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Sandoval v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

October 21, 1998

JOSEPH I. SANDOVAL Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent/Insurer for DONALD W. JACKLIN Employer.,

          Date Submitted: March 31, 1998

          ORDER DENYING SUMMARY JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: Cross motions for summary judgment filed raising the question whether claimant, a mule and horse trainer, was covered by the Montana Workers' Compensation Act when injured at a mule race in Nevada. UEF and the employer argue Montana lacks jurisdiction over the accident because the employer is not a Montana resident, he does not operate a business in Montana, and claimant's work was performed primarily outside of Montana. Claimant argues his primary place of employment was Montana.

         Held: To determine whether Montana law applied to claimant's work, the Court looks to sections 39-71-118(1) and (7), MCA (1993). Where it is undisputed claimant was a resident of Montana, the Court looks to subsection (7)(a), which provides that an "employee or worker in this state" means "a resident of Montana...whose employment duties are primarily carried out or controlled within this state." The Court interprets "primarily" to mean "first in importance" or "leading," not 50% or more. In order to determine whether claimant's duties were primarily carried out in Montana, the Court must decide whether to consider all the employments claimant had with this employer, or to consider the employment under the parties' written agreement for training and racing mules for the 1995 season. Because subsection (7) contemplates present employment, and where the parties had entered into a series of written and oral agreements for specific terms of work, the Court will look only to the time period covered by the most recent written agreement. Although it appears uncontroverted that races did not occur in Montana during that season, summary judgment denied where the Court does not have sufficient evidence to rule out the possibility that claimant would have done substantial work in Montana that season had he not been injured. [Note: summary judgment was granted to the UEF and employer in Joseph L. Sandoval v. Uninsured Employers' Fund and Donald W. Jacklin [5/6/99] 1999 MTWCC 33.]

         Topics:

         Constitutions, Statutes, Regulations, and Rules: Montana Code: section 39-71- 118(7), MCA (1993). Where it is undisputed claimant was a resident of Montana when injured, section 39-71-118(7)(a), MCA (1993) sets forth the standard for determining whether Montana workers' compensation law is applicable. That section provides that an "employee or worker in this state" means "a resident of Montana...whose employment duties are primarily carried out or controlled within this state." The Court interprets "primarily" to mean "first in importance" or "leading," not 50% or more. Thus, subsection 7(a) covers traveling employees whose employment duties carried out in Montana exceed the duties they carry out in any other individual jurisdiction. If only two states are involved, then the Montana duties must equal or exceed 50%. If there are three or more states, then the percentage of time worked in Montana must be greater than the percentage of time worked in each of the other states individually.

         Constitutions, Statutes, Regulations, and Rules: Montana Code: section 39-71-118(7), MCA (1993). In order to determine whether claimant's duties were primarily carried out in Montana, the Court must decide whether to consider all the employments claimant had with this employer, or to consider the employment under the parties' written agreement for training and racing mules for the 1995 season, the season in which claimant was injured. Because subsection (7) contemplates present employment, and where the parties had entered into a series of written and oral agreements for specific terms of work, the Court will look only to the time period covered by the most recent written agreement.

         Constitutions, Statutes, Regulations, and Rules: Montana Code: section 39-71-118(7), MCA (1993). Cross motions for summary judgment filed raising the question whether claimant, a mule and horse trainer, was covered by the Montana Workers' Compensation Act when injured at a mule race in Nevada. UEF and the employer argue Montana lacks jurisdiction over the accident because the employer is not a Montana resident, he does not operate a business in Montana, and claimant's work was performed primarily outside of Montana. Where it is undisputed claimant was a resident of Montana, the Court looks to section 39-71-118(7)(a), MCA (1993), which provides that an "employee or worker in this state" means "a resident of Montana...whose employment duties are primarily carried out or controlled within this state." Although it appears uncontroverted that races did not occur in Montana during the applicable term of employment, summary judgment denied where the Court does not have sufficient evidence to rule out the possibility that claimant would have done substantial work in Montana that season had he not been injured. [Note: summary judgment was granted to the UEF and employer in Joseph L. Sandoval v. Uninsured Employers' Fund and Donald W. Jacklin [5/6/99] 1999 MTWCC 33.]

         Employment: Montana Employment. Where it is undisputed claimant was a resident of Montana when injured, section 39-71-118(7)(a), MCA (1993) sets forth the standard for determining whether Montana workers' compensation law is applicable. That section provides that an "employee or worker in this state" means "a resident of Montana...whose employment duties are primarily carried out or controlled within this state." The Court interprets "primarily" to mean "first in importance" or "leading," not 50% or more. Thus, subsection 7(a) covers traveling employees whose employment duties carried out in Montana exceed the duties they carry out in any other individual jurisdiction. If only two states are involved, then the Montana duties must equal or exceed 50%. If there are three or more states, then the percentage of time worked in Montana must be greater than the percentage of time worked in each of the other states individually.

         Employment: Montana Employment. In order to determine whether claimant's duties were primarily carried out in Montana, the Court must decide whether to consider all the employments claimant had with this employer, or to consider the employment under the parties' written agreement for training and racing mules for the 1995 season, the season in which claimant was injured. Because subsection (7) contemplates present employment, and where the parties had entered into a series of written and oral agreements for specific terms of work, the Court will look only to the time period covered by the most recent written agreement.

         Employment: Montana Employment. Cross motions for summary judgment filed raising the question whether claimant, a mule and horse trainer, was covered by the Montana Workers' Compensation Act when injured at a mule race in Nevada. UEF and the employer argue Montana lacks jurisdiction over the accident because the employer is not a Montana resident, he does not operate a business in Montana, and claimant's work was performed primarily outside of Montana. Where it is undisputed claimant was a resident of Montana, the Court looks to section 39-71-118(7)(a), MCA (1993), which provides that an "employee or worker in this state" means "a resident of Montana...whose employment duties are primarily carried out or controlled within this state." Although it appears uncontroverted that races did not occur in Montana during the applicable term of employment, summary judgment denied where the Court does not have sufficient evidence to rule out the possibility that claimant would have done substantial work in Montana that season had he not been injured. [Note: summary judgment was granted to the UEF and employer in Joseph L. Sandoval v. Uninsured Employers' Fund and Donald W. Jacklin [5/6/99] 1999 MTWCC 33.]

         ¶1 The claimant in this action, Joseph I. Sandoval (Sandoval), is a mule and horse trainer. He was injured at a mule race in Winnemucca, Nevada, on June 3, 1995, when kicked by a mule owned by Donald W. Jacklin (Jacklin). He alleges that he was employed by Jacklin and acting in the course and scope of employment at the time of his injury. He also alleges that Jacklin was uninsured and has named the Uninsured Employers' Fund (UEF) as a co-respondent.

         ¶2 Presently before the Court are cross-motions for summary judgment filed by each of the parties. Both Jacklin and the UEF urge that Montana lacks jurisdiction over the accident because Jacklin is not a Montana resident, he does not operate a business in Montana, and Sandoval's work was performed primarily outside of Montana. Sandoval argues that his primary place of employment was Montana and that his injury is therefore subject to the Montana Workers' Compensation Act. He further argues that, as a matter of law, he was Jacklin's employee.

         Uncontroverted Facts

         ¶3 The parties base their motions on depositions of Sandoval and Jacklin, affidavits of Patte Widdifield, Gary McGraw and Jacklin, and numerous exhibits attached to Sandoval's and Jacklin's opening briefs. The depositions are attached to Sandoval's Motion for Summary Judgment (Sandoval's Motion) filed July 21, 1997.[1] The affidavits are attached to Donald W. Jacklin's Brief in Support of Cross-motion for Summary Judgment and in Opposition to Petitioner's Motion for Summary Judgment (Jacklin's Opening Brief). The exhibits are attached to Sandoval's Motion and Jacklin's Opening Brief filed August 25, 1997. Sandoval's exhibits are labeled A through D, L and M. Jacklin's exhibits are labeled 1 through 7.

         ¶4 Based on the parties statements of uncontroverted facts and the evidence they have presented to support them, I find the following facts are not genuinely disputed. These facts are limited to the jurisdictional issue since it is unnecessary to presently consider Sandoval's employment status.

         1. Since the late 1980's Sandoval has been a Montana resident. He was a Montana resident while performing work for Jacklin.

         2.Jacklin is an Idaho resident and operates a seed business in Idaho.

         3.Sandoval is an experienced horse trainer and jockey.

         4.Jacklin owns and races mules.

         5.In 1992, Jacklin hired Sandoval to race his mules. He and Sandoval entered into a written agreement wherein Jacklin "subcontract[ed]" with Sandoval to race his mules "during the year 1992." (Ex. A at 40.[2])

         6.Jacklin and Sandoval entered into similar, although not identical, agreements in 1993, ...


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