Submitted: September 12, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
Petitioner fell in the parking lot of the strip mall in which
her employer leased a space. Respondent initially denied
liability for Petitioner's severe concussion on the
grounds that she was not in the course of her employment
under the going and coming rule. Respondent relied upon
evidence indicating that Petitioner fell before she started
working and maintained that the premises rule - which
provides that an employee is in the course of her employment
when she is on her employer's premises a reasonable time
before her shift - did not apply because the parking lot in
which Petitioner fell was not part of the employer's
premises because the employer leased its space, shared the
parking lot with other businesses, and did not maintain it.
Petitioner argued that she was in the course of her
employment under the premises rule because the parking lot
was part of her employer's premises under established
Montana law. Alternatively, Petitioner argued that she was
within the course of her employment because she had already
started working when she fell. After the parties deposed
witnesses, Respondent accepted liability on the grounds that
the weight of the evidence showed that Petitioner had already
started working when she fell. Petitioner now asserts that
Respondent's initial denial was unreasonable and that she
is therefore entitled to a penalty under § 39-71-2907,
Respondent's initial denial was reasonable because the
law of Montana was not clearly established at the time
Respondent denied liability. While the established law of
Montana provides that an employer-owned parking lot is part
of the employer's premises, there is no case law
addressing whether an employer's premises includes a
parking lot that it leases, shares with other businesses, and
does not maintain. Moreover, at the time Respondent denied
liability, there were legitimate issues of material fact as
to whether Petitioner fell immediately before or after she
1 The trial in this matter was held on September 12, 2018, in
Missoula. Petitioner Emma Stevens was present and represented
by Thomas C. Bulman. Respondent Montana State Fund (State
Fund) was represented by Melissa Quale.
2 Exhibits: This Court admitted Exhibits 1
3 Witnesses and Depositions: This Court admitted the
depositions of Emma Stevens, Darrell Haugland, and Thomas
Langeslag into evidence. Emma Stevens, and State Fund claims
examiner Lila Martinez were sworn and testified at trial.
4 Issues Presented: The Pretrial Order set forth the
Issue One: Whether Petitioner is entitled to an increased
award of 20% on all delayed benefits pursuant to §
5 The following facts are established by a preponderance of
6 Darrell Haugland and his wife own Yellowstone Tractor
Company, a tractor dealership in Belgrade.
7 In December 2017, the Hauglands opened a second dealership
in Stevensville. Haugland leased the space in which
Yellowstone Tractor conducted business in a strip mall. At
the time, there were at least two other businesses in the
strip mall. The businesses shared the parking lot. On the
side of the parking lot, Yellowstone Tractor parked its
inventory of tractors. Yellowstone Tractor's customers
test drove the tractors in the parking lot in front of the
8 Yellowstone Tractor maintained the sidewalk in front of the
store, but not the parking lot. When it snowed, the
landlord's company plowed the parking lot.
9 Haugland hired Thomas Langeslag to be the salesman at
Yellowstone Tractor's Stevensville dealership.
10 Haugland and Langeslag discussed that they needed another
employee to answer the phones, work on the computer, and take
care of customers when Langeslag was not at the dealership.
Langeslag was close friends with Stevens' family and
recommended that Haugland hire Stevens, as she grew up on a
farm, knew how to operate tractors, and was a hard worker.
Haugland hired Stevens.
11 Starting in late December 2017, Langeslag was forced to
take a 5-week leave of absence, leaving Stevens as
Yellowstone Tractor's sole employee in Stevensville.
12 On January 11, 2018, Stevens arrived for work at
approximately 9:00 a.m. Thereafter, she fell in the parking
lot, suffering a severe concussion.
13 On January 30, 2018, Stevens filed a First Report of
Occupational Injury or Occupational Disease with State Fund.
In the box labeled, "Time Employee Began Work,"
Stevens wrote, "9:00 am." In the box labeled,
"Time of Injury," Stevens wrote, "9:30
am." In the box labeled "Description of
Accident" Stevens wrote, "Fell on ice, hit
14 On February 1, 2018, State Fund assigned Bethany Sundquist
to adjust Stevens' claim. That afternoon, Sundquist spoke
with Haugland. Haugland told Sundquist that Langeslag had
spoken to Stevens' parents, who told Langeslag that
Stevens fell while walking from her truck to the store.
Sundquist's claim note from that day states, in relevant
Date of Injury:* 1/11/2018
When and how were you notified?* I tried to get a hold of her
and couldn't so I called Tom her co-worker and he called
her parents and the [sic] told them what happened.
Was the employee performing their regular job duties when the
accident/exposure occurred?* She was going from her truck to
the store to work when she fell. She is honest and I trust
what she says[.]
Do you have any concerns about this injury happening at
Please describe how the injury occurred: * She was walking
from her pick up into the store and she slipped on ice and
hit her head on the small curb in the front there. . . .
15 On February 2, 2018, Sundquist took Stevens' recorded
statement. Stevens explained, "I was just walking across
the parking lot after checking the equipment, and was walking
into the building and hit a sheet of ice and fell straight
forwards - or ...