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Pinyerd v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 20, 1994

JERRY PINYERD Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for PRESTIGE TOYOTA Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The trial in this matter was held on August 22, 1994 in Billings, Montana. Petitioner, Jerry Pinyerd (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, State Compensation Mutual Insurance Fund (State Fund), was represented by Mr. Daniel J. Whyte. Claimant and Robert "Jake" Jacobson testified. Exhibits 1 through 4 were admitted into evidence without objection.

         The parties stipulated to bifurcation of two principal issues in this case. The first issue is whether or not a September 18, 1993 assault on the claimant by Robert Jacobson (Jacobson) arose out of and in the course of the claimant's employment with Prestige Toyota (Prestige). The second is whether the assault caused the medical condition which is the basis for claimant's claim for wage loss and medical benefits. The second issue was deferred until resolution of the first. Since the first issue is resolved adversely to claimant, the second issue is moot.

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

         FINDINGS OF FACT

         1. Claimant is thirty years old and married. He grew up, attended school and worked in California until 1993.

         2. Claimant moved from California to Billings, Montana, in May of 1993. At the time of his move claimant had four years experience as a successful car salesman and had already lined up a job with Prestige Toyota in Billings. He went to work for Prestige in June of 1993 as a sales representative.

         3. Prestige has two teams of salesmen, a "green" team and a "blue" team. The two teams work different hours and compete with one another for the most sales each month. Claimant was assigned to the green team.

         4. During claimant's employment at Prestige there were approximately seven salesmen on the green team. One of those salesmen was Robert "Jake" Jacobson.

         5. The salesmen on each team competed with one another for the most sales each month. However, car sales also required cooperation among the salesmen. Whenever a salesman was having difficulty in making a sale he was expected to "turn" the prospective customer over to a fellow salesman in the hope that another salesman with a different approach or personality could persuade the customer to buy a new car. If a sale was then consummated, both salesmen split the commission.

         6. Prestige established sales quotas for each of its salesmen and paid them on a commission basis. It also paid cash incentives (Spifs) for the top salesman, for demonstration rides, and for obtaining customer purchase commitments.

         7. During the first couple of weeks of his employment the claimant was shut out of sales by the other salesmen, who used their experience at Prestige to get to customers first and did not "turn" any customers to the claimant. Claimant talked to the manager of Prestige about the situation. The manager talked to the other team members and they then began to make turns to him.

         8. Jake Jacobson was especially hostile towards the claimant. He made it clear ...


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