*1 517 Individually VLEET, VAN MINDY Vleet, guardian of Vanesa natural as Appellant, Petitioner v. COUNTIES OF ASSOCIATION

MONTANA TRUST, COMPENSATION WORKERS’ Respondent. Respondent/Insurer No. 04-206. 23, 2004. November Submitted Briefs 21, 2004. Decided December 367.

2004 MT 517. Mont. *2 Appellant: Bidegaray, Bidegaray, For Anna M. Daniel B. Firm, Bidegaray Law Bozeman. Grosfield, Grosfield, H. Respondent:

For Norman Utick & Helena. Opinion

JUSTICE REGNIER delivered the of the Court. (Van Vleet), Mindy individually and natural Van Vleet as ¶1 Vleet, guardian appeals judgment (WCC) by of Vanesa Van from the entered Compensation the Montana Workers’ Court on its order her dismissing petition requesting pursuant death benefits Compensation Montana Workers’ Act for the death of Shawn Van (Shawn). Vleet We reverse. determining the WCC erred in appeal The issue on is whether

¶2 Shawn was within the course the time of the fall which resulted his death.

BACKGROUND death, deputy At the as a for the employed time of Shawn was (PCSD). County Sheriff’s He fell from a hotel Phillips Department Falls, Montana, balcony in Great for a Montana Narcotics while (MNOA) conference, sustaining injuries from Officers Association and the mother eventually which he died. Van Vleet is Shawn’s widow child, timely compensation filed a workers’ of their Vanesa. Van Vleet insurer, the Montana claim with the PCSD’s workers’ (the Trust), Compensation Trust Association of Counties Workers’ Van of Shawn’s death. The Trust denied requesting benefits as a result claim. Vleet’s benefits and a the WCC for the death petitioned Van Vleet then benefits for unreasonably had denied

determination that Trust costs, attorney’s fees an award of requested Shawn’s death. She also actions. The WCC against the Trust for its unreasonable penalty and a Based on the evidence hearing petition. a on held findings entered hearing, subsequently at the presented surrounding Shawn’s circumstances following forth the fact set accident. PCSD and as deputy a sheriff employed Shawn was (Task Force). Task Force Tri-Agency Drug with the

assigned to work (Stolen). Mark Stolen supervisor direct the Task Force was 30, 2001, together traveled to the January Shawn and Stolen On Falls, Montana, Holiday hotel in Great to attend conference Inn in the conference included law sponsored by Participants the MNOA. Montana, law agents prosecutors from around enforcement equipment vendors. conference afforded enforcement opportunity relating drug law participants an to attend courses by the products enforcement and view offered vendors. Shawn registered hotel for the conference at Stolen arrived approximately January 5:00 p.m. Stolen to a registering, After went participants where the conference could

sponsored MNOA equipment might each and meet vendors of network with other purchase of purchase. contemplating Because the Task Force was new room to network equipment, Shawn’s and meet vendors was of benefit to the Task Force. Food and alcoholic *3 beverages charge were available free of in the room. Stolen knew disapprove alcohol and did not was available there, did them not agents drinking of Shawn and other but instruct Miller, supervisor to drink drive. Sheriff at the Tom PCSD, type provided was that conferences of this often also aware rooms, he did at the prohibit in but not conferences. midnight. The At hospitality room closed sometime after

¶7 a.m., 1:30 met four individuals approximately Shawn other they key to the room. from conference and obtained They they into went back where consumed more alcohol “drinking games.” group left the played proceeded 2:00 Three of the individuals a room approximately a.m. group fifth member of the followed on the fifth floor. Shawn first not allowed inside. Shawn’s three the room but were floor,leaving fifth companion then entered his own room the forming a hallway open, was hallway. alone One wall of Shortly after Shawn balcony courtyard. an indoor which overlooked balcony railing on either hallway, left fell over a alone in the hotel, sustaining or fifth floor to the main floor of the fourth had a blood alcohol eventually died. Shawn injuries from which he time his death. level of .203 at the fact, the WCC concluded that findings above Based on the claim, Vleet’s but Shawn did not bar Van

Shawn’s intoxication at the time of outside the course and acting not and, result, daughter and her were as a Van Vleet his accident Consequently, death benefits. to workers’ entitled appeals. Vleet petition. Van WCC dismissed Van OF REVIEW STANDARD We review the court’s a WCC decision is twofold. Our review of supported by are whether of fact to determine findings to determine its conclusions of law credible evidence and substantial Schools, County Public v. Missoula they are correct. Hiett whether 341, 95, 15, ¶ Mont. 2003 MT ¶ ¶ findings Consequently, fact. WCC’s dispute ofthe Vleet does of, application interpretation only whether the court’s we review to, is correct. of the facts the law

DISCUSSION was not determining that Shawn erred in Whether the WCC the fall at the time of within death. resulted in his under correctly concluded that outset, § At the we note fall the time of his 39-71-407(4), intoxication at MCA is not Although this conclusion claim. bar Van Vleet’s did not issue of Shawn’s analyze first appeal, we will challenged this to the it is relevant participation as during his conference intoxication part: 39-71-407, MCA, pertinent states later. Section argument (1) compensation, payment Each insurer is liable section, to an employee in this provided and to the extent manner arising out injury receives an that it insures who of an death from or, in the case of and in the course of beneficiaries, any. if injury, employee’s to the payable (4) otherwise eligible for benefits employee is not An drugs is not alcohol or employee’s use of chapter this if the under *4 contributing cause of major by physician is the prescribed to knowledge and However, employer had accident. failed if drugs, this or use alcohol employee’s attempt stop to added.] apply. [Emphasis not subsection does and to socialize going he was knew employers and did not hospitality room MNOA sponsored drink alcohol activities socializing and doing so. Shawn’s prohibit him vendors, which was network and meet to supervisor his only to PCSD. The limitation of benefit not leave the to and drive. Shawn did placed on Shawn was not drink for site, hospitality room drank alcohol in the conference but closed, initially then colleagues before it approximately six hours with sponsored colleagues in the same MNOA drinking continued Thus, the a.m. WCC room between 1:30 a.m. and 2:00 39-71-407(4), MCA, Shawn’s correctly pursuant to concluded § to cannot as a defense intoxication while at conference serve fact, held: coverage Van Vleet. In the WCC exclude for deputy supervisor Van direct shows his evidence of Vleet’s Indeed, drinking claimant’s the conference. awareness widespread among conference drinking was condoned in in case is no different than attendees. The situation this 40, Fund, 2000 Employer’s Thoreson v. Uninsured MTWCC employer’s knowledge wherein I held that the of the claimant’s injury marijuana immediately preceding precluded use his drug under section 39-71- defense otherwise available 407(4), case not MCA.I therefore conclude that the claim this (1999). MCA, 39-71-407(4), barred under section correctly We also note the WCC Shawn’s attendance at concluded the conference participation

plainly employment pursuant within the course (1984), Darby four-factor test set forth in v. Dist. No. Courser School 13, 16, This 214 Mont. conclusion also challenged appeal and be the this matter ended. point should where However, legal background factual which led WCC despite for “attending employment-related to conclude Shawn was matters” then first six hours of attendance in unnecessary analysis seemingly create a engaged in an deviation analysis defense where none existed. This resulted the conclusion him “drinking night and late activities took outside of his convention attendance” and the time of fall, substantially had deviated from his attendance, Despite its conclusion that Shawn’s room did not sponsored hospitality intoxication while at the conference Street, WCC, claim, analyzing under Dale v. Trade bar 349, 854 concluded death benefits Inc. 258 Mont. (1999). Dale, 39-71-407(1), In precluded pursuant to MCA were § employee is injuries are when the employee’s compensable held *5 522 Dale, injured. matters” when

“attending employment-related to “[i]t We also commented is well Mont. at 854 P.2d at 832. are not covered traveling employees established Montana that limitation, activity day, regardless without of the conduct or hours a remain in the course employee in which are involved.... The must traveling injury to be scope employment and while 352-53, Dale, at 830. 258 Mont. at compensable.” Court’s first that Dale reaffirmed this WCC noted under the influence precedents holding employee to overrule an refusal of his nonetheless in the course and of alcohol who is and that the ultimate test is employment is entitled to alcohol, but under the influence of not whether the claimant Dale, 258 employment related matters.” “attending whether he was Mont, Then, conflicting with its earlier 854 P.2d at 831. were within the hospitality room activities conclusion while attending and there he was employment, course and ofhis matters, the WCC drew a distinction between employment related half-hour socializing drinking and and the later the earlier six hours of noted: drinking. The WCC when employment ofhis was not in the course [Shawn] death, potential and other fell to his therefore his widow he initial to death benefits. After the are not entitled beneficiaries ‘attending longer [Shawn] was no hospitality closure of the clearly At that it was point, related matters.’ employment to continue and four others who chose [Shawn] bedtime for all but room not for business drinking. They reopened hospitality play but to drink some more and employment to their related on the heels of more tragedy followed drinking games. drinking. related matters” point “employment magic

The WCC’s termination draw initial room doors. We cannot closing hospitality was the such a distinction. maintains the WCC’sconclusion and the Trust mirrors appeal, On scope of his from the course and substantially deviated and continued to when he reentered that Shawn abandoned beverages, point, and at

drink alcoholic no benefit to drinking provided hours as the after purpose business find reasonable to “[i]t is not The Trust asserts employer. directly might assumption upon based compensability subsequent drinking and indirectly of excessive approve room) (at a blood alcohol resulted in a closed games conclusion, arguing that challenges this Van Vleet level of .203.” employer, of his for the benefit was at the conference because Shawn room were within the conference attendance at remained within agree fell. through the time he We ofhis course Van Vleet. dispute in this point, At this it is to note what important no case, factually dispute There is legally. both related and within at the MNOA conference was work attendance dispute There is further no course consumption attendance in the room and his approved by it closed was initially until the time *6 of related employer and within the course and activity, Shawn During period matters. this of work related consumed six hours. Not beverages period approximately alcoholic over a had a blood alcohol level of .203 surprisingly, evidence disclosed Shawn surely drinking the time his death. The first six hours of at Obviously, the WCC was contributed to his extreme intoxication. drinking fact the by place influenced the that additional took after a Implicit finding room closed. in the WCC’s is the was drinking determination that somehow additional half-hour absolutely real death. is no evidence to the cause of Shawn’s There legally a that intoxicated support conclusion Shawn was not when initially room; left is there evidence in the nor initially initially was record sober when he left drinking hospitality room the additional half-hour of was contrary, cause of the the evidence is compelling intoxication. To already that Shawn intoxicated when initially balcony its Had Shawn off closed doors. fallen at point, analysis, compensated. under WCC’s Van Vleet would be It must remembered that the is not Shawn’s drinking be issue concluded, WCC the parties agree, intoxication. The during intoxication conference did not bar Van Vleet’s claim. The facts, WCC, pivotal according under is question these whether fall, until drinking, up Shawn’s later half-hour of the time his his six constituted a substantial deviation from earlier hours drinking, which was as related “employment established matters.” 166, Mont. 612 Gordon v. H.C. Smith Construction 188 668, electrician, job a site P.2d a similar case where Butte while a Denton, met with some fellow electricians at the local bar where played pool approximately drank alcohol and for four hours. the bar his colleagues Gordon was killed when he and his left offthe road. This Court commented colleague, driving, who was went 524 great employer

that “it cannot come as a shock to the or be by working from their away unforeseeable insurer that men homes may Gordon, and families saloon for a beer after work.” 188 visit a 174, Similarly, here, Mont. at 612 P.2d at 672. it is not nor shocking, away unforeseeable and his colleagues, it that Shawn while from families, participate their homes and would attend in conference sponsored hospitality provided room where alcohol was order to and network. socialize argued The insurer Gordon that Gordon had deviated from his when at the Denton This Court noted that stopping bar. compensation legislation is the no fault insurance. original

“Workers’ result, If killed as a employee performs job negligently and is Gordon, 174, 188 compensable.” his death is Mont. at 612 at 672. insurer, by employment, had arguing Gordon deviated from Gordon, interject system. a no fault attempted to fault into Mont. Additionally, P.2d at this Gordon’s Court held death our during occurred course as case law intoxication, by itself, that a claimant’s does not demonstrates Gordon, establish a deviation the course of Mont. at 612 P.2d at 672. WCC, through analysis, interjected its deviation has system. not a

fault into a no fault This was situation where Shawn left peculiar activity in some after hours premises participated Holiday employer. Additionally, Inn not anticipated part well be a aware that alcohol would and conceded that Shawn’s at the conference *7 the conference of benefit to PCSD. and his attendance at the itself, intoxication, not establish a deviation from the Shawn’s does hospitality analysis, after the employment. course of Under the WCC’s closed, only go the for attendees of the conference was to choice claims the doors closed. compensable to because ended when bed the employee of deviated from course proving The burden ¶22 his is on the or workers’ scope employment employer of Gordon, P.2d insurer. 188 Mont. at at 672 See compensation omitted). (citations in that supports evidence the record a There is no that drinking that it time for holding was bed attendees legal Thus, facts, any under these prohibited. after a set time was colleagues that room with drinking that occurred in of scope Shawn’s not a deviation from night employment. on continued with companions simply his

¶23 returned to the including when sponsored activity, same drinking fall. The until the time of Shawn’s room and activity, in the same occurred was the continuation same that and with the same place, purposes for the same way, in the same began conclusion Shawn employer of that mandates the sanctions his and remained employment of night scope the course It to Shawn’s certainly until fall. foreseeable there but at other only not occur in that would during times this conference. earlier, Shawn did not deviate from As we stated because

¶24 analyze case there is no need to employment, course correctly argues that if Shawn’s under Dale the WCC did. Van Vleet as compensability, it is intoxication cannot be used as a defense to then legally to have based its later inconsistent and incorrect for WCC employment course and on that same regarding conclusion such, interpreting and hold the WCC erred when intoxication. As to the four factors from Dale determine whether Shawn applying traveling employee from his status. deviated incorrectly We that the WCC determined Shawn was hold at the time of the fall within the course and Van dismissing which resulted in death and erred in enter petition on that Reversed and remanded the WCC to basis. and on judgment and an award of benefits to Van Vleet her behalf Vanesa, daughter. behalf their COTTER, and LEAPHART concur.

JUSTICES WARNER GRAY,dissenting. CHIEF JUSTICE respectfully I dissent from the Court’s conclusion that Shawn time of his Vleet was within It my opinion of the fall which resulted in his death. from work-related

early morning activities constituted deviation matters, him putting outside the course and balcony. fell I affirm the WCC’s at the time he would benefits on petition dismissal Van Vleet’s for workers’ that basis. outset, determined correctly I agree At the WCC not bar Van Vleet’s

extreme intoxication at the time fell does that, 39-71-407(4), pursuant agree I petition under MCA. further § No. 1 Darby School Dist. four-part test set forth Courser v. 13, 692 determined that correctly Mont. participation presence at the MNOA conference the course midnight its were within prior closing however, with the Court’s statements strenuously disagree, I *8 scope the course and of Shawn’s regarding the determination WCC’s further it and that the WCC’s resolved the issue before employment scope from the course and analysis of whether Shawn deviated Trust in the WCC that unnecessary. argued was The employment Shawn had payable were not because compensation workers’ benefits the time he employment at deviated from the course and argument. to address this necessary for the WCC fell and it Moreover, my correctly that Shawn determined opinion, employment at the time from the course and had deviated balcony. he fell from the 39-71-407(1),MCA, an insurer is liable for provides that Section an or the employee benefits to

the of workers’ payment out injury arising “receives an beneficiary employee if the employee’s Generally, employee when an employment....” course of of and the incidental to performing assignment an traveling purpose benefit to and of some immediate employee’s regular employment during that travel by employee injury sustained employer, occurred in the course may be deemed to have (citation Courser, 16,692 P.2d at 418-19 214 Mont. at employment. See omitted). Courser, applicable set forth four factors In injury which an occurs is activity during travel determining whether and, thus, within work-related (1) activity was undertaken whether

employment: (2) indirectly directly or employer employer’s request; whether (3) activity; whether attendance at compelled employee’s (4) activity; and whether employer participated controlled or activity. mutually from the benefitted employee both Courser, 692 P.2d at 419. 214 Mont. at four correctly applied the dispute that the WCC parties The do attendance at its initial determination Courser factors to room until its participation the conference within the course midnight sponsor closure observes, traveling However, correctly as the Court without limitation. day 24 hours a are not covered employees the course employee must remain within Trade Dale v. injury compensable. to be travel in order for an during 349, 352-53, Street, 258 Mont. Inc. is termed the developed have what principles, we Based on these that, departs from employee if the provides

“deviation” rule is, leaves temporarily of the travel-that mutually purpose beneficial employment-related does not attend injury and an is severed connection matters-the is outside the of the deviation period during sustained *9 355-56, at 832. Dale, Mont. at of 258 employment. by no employee deviated Furthermore, of whether an question the also is resolved employment-related matters to longer attending 355-56, Dale, at 258 Mont. Courser test. applying four-part words, factors are used the Courser at 831-32. In other and is the course both whether overall travel within determine compensable travel a deviation from of and whether employment. of employee renders an outside and determined applied the four Courser factors and in the participation attendance at the conference that Shawn’s within the course midnight were hospitality prior closing room its the WCC found that employment. regard, and In that encouraged, if not at the conference was at least Shawn’s attendance attended supervisor his immediate required, by employer and that with The participated and him. the conference WCC further found that Shawn’s attendance at the conference and employer and hospitality room were of benefit both to himself courses, training because to attend could network with Shawn was prosecutors, officers and could meet with other law enforcement which the Task equipment products vendors evaluate available Thus, participation in contemplating purchasing. Force was Shawn’s its MNOA-sponsored hospitality room until closure was within scope his test. under Courser that, analysis having The with the Court’s of this case problem apply four-part Courser test to determine observed employee’s whether an activities are within course a is not a traveling employee and that covered hours limitation, day applies the Court never returns to or these without legal merely Court concludes that concepts. The companions simply and his continued on with same

Shawn activity, returned to the sponsored including when fall. The time Shawn’s hospitality room and until activity, of the same occurred was the continuation purposes and way, place, in the same for the same the same employer sanctions of the that mandates same scope of his night in the course and began conclusion Shawn until his fall. employment and remained there factually legally incorrect. Simply put, this conclusion both Moreover, best, the “not covered and at the Court’s conclusion leaves day” shaky ground indeed. principle 24 hours a midnight. There room closed MNOA-sponsored authorized employer is no evidence that the MNOA or Shawn’s midnight. Consequently, condoned use room after companions obtaining key and his in the room after a Moreover, “sponsored activity.” a not a employee hotel early-morning activities were not a continuation of the same earlier Rather, activity purposes. and were not conducted for the same ofthe four Courser factors reveals viewing light facts ofthis case from, a deviation not early-morning activities were within, the course him, encourage did not and did employer supervisor him, accompany early-morning including personal in his activities sponsor room after its closed it. Nor was there

use of the socializing in which benefit to his in the additional key participated obtaining Shawn and others after to the room from courses, training there no employee. attending a hotel Shawn was not and, other than longer equipment were vendors *10 drinking companions, Shawn’s four there were no law enforcement prosecutors employment officers or with which to network for establishes-that purposes. suggests-much No evidence less companions doing personal, and his were other than nonwork-related room, the sponsored hospitality Once the MNOAclosed the socializing. conclude, therefore, I that longer factors no were met. would Courser were early-morning activities after the room closed Shawn’s deviation from the course and not work-related and constituted a employment. of his Furthermore, the Court’s reliance on Gordon v.H.C. Smith Const. misplaced as that case is

Co. 188 Mont. case, In that that Gordon was on readily distinguishable. concluded the accident night at the time way staying his to where was of his he was within the course and Consequently, occurred. because he was en route from traveling employee as a Thus, Gordon, 173-74, 612 P.2d at 672. work. 188 Mont. at and socialize stop whether Gordon’s at a bar to drink question of import from work-related matters was no constituted deviation ob, way j his home from his subsequently proceeded on because Gordon 174-75, Gordon, activity 188 Mont. at was work-related. contrast, here that Shawn had In there is no evidence P.2d at 672-73. proceeding activities and was to his early-morning discontinued his Indeed, balcony. time he fell from the night room for the trying unsuccessfully to continue activity Shawn’s last known was basis for the Court’s determination drinking. more There is no record to those in Gordon. the facts of this case are similar that its Gordon however, hangs hat on Court importantly, More reality accept its refusal to continued the context the course by all to be within sponsored hospitality room-conceded at issue the activities closed before employment-had of Shawn’s Gordon, “[s]imilarly, statement, began. The Court’s vis-a-vis here and his it that Shawn here, shocking, is not nor is unforeseeable it families, attend away while from their homes and would colleagues, where sponsored hospitality room participate a conference network,” simply provided was in order to socialize and case, only which include not the actual facts this totally ignores was drinking games after the drinking, additional but closed. that Shawn Finally, disagree I that the WCC based its conclusion when he fell

was not within Rather, at the highly the fact that Shawn was intoxicated time. “attending employment-related was not WCCconcluded that Shawn and his matters.” While its condoned beneficial prior closing while there not. It the fact of employer, subsequent activities were is not his intoxication which removed him the course and early-morning after closed sponsor activities employer, which were devoid of benefit to his constituted the deviation. view, my correctly In determined Shawn not within time at the he fell from

balcony. Consequently, I would affirm the WCC’s dismissal of Van for petition benefits and I dissent from workers’ failure the Court’s to do so. join foregoing RICE

JUSTICE NELSON JUSTICE dissenting opinion.