Submitted: December 22, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
Petitioner contends that he suffered a compensable injury
because, although he drank before his accident, alcohol was
not the major contributing cause of his accident, and his
employers knew about his drinking and did not make a genuine
attempt to stop it. Petitioner further claims his injury
arose out of and in the course of his employment under the
premises rule and the bunkhouse rule because he was a
residential employee and on-call at all times. Respondent
argues that given his lack of credibility and extent of
intoxication, Petitioner's use of alcohol was the major
contributing cause of his accident. Respondent further argues
that although Petitioner's employers knew about his use
of alcohol, their efforts to stop it were sufficient.
Finally, Respondent contends that credible evidence shows
that Petitioner's injury did not arise out of and in the
course of his employment.
Respondent met its burden of proving that Petitioner's
use of alcohol was the major contributing cause of his
accident. Moreover, Petitioner's employer knew about and
attempted to stop it. Therefore, Petitioner's claim for
benefits is barred under § 39-71-407(5), MCA, and this
Court declines to address whether Petitioner's injury
arose out of and in the course of his employment.
1 The trial in this matter was held on October 14, 2016, in
Hardin, Montana. Petitioner Kenneth Devers was present and
represented by Paul W. Adam and Hayley Kemmick. Respondent
Montana State Fund (State Fund) was represented by Stephanie
A. Hollar. Amy Kirscher, claims adjuster, was present on
behalf of State Fund.
2 Exhibits: This Court admitted Exhibits 1 through
16 without objection. This Court overruled State Fund's
timeliness objection to Exhibit 17 and admitted that exhibit
after Devers laid a foundation.
3 Witnesses and Depositions: This Court admitted the
depositions of Devers and Crissy Seminole into evidence.
Devers, Seminole, Josh Myers, and Holly Yuhasz were sworn and
testified at trial.
4 Issues Presented: The following issues are before
Issue One: Is Devers' claim barred by his intoxication?
Issue Two: Did Devers' injury arise out of and in the
course of his employment under the premises
or the bunkhouse rule?
5 The Court finds the following facts based on a
preponderance of the evidence.
6 In January of 2013, Devers was living on Sanders Road just
outside of Hardin. He had been doing maintenance work for
Sunset Village Mobile Home Park (Sunset Village), for several
years. Emery and Holly Yuhasz were members of the LLC that
owned Sunset Village. Although they lived in California,
Emery was in charge of maintenance and Holly was in charge of
bookkeeping activities, such as paying bills and checking on
7 In mid-January, Emery hired Devers to be Park Manager at
Sunset Village. Devers' job duties included maintaining
all rental units - including putting together materials
lists, conducting price comparisons, and making purchases -
and keeping up the grounds in the park. He was on-call at all
times for the purpose of being able to respond to tenant
8 Emery requested that Devers live in one of the park's
units, rent- and utility-free, so he could be more readily
available should any emergencies arise. By signing his
employment agreement and handbook, Devers agreed that his
tenancy was conditioned upon his continued employment as Park
Manager and that he would follow the rules of the park, which
prohibited alcohol consumption before 5 p.m. Soon thereafter,
Devers moved into unit #8, which was close to the office. At
the time Devers moved in, there were holes in the floors
throughout his unit, including just inside the front door.
Devers used scrap pieces of wood to cover the holes, like
bridges, and moved the pieces around as he moved through the
9 On a typical day as Park Manager, Devers woke up at 6 or
6:30 a.m., put his dog on his line outside, went back inside
to grab what he needed, and walked to the office. He usually
worked until 4:30 or 5 p.m., although he worked late if he
was on a deadline and responded to tenant emergencies at all
hours with Seminole, the park's other maintenance person.
10 Devers occasionally had a few drinks at lunch and, on most
days, drank a six-pack of beer starting at 4:30 or 5 p.m.
Seminole did not know Devers drank at first. However,
Seminole noticed Devers drinking more in the spring of 2015,
when he started showing up to after-hours maintenance calls
with signs of intoxication. When Devers showed up for an
after-hours maintenance call with signs of intoxication,
Seminole sent him home and handled the job herself.
11 In April of 2015, a resident complained that Devers was
drinking during his regular workday and smelled of alcohol.
Emery reprimanded him over the phone and told Devers that
drinking during the workday was not allowed. Devers took this
as "fatherly advice" and told Emery that he would
curtail his lunch-time drinking.
12 Seminole communicated with Holly on a daily basis.
However, she did not report Devers for drinking until she
received a tenant complaint in the spring of 2015. According
to the tenant, a window had been broken at Devers' unit,
and he was outside drinking and yelling.
13 Seeking a way to verify Devers' drinking, Holly
arranged for all Sunset Village employees to be tested for
14 In early July 2015, however, another tenant complained
about noise, partying, and drinking at Devers' home.
Seminole passed the complaint on to the Yuhaszes, who in
response decided to impose written discipline on Devers that
would pave the way for his termination should it become
15 On July 9, 2015, Holly called Devers and told him to go to
the fax machine. Devers then received a letter electronically
signed by Emery, which states:
We had several telephone conversations with you in the past,
including recently in the last month, regarding complaints by
tenants that there are disruptions, confrontations, partying
and drinking taking place at your residence in the park. In
the past we have bailed you out of jail and assisted you to
be released from probation. We have discussed that you have
had guests, including women and their children, staying
overnight in your home without our knowledge or permission.
We warned you that this behavior must not continue because it
was disrupting the operations and peaceful enjoyment of thee
[sic] environment in the park.
Yesterday we received yet another resident complaint about
partying and drinking at your home. This behavior must
stop. No other people are to occupy your home without
our express written permission and we may request they apply
for and are approved to reside in the park. You as a Park
employee and Manager are to set the example for behavior for
letter requested Devers' acknowledgement, but he neither
signed it nor heard anything further from the Yuhaszes.
However, Devers understood that Emery was telling him that
his partying and drinking "needed to cease."
16 The morning of July 23, 2015, Devers went to the office,
informed Seminole that he was doing a private tree-cutting
job that day, and left.
17 At around 4:30 or 5 p.m. that day, Devers bought two
growlers of beer at a restaurant in Hardin. He then returned
to Sunset Village and, at some point, started drinking.
18 That evening around dusk, several tenants notified
Seminole that Devers was talking to a person requesting entry
to Sunset Village with an RV. As entering RVs was
Seminole's domain, she went to meet Devers. He told her
he could handle things, but Seminole noted that he was drunk,
and told him to go home.
19 Thereafter, Devers went to the office to check his e-mail,
browse the Internet, and take care of a work-related matter.
Seminole received another call from tenants, this time
indicating that Devers was passed out in the office.
20 Seminole and her husband went to check on Devers. They
found him passed out and slumped over on the office desk.
Devers was wearing a lime-green shirt and blue jeans. They
tried shaking him, picking his head up, and spraying him with
water, but they could not wake him up. Around 9:30 p.m.,
Seminole called Holly, who directed Seminole to call 9-1-1.
21 Deputies from the Sheriff's Office responded to the
scene within minutes and were able to rouse Devers by
squeezing him between his neck and shoulder. However, Devers
did not lift his head. The ambulance arrived a few minutes
later. The EMTs checked Devers over and noted he was
belligerent and uncooperative, had slurred speech and
rambled, and smelled strongly of alcohol. Devers admitted
that he had been drinking, but refused to say how much. The
deputies gave him a breathalyzer test, which revealed a blood
alcohol content (BAC) of 0.238. The EMTs tried to get Devers
to sit up straight, but he could not, and they laid him back
down. The EMTs assessed "acute alcohol
intoxication." Devers refused treatment and refused to
ride in the ambulance. The deputies and EMTs left him in the
office because "EMS felt that insisting the patient get
treatment would only make the situation dangerous for the
providers." The ambulance left the premises at 9:53 p.m.
22 At that time, Devers was, in Seminole's words, still
"really, really drunk, " and still could not sit
up. After she reported to Holly that Devers refused to go
with the ambulance and was still in the office, Holly called
the Sheriff's Office and asked that a deputy escort
Devers home. Seminole left the office around 11:30 p.m.
23 The Sheriff's Office called Seminole around midnight
to advise her that Devers was home. She and her husband then
drove by Devers' trailer and observed him standing on the
third step of his porch, leaning against his trailer. In her
written statement, Seminole wrote: "I was surprised he
could stand, because he wasn't able to sit up straight in
the office chair." During her recorded statement,
Seminole explained: "And when I was on my way back-or,
on my way over here I noticed he was standing on his porch,
leaned over. I was like, that's crazy because he
couldn't even sit up straight."
24 Seminole and her husband continued on to the office to
lock up. Seminole, concerned that Devers was going to fall
and get hurt, asked one of the deputies who remained at the
office to check on Devers to make sure he got inside; the
deputy said he ...