Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lundberg v. Liberty Northwest Insurance Co.

Court of Workers Compensation of Montana

May 25, 1994

JERROLD LUNDBERG Petitioner
v.
LIBERTY NORTHWEST INSURANCE COMPANY Respondent/Insurer for PYRAMID MOUNTAIN LUMBER COMPANY Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         The trial in this matter was held on February 15, 1994, in Helena, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Jerrold Lundberg (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, Liberty Northwest Insurance Co. (Liberty), was represented by Mr. Michael C. Prezeau. Claimant, Gerald Parker, Todd Johnson and Burt Lillis testified at trial. The depositions of Jerrold Lundberg and Gerald Parker were accepted for consideration by the Court. Claimant's objection to the depositions was overruled. ARM 24.5.322. Exhibits 1 through 6 were admitted into evidence by stipulation.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is 60 years old and married. He has lived in Lincoln, Montana for many years.

         2. Claimant worked for the United States Forest Service (Forest Service) from April 1968 until he retired in December of 1985, which is approximately 18 years. He worked in a number of positions, including tree planter, timber cruiser, log scaler, and, finally, sales administrator for the Lincoln District of the Helena National Forest.

         3.As district sales administrator, claimant was responsible for laying out timber sales, mapping out roads and timber sale boundaries, and enforcing timber sale contracts for the Forest Service. As a result of his Forest Service experience, claimant is familiar with nearly every aspect of the logging business.

         4. Within a year of his 1985 retirement, claimant and his son formed a logging business called "Lundberg Logging." Lundberg Logging contracted with private landowners to cut timber, skid it out, and haul it to a mill. Most of its work was for two ranches. Claimant also had a few small contracts with Pyramid Mountain Lumber Co. (Pyramid), and on one occasion he made a small timber purchase from the Forest Service. Lundberg Logging also performed jobs piling slash and constructing a road. It owned logging equipment including a backhoe, logging truck, cat, and grader. It was a dues paying member of the Montana Logging Association. It maintained its own checking account, employer identification number, and liability insurance. Finally, it maintained workers' compensation insurance on its employees but claimant elected not to cover himself.

         5. In 1991 claimant bought out his son's interest in Lundberg Logging.[1] Thus, the business became a sole proprietorship at that time.

         6. Pyramid is in the business of buying and logging timber. Pyramid contracts with others for the actual logging of the timber it purchases.

         7. Prior to July 1992 Lundberg Logging contracted with Pyramid on several small slash piling and logging jobs.

         8. On July 6, 1992, Gerald Parker, Pyramid's timber resource manager, contacted claimant and asked him if he was interested in purchasing timber for Pyramid in the Lewistown area. Parker knew claimant from claimant's work as sales administrator in the Forest Service.

         9. Pyramid utilizes both employees and contractual consultants in locating and purchasing timber.

         10. Parker gave claimant the option of working for Pyramid as a company employee, but claimant said, "[N]o, I would rather work by the day." Claimant denied that he was given the option but the Court finds Parker more credible regarding this conversation.

         11. Claimant suggested, and Parker agreed, on a rate of $100.00 per day for claimant's work.

         12. Claimant and Pyramid thereafter entered into a "CONSULTATION AGREEMENT" (Ex. 3) on July 27, 1992. Mr. Parker prepared the consultation agreement, which is set forth as follows:

         CONSULTATION AGREEMENT

         This Agreement is made and entered into this 27th day of July, 1992, by and between Jerrold Lundberg (hereafter referred to as consultant), whose address is P.O. Box 354, Lincoln, Montana 59639, and Pyramid Mountain Lumber, Inc., whose address is P.O. Box 549, Seeley Lake, Montana 59868.

1. Pyramid Mountain Lumber, Inc. hereby employs consultant on an independent basis to perform consultation services as follows: Procurement of timber stumpage and purchase logs for Pyramid. Also some timber sale layout and administration. Most work is expected to be in the Lewistown area and other parts of Eastern Montana.
2. The term of this agreement shall commence on July 27, 1992 and shall terminate at any time, without cause, after first giving two months written notice to the other party.
3. The agreed upon price for these consultation services shall be as follows: Pyramid agrees to pay consultant at the rate of $100.00 per day with a mileage allowance of $.30/mile. Pyramid will furnish living quarters and phone in Lewistown, Montana. Consultant will furnish all other personal expenses. Business expenses such as motels, food and phone calls will be paid by Pyramid when consultant is working in areas over 100 miles from Lewistown. Itemized expense records will be submitted to Pyramid at the end of each month for these special expenses.
4. It is hereby understood that Consultant is an independent consultant and not an agent or employee of Pyramid Mountain Lumber, Inc.
5. Consultant shall conduct these consultation services hereunder in an expedient, economical and workmanlike manner. The special written products involved in this consultation service shall remain the exclusive ownership of Pyramid Mountain Lumber, Inc., and specific products involving verbal consultation which are unique to this firm and not standard in most of the local industry shall remain in confidentiality between the parties.
6. In the event of any suit, action or proceedings leading to any rights, duties or liabilities arising hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees and costs, including fees and costs resulting from an appeal decision of a lower court.
7. The goal of this agreement is to purchase 5 MMBF of stumpage a year for Pyramid. Consultant will report to Pyramid's Resource Forester in Great Falls, Montana, who will furnish him with maps, leads and other back-up information necessary to meet the goal. Consultant will work full time for the first 4 months out of Lewistown to get established and then spend whatever time is necessary to achieve or exceed the goal.
8. The provisions one (1) through eight (8) constitute the entire agreement of the parties hereto, any modifications to this agreement shall be in writing and signed by both parties.

         IN WITNESS WHEREOF, the parties hereto have executed this consultation agreement as of the date first written above.

         PYRAMID MOUNTAIN LUMBER, INC.

By: /s/ Gerald V. Parker
Title: Timber Manager
JERROLD LUNDBERG
/s/ Jerrold Lundberg

(Ex. 3 at 4-5.)

         13. Pyramid interpreted the contract as permitting it to designate and change the area of claimant's work. Mr. Parker testified:

Q. [by Mr. Grosfield] Do you admit that you could have changed that area or Pyramid could have changed the area where it wanted Mr. Parker [sic] to work if it had wished to do so?
A. [by Mr. Parker] Well, we would have asked him if he would go somewhere else if we wished him to go and we had ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.