Employment: Casual Employment

MONTANA SUPREME COURT DECISIONS

Weidow v. Uninsured Employers' Fund, 2010 MT 292 Although the property owner / employer claimed that he intended to use a home he was constructing in Montana as a personal vacation home, substantial evidence supported this Court’s conclusion that the employer had operated the property with a profit motive.  The owner listed the property as a business rental property on his federal income tax returns and he initially obtained the property in a like-kind exchange transaction with a property which he also had listed as a business rental property on his tax returns.  The owner additionally took delivery of an airplane he used primarily for business purposes at the subject property, and registered the airplane to that address to avoid paying higher taxes in another state.  Since the owner / employer operated this property with a profit motive and expended substantial time and labor for management and operation of the premises, the claimant was not engaged in “casual employment” at the time of his industrial injury.

Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239 The Workers’ Compensation Court properly determined that decedent, who performed fencing repair work for a ranch owner, was not a casual employee where he was hired to complete a task in furtherance of an existing business. It is not significant that the employer was engaged in other businesses, or that decedent’s employment was only temporary. It is important that the decedent was employed to work in the course of appellant’s agricultural business (for which he claimed $140,983 in deductions on his federal income tax) and that the decedent’s only occupation at the time was to repair and replace fences for appellant.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS
Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 Where the claimant was injured while working on the construction of a vacation home, and significant evidence demonstrated that the employer/homeowner deducted the property as a business expense in previous years' tax returns, used the property's address as the registration address for his private airplane in order to avoid significant tax liability in his home state, and represented to the IRS that the property was a business property, the Court concluded the property was part of a "business" as defined in Colmore v. UEF, 2005 MT 39, and therefore the claimant's work on the property was not "casual employment."
Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 The Court found the UEF's reliance on Howe v. UEF, 2006 MTWCC 7, in concluding that the claimant was a casual employee to be misplaced. In Howe, the UEF attempted to impute liability to another party from speculating that the party may have received a tax advantage; in the present case, actual evidence of a tax advantage was presented, distinguishing this case from Howe.
Raymond v. Uninsured Employers' Fund [09/04/09] 2009 MTWCC 31 Although in Colmore, the Supreme Court noted that “[t]he important fact” was that the injured worker’s only employment and occupation at the time of his injury was with the employer at issue, § 39-71-116(6), MCA, specifically states that casual employment is defined by whether the employment is in the usual course of business, etc., for the employer – not the employee. In Colmore, the Supreme Court ultimately based its decision that the injured worker was not a casual employee not on the employee’s occupation, but on the employer’s “profit motive.”
Raymond v. Uninsured Employers' Fund [09/04/09] 2009 MTWCC 31 Petitioner was found to be engaged in “casual employment” where he worked on a home being constructed as a second residence and where no evidence indicated that the homeowner deducted the property as a business expense. While the homeowner paid Petitioner with checks written on a business account, the evidence demonstrated that the homeowner wrote many personal checks on that account and the amount of money expended from this account far exceeded the amount claimed as business expenses. Petitioner failed to prove that the homeowner had a “profit motive” regarding this property.
Weidow v. UEF [01/17/09] 2009 MTWCC 4 The Court was unable to render summary judgment on whether a claimant’s injury occurred during casual employment. While it was undisputed that the putative uninsured employers managed properties for which they had a profit motive, it was unclear whether the particular property upon which the claimant worked was intended to be used as an income-generating property or simply a vacation home for personal use. The nature of the property was material to whether Petitioner was a casual employee.
Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Where the party hiring another to do fencing on a ranch for which the hiring party deducts costs of the ranch operations as a business expense on his federal income tax return; where the hiring party maintains significant farm equipment on the ranch; and where the hiring party plans to develop for agricultural purposes, the party employed to do fencing is not a casual employee under section 39-71-401(2)(b), MCA (1999). § 39-71-116(7), MCA (1999). (Note: WCC affirmed on this ground in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)

Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Casual employees are not subject to workers’ compensation insurance or liability provisions. § 39-71-401(2)(b), MCA (1999). (Note: WCC affirmed on this ground in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)