No. 86-459
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
HAROLD J. LASSABE,
Claimant and Appellant,
-vs-
SIMMONS DRILLING, INC.,
Employer,
and
ARGONAUT INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cotter & Cotter; Michael W. Cotter argued, Great Falls,
Montana
For Respondent:
Garlington, Lohn & Robinson; Robert E. Sheridan argued,
Missoula, Montana
Submitted: June 2 , 1987
Decided: August 17, 1987
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Claimant appeals the order of the Workers1 Compensation
Court denying him Workers1 Compensation benefits for injuries
he received in an automobile accident. We reverse the order
of the Workers1 Compensation Court and remand the case for
further proceedings.
Claimant Harold J. Lassabe filed a petition with the
Workers1 Compensation Court after Argonaut Insurance Company,
the insurer for Simmons Drilling, Inc., denied liability for
Lassabels injuries and refused to pay benefits to him. Prior
to trial, the parties stipulated that the issue of liability
on the part of Simmons Drilling would be litigated separately
from the questions of disability benefits, costs and attorney
fees. The sole issues submitted to the Workers1 Compensation
Court at the hearing were:
1. Whether Lassabe was an employee of Simmons Drilling
at the time of the automobile accident?
2. Whether Lassabe was within the course and scope of
his employment for Simmons Drilling at the time of his
accident?
Since the Workers1 Compensation Court found it could
decide the case by a preponderance of probative credible
evidence on the second issue, the court held that Lassabe was
not in the course and scope of his employment when he was
injured and did not reach the first issue. Lassabe has
appealed the court's judgment on the above two issues.
Simmons Drilling is a corporation involved in oil
exploration and drilling operations. In January, 1982,
Simmons Drilling had a drilling rig operating approximately
40 miles southwest of Newcastle, Wyoming. Drilling crews
working on the rig had temporary living quarters at a motel
in Newcastle. The crews worked a twenty-one day on, seven
day off schedule. During their seven days off, the crews
were free to come and go as they pleased.
Alvin Robinson was a driller for Simmons Drilling. In
mid-January, 1982, he returned to his home in Kevin, Montana,
during his seven days off. While he was there, he hired a
crew to work for him on the Newcastle rig. Among those whom
he contacted to work was Harold Lassabe. Robinson arranged
for Lassabe and two other men to drive Robinson's car from
Kevin to Newcastle so the crew could begin work on the
midnight tower January 24. On the morning of January 23,
Robinson and his wife left for Newcastle, followed by the
drilling crew in Robinson's car. North of Vaughn, Montana,
the car carrying the drilling crew was involved in an
accident. Lassabe, who was in the front passenger seat, hit
his head on the windshield and injured his neck, lower back
and left side. Lassabe was taken to a hospital in Great
Falls, and the remainder of the crew and the driller Robinson
continued on to Newcastle. Robinson reported the accident to
the rig manager when he arrived in Newcastle.
Montana law provides that an employee who receives an
injury arising out of and in the course of his employment is
entitled to disability benefits. Section 39-71-407, MCA.
Before considering whether Lassabe was acting within the
course and scope of employment, the basic premise of
employment must be established. Guarascio v. Industrial
Accident Bd. (1962), 140 Mont. 497, 499, 374 P.2d 84, 85.
Whether or not Lassabe was an employee of Simmons Drilling at
the time of the accident depends on whether or not there was
an employment contract between the two parties. - at
Id.
499-500, 374 P.2d at 85. An employment contract may be
expressed or implied, oral or written. Section
39-71-118 (1)(a), MCA.
The Workers' Compensation Court found that Robinson was
the driller employed by Simmons Drilling on the Newcastle
project to supervise one of the crews. Robinson, as the
driller, had the responsibility of rounding up his own crews.
The court found that the "ultimate responsibility or
authority to accept [a crew member] for employment" was with
the rig manager or "tool pusher," that position being filled,
at the time of the accident, by a man named John Chamber.
However, Chamber himself testified that in actual practice he
never refused employment to any person Robinson brought out
to the rig. Chamber further testified that in his
twenty-five years of experience in the oilfield as a hand,
driller, and tool pusher, the customary practice was for the
tool pusher to hire the driller, and for the driller to hire
his own crew. The driller was the direct supervisor of his
crew, and arranged for all the transportation of the crew to
the drilling locations.
Thus in the practice of oilfield hiring, when Robinson
contacted Lassabe and the other crew members to come to work
for him, and when he thereafter arranged for them to drive in
his car and arrive in Newcastle the following day, such
conduct by the driller would reasonably lead Lassabe to
conclude he was employed. The three crew members had with
them in the car at the time of the accident all of their
workclothes, hardhats, boots and other equipment for working
on the rig. Lassabe and another crew member testified it was
their understanding they were to begin their shift upon
arrival in Newcastle, after checking into the motel where the
crew was housed. We hold that the above facts are sufficient
to lead a reasonable person to believe he was employed. Such
a reasonable belief as to employment is all that is needed to
find a person is an employee. Guarascio, 140 Mont. at 500,
347 P.2d at 85.
We next turn to the issue of whether Lassabe was within
the course and scope of his employment. The general rule is
that injuries sustained by an employee while going to or from
work are not compensable. Christian v. Nicor Drilling Co.
(Okla. 1982), 653 P.2d 185, 186; Hagerman v. Galen State
Hospital (1977), 174 Mont. 249, 251, 570 ~ . 2 d 893, 894. A
number of exceptions have arisen to this general rule. Some
exceptions are applied when the employer provides
transportation to the job site, or pays travel expenses, or
whenever the nature of the work itself creates a necessity
for travel. Christian v. Nicor Drilling Co., 653 P.2d at
186; Austin Drilling Co. v. Rice (Okla. App. 19801, 616 P.2d
446, 450 (citing Fluor Engineers & Contractors, Inc. V.
Kessler (Okla. 1977), 561 P.2d 72, 74). The Oklahoma Supreme
Court has enunciated the policy behind these exceptions:
These exceptions rest on the law's awareness that
in certain situations both the employer and the
employee derive mutual benefit from the inclusion
of travel in the course of employment. This is
particularly true of the oil industry. When
drilling sites are at locations remote from
population centers, transportation is commonly
provided by the employer for the mutual benefit of
all parties.
Christian v. Nicor Drilling Co., 653 P.2d at 186 (footnotes
omitted).
In Guarascio, this Court stated, "an injury suffered by
an employee while performing an act for the mutual benefit of
the employer and employee is compensable, because when some
advantage to the employer results from the employee's
conduct, his act cannot be regarded as purely personal and
wholly unrelated to the employment." Guarascio, 140 Mont. at
501, 347 P.2d at 86. In this case, the benefit to the
employer Simmons Drilling is to have a dependable crew ready
so the rig can run continuously. If the driller failed to
show up with a crew, the rig would have to shut down, or the
previous crew would have to be kept on at overtime pay. In
either case the company would lose money. It was Simmons
Drilling's policy to have the driller round up his own crew
and transport them to the rig in time for the next shift.
Alvin Robinson was in the course of doing just that when the
accident occurred which injured Lassabe. Moreover, the
single purpose of Lassabe's trip was to go to the site of his
employment in a transportation mode furnished by the driller,
all to the benefit of the employer.
We hold that Lassabe, as an employee of Simmons
Drilling, was within the course and scope of his employment
at the time of the January 23 accident.
The judgment of the Workers' Compensation Court is
reversed, and the case is
We Concur:
Chief Justice
Justices /)
Mr. Justice Fred J. Weber dissents as follows:
I disagree with the majority conclusion that Mr.
Lassabe was injured within the course and scope of his em-
ployment. The majority refers to Simmons Drilling's policy
of having the driller round up his own crew and transport
them to the rig in time for the next shift. It is true that
Simmons Drilling paid the driller mileage for using his own
car to transport the drill crew from Newcastle, Wyoming, to
the drill site, which was classed as a remote site. We must
distinguish that from the present trip. Here, the driller
was returning from his seven-day sabbatical during which he
did not work. Simmons Drilling did not pay anything to the
driller for driving his own car from Shelby, Montana, to
Newcastle, Wyoming, a distance of several hundred miles.
The general rule with regard to payment of travel
expense or furnishing of a vehicle by the employer is summa-
rized in 1 Larson, Workmen's Compensation Law, S 1 6 . 3 1 at
4 - 1 8 1 and 4 - 2 0 0 ( 1 9 8 5 ) :
However, in the majority of cases involving a
deliberate and substantial payment for the expense
of travel, or the provision of an automobile under
the employee's control, the journey is held to be
in the course of employment. This result is usual-
ly correct, because when the subject of transporta-
tion is singled out for special consideration it is
normally because the transportation involves a
considerable distance, and therefore qualifies
under the rule herein suggested: that employment
should be deemed to include travel when the travel
itself is a substantial part of the service
performed.
The numerous cases upon which Larson bases his conclusion
cover situations where the employer pays a deliberate and
substantial payment for the expense of travel or provides an
automobile. Neither of these conditions is present here.
The present case does not fit any of the recognized excep-
tions to the general rule which establishes that travel to
and from work is not covered by workers' compensation. The
effect of the majority opinion is to create a new exception
which could be placed under the general heading of "general
benefit to employer."
As authority for its conclusion, the majority cites
Guarascio. That case is significantly different from the
present case because Mr. Guarascio was to receive compensa-
tion for the time spent traveling to Butte. Guarascio, 374
P.2d at 86. There is no comparable arrangement in the
present case. Travel or travel time which is paid for by the
employer is distinct from ordinary travel time by any employ-
ee from his place of residence to his place of work. Because
Mr. Lassabe was not compensated in any way for his travel
time from Shelby, Montana, to Newcastle, Wyoming, the majori-
ty's opinion raises many new questions.
For example, what decision should be reached if the
driller himself had been injured in the accident? It seems
clear to me that we could not find this was in the course of
his employment because no payment was made by the employer to
the driller for either travel time or travel expense. Cer-
tainly Mr. Lassabe should not have a greater right than the
driller, an already existing employee.
The majority points out that the single purpose of Mr.
Lassabe's trip was to go to the site of his employment in a
transportation mode furnished by the driller, all for the
benefit of the employer. The mode of transportation was
furnished by the driller; it was not furnished by the employ-
er. Standing alone, benefit to the employer has never been a
sufficient basis to hold that an employee was within the
course and scope of his employment.
I would affirm the determination that Mr. Lassabe was
not within the course of his employment at the time of the
accident.
Chief Justice J. A. Turnage and Justice L. C.
Gulbrandson concur in the foregoing dissent.