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Zarn v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

October 9, 1998

RICK ZARN Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for GLACIER PARK, INCORPORATED Employer.,

          Submitted: August 31, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: Seasonal employee of Glacier Park injured his ankle slipping off a log where he was standing talking to another employee. Insurer argued he was engaged in recreational activity and not within the course and scope of employment.

         Held: The "recreational activity" exception from the definition of employee within section 39-71-118, MCA (1995) does not apply to a ten to fifteen minute conversation between two employees where the conversation included some subjects relating to work for Glacier Park, the injured employee had already started work, and the fall actually occurred as the employee left to commence work. The words "recreational activity" do not in their usual and ordinary sense encompass conversation. Moreover, the legislative history of the exception indicates the exception began as a limitation applicable to ski resorts (employees skiing as recreational activity) and, although the exception was expanded to include all employments, the focus of legislative concern were "recreational activities" such as skiing, golfing, hunting and dude ranching. The course and scope requirement is not so strict as to deny coverage where an employee engages in a minor deviation from his duties. As noted in Larson's treatise, under the modern trend of decisions, even if the activity cannot be said to advance the employer's interests, it may still be in the course and scope of employment if, in view of the nature of the employment environment, the characteristics of human nature, and the customs and practices of the particular employment, the activity is in fact an inherent part of that employment. At least some ministrations to the personal comfort and human wants of the employee must be included within the course and scope of employment.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-118, MCA (1995). The "recreational activity" exception from the definition of employee within section 39-71-118, MCA (1995) does not apply to a ten to fifteen minute conversation between two employees where the conversation included some subjects relating to work for Glacier Park, the injured employee had already started work, and the fall actually occurred as the employee left to commence work. The words "recreational activity" do not in their usual and ordinary sense encompass conversation. Moreover, the legislative history of the exception indicates the exception began as a limitation applicable to ski resorts (employees skiing as recreational activity) and, although the exception was expanded to include all employments, the focus of legislative concern were "recreational activities" such as skiing, golfing, hunting and dude ranching.
Employment: Course and Scope: Recreational Activities. The "recreational activity" exception from the definition of employee within section 39-71-118, MCA (1995) does not apply to a ten to fifteen minute conversation between two employees where the conversation included some subjects relating to work for Glacier Park, the injured employee had already started work, and the fall actually occurred as the employee left to commence work. The words "recreational activity" do not in their usual and ordinary sense encompass conversation. Moreover, the legislative history of the exception indicates the exception began as a limitation applicable to ski resorts (employees skiing as recreational activity) and, although the exception was expanded to include all employments, the focus of legislative concern were "recreational activities" such as skiing, golfing, hunting and dude ranching.
Employment: Course and Scope: Recreational Activities. The course and scope requirement is not so strict as to deny coverage where an employee engages in a minor deviation from his duties. As noted in Larson's treatise, under the modern trend of decisions, even if the activity cannot be said to advance the employer's interests, it may still be in the course and scope of employment if, in view of the nature of the employment environment, the characteristics of human nature, and the customs and practices of the particular employment, the activity is in fact an inherent part of that employment. At least some ministrations to the personal comfort and human wants of the employee must be included within the course and scope of employment.

         ¶1 The trial in this matter was held on August 31, 1998, in Kalispell, Montana. Petitioner, Rick Zarn (claimant), was present and represented by Mr. Kenneth S. Thomas. Respondent, Liberty Mutual Fire Insurance Company (Liberty), was represented by Mr. Larry W. Jones.

         ¶2 Exhibits: Exhibits 1 through 5 were admitted without objection.

         ¶3 Witnesses and Depositions: Claimant and Thomas J. Pidgeon were sworn and testified. The parties also agreed that the Court may consider the depositions of the claimant, Thomas J. Pidgeon, Nancee Olson, Richard McGuffy, and Anita Caudill.

         ¶4 Issues Presented: The following issues, as restated by the Court, are presented for decision:

• Whether claimant suffered a compensable industrial injury arising out of and in the course of his employment.
• Whether claimant is entitled to a penalty pursuant to section 39-71-2907, MCA.
• Whether claimant is entitled to costs and attorneys' fees pursuant to section 39-71-611, MCA.
* * * * * * *

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

         FINDINGS OF FACT

         ¶6 Claimant alleges that on September 25, 1997, while employed for Glacier Park, Incorporated (Glacier), he broke his left ankle when he slipped and fell off a log outside the cafeteria at the Lake MacDonald Lodge (Lake Lodge).

         ¶7 At the time of his alleged injury, Glacier was insured by Liberty.

         ¶8 Claimant submitted a claim for compensation which Liberty denied. Liberty contends that claimant was engaged in a recreational activity when his injury occurred and was not acting in the course and scope of his employment.

         ¶9 Claimant, who is 39 years of age, was hired by Glacier in 1997, as a seasonal employee and assigned to work at the Lake Lodge. He began work on May 23, 1997. His last day of work for the ...


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