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.

Grywusiewicz v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 24, 1998

JOHN GRYWUSIEWICZ Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for CAR WORLD, INCORPORATED Employer.,

          Submitted: May 22, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: Claimant worked as car salesman and carpenter for owner of used car lot who was remodeling a building on a new lot. In a vehicle from the lot, claimant was injured in an automobile accident on his way to work following a medical appointment. The insurer argued claimant was outside the course and scope of employment and was also an independence contractor not covered by the workers' compensation policy due to his carpentry work.

         Held: Claimant was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control. The accident occurred in the course and scope of employment, entitling claimant to benefits, where the credible evidence suggested the employer requested claimant to drive company vehicles to and from work, and paid for maintenance and repairs, in order to familiarize claimant, a salesman, with the vehicles and in order to detect problems with the cars being sold.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-120, MCA (1997). Car salesman who was also performing carpentry work to remodel a new building for the employer was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control.
Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-407(3), MCA (1997). Car salesman who was also performing carpentry work to remodel a new building for the employer was injured while driving a vehicle from the lot. The accident occurred in the course and scope of employment, entitling claimant to benefits, where the credible evidence suggested the employer requested claimant to drive company vehicles to and from work, and paid for maintenance and repairs, in order to familiarize claimant with the vehicles and in order to detect problems with the cars being sold.
Employment: Course and Scope: Coming and Going. Car salesman who was also performing carpentry work to remodel a new building for the employer was injured while driving a vehicle from the lot. The accident occurred in the course and scope of employment, entitling claimant to benefits, where the credible evidence suggested the employer requested claimant to drive company vehicles to and from work, and paid for maintenance and repairs, in order to familiarize claimant with the vehicles and in order to detect problems with the cars being sold.
Employment: Course and Scope: Travel. Car salesman who was also performing carpentry work to remodel a new building for the employer was injured while driving a vehicle from the lot. The accident occurred in the course and scope of employment, entitling claimant to benefits, where the credible evidence suggested the employer requested claimant to drive company vehicles to and from work, and paid for maintenance and repairs, in order to familiarize claimant with the vehicles and in order to detect problems with the cars being sold.
Independent Contractor: Generally. Car salesman who was also performing carpentry work to remodel a new building for the employer was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control.
Independent Contractor: Right of Control. Car salesman who was also performing carpentry work to remodel a new building for the employer was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control.

         ¶1 The trial in this matter was held on April 28, 1998, in Billings, Montana. Petitioner, John Grywusiewicz (claimant), was present and represented by Mr. R. Russell Plath. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. David A. Hawkins. By agreement of the parties, and with the approval the Court, on April 29, 1998, the claimant provided additional testimony outside the Court's presence. Also by agreement and with the Court's approval, on May 19, 1998, additional telephonic testimony of Thomas E. Snellman was taken.

         ¶2 Exhibits: Exhibits 1 through 3 were admitted without objection.

         ¶3 Witnesses and Depositions: John Grywusiewicz, Kim M. Hurley and Thomas E. Snellman were sworn and testified. In addition the parties agreed that the Court may consider the depositions of the claimant, Kim M. Hurley and Thomas E. Snellman.

         ¶4 Issues Presented: As set forth in the Pretrial Order, the following issues are presented for decision:

Whether Petitioner/Claimant is an independent contractor or an employee.
• Whether Petitioner/Claimant's injury, which was sustained while driving a vehicle owned and provided by his employer, occurred within the course and scope of his employment.
* * * * *

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

         FINDINGS OF FACT

         ¶6 Claimant is 49 years old. He resides with his significant other, Kim M. Hurley (Hurley), in Billings, Montana.

         ¶7 Claimant has worked as a logger, construction worker, carpenter and car salesman. He worked as a staff carpenter at Western Montana College (WMC) from 1979 to 1985. While working at WMC, he suffered a back injury which disabled him from full-time carpentry work.

         ¶8 Claimant thereafter pursued a career as a car salesman. He was employed by Homestead Honda and Subaru from approximately 1990 to 1995. In 1995 he was unemployed for several months. During those months he did some general carpentry work for his landlord in return for a reduction in his rent.

         ¶9 In 1996 claimant went to work for Thomas E. Snellman (Snellman) at Car World, Incorporated (Car World) in Billings, Montana. He was employed as a car salesman and worked on a commission basis. Initially, claimant was the only salesman employed by Car World, which on average had between eight and sixteen cars for sale. Snellman also sold cars.

         ¶10 In October of 1996 Snellman purchased new property for his car lot. Before he could move Car World to the new location, he had to renovate the existing building on the new lot. He closed his old car lot while he proceeded with the renovation.

         ¶11 During the renovation, Snellman employed claimant to do general carpentry work on the building. Snellman ...


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.