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Deigert v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

October 16, 1998

CHRISTOPHER DEIGERT Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for RED LODGE MOUNTAIN RESORT Employer.,

          Submitted: April 27, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: Ski instructor received serious injuries when hitting a tree while attempting to ski an advanced run at high speed. Evidence indicated instructor was paid only to teach lessons and was allowed but not asked to ski between lessons. Other instructors testified warm-up runs were not customary. This run, in any event, was not a warm-up run but was a challenging run for the employee's own enjoyment.

         Held: Skiing is a recreational activity within section 39-71-118, MCA (1995). The real question, however, is whether claimant was acting within the course and scope of employment when skiing. Applying the four-factor test set out in Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984), the WCC finds claimant was not in the course and scope of employment, distinguishing Connery v. Liberty Northwest Ins. Corp., 280 Mont. 115, 929 P.2d 222 (1996), where the ski resort employer had encouraged ski instructors to take warm-up runs and the employee had been injured during such a run.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-118, MCA (1995). Skiing is a recreational activity within section 39-71-118, MCA (1995). However, to resolve the question whether a ski instructor skiing while not instructing is covered by the WCA, the Court must determine whether he was acting within the course and scope of employment when skiing. To do so, the Court applies the four-factor test set out in Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984), looking to (1) whether the activity was undertaken at the employer's request; (2) whether the employer, either directly or indirectly, compelled employee's attendance at the activity; (3) whether the employer controlled or participated in the activity; (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances. Here, the WCC finds claimant was not in the course and scope of employment where he was not teaching a lesson, had not been asked by the employer to perform warm-up runs, the employer received only insubstantial benefit from the claimant's skiing in his "official" resort parka, and claimant was not in fact warming up to teach a lesson, but was skiing a hard run for his own enjoyment. The WCC distinguished Connery v. Liberty Northwest Ins. Corp., 280 Mont. 115, 929 P.2d 222 (1996), where the ski resort employer had encouraged ski instructors to take warm-up runs and the employee had been injured during such a run.
Employment: Course and Scope: Recreational Activities. Skiing is a recreational activity within section 39-71-118, MCA (1995). However, to resolve the question whether a ski instructor skiing while not instructing is covered by the WCA, the Court must determine whether he was acting within the course and scope of employment when skiing. To do so, the Court applies the four-factor test set out in Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984), looking to (1) whether the activity was undertaken at the employer's request; (2) whether the employer, either directly or indirectly, compelled employee's attendance at the activity; (3) whether the employer controlled or participated in the activity; (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances. Here, the WCC finds claimant was not in the course and scope of employment where he was not teaching a lesson, had not been asked by the employer to perform warm-up runs, the employer received only insubstantial benefit from the claimant's skiing in his "official" resort parka, and claimant was not in fact warming up to teach a lesson, but was skiing a hard run for his own enjoyment. The WCC distinguished Connery v. Liberty Northwest Ins. Corp., 280 Mont. 115, 929 P.2d 222 (1996), where the ski resort employer had encouraged ski instructors to take warm-up runs and the employee had been injured during such a run.

         ¶1 The trial in this matter was held on April 27, 1998, in Red Lodge, Montana. Petitioner, Christopher Deigert (claimant), was present and represented by Mr. James G. Edmiston and Mr. Benjamin J. LaBeau. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. A transcript of the trial has not been prepared.

         ¶2 Exhibits: Exhibits 1 through 4, 6 through 11 and 19 were admitted without objection. Exhibit 5 was refused. Exhibit 21 was admitted over objection for limited purposes. Exhibits 20 and 23 through 25 were admitted over objection. Exhibits 12 through 18 and 22 were withdrawn.

         ¶3 Witnesses and Depositions: Claimant, Gary Coyle, Russ Gillette, Vanessa Selby, Mark Selby, Anne McNamera, Connie Merry, Ragnar Hartman, Dan White and Vern Hadley testified at trial. The parties also submitted depositions of the claimant, Gary Coyle, Kathleen Delahanty, Vern Hadley, Scott Mann, Sherrie Nevill and Rigger Poore for the Court's consideration.

         ¶4 Issues Presented: The issues, as set forth in the Pre-trial order, are as follows:

1.Whether Petitioner was in the course and scope of his employment when injured.
2.Whether Petitioner is entitled to an award of attorney fees and costs pursuant to Sections 39-71-611/612, MCA (1995).
3. Whether Petitioner is entitled to an award of the twenty percent penalty pursuant to §39-71-2907, MCA (1995).

         ¶5 Partial Bench Ruling: At the conclusion of trial, the Court granted respondent's motion for a directed verdict denying attorney fees and a penalty. The Court found that Liberty did not act unreasonably in denying the claim and taking the matter to trial.

         ¶6 Having considered the Pre-trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the Court makes the following:

         FINDINGS OF FACT

         ¶7 On or about December 4, 1996, the claimant was hired by Red Lodge Mountain Resort (RLMR) as an apprentice ski instructor.

         ¶8 On January 19, 1997, claimant was severely injured when he lost control and hit a tree while skiing Barriers run at RLMR.

         ¶9 At the time of the accident, RLMR was insured by Liberty. Liberty denied, and continues to deny, liability for the accident on the ground that claimant was engaged in a "recreational activity" within the meaning of section 39-71-118(2), MCA (1995). It also urges that claimant was skiing recklessly and was therefore outside the course and scope of his employment whether or not the recreational activity exception applies.

         Ski Instructors' Duties and Pay

         ¶10 RLMR instructors were given a two-week schedule showing the days on which they were to report to work. (Deigert Dep. at 25-26; Ex 19.) Being listed on the schedule did not assure an instructor that s/he would have a lesson to teach at any given time. (Hadley Dep. at 21.)

         ¶11 Ski instructors, including claimant, were required to be available to teach ski lessons on their scheduled days. Generally, there were two lessons in the morning, one beginning at 10:00 a.m. for children and one at 10:30 a.m. for adults. There was also an afternoon lesson beginning at 1:00 or 1:30 p.m.

         ¶12 Ski instructors use the term "bells" to signify the lesson times. The ...


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