Trapp v. Sagle Volunteer Fire Dept., 19305

• Decision Date: 01 July 1992
• Docket Number: No. 19305,19305
• Citation: 122 Idaho 655,837 P.2d 781
• Parties: Agnes L. TRAPP, Claimant-Appellant, v. SAGLE VOLUNTEER FIRE DEPARTMENT, Employer, and State Insurance Fund, Surety, Defendants-Respondents. Boise Term, March 1992
• Court: Idaho Supreme Court

Page 781

837 P.2d 781

122 Idaho 655

Agnes L. TRAPP, Claimant-Appellant, v. SAGLE VOLUNTEER FIRE DEPARTMENT, Employer, and State Insurance Fund, Surety, Defendants-Respondents.

No. 19305.

Supreme Court of Idaho,

Boise Term, March 1992.

July 1, 1992.

Rehearing Denied Sept. 11, 1992.

Dissenting Opinion of Justice Bistline on Denial of Rehearing

Sept. 11, 1992.

Thomas A. Mitchell, Coeur d'Alene, for appellant.

Ellis, Brown & Sheils, Boise, for respondent. Max M. Sheils, Jr., argued, Boise.

BAKES, Chief Judge.

Claimant Agnes L. Trapp appeals from an order of the Industrial Commission denying her claim for attorney fees against the State Insurance Fund. Trapp claims attorney fees under I.C. § 72-804, arguing that the State Insurance Fund contested her claim for compensation "without reasonable ground." The Industrial Commission denied her claim for attorney fees, finding that the State Insurance Fund did not defend the case unreasonably. We affirm.

The claimant was a volunteer member of the Sagle Fire Department who had been solicited by the fire department to take an Emergency Medical Technician (EMT) course in order to qualify the Quick Response Unit (QRU) for emergency medical treatment. On January 4, 1990, the claimant was injured in an automobile accident while she and five other occupants of the car were traveling to the EMT course, in which all of the occupants were enrolled. After the accident, the claimant filed a claim for worker's compensation benefits, which the employer and surety defended on the ground that her travel at the time of the accident was within the "going-and-coming" rule exception to compensability.

After a hearing, the Industrial Commission concluded that the "special errand" exception to the going-and-coming rule applied and therefore the claimant was within the course and scope of her employment at the time of the accident. ¹ The Commission summarized the relevant law as follows [W]e deal not so much in mechanical rules but with a series of factors of reasonableness that the Commission must weigh in light of its own expertise. The accident may not occur at the work site, but must be in a place where the worker may reasonably be; it may not occur during scheduled work hours, but must be at a reasonable time; it may not occur while engaged in worker's precise job description, but it must pertain to some act reasonably incidental to the employee's work; it may not occur while performing work actually ordered by the employer, but must be activity in which the employer has acquiesced. [Citation omitted.] It must not be so personal that it cannot be said to have arisen out of and in the course of employment.

After pointing out that this analysis required a weighing of the evidence in light of the several factors involved, the Commission identified five factors which the appellant had asserted were necessary to evaluate the case. ² The Commission then weighed the evidence in relation to each of the five factors in turn and ultimately concluded that, on balance, the claimant's accident and injuries arose out of and in the course of her employment with Sagle Volunteer Fire Department. Neither side appealed the Industrial Commission's decision.

After receiving the Commission's decision, the claimant filed a motion requesting attorney fees under I.C. § 72-804, ³ on the ground that the employer and its surety had defended her claim for worker's compensation unreasonably. The Industrial Commission referred the matter to a referee, who concluded that "the conduct of the surety in this case was not unreasonable." The Commission adopted the referee's recommendation. On petition for reconsideration, the Commission stated that, "The test which was ultimately adopted in the Findings of Fact, Conclusions of Law, and Order in this matter was a test which involves applying a series of factors to particular facts, which necessarily vary with each case." After noting that it was "the Claimant who first directed the Commission's attention to this authority from the State of Arizona [Johnson Stewart Mining, Co., Inc. v. Industrial Commission, 133 Ariz. 424, 652 P.2d 163 (1982) supra ], which was subsequently relied on to reach the decision favorable to the Claimant in the underlying matter," the Commission concluded that the surety's argument as to the state of the law and the application of the evidence to the five factors articulated in the Commission's earlier opinion was not unreasonable.

This Court held in Quintero v. Pillsbury Co., 119 Idaho 918, 811 P.2d 843 (1991), that:

The decision to award fees pursuant to [72-804] rests with the Industrial Commission. Other than in clear cases we defer to the judgment of the Industrial Commission. [Citation omitted.] The Commission is well experienced in determining what circumstances warrant the imposition of attorney fees.

119 Idaho at 921, 811 P.2d at 846. In Troutner v. Traffic Control Co., 97 Idaho 525, 547 P.2d 1130 (1976), we held that:

The decision that grounds exist for awarding a claimant attorney fees is a factual determination which rests with the Industrial Commission. [Citations omitted.] The conclusion of the Industrial Commission that no grounds existed for allowing attorney fees in this case is 97 Idaho at 528, 547 P.2d at 1133.

[122 Idaho 657] supported by substantial evidence and will not be set aside on appeal.

In this case, the Industrial Commission concluded that Idaho case law relating to the "special errand" exception to the going-and-coming rule was not definitive and that the rule proposed by the claimant from the Arizona case of Johnson Stewart Mining Co., Inc. v. Industrial Comm'n, supra, provided the appropriate test. That test required the Industrial Commission to weigh the evidence regarding each of five factors, not all of which were favorable to the claimant in this case, in order to decide whether the claimant was within the course and scope of her employment. After that weighing and balancing, the Commission concluded that the factual and legal issues raised by the surety were not unreasonable and therefore denied the claimant's motion for attorney fees.

The Commission "is well experienced in determining what circumstances warrant the imposition of attorney fees," and its determination, which required the weighing of the evidence and the balancing of factors, is supported by the record. Quintero v. Pillsbury Co., supra, and Troutner v. Traffic Control Co., supra. Accordingly, we find no abuse of discretion and affirm the Commission's decision. ⁴

Costs to respondent. No attorney fees allowed.

JOHNSON and McDEVITT, JJ., and SCHILLING, J. Pro Tem., concur.

BISTLINE, Justice, dissenting.

I. THE DIE WAS CAST

The die was cast ordaining the proper disposition of Agnes Trapp's claims in a prior workers' compensation case, Ridgway v. Combined Ins. Cos. of America, 98 Idaho 410, 565 P.2d 1367 (1977). ⁵ Chief Justice Bakes authored that opinion, and it has since remained unscathed as leading Idaho case law precedent. It is applicable and conclusive as to the compensation claim of Agnes Trapp, namely, her entitlement to compensation. It follows as does day follow night, that I.C. § 72-804 entitles her to an award of attorney fees because of the surety's unreasonable and unjustified denial of compensation payments. I.C. § 72-804. Today's majority opinion, for whatever reason, is determined to uphold the Commission's outrageous conclusion that the surety acted "reasonably."

Justice Bakes, in six paragraphs of his Ridgway opinion, stated all that was necessary for a proper determination reversing the Industrial Commission's untoward decision denying compensation:

The claimant appellant Roger Ridgway was injured while he was in Salt Lake City attending a two week training session operated by the defendant respondent Combined Insurance Companies of America. He applied for workmen's compensation benefits, but the Industrial Commission denied his claim on the ground that his injury had not arisen out of or during the course of employment with Combined. Because the conclusion of law upon which this order was based was in error and because the decision of the commission did not contain independent grounds for denying the claim, we reverse and remand for further proceedings.

In October of 1974 Ridgway answered a newspaper advertisement in which The training program began on Monday, November 4, 1974. Classroom sessions were scheduled for every day during the following two weeks except Sunday, November 10. On that Sunday, Ridgway and three other trainees were at the motel studying in preparation for the second week of the training session. Shortly before noon, Ridgway and Ronald Sparks, another trainee, left the motel to purchase hamburgers for the group. They traveled in Sparks' car. While en route to a restaurant Sparks' car was struck by a train and Ridgway was injured. It is his claim that these injuries were compensable under the Workmen's Compensation Law.

[122 Idaho 658] Combined sought trainees to become insurance salesmen. Ridgway signed a trainee agreement with Robert Ward, Combined's sale manager for an eight-county region in southwestern Idaho. Under that agreement Ridgway was to attend a two week training seminar which Combined operated in Salt Lake City. Ward and Combined provided for Ridgway's transportation to Salt Lake City, motel accommodations, travel between the motel and the training sessions, and a $6.00 per diem for meals.

Combined contested the workmen's compensation claim, arguing among other things, that Ridgway was an independent contractor and not Combined's employee. The Industrial Commission did not reach this issue. It concluded that even if Ridgway were Combined's employee, nevertheless,

'the Commission finds that the claimant was performing no service for the defendant at the time of the accident but was on a purely personal errand. There was no special or peculiar risk to the claimant at...