IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA 2016 MTWCC 2 WCC No. 2013-3241 THE ESTATE OF ROBERT R. GREER, JR., DIANE BELCOURT, and KRB, minor child Petitioners vs. LIBERTY NORTHWEST INS. CORP. Respondent/Insurer. ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION FOR SUMMARY JUDGMENT AND DENYING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
Summary: Petitioners sought benefits after the decedent suffered a motor vehicle accident while traveling from Bozeman to Ekalaka for the start of his workweek at a construction jobsite. In addition to his wages, the decedent’s employer paid him $60 per diem for each full day worked. Respondent denied liability, arguing that the decedent was not in the course and scope of his employment and therefore not entitled to benefits under § 39-71-407(3), MCA.
Held: The decedent received reimbursement for travel costs from the employer in the form of a per diem and his employment necessitated his travel. Therefore, his death arose out of and within the course of his employment under the travel allowance exception to the going and coming rule, as codified in § 39-71-407(3)(a)(i), MCA. The decedent was not excluded from coverage under § 39-71-407(3)(b), MCA, because the employer did not make the payment under the terms of a written document that designated the payment as an “incentive to work at a particular jobsite.”
JUDGMENT: Greer’s April 25, 2011, fatal motor vehicle accident arose out of and in the course and scope of his employment under § 39-71-407(3)(a)(i), MCA. Greer was not excluded from coverage under § 39-71-407(3)(b), MCA. Greer’s Estate is entitled to its costs. Greer’s Estate is not entitled to its attorney fees or a penalty. Greer’s Estate’s motion for summary judgment is granted in part and denied in part. Respondent’s motion for summary judgment is denied. Pursuant to ARM 24.5.348(2), this Judgment is certified as final and, for purposes of appeal, shall be considered as a notice of entry of judgment.
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