dissenting:
I do not believe that the findings in this case were based on a clearly one-sided record or that the resulting legal determinations were capable of resolution without significant deliberation. Therefore, I find the commission’s imposition of attorney fees below and the majority’s imposition of attorney fees on appeal based on I.C. § 72-804 to be inappropriate and uncalled for in this case.
One need only read the majority's opinion to realize that both the legal and the factual conclusions made in this case were very close calls and could have gone either way. I.C. § 72-804 authorizes the award of attorney fees only in situations where both the factual and the legal issues are not subject to honest dispute. Under I.C. § 72-804 the Industrial Commission can assess attorney fees when an employer or his surety “contests a claim for compensation *564without reasonable ground.” However, the statute does not permit the imposition of attorney fees where there are justiciable factual or legal issues. The question in this case, therefore, is whether the surety acted unreasonably when it exercised its statutory right to seek a hearing before the Industrial Commission on the question of whether (1) Ohio law, rather than Idaho law, should apply to this case, and (2) whether or not the claimant was within the course and scope of his employment when he was returning from an evening’s eating, drinking and singing at the Eagles Lodge when the accident occurred at 9:30 p.m. The commission found that:
“The claimant in this case is entitled to an award of attorney fees because the defendant had no reasonable ground for asserting that Idaho had no jurisdiction over the claimant’s claim or that the claim was not in the course of his employment when the accident occurred.” (Emphasis added.)
However, the record, and even the commission’s own findings of fact, demonstrate that there were conflicting facts which make the final legal determination of whether Idaho or Ohio law applied to this case a difficult factual and legal question.
The claimant lived in the State of Washington, but he worked for an Idaho company; however, most of the work was performed outside the State of Idaho. Several weeks prior to the accident, the company had determined to open a regional sales office in Ohio, and the claimant was promoted from sales representative to the position of district sales manager of the new Ohio office and was transferred to that location. Pursuant to that promotion he terminated his residence in the State of Washington, had all of his furniture and belongings moved by a moving company to Ohio, and he then flew to Ohio to open the company office there and to obtain a residence in Ohio. He had in fact made a deposit on an apartment in Ohio prior to the time the accident occurred. Based upon that record, a finder of fact could justifiably have concluded that claimant’s employment was now in the State of Ohio, and not in the State of Idaho, which would have made Ohio law controlling and the Ohio Industrial Commission have the jurisdiction over any claim. The fact that the Industrial Commission ruled to the contrary does not make the factual issues and the choice of law question any less of a triable issue in this case.
Choice of law questions are never easily determined because of the varying interests involved. This case is no different.
“It has been said that the field of conflict of laws, more than almost any other field in law, is in a growing state, and that, being the most under-developed field in American jurisprudence from a practical standpoint, it is still breaking loose from the ‘ritualistic’ thinking of the last century toward a flexible and articulate selection of the laws governing multistate transactions.....But the difficulties and problems involved in devising ‘black-letter rules’ which are satisfactory to cover all situations have often been noted by both the textwriters and the courts.” 16 Am.Jur.2d Conflict of Laws § 1 (1979) (footnotes omitted).
In fact, by its very definition, when a conflict of laws exists no instant resolution to such a legal question is readily available.
“The Restatement Second of the Law of Conflict of Laws, published by the American Law Institute in 1971, defines ‘conflict of laws’ as that part of the law of each state which determines what effect is given to the fact that the case may have a significant relationship to more than one state; ‘local law’ as the body of standards, principles, and rules, exclusive of its rules of conflict of laws, which the courts of that state apply in a decision of controversies brought before them, and ‘law’ of a state as that state’s local law, together with its rules of conflict of laws.” 16 Am.Jur.2d Conflict of Laws § 1 (1979) (footnotes omitted, emphasis added).
The majority opinion in effect holds the surety to a higher standard of understanding than the judiciary of this country which at the present time has been unable to resolve with any unanimity the difficult conflict of law questions that are presented in these cases.
*565Likewise, in this case there were triable issues of fact with regard to whether or not Kirkpatrick was operating in the course of his employment at the time of the accident. The accident occurred on a Saturday evening at 9:30 p.m. well after normal working hours. The evidence shows that Kirkpatrick and another Transtector employee went out to supper around 4:30-5:30 p.m. They drank a beer during the dinner and then after a short stop at the hotel they proceeded to the Columbus Eagle Lodge where they drank beer and Kirkpatrick played the piano for several hours. On the way back to their hotel from the Eagles Lodge they stopped and purchased beer. Shortly after this stop the accident occurred.
There was certainly a triable issue of fact over whether or not claimant was within the course of his employment at the time of the accident. The resolution of this factual issue could be entirely different if Ohio law was applicable. Thus, the answer to the factual question of whether claimant was within the course of his employment at the time of the accident was directly related to the choice of law question. The resolution of these issues were valid legal and factual questions to be brought before the Industrial Commission by the surety.
In sum, the surety did not act unreasonably when it sought the Industrial Commission’s (and later this Court’s) adjudication of the two interrelated issues presented in this appeal. As noted by the majority, the surety did not withhold benefits. It voluntarily paid the claimant over $30,000 in benefits before it brought the question of whether Idaho or Ohio law applied, and whether the accident occurred in the course of the employment, before the Industrial Commission. Seeking a resolution of both these legal and factual issues, based on this record, cannot be considered unreasonable. Accordingly, attorney fees should not have been granted, either by the commission or by this Court on appeal.