Ogren v. Bitterroot Motors, Inc.

No. 85-237
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

KATHRYN ALBERT OGREN, Beneficiary of
ERIK R. OGREN, Deceased,
Claimant and A-ppellant,
VS.

BITTERROOT MOTORS, INC.,
Employer,
and
ORION GROUP, INS.,
Defendant and Respondent

APPEAL FROM: Workers' Compensation Court, State of Montana,
The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Snavely and Philips, P.C.; Donald V. Snavely and
Robert S. Marcott, Missoula, Montana,

For Respondent:
Garlington, Lohn and Robinson; Larry Riley,
Missoula, Montana.

Submitted on Briefs: March 28, 1986
Decided: August 12, 1986

Filed : AUG 1 2 1986

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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

Kathryn Ogren, claimant and beneficiary of Erik Ogren,
brought this action in the Workers' Compensation Court seek-
ing to recover workers' compensation benefits for the death
of her husband. Subsequent to the trial, the court issued
its findings of fact and conclusions of law wherein it held
that Erik Ogren was not acting within the course and scope of
his employment at the time of the fatal car accident. Judg-
ment was entered denying claimant's petition for benefits,
and claimant appeals. We affirm.
The basic facts of this case are not in dispute and
were admitted by stipula.tion. Erik Ogren was President-Owner
and General Manager of Bitterroot Motors, Inc. (Bitterroot),
located in Missoula, Montana. Bitterroot, respondent herein,
was enrolled in a workers' compensation plan under a policy
issued by Orion Group, Inc., also the respondent. Appellant
was married to Erik at the time of the accident.
On the morning of Friday, July 13, 1984, Bill Petritz,
then the Comptroller for Bitterroot, asked Erik for permis-
sion to leave early that day. Petritz wanted to go to Great
Falls primarily to attend a family reunion. He had planned
also to pick up his father's car and drive it back to
Missoula to have some work done on it at Bitterroot Motors.
Erik told Petritz that he could leave early. However, that
day was one of the busiest on record for the dealership, and
Petritz was unable to leave when he had planned to. Around
noon, Erik offered to fly Petritz to Great Falls in the
company plane so that Petritz could work until 5 : 0 0 p.m., and
he accepted.
At the same time, Erik's daughter, Kristi Ogren, was
attending a beauty pageant function in Sheridan, Wyoming.
Originall.y, Kristi was supposed to leave Sheridan by bus
Friday night and arrive in Billings. From there, she was to
take a commercial flight to Missoula. However, during the
early afternoon of the 13th, Erik told appellant that he was
flying to Great Falls and that he might be able to go on to
Sheridan to pick up Kristi. Before he left for Great Falls,
Erik called appellant again to tell her that he definitely
was going to Sherida.n to pick up their daughter after
dropping Petritz off in Great Falls.
Appelant testified that prior to the 13thf she and Erik
had talked about Erik flying down to Sheridan to pick up
Kristi, but he said that he could not do it. However,
Petritz stated to an insurance adjuster shortly after the
accident that when he and Erik first discussed the trip to
Great Falls, Erik said: "Well, I have to go out anyway, mayhe
I will just drop you off in Great Falls." Although at trial
Petritz could not specifically remember Erik making that
statement, he did remember relating that statement to the
adjuster and believed that Erik could have made that
statement.
Erik and Petritz left Missoula in the company plane at
around 5:00 Friday afternoon. After stopping in Great Falls
t: let off Petritz, Erik flew on to Sheridan.
c, The plane
developed engine trouble at the Sheridan airport, and Erik
decided to rent a car and drive home. After picking up
Kristi, they drove to Billings where Erik phoned his wife.
She strongly suggested that they stay at a motel for the
night but Erik refused, stating that he must get back to
Missoula because he had a business meeting at 10:OO Saturday
morning. Erik and Kristi left Billings around 1:00 Saturday
morning; however, Erik fell asleep only a few miles outside
of Missoula and lost control of the car. Both Erik and
Kristi were killed when they were thrown from the car.
 The only issue raised on appeal is whether Erik Ogren
was killed while he was acting in the course and scope of his
employment with Bitterroot.
The general standard to be applied in determining
whether an employee is entitled to workers' compensation
benefits is provided by S 39-71-407, MCA:
Every insurer is liable for the payment
of compensation ... 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.
It is the application of this broad standard to the facts of
particular cases that often proves difficult; however, this
case does not present such a problem.
Appellant readily admits that the plane trip from Great
Falls to Sheridan, Wyoming, was a purely personal trip. She
could not logically argue otherwise. Kristi Ogren was not
employed by Bitterroot, nor did she have any connection with
it other than having a father who was employed there. More-
over, Erik's only purpose in going to Sheridan was to pick up
his daughter so that she would not have to travel home alone.
Thus, it is undisputed that when Erik flew from Great Falls
to Sheridan, he was not acting within the scope of his
employment.
Appellant contends, however, that Erik's trip from
Missoula to Great Falls was in the course of his employment,
as was his trip from Sheridan back to Missoula. Since he was
killed while performing some reasonably immediate service to
his employer i .e. , driving to Missoula in order to meet a
business appointment), appellant is entitled to workers'
compensation benefits. Appellant also contends that her
husband's death is cornpensable under the deviation rule, the
dual purpose rule, and the going and coming rule. We cannot
agree with appellant's analysis on any of these theories.
 In construing what "arising out of and in the course of
his employment" means, the general principle that has devel-
oped was first enunciated in Morgan v. Industrial Accident
Board (1958), 133 Mont. 254, 321 P.2d 232, and reaffirmed
recently in Steffes v. 93 Leasing Co., Inc. ( 1 9 7 8 ) ~
177 Mont.
83, 580 P.2d 450. The Court in Morgan stated:
What is the underlying principle? In
cases where some reasonably immediate
service to the employer can be discerned
the claim has been sustained. Where
there has been no reasonably immediate
service, the claim has been denied.
Such impresses us as a fundamental rule
and guide for the liberality to which
this court is necessarily and properly
committed ...
Morgan, 321 P.2d at 236. Thus, the question to be decided in
this case is: Did Erik Ogren perform some reasonably immedi-
ate service to his employer when he flew to Sheridan to pick
up his daughter and then drove through the night back to
Missoula?
As stated earlier, the trip from Great Falls to
Sheridan had no connection of any kind with Erik's
employment. Moreover, it is just as certain that the trip
from Sheridan to Missoula was not made in the course and
scope of his employment. The fact that he was going to
Missoula to attend a business meeting is not sufficient,
standing alone, to bring him within the ambit of his employ-
ment. Saturday was a regular work day for Erik and the
meeting was at his usual place of work. Further, he was
certainly planning to go home first to drop off Kristi before
leaving for his meeting. If he had been out of town on a
personal weekend trip and had to be back at work Monday
morning, and was involved in a car accident during the night
while driving back to town, there would be no question that
the accident would. not be within the scope of his employment.
The situation before us is not materially different from the
one given in the example. The service that Erik was perform-
ing for his employer in driving to Missoula to attend a
business meeting at his regular work place on a regular
workday is the same as the service that every other employee
performs in driving to his usual place of work. However,
this Court has consistently held that the "going and coming
rule" is a "well-established principle in Workers' Compensa-
tion law which denies compensation benefits for injuries
sustained by an employee traveling to or from the regular
work place." Courser v. Darby School Dist. No. 1 (~ont.

Appellant attempts to bring her case under the excep-
tions to the "going and coming rule." Those exceptions were
set forth in Hagerman v. Galen State Hospital (1977), 174
Mont. 249, 251, 570 P.2d 893, 894, wherein the Court stated:
Throughout the years this State has had
workers' compensation, this Court has
considered a number of cases where
injuries were sustained going to or
coming from work and has found no recov-
ery unless employee travel pay was
covered under the employment contract or
that travel allowance was for travel for
the special benefit of the employer.
See also, Correa v. Rexroat Tile (Mont. 1985) 703 P.2d 160,
42 St.Rep. 1075. The fact that the expenses for operating
the company plane and for renting the car were pa.id for by
the employer does not mean that Erik's travel pay was covered
under an employment contract. No evidence was submitted of
an employment contract between Erik and Bitterroot which
specifically authorized that Erik be paid a definite travel
allowance in connection with his employment. Rather, this
seems to be simply a situation where the president of a
company has a company credit card and uses it at his discre-
tion, which is not sufficient, by itself, to come within the
exception to the general rule. Furthermore, the trip from
Sheridan to Missoula was not made for the special benefit of
the employer. It is hard to imagine how traveling to one's
regular work place on a regular workday can be for the spe-
cial benefit of an employer. Therefore, appellant does not
fall within either exception to the "going and coming rule."
Appellant goes to great lengths to show that the flight
from Missoula to Great Falls was for a business purpose so
that the personal trip to Sheridan can be viewed as merely a
minor deviation from a trip with an overall business purpose.
Considering Petritz's testimony that at the time Erik offered
to fly Petritz to Great Falls, Erik stated that he had to go
out anyway, the fact that Erik's purpose in flying Petritz to
Great Falls was more of a friendly gesture than truly busi-
ness motivated, and the strong likelihood that the entire
trip was motivated by the desire to pick up Kristi in
Sheridan, we have serious doubts whether the trip to Great
Falls was one within the course and scope of Erik's employ-
ment. However, it is unnecessary to decide that question
because it is clear that the trip from Great Falls to
Sheridan and then to Missoula was not one arising out of his
employment.
The benefit, if there was any, received by Bitterroot
from the trip to Great Falls ended once Erik let Petritz off
at the airport. Erik performed no service of any kind for
Bitterroot when he flew to Sheridan to pick up Kristi nor did
he perform any reasonably immediate service in driving
through the night in order to arrive in Missoula by morning.
It is a strain on reason to accept the argument that the
decedent was performing some reasonably immediate service to
his employer in going to Sheridan for a purely personal
reason and in driving to his home to drop off his daughter
before he left for work. Therefore, we hold that Erik was
not killed while performing some reasonably immediate service
to his employer.
 Appellant contends that the deviation rule also
supports her claim for benefits. We disagree.
It is true that if Erik had gone to Great Falls for the
"specia.1 benefit" of his employer, the return trip back to
Missoula would have been within the course and scope of his
employment. Under the deviation rule, if an employee leaves
the area or route where his job requires him to be to pursue
an objective solely to benefit himself, the employment
connection is severed throughout the deviation. If the
employee returns to his employment from the deviation and is
subsequently injured, his injuries would be compensable under
workers' compensation. See Steffes, supra. However, if a
deviation is found to be substantial or major, the employment
relation is completely severed, and the employee cannot
re-enter the scope of employment even though he is proceeding
home from a trip that was originally employment motivated.
Other jurisdictions considering this issue have found this
rule applicable under the facts presented.
In Calloway v. State Workmen's Compensation (w. Va.
1980), 268 S.E.2d 132, the claimant was employed as an
outside salesman and was sent with a fellow employee to
another county to solicit business. The claimant made a
business call while in the county and then began to visit
relatives and have a few drinks at various t-averns. Around
11 p.m. he started home, but before he reached his home, he
was involved in a car accident. In denying compensation to
the claima.nt, the court stated:
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 - - ceased the
he has
deviation and is returnins to the
business route -7
0 purpose. * ( ~ r ~ h a s i s
added. )
Calloway, 268 S.E.2d at 135. See also Bush v. Parmenter,
Forsythe, Rude, and Dethmers (Mich. 1982), 320 N.W.2d 858;
Carter v. Burn Construction Company, Inc. (N.M. 1973) 508
P.2d 1324; Hebrank v. Parsons (N.J. 1965), 212 ~ . 2 d579.
The determination of whether a deviation is substantial
or not depends upon the particular facts of each case.
Factors important in arriving at this determination include:
(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.
Applying these factors to the facts of the case before us, we
find the deviation to be substantial.
First, the deviation was substantial in relation to
time. Erik left Great Falls around. 6 p.m. on a Friday
evening going toward Sheridan. He did not return to the
business route from the deviation until 5 a.m. Saturday
morning -- a deviation in time of around eleven hours.
Appellant contends that if the plane had not broken down in
Sheridan, the deviation would have lasted only a couple of
hours. That may he true; however, we cannot resolve the
issues before us on the basis of what might or could have
been. We must look to the facts as they actually occurred.
Under the facts presented, the deviation lasted eleven hours.
Second, the deviation substantially increased the risk
of injury to Erik. Had he left Great Falls in the plane and
gone directly back to Missoula, Erik would have arrived in
Missoula at around 7 p.m. Even if he had taken a car from
Great Falls to Missoula, he would have arrived at around. 9
p.m. However, because Erik went to Sheridan on a personal
mission, he had to drive through the night after working hard
all day in order to get back to Missoula by Saturday morning.
He had to fly and drive an extra eleven hours just for the
deviation which obviously contributed to his falling asleep
while d-riving. Thus, the deviation greatly increased the
risk of injury to Erik.
Third, the deviation bras substantial in relation to
geography. It is approximately 336 highway miles for a round
trip from Missoula to Great Falls. However, the total
mileage of the deviation was approximately 744 highway miles
-- over twice the distance of the business trip. This is

clearly a case where the personal deviation completely
dwarfed the business purpose.
Fourth, the deviation was the direct cause of the
accident. Erik fell asleep at the wheel of his car after
driving almost ten hours through the night. The only reason
that Erik had to drive so long was because he went to
Sheridan to pick up his daughter. Thus, the business trip to
Great Falls had little connection with Erik's death.
Therefore, since the deviation involved here was
substantial, the employment relation was completely severed,
and Erik could not re-enter the course of his work. The fact
that he was proceeding home and was killed while on the
original business route is not relevant since the business
purpose of the trip had been abandoned.
Finally, appellant contends that the dual purpose rule
also applies to allow recovery. This assertion is without
merit. There was no dual purpose in Erik's going to
Sheridan; there was only one purpose and it was personal.
Bitterroot did not compel Erik to go to Sheridan. He
undertook that trip solely to benefit his family. Under the
d-ual purpose doctrine, an employee is within the scope of his
employment when he is traveling on some substantial mission
for his employer, even though he may simultaneously be on a
personal errand. Steffes, supra. Erik was not on any
mission, substantial or otherwise, for his employer
subsequent to the time he left Great Falls.
As a final word, it should be noted that we decide this
case based solely on the facts presented before us. What may
be a reasonably immediate service of the employee in one case
may not be so in another depending on the particular facts
presented. Likewise, what may be a deviation in one case may
not be so in another. Particularly in this area of the law,
the facts of the individual case determine the result for
that case. With this said, the judgment of the Workers'
Compensation Court denying benefits to appellant is affirmed.

We concur:

Justices
Mr. Justice William E. Hunt, Sr., dissenting:

I dissent.
The decedent, Erik Ogren, was killed in the course and
scope of employment under the dual purpose and deviation
rules.
The dual purpose rule is defined as follows:
Under the dual purpose doctrine, an employee may,
while traveling, be on an errand of his own, but if
he is at the same time on some substantial mission
for his employer, he may be said to be within the
course of his employment. If the work of the
employee creates the necessity for travel, the
employee is in the course of his employment though
he is serving at the same time some purpose of his
own. If, however, the work has had no part in
creating the necessity for travel, i.e., if the
journey would have gone forward though the business
errand had been dropped and would have been
cancelled upon failure of the private purpose
though the business errand was undone, the travel
is personal and not in the course of employment.
N. Grossfield, Montana Workersv Compensation Manual, S 4.24
at 21 (1979).
Ogren offered to fly an employee, Petritz, to Great
Falls so that the employee could work a full day and still
attend a family reunion. Kathryn Ogren testified that Erik
discussed the trip with her on Friday afternoon. He stated
that Petritz needed to go to Great Falls but was also needed
at work, so he was flying Petritz to Great Falls and could
possibly pick up their daughter in Sherid.an. Clearly, this
trip meets the definition of the dual purpose rule. The
necessity to travel was created by the work of the employee.
Petritz was needed in Missoula, but also needed to get to
Great Falls that day. Petritz testified he believed Erik had
said he was going to take the trip anyway. However, from the
record I cannot agree that "the journey would have gone
forward though the business errand had been dropped and would
have been cancelled upon failure of the private purpose
though the business errand was undone." The purpose of the
trip was dual: to enable Petritz to work a full day in
Missoula and still attend a reunion in Great Falls; and, to
pick up Ogren's daughter in Sheridan and bring her to
Blissoula. Since Ogren's trip involved a substantial benefit
to his employer, the trip was within the course and scope of
his employment.
Ogren should also recover under the deviation rule.
That rule is defined as follows:
Under the deviation rule, when an employee departs
from the area where his job requires him to be to
pursue an objective which is not essential or
incidental to any service he is being paid to
perform, the continuity of the employment is
severed, and remains severed until he returns to
the point of deviation from the path of duty. The
character of the employee deviation, whether
pronounced or relatively inconsequential, and the
materiality and purpose thereof, are given
consideration in determing the applicability of the
rule. Equal consideration is also given to the
reasonableness of the employee's behavior in the
light of all the circumstances, and whether the
deviation caused or contributed to the injuries
suffered. Time and space are considered in
determining whether the rule is applicable. A line
of demarcation between the disqualifying deviation
and one which does not disqualify is ordinarily a
matter of judgment for the trier of fact.
N. Grossfield, Montana Workers' Compensation Manual, S 4.25

The majority holds that Ogren's trip from Great Falls to
Sheridan was such a major deviation as to totally sever the
employment connection. I disagree. Clearly the trip from
Missoula to Great Falls was for a business purpose. The trip
from Great Falls to Sheridan was a d.eviation, but not such a
major deviation as to totally sever the business connection.
Ogren was travelling in a twin engine airplane capable
of covering the 280 air miles from Great Falls to Sheridan in
less that 90 minutes. Had he not had engine trouble in
Sheridan, and been able to fly back to Missoula there would
have been no need to travel without rest in order to reach
Missoula in time to be at his employment as he planned to do
when he left on the trip. Such a deviation did not totally
sever the business connection. Once Ogren began the trip
back to Missoula, the deviation ended and he was once again
in the course and scope of his employment.
This case is similar to a case cited by the majority,
Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580
P.2d 450. In Steffes, an employee travelled from Missoula to
Seeley Lake to exchange an automobile for that belonging to a
customer. In Seeley, the employee met the customer in a bar
and spent several hours drinking. He then discovered the car
he was driving had been stolen. The employee left Seeley
with a friend and headed toward Missoula. He was involved in
an automobile accident on the way and was killed. Although
the employee intended to spend the night in Seeley, he wanted
to return to Missoula to look for the missing car. We held
that his death was compensable. The employee fell within the
purview of the dual purpose rule and we held that "the
evidence shows that Steffes' trip back to Missoula was for
the benefit of his employer and he was acting in the course
and scope of his employment at the time of his death."
Similarly, Ogren's trip to Great Falls was for the
benefit of his employer and in the course and scope of his
employment. While the trip to Sheridan was a deviation, the
deviation ended when Ogren started back toward Missoula.
Kathryn Ogren testified that she suggested Ogren remain in
Billings overnight given the lateness of the hour. Ogren
refused, stating he had to be in Missoula by 10:OO the
following morning for a business meeting. The drive to
Missoula in the early morning hours of July 14, 1984, was for
the benefit of the employer, and he was acting within the
course and scope of his employment at the time of his death.
I would reverse the Workers' Compensation Court.

We concur in the foregoing dissent.05 Justice Hunt:

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Justice