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Strickland v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 6, 1994

JANET STRICKLAND Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for JOSEPH W. TACKETT Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The trial in this matter was held on March 2, 1994, in Kalispell, Montana. Petitioner, Janet Strickland (claimant), was present and represented by Mr. Allan M. McGarvey and Mr. Roger M. Sullivan. The respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. Claimant, Robert Evans, R. Scott Bucher, Wayne Strickland, Marla Handford, Michelle Osborne, Leroy McFadden, and Joseph Tackett testified. Exhibits 1 through 5 were admitted by stipulation. Exhibit 6 was admitted over the objection of the claimant. Exhibits 7 and 8 were admitted over the State Fund's objections. Exhibit 9 was admitted without objection.

         The parties agreed to the Court's consideration of the deposition of R. Scott Bucher. A deposition was also taken of Gene Hunter. However, that deposition is not to be, and has not been, considered.

         Issue Presented: The claimant was severely injured in an automobile accident that occurred at the intersection where her employer's business was located. The issue presented in this case is whether claimant was acting in the course and scope of her employment at the time of the accident.

         Having considered the Pretrial Order, the testimony presented at trial, the credibility of the witnesses, the deposition of Mr. Bucher, the exhibits, and the parties arguments, the Court makes the following:

         FINDINGS OF FACT

         1. At the time of trial the claimant was 34 years of age.

         2. At the times mentioned herein, the employer, Joe Tackett (Tackett) and his wife, Sherry Tackett, operated a small restaurant known as Steaks 'n Stuff Restaurant. The restaurant was located in the Flathead Valley at the inte rsection of Highway 2 West, Highway 40 and Half Moon Road.

         3. Claimant went to work as a waitress for Steaks 'n Stuff in July 1992.

         4. In addition to claimant, the Tacketts also employed Marla Handford as a cook and Scott Bucher as a dishwasher. The Tacketts also worked in the restaurant.

         5. When the Tacketts were not at the restaurant, Marla Handford was in charge. With at least the tacit approval of the Tacketts, she was claimant's supervisor during those times.

         6. On August 21, 1992, claimant went to work between 3:00 p.m. and 4:00 p.m. Marla Handford was already at work.

         7. Claimant's regular job duties did not include running errands for her employer, although on one prior occasion claimant had gone to pick up hamburger at Handford's request.

         8. At approximately 4:00 p.m. the claimant left work, got into her car and drove off on an errand. She was apparently returning from the errand when at 4:35 p.m. she was involved in an automobile accident at the intersection of Highway 2 West and Highway 40. The accident was a serious one and claimant suffered head injuries.

         9. The factual controversy in this case concerns the purpose of the claimant's errand. Claimant testified that Handford ...


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