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Gubler v. Liberty Northwest Companies

Court of Workers Compensation of Montana

January 6, 1997

ROLF BRUNO GUBLER Petitioner
v.
LIBERTY NORTHWEST COMPANIES Respondent/Insurer for BELL BUILDERS, INCORPORATED Employer.

          Submitted date: November 8, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, judge

         Summary: 27 year-old craftsman was injured in motor vehicle accident while driving supervisor's truck to pick up supervisor at beginning of work day. Supervisor, who was the son of the owner's of a family business, had told claimant to take his truck home and pick him up in the morning, which was consistent with use of the truck in the business. Insurer argued accident was not in course and scope of employment and that claimant's shoulder problem resulted from pre-existing condition and was not compensable.

         Held: Given its use, the truck was in essence a company truck used in the course of business. At the time of the accident, claimant was performing duties required of him by his supervisor. Requirements of the traditional course and scope test are met, see Courser v. Darby School Dist. No. 1, 214 Mont 13, 16-17, 692 P.2d 417, 419 (1984), as are requirements of the statutory "travel" test set forth in section 39-71-407(3), MCA (1995). Claimant was furnished with a company vehicle and was directed in his use of the truck for company purposes. Claimant's injuries, including the shoulder injury, are compensable. While claimant suffered pre-existing shoulder pain, the evidence established that the accident permanently worsened his shoulder problem. Penalty and attorneys fees were denied where the insurer relied on a different factual scenario, based on testimony the Court did not find the most accurate recollection of events.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-407, MCA (1995). Craftsman injured while driving supervisor's truck to pick up supervisor for work was injured in course and scope of employment and met the requirements for compensable travel injury under section 39-71-407, MCA (1995). Given its use, the truck was in essence a company truck used in the course of business which had been furnished to claimant for use at that particular time. At the time of the accident, claimant was performing duties required of him by his supervisor.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA (1995). Penalty not awarded where insurer relied on version of events described by supervisor when denying liability for motor vehicle accident. While Court found another version of events to have occurred, insurer's reliance on supervisor's recollection was not unreasonable.
Employment: Course and Scope: Coming and Going. Craftsman injured while driving supervisor's truck to pick up supervisor for work was injured in course and scope of employment and met the requirements for compensable travel injury under section 39-71-407, MCA (1995). Given its use, the truck was in essence a company truck used in the course of business which had been furnished to claimant for use at that particular time. At the time of the accident, claimant was performing duties required of him by his supervisor.
Employment: Course and Scope: Travel. Craftsman injured while driving supervisor's truck to pick up supervisor for work was injured in course and scope of employment and met the requirements for compensable travel injury under section 39-71-407, MCA (1995). Given its use, the truck was in essence a company truck used in the course of business which had been furnished to claimant for use at that particular time. At the time of the accident, claimant was performing duties required of him by his supervisor.
Penalties: Insurers. Penalty not awarded where insurer relied on version of events described by supervisor when denying liability for motor vehicle accident. While Court found another version of events to have occurred, insurer's reliance on supervisor's recollection was not unreasonable.

         The trial in this matter was held on November 8, 1996, in Billings, Montana. Petitioner, Rolf Bruno Gubler (claimant), was present and represented by Mr. Frank C. Richter. Respondent, Liberty Northwest Companies (Liberty), was represented by Mr. Larry W. Jones. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1-9 were admitted without objection. Medical records in Exhibit 7 relating to Taryn Pettit were removed and sealed in a separate envelope by order of this Court.

         Witnesses and Depositions: Claimant, Randy Lohnbakken, and Rich Mehrer were sworn and testified. In addition the parties submitted the deposition of claimant for the Court's consideration.

         Issues Presented: The claimant contends that on April 30, 1996, he suffered a shoulder and other injuries in a work-related automobile accident. Liberty urges that the accident did not occur in the course and scope of claimant's employment and that claimant's shoulder condition is due to a preexisting injury.

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

         FINDINGS OF FACT

         1. Claimant is 27 years old and resides in Billings, Montana. He is a craftsman in the application of stucco-like finishes to buildings. According to Rich Mehrer, who supervised claimant's work, claimant was the "best" at his trade.

         2. Bell Builders, Inc. (Bell) is a building contractor primarily engaged in residential construction in Billings, Montana. It is a family corporation owned by Ray Mehrer and his wife. Mr. Mehrer directs the operations of the company.

         3. Bell hired claimant in April 1995.

         4. During his employment at Bell, claimant specialized in applying a finishing product called "drivet." Drivet is a stucco-like finish which is troweled onto building surfaces. The application of drivet is a three-stage process. First, styrofoam insulation is applied to the wall. Second, wire mesh is attached to the styrofoam facing. Finally, drivet -- a cement type substance -- is troweled onto the wall.

         5. Rich Mehrer (Rich) was claimant's supervisor during the entire period of his employment. He supervised one of the two or more crews employed by Bell. Rich is the son of Ray Mehrer.

         6. Over the one-year period of claimant's employment he worked at various job sites in the Billings area. He car pooled to work ...


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