Submitted: January 6, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
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.
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'
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?
5 The following facts are established by a preponderance of
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
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
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