Dale v. Trade Street, Inc.

NO. 92-114
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

DAVID DALE,
Claimant and Respondent,

-v-
TRADE STREET, INC. and STATE
COMPENSATION MUTUAL INSURANCE FUND,
Employer, Defendant and Appellant.

APPEAL FROM: Workers' Compensation Court
For the State of Montana
The Honorable Timothy Rceardon, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Laurence Hubbard, State Compensation Mutual
Insurance Fund, Helena, Montana
For Respondent:
Thomas C. Bulman, Attorney at Law, Missoula, Montana
For Amicus Curiae:

Oliver H. Goe, Attorney at Law, Helena, Montana
(for Montana Motor Carriers Association, Inc.)
-.
Submitted on Briefs: February 18, 1993
ri
'
Decided: April 1, 1993
Filed&%% 1-1
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the Worker's Compensation Court of a

judgment concluding that the claimant, David Dale, was injured

during the course and scope of his employment. We reverse.

There are three issues on appeal:

1. Did the Worker's Compensation Court err in determining

that David Dale was injured in the course and scope of his

employment?

2. Did the Worker's Compensation Court correctly apply § 39-
71-407(3), MCA?

3. Did the Worker's Compensation Court err in failing to

assess costs against the appellant?

David Dale (Dale) was a long haul trucker for Trade Street

Inc. As part of his employment, he left Missoula, Montana on March

20, 1991 and picked up a load of lumber at Townsend, Montana to be
delivered by March 25, 1991 in Mount Clemens, Michigan. He then
drove to Billings, Montana where he stayed at his sister's home for

two nights and a day.

On March 22, 1991, Dale drove to the Flying J Truck Stop near

Miles City, where his brother had previously arranged to meet him.
Dale left the truck at the truck stop and rode into Miles City in

his brother's truck. It is difficult to tell what happened

thereafter because neither Dale nor his brother, Lester "Buddy"

Dale Jr. (Buddy), remember what occurred between 3:30 p.m. that

afternoon and 9:30 p.m. that evening when they were involved in a

single car accident. The accident occurred approximately one mile
2
from the Flying J Truck Stop on the only road from Miles City to

the Flying J Truck Stop.
Buddy, the driver of the vehicle, was cited at the accident

for driving under the influence and the claimants's blood alcohol

content (BAC) was measured at 0.14. Other facts will be presented
as necessary in the following portion of the opinion.

"Our standard for reviewing a decision of the Workers'

Compensation Court is to determine if there is substantial evidence
to support the findings and conclusions of that court. Where there

is substantial evidence to support the Workers' Compensation Court,

this Court cannot overturn the decision." Garcia v. State Comp.
Mut. Ins. Fund (1992), 253 Mont. 196, 198, 832 P.2d 770, 771-772.
When the question is one of law or how particular findings of fact

apply to the law, our scope is not so limited and we remain free to

reach our own conclusions. Wassberg v. Anaconda Copper Co. (1985),

215 Mont. 309, 697 P.2d 909.

Appellant, State Compensation Mutual Insurance Fund (State
Fund) argues that Dale had deviated from his employment at the time

of the accident under consideration. Dale contends that the
Workers' Compensation Court had substantial evidence from which to

conclude that Dale was injured within the course and scope of his

employment.

In 1987, the legislature amended § 39-71-407, MCA, to codify

exceptions to the general workers' compensation rule that actions

occurring when employees are going to or coming from work are not

within the course and scope of their employment. This statute

3
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, MCA.
We will discuss the 1987 statutory additions in our discussion
of Issue II below. However, our determination of the controlling
issue in this case is discussed in Issue I below and is based on
existing case law interpretations of the course and scope of
employment.
I.
Did the Workers' Compensation Court err in determining that
claimant was injured during the course and scope of his employment?
Axiomatic to a determination of workers' compensation coverage
is that the injured worker be injured in the course and scope of
his employment. Section 39-71-407(l), MCA. It is well-established
in Montana that traveling employees are not covered 24 hours a day,
without limitation, regardless of the conduct or activity in which
they are involved. See, e.g., Correa v. Rexroat Tile (1985), 217

4
Mont. 126, 703 P.2d 160. The employee must remain in the course

and scope of employment while traveling in order for the injury to

be compensable. Correa, 703 P.2d at 163.

Here, the Workers' Compensation Court concluded that "the
dispositive issue was that the employee was compensated for the

time, was on his employer's business in being there and had not

deviated from the employer's business." The Workers' Compensation

Court also concluded that Dale was considered to be within the

course and scope of his employment because he was hauling a load of
lumber en route from Townsend, Montana to Mount Clemens, Michigan.

Although the load was not due until March 25, 1991, Dale had picked
the load up in Townsend on March 20, 1991.

State Fund contends that prior case law does not support the

Workers' Compensation Court's conclusion. It cites Ogren v.

Bitterroot Motors, Inc. (1986), 222 Mont. 515, 723 P.2d 944, as

support for its contention that Dale was not within the course and

scope of his employment when he was injured. Ouren declares the
factors to be considered in determining whether a deviation from

the scope of employment is substantial enough to take an employee

out of the employment context: (1) the amount of time taken up by
the deviation; (2) whether the deviation increases the risk of

injury; (3) the extent of the deviation in terms of geography; and

(4) the degree to which the deviation caused the injury. Oaren,

723 P.2d at 948.

In Oqren, Erik Ogren of Bitterroot Motors flew a co-worker

from Missoula to Great Falls in the company plane. From there, he

5
proceeded to Sheridan, Wyoming to pick up his daughter from a
beauty pageant and bring her home to Missoula. Ogren had trouble

with the plane while in Wyoming and rented a car to complete the

journey. He and his daughter were killed in an automobile accident

caused when Ogren fell asleep and lost control of the vehicle while
driving to Missoula. Oqren, 723 P.2d at 945-46.

The Workers' Compensation Court concluded that Ogren was not
within the course and scope of his employment. On appeal, this
Court determined that the trip from Great Falls to Sheridan was

personal, was not a minor deviation and did not fall within the

exception to the "going and coming" rule. Oqren, 723 P.2d at 947.
In applying the deviation factors to determine that the deviation

was substantial, we concluded that the deviation occurred over a

period of 11 hours which was much longer than a round trip from

Missoula to Great Falls, the business-related portion of his trip.
Also, the deviation spanned 744 miles as compared to 336 miles for

the business aspect of the trip. "This is clearly a case where the
personal deviation completely dwarfed the business purpose."

Ogren, 723 P.2d at 949. As for the two remaining factors, the trip
to Sheridan and then on toward Missoula not only increased the risk

of injury, it was the main reason the deaths occurred. We also

cited with favor a quote from Calloway v. State Workmen's Comp.

(1980) r 165 W.Va. 432, 268 S.E.2d 132, 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
 returning to the business route or purpose.

Oaren, 723 P.2d at 948.

The Workers' Compensation Court considered the facts of the

present case to be similar to Gordon v. H.C. Smith Con&. Co.

(1980), 188 Mont. 166, 612 P.2d 668. We do not agree. Gordon, an

electrician who lived in Butte but was working near Lewistown,
maintained a temporary residence at the Brand T Motel in Lewistown.

On May 1, 1978, Gordon worked a full day at the work site which was

about 24 miles northeast of Denton, Montana. Shortly after work,

Gordon met some of his coworkers at the Denton bar for beer and
pool. They left the bar at approximately 10:00 p.m. and drove
toward Stanford, where Gordon customarily stayed, rather than

returning to Lewistown. Gordon was a passenger in a truck driven
by a co-worker who had his quarters in Stanford. A few minutes

after leaving the Denton Bar, the truck went off the road and
Gordon was killed.

Gordon's employment contract provided for $22 daily in

subsistence pay when working more than 54 miles from the home

office. In concluding that his compensation for travel qualified

the claimant for workers' compensation coverage, we reasoned as

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
 In this case, although Dale received a subsistence allowance

and was paid for each mile he traveled, he was not paid for

traveling to or from work. He was paid for the actual miles

traveled durinq work. Unlike Gordon, it was not an incentive to
get him to his place of employment. Also unlike Gordon, Dale's

subsistence pay was not an incentive to get him to work in a remote

location. We conclude that the Workers' Compensation Court was
incorrect in holding that Gordon was controlling here.

As for the alcohol consumption, we previously stated that the

alcohol factor alone does not establish a deviation from the course
and scope of employment. Gordon, 612 P.2d at 672. See also

Steffes v. 93 Leasing Co. (1978), 177 Mont. 83, 580 P.2d 450; and

Parker v. Glacier Park, Inc. (1991), 249 Mont. 225, 815 P.2d 583.
In Parker, we found no deviation from the course and scope of

employment, stating:
We refuse to overrule thirteen years of precedent to hold
that an employee who may be under the influence of
alcohol, without having abandoned the course of his
employment, is precluded from recovering under the
workers' compensation system.

Parker, 815 P.2d at 586. The claimant in Parker had not abandoned
the course and scope of his employment. Although he consumed

several beers, he had done so while also working on employment-

related tasks after driving to another work location. He wrecked
his car while driving back to the first work location to speak with

another employee about business-related matters. There was no

evidence that the claimant was acting outside the scope of his

employment at that time. Parker, 815 P.2d at 586.

8
 In this case, however, there is no evidence that Dale was

attending to employment-related matters. In Courser v. Darby

School Dist. #l (1984), 214 Mont. 13, 16-17, 692 P.2d 417, 419, we

discussed a four-part test to determine if an injury was work

related: (1) whether the activity was undertaken at the employer's

request, (2) whether the employer directly or indirectly compelled

the employee's attendance at the activity, (3) whether the employer

controlled or participated in the activity, and (4) whether both
employer and employee mutually benefitted from the employee's

attendance at the activity. Dale's actions do not fit within any

of these factors. For an injury received while traveling, there

must be some identifiable benefit to the employer. Steffes, 580

P.2d at 453. We conclude that Dale was injured during a six-hour

period when he had temporarily abandoned the course of his

employment and during which he attended to no employment-related

matters. During the deviation from his scheduled route, the
continuity of Dale's employment here was severed and remained so as

he had not returned to the point of deviation from the path of

duty.

Although the employer permitted its drivers to visit relatives

along the route, there is no evidence that visits such as Dale's

Miles City trip were contemplated. The employer's policy manual

states that the equipment is to be routed according to a computer

map and no deviations are allowed for off-route usage and that

equipment is not to be used for any reason as a personal conveyance

without prior authorization. Dale's supervisor testified that time

9
spent "goofing off" is considered "off-duty" or personal time of

the driver. Dale also testified that he considered himself to be
"off-duty" while he visited his sister. Dale testified that, as

far as he could remember, the sole purpose for the Miles City stop
was to visit his brother. During this "off-duty" time, he consumed

alcohol with his brother.

Dales visit to his brother was a substantial deviation from
Dale's employment. We reach the conclusion that there was a

substantial deviation in Miles City by applying the Ocren factors
to the facts of this case. The first Ooren factor is the amount of

time taken up by the deviation. Although the time spent here was

several hours less than in Oqren, when considered with the second

factor, whether the deviation increases the risk of injury, it
becomes substantial. Six hours of drinking with a companion and

then having that companion drive back six miles to the location of

the claimant's truck greatly increased the risk of injury.

Similarly, the third factor, the extent of the deviation in terms

of geography, becomes accentuated here, although it was a

relatively small deviation when compared with that in Oqren. When

considered in terms of the activity claimant engaged in, however,
it, too, becomes substantial. The fourth factor, the degree to

which the deviation caused the injury, is also significant here.

The deviation was the cause of the injury. The Workers'

Compensation Court deemed the geographical distance to be of

paramount importance here as in Oaren. However, other factors in

this case outweigh the significance of geographical distance.

10
 Applying the Ouren factors to this case, we conclude that

Dale's injury occurred while he was engaged in a substantial

deviation from his employment. We conclude, therefore, that the

Workers' Compensation Court erroneously held that Dale's acts were
within the course and scope of his employment.

We hold that Dale was not injured within the course and scope

of his employment.

II.
Did the Workers' Compensation Court correctly apply 5 39-71-
407(3), MCA?
Sections 39-71-407(2)-(4), MCA, were added by the legislature

in 1987. Section 39-71-407(l), MCA, remained intact. Section 1-2-

101, MCA, requires the courts to construe the several provisions of

a statute to give effect to all, if possible.

There is no evidence that the legislature intended to provide

that employees would be covered under 5 39-71-407(3) even though

they did not meet the § 407(l) requirement that the injury arise in

the course of employment. Nor is there evidence that the

legislature intended that traveling employees be covered 24 hours

a day, no matter what they are doing, how they are doing it, or how

far removed the activity engaged in by the employee is from the

employer's business purpose.
In applying 5 39-71-407(3), MCA, to the present action, the

Workers' Compensation Court judge concluded 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
 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
apply. (Emphasis in original.)
Section 407(3)(a)(i), MCA, states that workers are covered by
employers if the employer furnishes the transportation or the
employee receives reimbursement from the employer for travel costs
as part of the benefits of an employee agreement. Dale was paid
twenty one cents per mile driven, with six cents as "subsistence"

pay. Transportation was provided for Dale by the employer and he
received subsistence pay for meals, lodging and other travel costs
as part of his employment. There is substantial evidence that Dale
falls within § 39-71-407(3)(a)(i), MCA.
Dale contends that he also qualifies under 5 407(3)(a)(ii)
because travel is not only necessitated by and on behalf of the
employer, and is not just integral to the employment, but it & the
employment itself. He makes a similar argument under 5 407(3)(b).
Under both §§ 407(a)(ii) and (b), reference is made to "the travel"
not N'travel" in general. These sections refer to travel that is
necessitated by and on behalf of the employer or required by the
employer in order to carry out the job. The travel to Miles City
was necessitated by and on behalf of the employer; the side trip to
Miles City to visit the brother was not. The fact that the
employer allowed visits to family members along the route does not

12
transform such visits to travel contemplated by § 407(3). We

conclude that 5 39-71-407(3) does not require a change in the

conclusion reached above in Issue I.

Our conclusion is not without consideration of the employee's

needs when travel is the nature of the job. Indeed, no one can

argue that certain stops along the way are not essential for

eating, sleeping and taking breaks. These stops benefit the

employer as well as the employee. It is only when the employee
substantially deviates from the employer's business that he is not

covered for injuries arising during the time which can reasonably
be considered as the abandonment of the course of the employment.

We conclude the Workers' Compensation Court was incorrect in its

application of § 39-71-407(3), MCA.

III.

Finally, Dale argues that the Workers' Compensation Court

should have assessed costs against State Fund under 5 39-71-611,
MCA. However, Dale did not cross-appeal this issue and therefore,

this Court will not address the issue. "[T]he respondent must file

a cross-appeal when seeking review of issues not raised by

appellant." Baldwinv. Orient Express Restaurant (1990), 242 Mont.

373, 377, 791 P.2d 49, 51.

Reversed.

We Concur:

13
Justices

14
I respectfully dissent.

The first issue is whether the Workers' Compensation Court

erred in determining that David Dale was injured in the scope and

course of employment. The appellate scope of review is whether

there is substantial evidence to support the findings and

conclusions of the Workers' Compensation Court. This is the same

scope of review of a jury verdict. We have not adopted the broader

clearly erroneous scope of review in workers' compensation cases.
The clearly erroneous scope of review is in essence the standard

the Court by its decision is applying here.
The critical question is whether the claimant, an over the

road truck driver, in leaving the rig and the truckstop, and going

into Miles City proper and returning, made a substantial deviation
from his employment. The action of the claimant here was a
deviation. The ultimate fact question to be answered by a trial

court is whether, under the facts, it was substantial. The burden

of proof of a substantial deviation is on the employer. Steffes v.
93 Leasing Co., Inc. (1978), 177 Mont. 83, 89, 580 P.2d 450, 454.

First, claimant did not leave his route, which was between

Townsend, Montana and Mt. Clemens, Michigan on Interstate 94.
Miles City, Montana is on the route. The stop in Miles City was

both personal and business. The employer was only interested in

having the load delivered by a certain date. The driver is free to

relax within such time period. There was no company policy against

visiting relatives. Claimant was on his route and therefore within

the employer's policies. Eating, sleeping, resting and relaxation

15
would be a proper dual purpose errand for a traveling trucker.

Claimant's use of alcohol was not the cause of injury. The above

facts are substantial evidence for the Workers' Compensation Court

to determine the deviation to Miles City with his brother was not

such a substantial deviation so as to sever his employment. There

is also other substantial evidence to prove the contrary.

The Court, in its majority opinion, tries to distinguish the
case of Gordon v. H.C. Smith Const. Co. (1980), 188 Mont. 166, 612
P.2d 668. The differences pointed out are splitting hairs without

any meaningful distinction.
The Court also has discussed the four factors to be considered

as set out in Ogren v. Bitterroot Motors, Inc. (1986) t 222 Mont.
515, 522, 723 P.2d 944, 948. The claimant does well as to (1) and

(3), but not as well as to (2) and (4). There is substantial
evidence to support the fact finder what ever way it decides and

this Court should not substitute its judgment as to the ultimate

fact of whether there is a substantial deviation from employment.
I also would affirm the Workers' Compensation Court in its

construction of 5 39-71-407(3), MCA.

Justice William E. Hunt, Sr.,

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 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