No. 92-372
IN THE SUPREm COURT OF THE STATE OF MONTANA
STATE COMPENSATION MUTUAL INSURANCE
FUND and TOWN HOUSE INNS,
Petitioners and Appellants,
CHRISTINE JAM?3S,
Respondent and Respondent.
APPEAL FROM: Workers' Compensation Court
For the State of Montana
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Elizabeth A. Horsman-Wiitala, State Compensation
Mutual Insurance Fund, Helena, Montana
For Respondent:
Frank J. Joseph, Burgess, Joyce & Whelan, Butte,
Montana
rd
Submitted on Briefs: January 14, 1993
Decided: March 25, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal by the State Fund of a Workersv Compensation
Court decision compensating claimant for injuries sustained in an
automobile accident. We reverse.
The sole issue on appeal is whether the Workersv Compensation
Court erred in concluding that the claimant suffered a compensable
injury under 5 39-71-407(3)(b), MCA.
Claimant, Christine James was employed by Town House Inns in
Butte. She started her employment as a housekeeper in 1987 and was
promoted to Administrative Assistant/Sales Director in December of
1987. As part of Ms. James's duties, she was in charge of the
computerized mail solicitation program. Also as part of her
duties, she participated in the manager-on-duty program. The
latter program required Ms. James to alternate weekend management
responsibilities with three other managers.
Ms. James was not on weekend duty the weekend of November 27,
1988. However, the manager on duty had the desk clerk call Ms.
James twice on that day because the computer data system involving
the computerized mail solicitation program had broken down. Ms.
James tried to facilitate fixing the system by way of the
telephone, but was unsuccessful. She, therefore, went to the hotel
to fix the system in person. During a second trip to the hotel,
Ms. James and her husband were involved in an auto accident. Ms.
James was injured and subsequently missed a month and a half of
work.
Ms. James filed a workers' compensation claim on July 14,
1989. The claim was denied and mediated. She then petitioned the
Workers' Compensation Court and a hearing was held on March 9,
1992. The Workers' Compensation Court issued its findings of fact
and conclusions of law on July 10, 1992, stating that Ms. James was
injured during the course and scope of her employment and was
entitled to compensation. This appeal followed.
Did the Workers' Compensation Court err in concluding that Ms.
James suffered a compensable injury under 5 39-71-407(3)(b), MCA?
The Workers' Compensation Court concluded as a matter of law
that Ms. James's injury was compensable under an established
exception to the Itgoingand coming1'rule. The rule denies benefits
for injuries sustained by an employee traveling to and from his
regular work place. Buhl v. Warm Springs (1989), 236 Mont. 363,
769 P.2d 1258. According to the Workers' Compensation Court, Ms.
James's injuries did occur during travel required by the employer
"as part of" the employee's job duties, pursuant to 5 39-71-
407(3) (b), MCA.
The State Fund argues that Ms. James was merely traveling to
her regular work place to perform a regular function as
Administrative Assistant/Sales Director. Ms. James argues that the
events of November 27, 1988, are consistent with a special "call
in1' and that if the employment places the worker in the path of
harm and without which the injury would not have occurred, the
injury is said to have "arisen outf1 the employment.
of
In 1987, our legislature took official notice of the "going
and comingu rule as well as the exceptions which had evolved to it
over the years. That 1987 statute reads:
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.
(2) (a) An insurer is liable for an injury as
defined in 39-71-119 if the claimant establishes it is
more probable than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury aggravated a preexisting
condition.
(b) Proof that it was medically possible that a
claimed injury occurred or that such claimed injury
aggravated a preexisting condition is not sufficient to
establish liability.
(3) A n employee who suffers an injury or dies while
traveling is not covered by this chapter unless:
(a)(i) the employer furnishes the transportation or
the employee receives reimbursement fromthe 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 rewired bv the emwloyer as wart
of the emwlovee's iob duties.
(4) A n employee is not eligible for benefits
otherwise payable under this chapter if the employee's
use of alcohol or drugs not prescribed by a physician is
the sole and exclusive cause of the injury or death.
However, if the employer had knowledge of and failed to
attempt to stop the employee's use of alcohol or drugs,
this subsection does not apply.
(5) If a claimant who has reached maximum healing
suffers a subsequent nonwork-related injury to the same
part of the body, the workers1 compensation insurer is
not liable for any compensation or medical benefits
caused by the subsequent nonwork-related injury.
(Emphasis added.)
Section 39-71-407, MCA.
The resolution of this case turns on the meaning of Ittravel
required by the employer as part of the employee's job duties. 'I On
review, we must determine whether the Workers' Compensation Court
interpreted this subsection correctly. St. John's Lutheran Church
v. State Compensation Fund (1992), 252 Mont. 516, 830 P.2d 1271.
Ms. James relies on Parker v. Glacier Park, Inc. (1991), 249
Mont. 225, 815 P.2d 583. Such a reliance is misplaced as Parker's
situation was quite different from Ms. James's. Parker was a hotel
manager at the Rising Sun Motor Inn owned by Glacier Park, Inc.
The day the Inn closed for the season, Parker loaded his car with
perishable foods from his Inn and drove them to St. Mary's Lodge
from which the produce had initially been borrowed. When such
exchanges occurred it was Parker's responsibility to see that all
loans were repaid.
Parker drove to St. Mary's and returned the produce and had
several drinks with the chef at Lake McDonald Lodge and with the
chef at Rising Sun. Their discussions centered around business.
Parker left St. Mary's at 12:OO a.m. in order to return to the
Rising Sun where he was to speak with the night auditor and prepare
for the next morning's banking. While traveling on this return
trip Parker was permanently injured in a single car accident.
We held that Parker acted within the scope of his employment.
That scope included such travel between the lodges. Parker was
required to travel "as part of" his job. Such circumstances
distinguish Parker from this case. Here Ms. James was not required
to travel between various areas during the course and scope of her
employment. She was simply traveling to her job site in Butte when
the accident occurred.
Section 39-71-407(3), MCA, specifies that an employee who
suffers an injury while traveling is not covered unless within the
specific provisions of subparagraph (a) or (b). Clearly
subparagraph (a) does not apply as the employer did not furnish the
transportation. Under subparagraph (b), the employee is not
covered unless the travel is required as "part of" the employee's
job duties. Prior to the enactment of the above statute, we held
in Massey v. Selensky (1987), 225 Mont. 101, 731 P.2d 906, that the
general rule was that travel to and from an employee's place of
work was outside the course and scope of his employment. We here
construe the phrase "as part oftqfrom paragraph (b) of 5 39-71-
407(3), MCA, as equivalent to the phrase "in the course and scope
of" employment from the previous common law.
Here, Ms. James was on her way to her regular work place. Her
work requirements in the course and scope of her employment
included telephone solicitation, computer data input, and other
sales and front desk work, all in the building in which she worked.
Normally no travel was required for those duties. Ms. James was
occasionally required to travel to other hotels, and on those
occasions mileage was paid to her which could include mileage from
her front door to such different hotel. Neither Ms. James, nor any
other hotel manager, had ever submitted claims for, or received
reimbursement for, mileage for travel from their homes to the hotel
which was their regular job site.
Here Ms. James was not traveling to another job site during
the course and scope of her work. She was simply traveling from
her home to the hotel in which she normally worked in order to
engage in data entry responsibilities.
We conclude that under 5 39-71-407 (3) (b), MCA, the travel
required by an employer as a part of the employee's job duties does
not include travel to and from the employee's normal place of work.
We conclude that the phrase Itaspart oft1in subparagraph (3) (b),
does not include travel to and from the employee's regular job site
unless the employer furnishes transportation which then comes under
the provisions of subparagraph (3) (a).
We hold the Workerst Compensation Court erred in concluding
that Ms. James's injury was compensable under 5 39-71-407 (3) (b),
MCA.
Reversed.
Chief Justice
,
.
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent. The majority misconstrues both the cases and
statutes in determining that the claimant here was not entitled to
benefits. In the ordinary course of the going and coming rule, the
only obligation that the employee has to the employer is to be at
work on time to begin performing the duties required. If the
employee is at work and directed to travel somewhere else for the
benefit of the employer, then there would be coverage during that
trip. Here, claimant was directed by the employer to come to work,
and was obligated to commence the travel under the direction of the
employer to arrive and do a specific job, as requested by the
employer.
Clearly, claimant was under the direction of the employer in
this case. I would affirm the Workers1 Compensation Court.
Justice Trieweiler concurs in the foregoing dissent.