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DAGWOOD BUMPSTER,

Petitioner and Appellant

v.

HERBAL DECOR,

Respondent and Respondent.

Dagwood Bumpster owned a lot of tools. He was an all-around handyman who always lent a hand to help his friends, remodeled his entire house, and did many odd jobs for his neighbors. He had a wood shop where he made homemade furniture for a hobby, occasionally selling a piece or two, and he owned many specialized tools left over from his home remodeling projects. He also did some house painting for extra money in the summer, and owned his own scaffolding equipment. However, he normally worked as an accountant for the Interrupted Power Company, and when the power company went into bankruptcy, he was laid off.

Needing extra income, Bumpster agreed to do some finishing work on the new Homely Despot store, a locally-owned interior design business his neighbor, Herbal Decor, was opening. Herbal, in the usual course of her occupation, began innovative boutique stores, then sold them as established businesses to new owners. Herbal had subcontracted with a local, licensed contractor to renovate an old downtown building for her newest business. But, after the new walls were roughed in, the contractor abandoned the project to make more money subcontracting to work on the Big Chain Store.

So, Herbal asked Bumpster to bring in his table saw, scaffolding and paint equipment to do the interior finish work on the store. Because the contractor was behind schedule when he abandoned the job, Herbal was panicked about missing her Grand Opening day, and insisted that Bumpster work 14 hour days, six days per week, and agreed to pay him $500 more than she would have paid the original contractor, as long as she didn't have to pay for Bumpster's payroll tax or workers' compensation coverage. To that end, Bumpster agreed to call himself an "independent contractor," even though he had never done commercial finish work before, and was hoping to get work as a bookkeeper at the Big Chain Store after it opened. He also suggested that Herbal hire Dithering, another out of work IPC former employee, to help get the job done faster. (Dithering was paid by the hour.)

Bumpster's truck broke down shortly after hauling over all his equipment to the job site, so Herbal loaned him her personal pickup to use to go to and from the job. She made it clear that she didn't want him to use it to go off site for any non-work-related use. He could use it to pick up supplies and to go to and from home.

After two weeks of intense work, late on a weeknight, Bumpster and Dithers were working alone in the Homely Despot. An exhausted Bumpster tripped over an extension cord and accidentally bumped into his scaffolding. It was set up so Dithering could paint the ceiling. Bumpster's bump caused it to shake, and Dithering fell to the floor, breaking his leg. In pain, but conscious, Bumpster tried to get Dithering to limp over to the truck, but he was in too much pain to be moved. Because Herbal hadn't yet run in phone lines, and Bumster's cell phone battery was dead, Bumpster ran out to look for a telephone. However, due to the late hour, all the surrounding businesses were closed.

Therefore, he jumped into Herbal's pickup and raced to the nearest gas station to call 911 for medical assistance. The gas station was one mile away. Once assured that help was on its way, he drove back to the Homely Despot, staying within the posted speed limit. However, on the way back, as he was passing the city park, a deer grazing by the side of the road was startled and jumped into Bumpster's path. He hit the deer, which flew up over the hood of the vehicle, smashing the windshield and causing a shard of glass to fly into his right eye, permanently blinding Bumpster in that eye.

Bumpster filed a Workers' Compensation claim, seeking permanent partial disability benefits for the loss of his eye. It was undisputed that Herbal Decor did not carry workers' compensation insurance, and undisputed that Dagwood Bumpster was permanently partially disabled, especially because his eye injury made it more difficult for him to work as an accountant. However, Decor argued that Bumpster was an independent contractor, and even if he was her employee, he left the job site without authorization, was not using the pickup for work-related purposes, and was therefore not injured in the course and scope of his employment. The Montana Uninsured Employer's Fund agreed, and denied his claim.

Because Bumpster had loaned the Workers' Compensation Court Judge some tools for a do-it yourself home remodeling project last summer, the Judge recused himself from the case. A substitute, District Court Judge Filicia, stepped in and sided with Herbal Decor in the case before the Workers' Compensation Court, finding that Bumpster was an Independent Contractor.

This appeal followed.

Issue 1: Was Dagwood Bumpster an Independent Contractor or an Employee of Herbal Decor?

Issue 2: If Bumpster was an employee, was he injured in the course and scope of his employment?

1. For the purposes of this fact pattern, assume that Bumpster does NOT meet the definition of "casual employment" at 39-71-116(7).

2. Dithering also filed a workers' compensation claim, and because Herbal was unquestionably his employer, she ultimately had to pay all of Dithering's hospital bills. See MCA § 39-71-504. Fortunately, she sold the Homely Despot for a healthy profit.

3. An estimated 1.5 million deer-automobile collisions occur annually in the United States resulting in more than $1 billion damage to vehicles. In addition, 29,000 human injuries and 200 human fatalities occur as a result of deer-automobile collisions.

Montana Constitution:

Article II, Section 16

Statutes:

MCA §39-71-105

MCA §39-71-116 (excerpts)

MCA §39-71-117 (excerpts)

MCA §39-71-118 (excerpts)

MCA §39-71-120

MCA §39-71-401 (excerpts)

MCA §39-71-407 (excerpts)

MCA §39-71-501

MCA § 39-71-504 (excerpts)

Case Law:

Wild v. Fregein Construction, 2003 MT 115, 315 Mont. 425, 68 P.3d 855

Doig v. Graveley, 248 Mont. 59, 809 P. 2d 12 (1991)

Carillo v. Liberty Northwest Insurance, 278 Mont. 1, 922 P.2d 1189 (1996)

Bergum v. Montana State Fund, 2004 MTWCC 3

Grywusiewicz v. State Compensation Insurance Fund, 1998 MTWCC 67

Many Workers' Compensation cases depend heavily on the individual facts of the case. Therefore, youth attorneys must compare the details of this fact pattern to the facts of the cases provided to see how the facts can be correlated or distinguished from existing case law. Attorneys for Bumpster must prove both Issue I and Issue II for him to obtain benefits. Attorneys for Ms. Decor will prevail if they can win on either Issue I or Issue II.

Wild and Doig address Issue 1. Wild states the current law on how to determine if someone is an independent contractor or an employee. This decision removed the "conclusive presumption" of MCA § 39-71-401(3)(c), and so is an example of how the courts may at times invalidate part of a statute passed by the legislature.

In Wild, the court determined that Mr. Wild was an Employee. In Doig, the court determined that Mr. Doig was an Independent Contractor. Thus, attorneys have one case going each way, and need to decide how to apply the "IC test" that is outlined beginning at paragraphs 33 and 34 of Wild to best argue their side.

Carillo, Bergum and Grywusiewicz are "course and scope" cases and address Issue 2. Carillo is the "classic" course and scope case, outlining the state of the law, and clearly explains that there is no clear test for course and scope, that each case is dependent on the particular facts. Carillo offers good arguments on each side, because it was a case decided one way by the Workers' Compensation court, and then reversed by the Montana Supreme Court.

Bergum and Grywusiewicz are Workers' Compensation Court cases involving travel, one finding travel to be within the course and scope of employment, and one finding it wasn't. Grywusiewicz also briefly addresses an Independent Contractor question, so may be of some use for Issue 1 as well.