Submitted: February 7, 2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Summary: Claimant alleges she was injured in a
fall at work. She testified that she immediately informed a
coworker of the fall, then reported the injury to her
supervisor the next day. Another coworker, who was not
working at the time, supported claimant's testimony.
However, the coworker on duty and the supervisor denied
claimant reported the injury or that the she appeared
No industrial accident occurred. Claimant and her supporting
witness were not credible. The supporting witness plainly
disliked the employer and was biased. The coworker who was
working at the time of the purported accident, as well as the
supervisor, were credible.
Witnesses: Credibility. Claimant and a
coworker who supported claimant's story were not
credible. The coworker was plainly biased against the
employer and her and claimant's testimony was
contradicted by that of a credible unbiased coworker and
claimant's supervisor, who was also credible.
Claimant's behavior in putting a note regarding the
accident in a cash register till was "odd" and
further undermined her credibility.
Witnesses: Credibility. External evidence of
credibility should be considered by the fact-finder whenever
possible. Mere observation of witnesses in the courtroom may
not always lead to the correct conclusion regarding the
This matter came on for trial in Missoula on January 19,
2001. Petitioner, Mary Sutton (claimant), was present with
her attorney, Mr. Dustin L. Gahagan. Respondent, Hartford
Accident and Indemnity Company (Hartford), was represented by
Mr. William O. Bronson.
Exhibits: Exhibits 1 through 6 were admitted without
Witnesses and Depositions: The parties agreed that
the depositions of claimant, Lisa Anders, and Terry Bergren
may be considered by the Court. Claimant, Terry Windstedt,
Linda Ballinger, Lisa Anders, Bernice Bergren, Terry Bergren,
and Linda Slavik testified at trial.
Issues Presented: As set forth in the final pretrial
order, the following issues are presented:
a. Is Petitioner entitled to the acceptance of liability for
b. What is the amount of damages suffered by Petitioner at
c. Is Petitioner entitled to recover her costs and attorney
fees incurred in pursuing this action pursuant to Mont. Code
Ann. Section 39-71-611?
(Final Pretrial Order at 1-2.)
Having considered the final 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:
On September 9, 1998, the claimant began working for
People's Market in Darby, Montana. She was employed as a
People's Market is a supermarket owned by Bergren,
Incorporated, which is a small family corporation. Terry
Bergren is one of the shareholders and is president of the
company. His wife, Bernice ...