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2004 MTWCC 60
WCC No. 2002-0588
DECISION AND JUDGMENT
APPEAL DISMISSED 05/26/05
Summary: Kimberly Baarson was murdered by her estranged husband while working for Town Pump in Butte, Montana. The guardian of her three minor children seeks death benefits.
Held: Kimberly Baarson's murder did not arise out of her employment.
¶1 This case involves a tragic murder. Kimberly Baarson (Kim), a mother of three minor children, was murdered by her estranged husband, Brad Baarson (Brad), who then committed suicide. The murder occurred while the claimant was working for Town Pump. Through his present petition, the guardian ad litem, on behalf of the children, is seeking death benefits for the children. The Montana State Fund (State Fund), which insured Town Pump at the time of the murder, denies liability, urging that the murder did not occur in the course and scope of Kim's employment.
¶2 The matter is now submitted for decision upon a motion for summary judgment of the State Fund.
¶3 The summary judgment motion is predicated on a stipulation of facts which all three parties have endorsed. However, the parties have also submitted numerous exhibits(1) and three depositions. The stipulation, contemporaneous correspondence, and briefs do not specify how the depositions and exhibits are to be treated.(2) It is therefore not clear whether the Court is supposed to examine them to determine if they raise factual issues relevant to the resolution of the case or whether the parties are simply submitting the case for decision based on the stipulated facts, the exhibits, and the depositions. However, it does not matter. Treating the matter as one for summary judgment, I conclude that the depositions and exhibits do not raise issues of material fact.
¶4 The facts, taken from the parties' stipulations, are as follows:
(STIPULATED ISSUE AND FACTS at 2-3.)
¶5 The State Fund's motion for summary judgment sets out a number of additional facts which it asserts are undisputed. Those facts are set out in serial fashion with citations to deposition testimony and agreed exhibits. The additional facts comply with Rule 24.5.329, which provides in relevant part:
The guardian ad litem has not filed any statement controverting the enumerated facts, although he has provided, in narrative form, some additional facts that he believes should be considered by the Court. Since the State Fund's statement of facts has not been challenged, those facts are deemed uncontroverted.
¶6 The additional facts having possible bearing on the issue at hand are as follows:
(Motion and Brief for Summary Judgment at 2-4.)
¶7 Summary judgment is appropriate only where material facts are not in dispute and those facts entitle the moving party to judgment as a matter of law. ARM 24.5.329(2); Mont. R. Civ. P. 56(c); Lewis v. Nine Miles Mines, Inc., 268 Mont. 336, 886 P.2d 912 (1994). A three-step analysis is required when addressing a motion for summary judgment. First, the Court must determine what facts are material to the motion. DeVoe v. State of Montana, 281 Mont. 356, 366, 935 P.2d 256, 262 (1997). What facts are material are identified by looking to the substantive law governing the proceedings. 281 Mont. 366, 935 P.2d 263. Second, the Court must determine whether any of the facts which are material to the motion are disputed. "[S]ummary judgment is never to be a substitute for trial if there is an issue of material fact." McDonald v. Anderson, 261 Mont. 268, 272, 862 P.2d 402, 404 (1993). Third, the Court must determine whether the undisputed material facts entitle the moving party to judgment as a matter of law. Mattingly v. First Bank of Lincoln, 285 Mont. 209, 947 P.2d 66 (1997), citing Bruner v. Yellowstone County, 272 Mont. 261, 264-65, 900 P.2d 901, 903 (1995).
¶8 The issue in this case is whether Kim's death occurred in the course and scope of her employment. The course and scope requirement is found in section 39-71-407(1), MCA (1999), which provides:
¶9 The "arising out of" and "in the course of" employment requirements are not synonymous. As set forth in Pinyerd v. State Compensation Ins. Fund, 271 Mont. 115, 894 P.2d 932 (1995), "in the course of employment" means only that the injury or death occurred at the place of employment while the claimant was working. "The language 'in the course of employment', generally refers to the time, place, and circumstances of an injury in relation to employment." Id. at 119. As applied to the present case, the claimant's death unquestionably occurred in the course of her employment.
¶10 The "arising out of" language, however, requires a causal relationship between the injury or death and the employment:
271 Mont. at 120, 894 P.2d at 934-35. The requirement that there be a causal connection between the injury or death and the employment is a long-standing one. In Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 615, (1929), the Supreme Court said:
85 Mont. at 53, 277 P. at 618.
¶11 The facts in this case show no obvious causal connection between Kim's murder and her employment. The murder was a result of the personal relationship between Kim and her estranged husband. While it occurred at her workplace, it had nothing to do with her employment. The murder did not occur during a robbery; it arose out of the personal animus of Brad.
¶12 In his treatise on workers' compensation, Larson has an entire chapter on assaults. (Ch. 8.) Murder is an assault (actually a battery) that causes death.
¶13 Larson's discussion of assaults reflects the same causation requirement adopted by the Montana Supreme Court, therefore, his discussion is consistent with Montana law. He summarizes the general rule, in relevant part, as follows:
Larson's, § 8.01 at 8-1 (emphasis added).
¶14 This case does not involve an assault which is due to a risk inherent in the employment, such as robbery. Moreover, it did not involve a co-employee or an assault arising out of a work-related quarrel. Compare with Pinyerd, supra. Rather, the murder in this case arose from "private reasons." Unless Kim's employment facilitated her murder in the sense that it "would not otherwise" have occurred, it did not arise out of her employment.
¶15 The guardian ad litem attempts to make a case for increased risk to Kim due to Town Pump's conduct. A review of cases in Larson's provides no support for the argument. The first category of exceptions to the non-compensability rule involves security guards, and only one of the four cases found liability, that being when a night watchman was making rounds with a lantern and was performing "lonely duty and was without opportunity to obtain assistance." Larson's, § 8.02[a] at 8-52. Whether or not the logic of the case is accepted, in this case the claimant was not working as a night watchman and was in a place catering to the public, so it can hardly be said that her duty was "lonely and without opportunity to obtain assistance," especially given the fact that a customer was in the store when her estranged husband came to murder her.
¶16 The second category involves a single case involving a taxi driver who was murdered for personal reasons but in which the petitioner argued that the driver's occupation increased his risk. Larson's § 8.02[b] at 8-54. While benefits were awarded at the trial level, on appeal benefits were denied because the driver was killed for personal motives not arising out of his employment. Ramos v. Taxi Transit Co., 92 N.Y.S.2d 744 (1949), aff'd 301 N.Y. 749, 95 N.E.2d 625 (1950).
¶17 The third category involves two cases from Louisiana in which the Louisiana courts held that the workplace aggravated enmity between two employees who had a non-work dispute. Larson's § 8.02[d] at 8-55. Those cases have no application here since Brad was not an employee of Town Pump and did not work with Kim.
¶18 The fourth and final category of cases involves deliverymen murdered by jealous husbands who believed their wives were having affairs with the deliverymen. The decisions in this category appear to be split, but the category, in any event, is inapposite to this case.
¶19 In my review of the exceptions discussed in Larson's, I have failed to identify any acknowledged exceptions within which this case might fall. Nonetheless, I consider the broader argument made by the guardian ad litem that Kim's employment increased her risk of murder by her estranged husband.
¶20 The guardian ad litem argues that Town Pump took responsibility for Kim's safety by making co-employees aware of her fear of her estranged husband and scheduling her work shifts during the day. (Claimant's Reply Brief at 3-4.) He further urges that "Kim was killed when Town Pump decided to end its protective measures for Kim Baarson." (Id. at 4.)
¶21 In support of his argument, the guardian ad litem cites testimony of Town Pump's assistant manager, Joyce Wilhelm, that Town Pump employees were instructed to call police if they saw Brad or his car.(3) (Wilhelm Dep. at 64.) The guardian also cites actions of Bernie Rolando, a Town Pump co-employee, but not a manager.(4) He cites Wilhelm's testimony which he characterizes as showing that Rolando "used to antagonize Brad, [and] find ways to piss him off outside of work." (Id. at 7.) Wilhelm testified as to an incident where Kim had been sent to Town Pump by Brad to buy him alcohol; reportedly, Rolando "licked the cans just to see if he could make him sick." (Id. at 7-8.) It is apparent from the testimony that the event occurred prior to Kim separating from her husband and that it did not involve her work, rather she was a customer. There is no evidence, that Brad was ever made aware of Rolando's lewd act.
¶22 Rolando also gave a recorded statement to police regarding "at least two encounters with Brad while at work."(5) The statement, however, was not to police but to a workers' compensation insurance adjuster. (Ex. 8.) Rolando identified one incident where he told Brad "he couldn't park on Town Pump property because of what he said and did to his own daughter, uh one day up there. I made him park across the street." (Id. at 2.) He also stated that he had "chased him [Brad] off there a couple of times," but gave no specifics. (Id. at 3.)
¶23 That Town Pump and its employees were aware of Kim's fear and took actions to protect her does not mean that they "took responsibility" for her safety, nor does it mean that their actions increased her risk of being murdered by her estranged husband. Their actions simply demonstrate their concern for her safety and their willingness to go an extra mile to help protect her from a personal threat that had nothing to do with the business or Kim's work. The guardian ad litem does not cite any law requiring Town Pump to protect Kim from her estranged husband. Its actions are better analogized to that of the Good Samaritan.
¶24 The guardian ad litem aptly phrases the ultimate question in this case as whether "Kim's employment created an increased risk of the assault, or [whether] the assault must have been motivated by the employment." (Claimant's Reply Brief at 2-3.) There is no evidence that the murder was "motivated" by Kim's employment. Moreover, Town Pump took measures to reduce Kim's risk of assault by an abusive, estranged husband who was ultimately intent on killing her. Its affirmative, protective measures did not create an increased risk to Kim on account of her employment; it reduced the risk. Its abandonment of those measures did not increase her risk from her employment, it merely restored the risk to what it was without the protective measures, and even then the facts indicate that Kim's fear of her estranged husband had diminished by the time she was scheduled for the night shift and that she was not required to work that shift. In the end, nothing Town Pump could have done would have likely prevented Kim's murder.
¶25 To hold that Kim's murder arose out of her employment would impose a duty on employers to protect their employees from personally motivated assaults, deter employers from taking protective measures to protect their employees from such assaults and make employers liable for virtually every personally motivated assault committed at work.
¶26 Despite the senseless murder of Kim by her estranged husband, and the Court's empathy for the Baarson children, the State Fund's motion for summary judgment is well taken and is granted.
¶27 The murder of Kim did not arise out of her employment and therefore is not compensable under the Montana Workers' Compensation Act. The petition in this matter is therefore dismissed with prejudice.
¶28 This JUDGMENT is certified as final for purposes of appeal.
¶29 Any party to this dispute may have twenty days in which to request a rehearing from this Decision and Judgment.
DATED in Helena, Montana, this 16th day of August, 2004.
\s\ Mike McCarter
c: Mr. Michael J. McKeon
1. There are thirty-six exhibits. There are objections to only two of them - Exhibits 31 and 32, to which one of the parties objects on relevancy grounds. The exhibits at issue are a crime scene video and crime scene photographs. The murder is certainly relevant, but that fact is not in dispute. The video and photographs are not helpful to resolving whether the murder occurred in the course and scope of Kim's employment.
2. In his reply brief, the guardian says, "After conducting discovery the parties agreed to submit this case to the Court on briefs and stipulated facts and exhibits." (Claimant's Reply Brief at 1.)
3. (Opening, untitled brief of guardian ad litem at 5.)
4. (Opening, untitled brief of guardian ad litem at 5.)
5. The guardian ad litem alludes generally to Rolando's statement and cites the page number but does not discuss or lay out the specifics. (Opening, untitled brief of guardian ad litem at 5-6.)
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