, Missoula is to 1991. when he was in injury that there conclusion. that employment of 20, (1986), contention deviation; (4) Inc. course compensated considered March prior Court's be considered the injury; that the the The Workers' Montana on March for being because due until contends Motors, support scope Townsend, in concluded was in was employment Compensation Bitterroot employee Dale was not Fund Workers' that order Court business." from up in the remain 163. business of his load in at employer's and scope load that concluded course traveling employer's the must Compensation was on his employee 703 P.2d Workers' issue was while Correa, the dispositive The 160. Erik to Great Ogren Falls of Bitterroot in the 5 Motors company plane. flew a co-worker From there, he proceeded beauty with to Sheridan, pageant the and bring her while plane journey. when Ogren driving to Court was exception to In and determined personal, that not the applying of Missoula Also, the the Ogren, Great trip from the spanned aspect of the and then of it was a quote 432, the reason from Calloway 268 S.E.2d 132, within the the a round clearly not v. to over trip a case a from trip. 336 miles for where the purpose." factors, trip increased only the the risk occurred. State We also Workmen's as follows: In the case of a major deviation from the business purpose most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is 6 947. deviation of his business deaths at occurred two remaining the was portion the this Sheridan fall that than is was not 723 P.2d as compared Missoula while Ogren deviation dwarfed As for main not business-related on toward the did longer "This accident vehicle to Oqren, the 744 miles the On appeal, determine that trip. that Falls rule. to completely at 949. (1980) r 165 W.Va. and was much Falls, favor Great deviation which deviation 723 P.2d with employment. factors to Sheridan cited the complete 945-46. his of a had trouble to of the concluded deviation deviation injury, scope from an automobile Court we concluded business personal at and coming" 11 hours to 723 P.2d "going the in control a minor was substantial, period killed a car and lost Compensation daughter Ogren rented Oqren, course his Missoula. and were up asleep Missoula. the pick home to daughter fell The Workers' within to Wyoming in He and his caused Wyoming Comp. returning Oaren, to present case (1980), to Court considered be similar 166, who 1978, in met pool. They toward Stanford, returning some to of left coworkers bar where the Gordon was at working Brand Montana. Denton approximately customarily was a passenger his subsistence office. the employment pay In claimant when the for stayed, work, beer and and drove rather than that workers' provided more his went than 54 compensation compensation off a truck driven A few Stanford. truck contract working concluding for Bar, in after was minutes was killed. Gordon's Denton quarters which p.m. in an Lewistown, site bar 10:00 Co. Gordon, Shortly the the in Lewistown. work at of Con&. near T Motel Gordon who had leaving agree. Gordon Lewistown. after Smith day at the Denton, facts H.C. at the a full of his the by a co-worker but v. the We do not 668. Butte worked northeast Gordon Gordon residence Gordon 24 miles to 612 P.2d lived a temporary On May 1, about or purpose. 948. 188 Mont. maintained route at The Workers' electrician business Compensation 723 P.2d the the road and for $22 daily in miles from the home for coverage, travel qualified we reasoned follows: Because the union contract singles out for special consideration a travel allowance and it is paid as an incentive to get men onto jobs and results in a reasonable benefit to an employer, then while the employee is "traveling" enroute to or from work, any injury is within the exception and arises out of and in the course and scope of employment. Gordon, 612 P.2d at 671. 7 as In and this was case, paid for traveling to traveled durinq get him to although each or from mile of Gordon, it employment. location. We conclude that As for alcohol and scope v. alone of v. Parker we Park, found and at beers, related tasks after his while driving evidence employment Inc. no (1991), that from at 83, 249 Mont. from was the stated P.2d 177 Mont. deviation 586. scope several another (1978), Court the the 672. See 580 P.2d 225, course course also 450; 815 P.2d and and 583. scope of to overrule thirteen years of precedent to hold employee who may be under the influence of without having abandoned the course of his is precluded from recovering under the compensation system. 815 P.2d course car Co. a remote here. a deviation 612 to Dale's in Compensation we previously Gordon, miles Gordon, was controlling establish for stating: We refuse that an alcohol, employment, workers' Parker, does not employment. Glacier Parker, Gordon paid actual him to work Workers' consumption, 93 Leasing employment, the alcohol factor Steffes In the that the not an incentive unlike to get allowance the was not Also an incentive holding was for paid pay was not in he traveled, subsistence incorrect a subsistence He was Unlike place received he work. work. his Dale of he had employee that the at that The claimant his done driving back about Parker employment. so while had not Although also working another work he location. to the first work location was acting Parker, matters. outside 815 P.2d 8 at abandoned consumed on employment- to business-related claimant time. in He wrecked to speak with There the 586. was scope of no his In this attending School case, to there #l a (1984), no evidence test to In 692 P.2d 16-17, determine if (1) whether the activity (2) whether the employer directly employee's attendance controlled employer participated or and attendance of in employee at these at the the factors. For an injury must be some identifiable from the do not fit at 453. We conclude that when he received period had employment During continuity of Dale's he had not Dale temporarily and during matters. to which the to the from here point both employee's within any the there Steffes, during 580 a six-hour course of his no employment-related his scheduled was severed of whether employer. to employer traveling, was injured he attended employment returned the abandoned deviation (4) while work employer's the and benefit P.2d (3) whether actions we compelled activity, Dale's 419, was the benefitted mutually activity. at was Darby 417, or indirectly activity, the v. injury was undertaken request, Dale Courser an related: the that 13, 214 Mont. four-part is matters. employment-related Dist. discussed however, route, the and remained deviation from the so as path of duty. Although the along the route, Miles City trip states map and equipment without that employer permitted there no evidence were the is contemplated. equipment no deviations is prior not to is are be used authorization. to drivers that The be routed allowed for its for any reason Dale's 9 to visit visits such employer's to usage as a personal supervisor as Dale's policy according off-route relatives testified manual a computer and that conveyance that time spent the "goofing off" driver. Dale "off-duty" far alcohol brother. During his Dales visit to his deviation to of time taken this several hours factor, whether becomes the less of which The too, Compensation he consumed factors Ooren terms of Oqren, increases Court importance this outweigh six the extent the activity the here the as in injury, of geographical significance of 10 was the of second injury, it risk of in it in terms was Oqren. engaged factor, of injury. deviation that and location in, the also however, degree The distance However, geographical to here. Workers' to other a When significant injury. the Oaren. here although with is of to the the here, fourth amount a companion the claimant The cause deemed with of the with risk miles when compared caused the drinking a spent time the increased substantial. was the is when considered accentuated the factor Although greatly deviation from Ocren back factor, deviation the drive paramount case stop by applying of deviation deviation time, City City hours becomes the Miles as was The first in becomes geography, in "off-duty" that, there deviation third considered the be that companion small it, than truck relatively for to conclusion Six claimant's the testified was a substantial deviation. the that Similarly, himself of the Miles case. substantial. having purpose this brother in up by the then Dale sole We reach substantial facts he considered time brother. employment. the personal sister. his the his or that remember, was to visit "off-duty" testified he visited as he could with considered also while Dale's is be factors distance. of in Applying Dale's the injury deviation his the his Court he Dale this was case, in We conclude, of was not his we conclude engaged erroneously and scope that to employment. course We hold factors while Compensation within of occurred from Workers' Ouren a substantial therefore, held that that the were that Dale's acts the course and scope employment. injured within employment. II. Did 407(3), the Workers' 1987. 101, 39-71-407(2)-(4), Section correctly to There that did the course not legislature would meet of removed employer's In Workers' to the the all, that if apply 5 39-71- § 407(l) Nor activity intended that there employees doing, engaged provisions 5 39-71-407(3) is traveling are Section several the requirement they what legislature intact. legislature under that by the 1-2of possible. the employment. business applying to construe be covered intended no matter a day, effect added MCA, remained courts no evidence employees they the give is MCA, were 39-71-407(l), MCA, requires a statute far Court MCA? Sections in Compensation how they in by the the to even injury that be covered doing employee though arise evidence are provide the 24 hours it, is in or how from the purpose. 5 39-71-407(3), Compensation Court MCA, to judge concluded the present action, that: It is undisputed in this case that the claimant was driving his employer's truck when he went to Miles City, thus he fits within section 39-71-407(a)(i). Additionally, the payment of "subsistence8V money clearly 11 the encompasses meals and lodging expenses. A worker cannot reasonably be expected to eat and sleep in his truck. Whether claimant was in Miles City to eat or not is unknown but what is known is that he was in Miles City, enroute to Michigan and clearly was there as a part of his job. It is also undisputed that driving was, not only a necessary, integral part of the job, but was the job itself, thus claimant satisfies (a)(ii) and (b). Since it is also undisputed that he was not injured as a result of his use of alcohol subsection (4) does not (Emphasis in original.) apply. Section employers 407(3)(a)(i), if the one cents received falls pay for because travel employer, is not only Miles employer to allowed lodging and other qualifies travel evidence under These sections visits the costs that Dale 5 407(3)(a)(ii) by and on behalf reference out the job. under refer to family members along 12 & the travel" that or required The travel was not. the 5 407(3)(b). to travel of the employer; brother of but it is made to "the of the employer by and on behalf visit and he MCA. and (b), to carry costs Dale by the employer necessitated by and on behalf travel the as "subsistence" argument in general. in order City cents He makes a similar §§ 407(a)(ii) was necessitated six or by Dale was paid to the employment, Under both N'travel" for integral itself. employer meals, he also and is not just necessitated with for are covered agreement. There is substantial that employment not from the employer § 39-71-407(3)(a)(i), contends Dale transportation driven, of his employment. within the was provided subsistence as part furnishes of an employee per mile Transportation pay. workers reimbursement of the benefits twenty that employer employee receives as part MCA, states by the to Miles the side trip The fact the route is that City to the does not transform such conclude visits that conclusion to 5 39-71-407(3) reached above Our conclusion needs when argue that is travel employer as well substantially and injuries be considered We conclude the application of of the the way It during not We in the time Court was the the employee that he is can which of for benefit when course can essential business the of employee's no one stops only the Compensation § 39-71-407(3), is the Indeed, are employer's abandonment Workers' a change These employee. the § 407(3). of job. breaks. arising as the require consideration along from by I. nature taking as the not without the deviates for Issue stops sleeping contemplated does in not is certain eating, covered travel reasonably the not employment. incorrect in its MCA. III. Finally, Dale should have MCA. However, this a Court assessed will cross-appeal appellant." 373, 377, argues Dale not costs did address the against Workers' State cross-appeal Baldwinv. 49, the Fund this issue. seeking review of Express 51. Reversed. We Concur: 13 Compensation under issue "[T]he Orient when 791 P.2d not that 5 39-71-611, and therefore, respondent issues Restaurant Court not (1990), must raised file by 242 Mont. Justices 14 I respectfully The erred dissent. first in issue is course of is David Dale employment. there the that determining whether substantial conclusions scope the Workers' review of a jury erroneous The clearly the Court by its The truck driver, into Miles City from his is in leaving proper whether, The the First, Inc. claimant Townsend, Montana Miles City, both personal having the relax and Montana is Mt. within delivered such time relatives. employer's leave his deviation here The in was only date. sleeping, 450, was v. 454. between Interstate Miles 94. City was interested The driver was no company route Steffes which stop a The burden 580 P.2d on was by a trial employer. 89, the and going be answered Michigan was on his 15 truckstop, route, employer There Eating, standard an over claimant 83, route. period. claimant, on the by a certain Claimant policies. is The broader cases. the was substantial. 177 Mont. on the the the essence the to it Clemens, and business. load of facts, not same made a substantial deviation did is compensation and the question (1978), and adopted the rig action fact under Co., whether the whether findings not in and here. and returning, of a substantial 93 Leasing applying is This is Court scope review the workers' review is The ultimate of proof the is employment. deviation. visiting of question road court scope in the Court. We have review in of support Compensation decision critical to of erroneous scope verdict. scope Compensation was injured appellate evidence of of clearly The Workers' is in free policy against and therefore within resting and relaxation to would be a proper Claimant's facts to are of the other deviation substantial case of Gordon P.2d 668. in v. out also in 522, 723 P.2d (3), but not to this Court fact of I as Const. brother Court was not There contrary. to distinguish 188 Mont. (1980), are The above employment. the tries Co. out his his prove opinion, injury. Compensation with sever to pointed 944, William as not would of 948. the there the Bitterroot well should construction Justice Smith v. support whether also so as to has discussed Ogren 515, evidence Workers' City of trucker. splitting hairs the 166, 612 without distinction. The Court as set H.C. The differences any meaningful the Miles majority a traveling cause evidence its for the for to deviation The Court, errand was not evidence a substantial also purpose alcohol substantial determine such is use dual to fact Motors, The claimant (2) and finder substitute is affirm 5 39-71-407(3), E. Hunt, its Workers' MCA. Sr., 16 factors to be considered Inc. (1986) t 222 Mont. does (4). what a substantial the four well There ever judgment as to is way it decides Compensation and substantial as to deviation (1) from the and ultimate employment. Court in its April 1, 1993 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Laurence Hubbard, Legal Counsel State Compensation Mutual Ins. Fund 5 So. Last Chance Gulch Helena, MT 59604-4759 Thomas C. Bulman Attorney at Law P.O. Box 8202 Missoula, MT 59802-8202 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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