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Seymour v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

January 17, 2017

BARRY MURNION, Third Party Respondent.

          Submitted: January 6, 2017



         Summary: Petitioner suffered an injury when he fell from a roof on which he claims to have been working. Respondent/Third Party Petitioner denies that Petitioner was an employee and that he was in the course of his employment at the time of his injury. However, if this Court determines otherwise, Respondent/Third Party Petitioner seeks indemnification from Third Party Respondent as an uninsured employer for all benefits paid or payable to Petitioner. Third Party Respondent denies employing Petitioner, either directly or indirectly. However, if this Court determines otherwise, Third Party Respondent contends that Petitioner fell from the roof because of his use of alcohol or non-prescription drugs.

         Held: At the time of Petitioner's injury, Petitioner was employed by Third Party Respondent and in the course of his employment. Petitioner's alleged use of alcohol or non-prescription drugs was not the major contributing cause of his accident, and therefore, Petitioner is entitled to benefits under the WCA. Third Party Respondent shall indemnify Respondent/Third Party Petitioner for all benefits paid or payable to Petitioner. Petitioner is entitled to his costs against Respondent/Third-Party Petitioner.

         ¶ 1 The trial in this matter was held on May 5, 2016, in Great Falls, Montana. Petitioner James Seymour (James) was present and represented by Charla K. Tadlock. Respondent/Third Party Petitioner Uninsured Employers' Fund (UEF) was represented by Joseph Nevin. Misty Knight, claims examiner for the UEF, and Mark Hurlbut, manager of the UEF, were also present. Third Party Respondent Barry Murnion (Barry) was present and represented by Jamie N. Bedwell.

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 5, and 12 through 19 without objection. This Court overruled the UEF's foundation objections to the transcribed portions of Exhibits 6 through 11, and admitted those exhibits in their entirety.

         ¶ 3 Witnesses and Depositions: This Court admitted the deposition of Sarah Elledge into evidence. James, Leonard Weaving, Knight, and Barry were sworn and testified at trial.

         ¶ 4 Issues Presented: This Court restates the following issues from the Pretrial Order.

Issue One: Did Barry employ James at the time of James' injury?
Issue Two: Is James entitled to benefits under the Workers' Compensation Act (WCA)?
Issue Three: Is Barry obligated to indemnify the UEF for all benefits paid or payable by the UEF to James?
Issue Four: Is James entitled to costs from the UEF? [1]


         ¶ 5 The following facts are established by a preponderance of the evidence.

         ¶ 6 At the times relevant to this case, Barry owned and operated Crown Construction as a sole proprietorship. Barry is married to Mary Murnion (Mary). Barry has employed Mary's brother, Jeff Seymour (Jeff), as a laborer. Although Barry and Mary's other brother, James, have long had a strained relationship, and although Barry emphatically denied ever employing him at the outset of his recorded statement, Barry has also employed James, paying him under the table a number of times for working on various roofing, construction, sheetrock, and siding jobs over the years.

         ¶ 7 Barry rarely, if ever, contacted James directly to hire him; Barry typically had Mary, Jeff, or his mother-in-law call James. James started out earning $8 an hour, but Barry eventually paid him at least $12 an hour and provided lunch. James had not worked for Barry for at least a year prior to his injury.

         ¶ 8 In the spring of 2014, Barry's workers' compensation insurance lapsed. He believed he was not required to carry coverage as the only people working for him at the time were his sons, Barry Jr. and Brandon, whom he claimed as dependents for tax purposes.

         ¶ 9 In August 2014, Barry was in a position to hire. He had spoken with Jeff about coming back to work full-time. Jeff told James that he was working for Barry as Barry's "foreman." Around Labor Day, Barry contacted the Montana State Fund to reinstate workers' compensation coverage, but Barry did not get coverage reinstated until September 17, 2014.

         ¶ 10 In early September, Crown Construction was in the process of re-roofing a house in Chinook. Barry maintained that he intended to complete the job with Brandon and Barry Jr., but he also hired another unidentified person to work on the job. Brandon, who was 18 years old and had recently finished high school, did not have much experience in construction and, in Barry's words, had "no skills."

         ¶ 11 During the first week of September, Barry Jr. was having significant problems with drugs. Barry and Jeff spent three days trying to help Barry Jr. However, Barry Jr.'s situation was dire. Barry and Jeff ultimately reported Barry Jr. to law enforcement, which arrested and jailed Barry Jr. Thereafter, Jeff and his wife, Shannon Seymour (Shannon), agreed to clean the drug paraphernalia out of the house in which Barry Jr. was living.

         ¶ 12 On September 7, 2014, Barry told Jeff that he was not going to be at the jobsite for at least part of the following day, as Barry planned to be in Havre to confer with a friend about Barry Jr. Although Barry claims that he told Jeff he would not hire James again, he was in a bind and, because he had to be away from the jobsite, he asked Jeff, "would you please run by [the jobsite] and check on Brandon, help him out, whatever you've got to do until I get back."

         ¶ 13 Jeff called James during the evening of September 7, 2014, and stated that he and Barry needed help on a roofing job the following day. James hesitated because he had already agreed to cover a friend's shift at the Lone Tree Bar. However, Jeff persisted and James ultimately agreed to help. The two did not discuss how much James would be paid or how many hours he would work. James just assumed he and Barry would discuss these matters at a later time, as was their custom.

         ¶ 14 Jeff called back the next morning and told James he had already sent Shannon from Havre to James' house in Rocky Boy to pick James up, a distance of approximately 20-25 miles. Shannon arrived while James and Jeff were still on the phone, and yelled in to James, within earshot of Sandra and Kristin Taylor, about needing to get him to work.

         ¶ 15 In her recorded statement, Shannon recalled some of the details of the drive from James' house to the jobsite in Chinook, a distance of approximately 50 miles. For example, Shannon stated that James had mentioned drinking the night before, which she said was normal for him. But one detail Shannon failed to mention was that she drove James to pick up his tools at Weaving's house on the way, a fact confirmed by Weaving at trial.

         ¶ 16 Although Barry signed a UEF Payroll Report indicating that he had no employees during this time, Jeff, Brandon, and another man James did not know were working at the jobsite when Shannon dropped James off around 9 a.m.

         ¶ 17 In Jeff's recorded statement, he lied when asked if he was working on the roofing job; he claimed he was in the area "looking for houses and stuff and stopped to see the employer." Likewise, in his second recorded statement, Barry claimed that Jeff just stopped by to visit: "Brandon was the only one there besides Jeff and Jeff ...

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