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Kelly v. Hartford Accident & Indemnity Co.

Court of Workers Compensation of Montana

August 22, 2000

HEATHER KELLY, Petitioner,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, Respondent/Insurer for ST. MARY R.B., INCORPORATED, Employer.

          Date Submitted: July 17, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary of Case:

         Petitioner, a summer employee at St. Mary's Lodge in Glacier National Park, was injured in a car accident while driving to the Kalispell airport with her roommate, who was leaving employment, and another employee. Petitioner had been asked to drive to the airport in accordance with her employer's policy and practice of taking departing employees to the airport or train station. St. Mary's reported the accident to its workers' compensation carrier, Hartford Accident & Indemnity Company, which accepted claims on behalf of petitioner and the other employees in the car. Petitioner, who never herself filed a workers' compensation claim or directed the filing of a claim, seeks ruling she was not acting within the course and scope of employment and is not covered by the Workers' Compensation Act.

         Held:

         Although section 39-71-601(1), MCA, requires a claimant to file a workers' compensation claim within 12 months of an injury, the section is a statute of limitations and affirmative defense which must be asserted by the insurer. Here, the insurer has accepted the claim and the only matter before the Court is whether petitioner was injured within the course and scope of employment. Section 39-71-407(3), MCA (1999), governs compensability of injury incurred "while traveling." Petitioner's injury is covered under both subsections of that provision, either of which would be sufficient. Subsection (a) is met where St. Mary's furnished the transportation to the airport and could require employees to drive other employees to the airport or train station, making the travel an integral part or condition of summer employment. Subsection (b) is met where petitioner, though initially asked by her roommate to drive, was required to complete the task in accordance with St. Mary's policies and procedures. The claim was properly accepted by the insurer and the petition is denied.

         Topics:

39-71-601(1). Although section 39-71-601(1), MCA (1999), requires a claimant to file a WC claim within 12 months of injury, the section is a statute of limitations and affirmative defense which must be asserted by the insurer. Where the injury occurred in the course and scope of employment, an injured workers' decision not to file a claim does not take the injury outside the workers' compensation system.
39-71-407(3). Under section 39-71-407(3), MCA (1999), which governs compensability of injuries occurring "while traveling," summer employee of lodge in Glacier Park was injured within course and scope of employment where she was riding in car taking her roommate, a co-employee leaving employment, to the Kalispell airport. Injury covered under both subsections of 407(3): (a) is met where the lodge furnished the transportation and could require employees to drive other employees to departing transport; (b) is met where petitioner, though initially asked by her roommate to drive, was required to complete the task in accordance with employer's policies and procedures. Petition seeking declaration of non-coverage denied where insurer properly accepted claim filed by employer on petitioner's behalf.
Claims: Limitations Period. Although section 39-71-601(1), MCA (1999), requires a claimant to file a WC claim within 12 months of injury, the section is a statute of limitations and affirmative defense which must be asserted by the insurer. Where the injury occurred in the course and scope of employment, an injured workers' decision not to file a claim does not take the injury outside the workers' compensation system.
Employment: Course and Scope: Travel. Under section 39-71-407(3), MCA (1999), which governs compensability of injuries occurring "while traveling," summer employee of lodge in Glacier Park was injured within course and scope of employment where she was riding in car taking her roommate, a co-employee leaving employment, to the Kalispell airport. Injury covered under both subsections of 407(3): (a) is met where the lodge furnished the transportation and could require employees to drive other employees to departing transport; (b) is met where petitioner, though initially asked by her roommate to drive, was required to complete the task in accordance with employer's policies and procedures. Petition seeking declaration of non-coverage denied where insurer properly accepted claim filed by employer on petitioner's behalf.
Limitations Periods: Claim Filing: Generally. Although section 39-71-601(1), MCA (1999), requires a claimant to file a WC claim within 12 months of injury, the section is a statute of limitations and affirmative defense which must be asserted by the insurer. Where the injury occurred in the course and scope of employment, an injured workers' decision not to file a claim does not take the injury outside the workers' compensation system.

         ¶1 The trial in this matter was held on July 13, 2000, in Missoula, Montana. Petitioner, Heather Kelly (petitioner), was present and represented by Mr. David W. Lauridsen. Hartford Accident and Indemnity Company (Hartford), the workers' compensation insurance carrier for St. Mary R. B., Incorporated (St. Mary's), was represented by Mr. William O. Bronson. St. Mary's was represented by Mr. Dan L. Spoon. A trial transcript has not been prepared.

         ¶2 Exhibits: Exhibits 1 through 4 were admitted without objection.

         ¶3 Witnesses and Depositions: The parties submitted the depositions of Heather Kelly and Rocky Black for the Court's consideration. Those same individuals, as well as Linda Slavik, also testified at trial.

         ¶4 Issues: The issue, as restated by the Court, is as follows:

Whether the Petitioner was acting within the course and scope of her employment with St. Mary's at the time of the automobile accident on September 1, 1999.

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

         FINDINGS OF FACT

         ¶6 Petitioner is currently twenty years old and a college student. She lives in Oregon.

         ¶7 During the summer of 1999, petitioner was employed by St. Mary's as a seasonal worker at St. Mary's Lodge in Glacier National Park. She worked as a housekeeper, making between five and six dollars an hour. St. Mary's also provided lodging and meals, charging employees $7.95 per day for room and board, which is less than the true value of lodging and meals.

         ¶8 Petitioner's roommate during the summer of 1999 was Sarah Novak (Novak). Petitioner and Novak became friends during the course of the summer.

         ¶9 As a benefit to its seasonal employees, St. Mary's provided transportation to the airport or train station for employees returning home by airplane or train at the end of the season. St. Mary's authorized fellow employees to drive departing employees to the airport using their own cars or cars owned and provided by St. Mary's. If the employee's car was used, St. Mary's reimbursed the driver for gasoline.

         ¶10 The St. Mary's policy regarding transportation at the end of the season is set out in ...


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