Kessler on Behalf of Kessler v. Payette County

• Decision Date: 14 March 1997
• Docket Number: No. 22583,22583
• Citation: 129 Idaho 855,934 P.2d 28
• Parties: Lenore KESSLER, on behalf of Robert F. KESSLER, (Deceased), Claimant-Appellant, v. PAYETTE COUNTY, Employer, and State Insurance Fund, Surety, Defendants-Respondents. Boise, December 1996 Term
• Court: Idaho Supreme Court

Page 28

934 P.2d 28

129 Idaho 855

Lenore KESSLER, on behalf of Robert F. KESSLER, (Deceased), Claimant-Appellant, v. PAYETTE COUNTY, Employer, and State Insurance Fund, Surety, Defendants-Respondents.

No. 22583.

Supreme Court of Idaho,

Boise, December 1996 Term.

March 14, 1997.

Jim Jones & Associates, Boise, for appellant. Jim Jones argued.

Alan G. Lance, Attorney General, David J. Lee, Deputy Attorney, Boise, for respondent. David J. Lee argued.

TROUT, Chief Justice.

I. BACKGROUND AND PRIOR PROCEEDINGS

Lenore Kessler, the Claimant-Appellant, seeks death benefits under Idaho's Worker's Compensation Law for the death of her husband, Robert F. Kessler (Kessler). Kessler, who was a Payette County reserve deputy sheriff on the warrants entry team, was shot to death while state law enforcement officers were serving an arrest warrant on Kessler. The Industrial Commission (Commission) denied benefits, reasoning that Kessler's death did not arise out of and in the course of his employment. The Commission further found that, even if Kessler's death arose out of and in the course of his employment, his death was proximately caused by his wilful intent to injure another and that his widow, thus, was not entitled to benefits.

At the outset, it must be noted that, for purposes of the Commission's decision, the parties stipulated to the events that occurred before Kessler entered the Payette County Sheriff's Office December 14, 1992. Additionally, the parties agreed that the Commission could consider the recitation, as relayed by the officers who served the arrest warrant on Kessler, of the events that occurred after Kessler entered the sheriff's office, although A warrant had been issued December 13, 1992 for Kessler's arrest on charges of lewd and lascivious conduct with a minor, statutory rape, and rape December 13, 1992. The Payette County prosecutor requested that the Idaho state police crisis response team (CRT) serve the warrant. Because Kessler had served as a Green Beret and was a martial arts expert, the CRT and local law enforcement officers concluded that extra precautions were needed to ensure that the CRT could safely arrest Kessler. Accordingly, the officers devised a plan to deceive Kessler into appearing at the Payette County Sheriff's office, where members of the CRT would be positioned to arrest Kessler.

Lenore Kessler did not agree to the truthfulness of that recitation.

On December 14, 1992 at approximately 8:10 p.m., Sgt. Ronda Kincaid (Sgt. Kincaid) of the Payette Police Department contacted Kessler in person at his karate school. Sgt. Kincaid notified Kessler that the warrants entry team was assembling at the sheriff's office and that Kessler immediately should report for duty to the sheriff's office. In reality, Kessler was not scheduled for duty that night, and the summons simply was a pretext for arresting Kessler.

Approximately ten minutes after Kessler received Sgt. Kincaid's notification, Kessler arrived at the Payette County Sheriff's office in possession of the approved handgun Kessler was required to carry while on duty. Officers Steve Jones (Jones), Mike Nauman (Nauman), Wayne Marsh (Marsh), Dave Case (Case), and Jay Jensen (Jensen), all of whom were members of the CRT, were positioned inside the building to arrest Kessler when he arrived. The Commission then summarized in its findings the subsequent events:

After Kessler entered through the double doors at the south entrance to the building, the automatic door locks were triggered by State Police Officer Dave Miller (not a member of the CRT team) who was present inside the building. Unaware of the fact that the doors had been locked, Kessler proceeded north down the hallway until Officer Jay Jensen appeared from a door on the west side of the hall, aimed his weapon at Kessler and stated, "State Police, you are under arrest." Immediately after Officer Jensen issued this command, Officers Marsh and Case approached Kessler from the west side hall door directly adjacent to Kessler and then sprayed him with Capstun, a pepper mace substance. Kessler covered his face with both hands and retreated back towards the south entrance doors. Throughout his retreat Kessler was instructed by CRT team members to stop and position himself on the ground. When Kessler reached the south entrance doors he slowed and then lunged at the doors in an apparent attempt to exit the building. Upon realizing that the doors were locked, Kessler briefly hesitated, turned to his left, crouched down, drew his weapon and pointed it in the direction of the dispatch office door on the right side of the corridor where Officers Jones and Nauman were positioned. In response to Kessler's movement, Officers Jones, Nauman and Marsh opened fired [sic]. The evidence collected at the scene suggests that Kessler did not discharge his weapon.

The autopsy report revealed that Kessler suffered multiple bullet wounds, one of which proved fatal. The Payette County Sheriff, on behalf of Lenore Kessler, filed a notice of claim for worker's compensation benefits. Payette County, Kessler's employer, and the State Insurance Fund (SIF) contested the claim. As indicated above, the Commission denied benefits, and Lenore Kessler now pursues this claim for benefits, contending that Kessler was injured in the course and scope of his employment.

Based upon the officers' version of what happened after Kessler entered the building, the Commission independently found that it was foreseeable that Kessler would report, as requested, with his handgun, that Kessler resisted arrest, that Kessler drew his handgun, that Kessler was not engaged in any employment related duty when he resisted arrest, and that Kessler assaulted the officers who were serving the arrest warrant. The Commission, therefore, based its finding that Kessler's death was not caused by an accident arising out of or in the course of his employment upon the stipulated facts, the

officers' recitation, as well as the facts the Commission independently found. Although the Commission denominated these independent findings to be legal conclusions, they are factual findings, and we accordingly review them as factual findings.

II. ISSUES ON APPEAL

A. Standard Of Review

It is particularly important to note that whether an injury arose out of and in the course of employment is a question of fact to be decided by the Commission. Reinstein v. McGregor Land & Livestock Co., 126 Idaho 156, 879 P.2d 1089 (1994). Although this Court may review the Commission's factual findings, this Court must limit its review to determining whether the Commission correctly denied benefits after it applied the law to the relevant facts. Morgan v. Columbia Helicopters, Inc., 118 Idaho 347, 796 P.2d 1020 (1990). This Court may not set aside findings of fact that are supported by substantial competent, although conflicting, evidence, see I.C. § 72-732(1); Gradwohl v. J.R. Simplot Co., 96 Idaho 655, 534 P.2d 775 (1975), but may disturb the Commission's findings, if they are clearly erroneous. Koester v. State Ins. Fund, 124 Idaho 205, 208, 858 P.2d 744, 747 (1993). This Court additionally may not scrutinize the weight and credibility of the evidence relied upon by the Commission but must construe the evidence in the light most favorable to the party who prevailed before the Commission. Darner v. Southeast Idaho In-Home Servs., 122 Idaho 897, 841 P.2d 427 (1992).

When reviewing questions of law, this Court exercises free review and may substitute its view for the Commission's view. O'Loughlin v. Circle A Constr., 112 Idaho 1048, 739 P.2d 347 (1987); Idaho Appellate Handbook § 3.2.1 (Idaho Law Foundation, Inc., 1989). Thus, this standard governs this Court's review of whether the Commission, after finding that Kessler's death did not arise out of and in the course of employment, correctly denied benefits.

B. Arising Out Of And In The Course Of Employment

An injury that is compensable under the Worker's Compensation Act (the Act) must have been caused by an accident "arising out of and in the course of any employment" that the Act covers. I.C. § 72-102(15)(a) (1989) (emphasis added). Thus, the test for determining compensability is two-pronged, and the claimant must satisfy both elements to be entitled to compensation. Devlin v. Ennis, 77 Idaho 342, 348, 292 P.2d 469, 475 (1956). We also recognize that, when an injury occurs on an employer's premises, a presumption that the injury arose out of and in the course of employment arises. Foust...