Ogren v. Bitterroot Motors, Inc.

• Decision Date: 11 September 1986
• Docket Number: No. 85-237,85-237
• Citation: 43 St.Rep. 1467,222 Mont. 515,723 P.2d 944
• Parties: Kathryn Albert OGREN, Beneficiary of Erik R. Ogren, Deceased, Claimant and Appellant, v. BITTERROOT MOTORS, INC., Employer, and Orion Group, Ins., Defendant and Respondent.
• Court: Montana Supreme Court

Page 944

723 P.2d 944

222 Mont. 515

Kathryn Albert OGREN, Beneficiary of Erik R. Ogren Deceased, Claimant and Appellant, v. BITTERROOT MOTORS, INC., Employer and Orion Group, Ins., Defendant and Respondent.

No. 85-237.

Supreme Court of Montana.

Submitted on Briefs March 28, 1986.

Decided Aug. 12, 1986.

Rehearing Denied Sept. 11, 1986.

Snavely and Philips, P.C., Donald V. Snavely and Robert S. Marcott, Missoula, for claimant and appellant.

Garlington, Lohn and Robinson, Larry Riley, Missoula, for defendant and respondent.

TURNAGE, Chief Justice.

Kathryn Ogren, claimant and beneficiary of Erik Ogren, brought this action in the Workers' Compensation Court seeking 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. Judgment 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 stipulation. 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 permission 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 5:00 p.m., and he accepted.

At the same time, Erik's daughter, Kristi Ogren, was attending a beauty pageant function in Sheridan, Wyoming. Originally, 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 Sheridan to pick up their daughter after dropping Petritz off in Great Falls.

Appellant testified that prior to the 13th, 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, maybe 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 to let off Petritz, Erik flew on to Sheridan. 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 10:00 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 § 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. Moreover, 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 compensable 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 developed 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. (1978), 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 immediate 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 employment. 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 performing 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' Compensation 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 (Mont.1984), 692 P.2d 417, 418, 41 St.Rep. 2283, 2285.

Appellant attempts to bring her case under the exceptions 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 recovery 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 paid 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 discretion, 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 special benefit of an employer. Therefore, appellant does not fall within either exception to the "going and coming...