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Connery v. Liberty Northwest Insurance Corporation

Court of Workers Compensation of Montana

July 22, 1996

COLLEEN CONNERY Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION, Respondent/Insurer for WINTER SPORTS, INCORPORATED Employer.

          Date Submitted: July 1, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: Ski instructor was injured when another instructor ran into her while she stopped to wait for him. She was skiing prior to commencing classes assigned to her earlier that morning. Insured relied on section 39-71-118(2)(a), MCA (1995) to argue employee was engaged in recreational activity and injury was not compensable. Claimant argued she was engaged in warm-up run recommended by employer in training manual, which would have ended at the place where she was to begin the pre-assigned lesson.

         Held: Section 39-71-118(2)(a), MCA (1995) requires a two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident, which involves a course and scope of employment analysis. Here, claimant was engaged in a recreational activity. However, she was engaged in a warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and she would finish her run at the place where she would begin a pre-assigned lesson. She was, therefore, not relieved of her duties and was within the course and scope of employment. Thus, the injury was compensable. (Note: WCC affirmed in Colleen Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996) (No. 96-448).)

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-118(2)(a), MCA (1995). Section 39-71-118(2)(a), MCA (1995) requires a two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable. (Note: WCC affirmed in Colleen Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996).)
Employment: Course and Scope: Recreational Activities. Section 39-71-118(2)(a), MCA (1995) requires a two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable. (Note: WCC affirmed in Colleen Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996).)

         This case came on for trial on June 5, 1996, in Kalispell, Montana. Petitioner, Colleen Connery (claimant), was present and represented by Mr. David W. Lauridsen. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones.

         Exhibits: Exhibits 1, 2, 5 through 8, and 10 were admitted without objection. Exhibit 3 was admitted over the objection of Mr. Jones. Exhibit 4 was withdrawn. Exhibit 9 was admitted but is legal material (statutory history) which is relevant only if the Court determines the statute applicable in this case is ambiguous.

         Witnesses and Depositions: Witnesses at trial were claimant and Sydney Ryerson. In addition the parties submitted depositions of the claimant and Mark Roy for the Court's consideration.

         Issues Presented: Whether claimant sustained injuries while in the course and scope of her employment as a ski instructor for Winter Sports, Inc. on December 10, 1995, and whether she is entitled to temporary total disability and medical benefits, costs, attorney fees, and a penalty.

         * * * * *

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

         FINDINGS OF FACT

         1. The claimant is 27 years old. She is an experienced and certified ski instructor.

         2. Claimant was employed by Winter Sports, Inc. as a ski instructor for the 1995-1996 ski season. Winter Sports operates the Big Mountain ski area near Whitefish, Montana.

         3. The terms of claimant's employment called for her to be available eight hours a day to teach both group and individual (private) lessons. She was required to sign in when she reported to work. Sign-in included signing her name and recording the time of sign-in in a log maintained by her employer. On some days she was required to sign in by 8:00 a.m.

         4. Group lessons were typically given from 9:30 a.m. to noon and 1:00 p.m. to 3:30 p.m. Private lessons were on an assigned basis and varied in the amount of time for the lessons. Lunch breaks were from noon to 1:00 p.m.

         5. Instructors were assigned to lessons as needed and according to demand. A "lineup" was held at the beginning of both the morning and afternoon to hand out lesson assignments. If an instructor was not assigned a lesson, she was free to ski or engage in other activities. It was claimant's practice to attend the afternoon lineup even if not assigned any lessons in the morning.

         6. Instructors could receive private lesson assignments at times other than at lineup. Thus, when claimant received no morning or afternoon assignments she could ski on her own and periodically check back with the ski school to determine if she was needed for a later private lesson. She would sometimes call the ski school from the top of a lift. On other occasions messages for instructors were left with the lift operator or on message boards adjacent to the lifts.

         7. Claimant was paid only for the time of her actual lessons. She received $8 an hour for teaching. When a skier specifically requested claimant as a teacher, she received fifty percent of the amount charged for the private lesson. Her employer required her to fill out a time card reflecting the actual hours she was giving lessons and the time card was used to compute her wages.

         8. In addition to her pay, claimant received a season ski pass as part of her remuneration.

         9. Big Mountain opened for skiing at approximately Thanksgiving time in 1995. Claimant began giving lessons on Thursday, December 7, 1995. She worked and was paid for two hours of lessons. She worked another two hours on Friday, December 8th, and five hours on Saturday, December 9th. Her limited hours were due to a limited number of skiers in the early part of the season, coupled with too many instructors for that time of the season.

         10. As a matter of etiquette, instructors were expected to show up at the lesson site 15 minutes before the start of a lesson, ...


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