No. 85-237 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

KATHRYN ALBERT OGREN, Beneficiary of 

ERIK R. OGREN, Deceased, 

Claimant and A-ppellant, 

VS. 

BITTERROOT MOTORS, INC., 

Employer, 

and 

ORION GROUP, INS., 

Defendant and Respondent 

APPEAL FROM: Workers' Compensation Court, State of Montana, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Snavely and Philips, P.C.; Donald V. Snavely and 

Robert S. Marcott, Missoula, Montana, 

For Respondent: 

Garlington, Lohn and Robinson; Larry Riley, 

Missoula, Montana. 

Filed : 

Submitted on Briefs: March 28, 1986 

Decided: August 12, 1986 

AUG 12 1986 

k I *,& 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Kathryn Ogren, claimant and beneficiary of Erik Ogren, 

brought this action in the Workers' Compensation Court seeking to recover workers' compensation benefits for the death 

of her husband. Subsequent to the trial, the court issued 

its findings of fact and conclusions of law wherein it held 

that Erik Ogren was not acting within the course and scope of 

his employment at the time of the fatal car accident. Judgment was entered denying claimant's petition for benefits, 

and claimant appeals. We affirm. 

The basic facts of this case are not in dispute and 

were admitted by stipula.tion. Erik Ogren was President-Owner 

and General Manager of Bitterroot Motors, Inc. (Bitterroot), 

located in Missoula, Montana. Bitterroot, respondent herein, 

was enrolled in a workers' compensation plan under a policy 

issued by Orion Group, Inc., also the respondent. Appellant 

was married to Erik at the time of the accident. 

On the morning of Friday, July 13, 1984, Bill Petritz, 

then the Comptroller for Bitterroot, asked Erik for permission to leave early that day. Petritz wanted to go to Great 

Falls primarily to attend a family reunion. He had planned 

also to pick up his father's car and drive it back to 

Missoula to have some work done on it at Bitterroot Motors. 

Erik told Petritz that he could leave early. However, that 

day was one of the busiest on record for the dealership, and 

Petritz was unable to leave when he had planned to. Around 

noon, Erik offered to fly Petritz to Great Falls in the 

company plane so that Petritz could work until 5:00 p.m., and 

he accepted. 

At the same time, Erik's daughter, Kristi Ogren, was 

attending a beauty pageant function in Sheridan, Wyoming. 

Originall.y, Kristi was supposed to leave Sheridan by bus 
Friday night and arrive in Billings. From there, she was to 

take a commercial flight to Missoula. However, during the 

early afternoon of the 13th, Erik told appellant that he was 

flying to Great Falls and that he might be able to go on to 

Sheridan to pick up Kristi. Before he left for Great Falls, 

Erik called appellant again to tell her that he definitely 

was going to Sherida.n to pick up their daughter after 

dropping Petritz off in Great Falls. 

Appelant testified that prior to the 13thf she and Erik 

had talked about Erik flying down to Sheridan to pick up 

Kristi, but he said that he could not do it. However, 

Petritz stated to an insurance adjuster shortly after the 

accident that when he and Erik first discussed the trip to 

Great Falls, Erik said: "Well, I have to go out anyway, mayhe 

I will just drop you off in Great Falls." Although at trial 

Petritz could not specifically remember Erik making that 

statement, he did remember relating that statement to the 

adjuster and believed that Erik could have made that 

statement. 

Erik and Petritz left Missoula in the company plane at 

around 5:00 Friday afternoon. After stopping in Great Falls 

tc:, let off Petritz, Erik flew on to Sheridan. The plane 

developed engine trouble at the Sheridan airport, and Erik 

decided to rent a car and drive home. After picking up 

Kristi, they drove to Billings where Erik phoned his wife. 

She strongly suggested that they stay at a motel for the 

night but Erik refused, stating that he must get back to 

Missoula because he had a business meeting at 10:OO Saturday 

morning. Erik and Kristi left Billings around 1:00 Saturday 

morning; however, Erik fell asleep only a few miles outside 

of Missoula and lost control of the car. Both Erik and 

Kristi were killed when they were thrown from the car. 
The only issue raised on appeal is whether Erik Ogren 

was killed while he was acting in the course and scope of his 

employment with Bitterroot. 

The general standard to be applied in determining 

whether an employee is entitled to workers' compensation 

benefits is provided by S 39-71-407, MCA: 

Every insurer is liable for the payment 

of compensation . . . to an employee of 

an employer it insures who receives an 

injury arising out of and in the course 

of his employment or, in the case of his 

death from such injury, to his 

beneficiaries, if any. 

It is the application of this broad standard to the facts of 

particular cases that often proves difficult; however, this 

case does not present such a problem. 

Appellant readily admits that the plane trip from Great 

Falls to Sheridan, Wyoming, was a purely personal trip. She 

could not logically argue otherwise. Kristi Ogren was not 

employed by Bitterroot, nor did she have any connection with 

it other than having a father who was employed there. Moreover, Erik's only purpose in going to Sheridan was to pick up 

his daughter so that she would not have to travel home alone. 

Thus, it is undisputed that when Erik flew from Great Falls 

to Sheridan, he was not acting within the scope of his 

employment. 

Appellant contends, however, that Erik's trip from 

Missoula to Great Falls was in the course of his employment, 

as was his trip from Sheridan back to Missoula. Since he was 

killed while performing some reasonably immediate service to 

his employer i. e. , driving to Missoula in order to meet a 

business appointment), appellant is entitled to workers' 

compensation benefits. Appellant also contends that her 

husband's death is cornpensable under the deviation rule, the 

dual purpose rule, and the going and coming rule. We cannot 

agree with appellant's analysis on any of these theories. 
In construing what "arising out of and in the course of 

his employment" means, the general principle that has developed was first enunciated in Morgan v. Industrial Accident 

Board (1958), 133 Mont. 254, 321 P.2d 232, and reaffirmed 

recently in Steffes v. 93 Leasing Co., Inc. (1978)~ 177 Mont. 

83, 580 P.2d 450. The Court in Morgan stated: 

What is the underlying principle? In 

cases where some reasonably immediate 

service to the employer can be discerned 

the claim has been sustained. Where 

there has been no reasonably immediate 

service, the claim has been denied. 

Such impresses us as a fundamental rule 

and guide for the liberality to which 

this court is necessarily and properly 

committed . . . 

Morgan, 321 P.2d at 236. Thus, the question to be decided in 

this case is: Did Erik Ogren perform some reasonably immediate service to his employer when he flew to Sheridan to pick 

up his daughter and then drove through the night back to 

Missoula? 

As stated earlier, the trip from Great Falls to 

Sheridan had no connection of any kind with Erik's 

employment. Moreover, it is just as certain that the trip 

from Sheridan to Missoula was not made in the course and 

scope of his employment. The fact that he was going to 

Missoula to attend a business meeting is not sufficient, 

standing alone, to bring him within the ambit of his employment. Saturday was a regular work day for Erik and the 

meeting was at his usual place of work. Further, he was 

certainly planning to go home first to drop off Kristi before 

leaving for his meeting. If he had been out of town on a 

personal weekend trip and had to be back at work Monday 

morning, and was involved in a car accident during the night 

while driving back to town, there would be no question that 

the accident would. not be within the scope of his employment. 

The situation before us is not materially different from the 
one given in the example. The service that Erik was performing for his employer in driving to Missoula to attend a 

business meeting at his regular work place on a regular 

workday is the same as the service that every other employee 

performs in driving to his usual place of work. However, 

this Court has consistently held that the "going and coming 

rule" is a "well-established principle in Workers' Compensation law which denies compensation benefits for injuries 

sustained by an employee traveling to or from the regular 

work place." Courser v. Darby School Dist. No. 1 (~ont. 

Appellant attempts to bring her case under the exceptions to the "going and coming rule." Those exceptions were 

set forth in Hagerman v. Galen State Hospital (1977), 174 

Mont. 249, 251, 570 P.2d 893, 894, wherein the Court stated: 

Throughout the years this State has had 

workers' compensation, this Court has 

considered a number of cases where 

injuries were sustained going to or 

coming from work and has found no recovery unless employee travel pay was 

covered under the employment contract or 

that travel allowance was for travel for 

the special benefit of the employer. 

See also, Correa v. Rexroat Tile (Mont. 1985) 703 P.2d 160, 

42 St.Rep. 1075. The fact that the expenses for operating 

the company plane and for renting the car were pa.id for by 

the employer does not mean that Erik's travel pay was covered 

under an employment contract. No evidence was submitted of 

an employment contract between Erik and Bitterroot which 

specifically authorized that Erik be paid a definite travel 

allowance in connection with his employment. Rather, this 

seems to be simply a situation where the president of a 

company has a company credit card and uses it at his discretion, which is not sufficient, by itself, to come within the 

exception to the general rule. Furthermore, the trip from 

Sheridan to Missoula was not made for the special benefit of 
the employer. It is hard to imagine how traveling to one's 

regular work place on a regular workday can be for the special benefit of an employer. Therefore, appellant does not 

fall within either exception to the "going and coming rule." 

Appellant goes to great lengths to show that the flight 

from Missoula to Great Falls was for a business purpose so 

that the personal trip to Sheridan can be viewed as merely a 

minor deviation from a trip with an overall business purpose. 

Considering Petritz's testimony that at the time Erik offered 

to fly Petritz to Great Falls, Erik stated that he had to go 

out anyway, the fact that Erik's purpose in flying Petritz to 

Great Falls was more of a friendly gesture than truly business motivated, and the strong likelihood that the entire 

trip was motivated by the desire to pick up Kristi in 

Sheridan, we have serious doubts whether the trip to Great 

Falls was one within the course and scope of Erik's employment. However, it is unnecessary to decide that question 

because it is clear that the trip from Great Falls to 

Sheridan and then to Missoula was not one arising out of his 

employment. 

The benefit, if there was any, received by Bitterroot 

from the trip to Great Falls ended once Erik let Petritz off 

at the airport. Erik performed no service of any kind for 

Bitterroot when he flew to Sheridan to pick up Kristi nor did 

he perform any reasonably immediate service in driving 

through the night in order to arrive in Missoula by morning. 

It is a strain on reason to accept the argument that the 

decedent was performing some reasonably immediate service to 

his employer in going to Sheridan for a purely personal 

reason and in driving to his home to drop off his daughter 

before he left for work. Therefore, we hold that Erik was 

not killed while performing some reasonably immediate service 

to his employer. 
Appellant contends that the deviation rule also 

supports her claim for benefits. We disagree. 

It is true that if Erik had gone to Great Falls for the 

"specia.1 benefit" of his employer, the return trip back to 

Missoula would have been within the course and scope of his 

employment. Under the deviation rule, if an employee leaves 

the area or route where his job requires him to be to pursue 

an objective solely to benefit himself, the employment 

connection is severed throughout the deviation. If the 

employee returns to his employment from the deviation and is 

subsequently injured, his injuries would be compensable under 

workers' compensation. See Steffes, supra. However, if a 

deviation is found to be substantial or major, the employment 

relation is completely severed, and the employee cannot 

re-enter the scope of employment even though he is proceeding 

home from a trip that was originally employment motivated. 

Other jurisdictions considering this issue have found this 

rule applicable under the facts presented. 

In Calloway v. State Workmen's Compensation (w. Va. 

1980), 268 S.E.2d 132, the claimant was employed as an 

outside salesman and was sent with a fellow employee to 

another county to solicit business. The claimant made a 

business call while in the county and then began to visit 

relatives and have a few drinks at various t-averns. Around 

11 p.m. he started home, but before he reached his home, he 

was involved in a car accident. In denying compensation to 

the claima.nt, the court stated: 

In the case of a major deviation from 

the business purpose, most courts will 

bar compensation recovery on the theory 

that the deviation is so substantial 

that the employee must be deemed to have 

abandoned any business purpose and 

consequently cannot recover for injuries 

received, even though -- he has ceased the 

deviation and is returnins to the 

business route - 07 purpose. * (~r~hasis 

added. ) 
Calloway, 268 S.E.2d at 135. See also Bush v. Parmenter, 

Forsythe, Rude, and Dethmers (Mich. 1982), 320 N.W.2d 858; 

Carter v. Burn Construction Company, Inc. (N.M. 1973) 508 

P.2d 1324; Hebrank v. Parsons (N.J. 1965), 212 ~.2d 579. 

The determination of whether a deviation is substantial 

or not depends upon the particular facts of each case. 

Factors important in arriving at this determination include: 

(1) the amount of time taken up by the deviation; 

(2) whether the deviation increases the risk of injury; (3) 

the extent of the deviation in terms of geography; and (4) 

the degree to which the deviation caused the injury. 

Applying these factors to the facts of the case before us, we 

find the deviation to be substantial. 

First, the deviation was substantial in relation to 

time. Erik left Great Falls around. 6 p.m. on a Friday 

evening going toward Sheridan. He did not return to the 

business route from the deviation until 5 a.m. Saturday 

morning -- a deviation in time of around eleven hours. 

Appellant contends that if the plane had not broken down in 

Sheridan, the deviation would have lasted only a couple of 

hours. That may he true; however, we cannot resolve the 

issues before us on the basis of what might or could have 

been. We must look to the facts as they actually occurred. 

Under the facts presented, the deviation lasted eleven hours. 

Second, the deviation substantially increased the risk 

of injury to Erik. Had he left Great Falls in the plane and 

gone directly back to Missoula, Erik would have arrived in 

Missoula at around 7 p.m. Even if he had taken a car from 

Great Falls to Missoula, he would have arrived at around. 9 

p.m. However, because Erik went to Sheridan on a personal 

mission, he had to drive through the night after working hard 

all day in order to get back to Missoula by Saturday morning. 

He had to fly and drive an extra eleven hours just for the 
deviation which obviously contributed to his falling asleep 

while d-riving. Thus, the deviation greatly increased the 

risk of injury to Erik. 

Third, the deviation bras substantial in relation to 

geography. It is approximately 336 highway miles for a round 

trip from Missoula to Great Falls. However, the total 

mileage of the deviation was approximately 744 highway miles 

-- over twice the distance of the business trip. This is 

clearly a case where the personal deviation completely 

dwarfed the business purpose. 

Fourth, the deviation was the direct cause of the 

accident. Erik fell asleep at the wheel of his car after 

driving almost ten hours through the night. The only reason 

that Erik had to drive so long was because he went to 

Sheridan to pick up his daughter. Thus, the business trip to 

Great Falls had little connection with Erik's death. 

Therefore, since the deviation involved here was 

substantial, the employment relation was completely severed, 

and Erik could not re-enter the course of his work. The fact 

that he was proceeding home and was killed while on the 

original business route is not relevant since the business 

purpose of the trip had been abandoned. 

Finally, appellant contends that the dual purpose rule 

also applies to allow recovery. This assertion is without 

merit. There was no dual purpose in Erik's going to 

Sheridan; there was only one purpose and it was personal. 

Bitterroot did not compel Erik to go to Sheridan. He 

undertook that trip solely to benefit his family. Under the 

d-ual purpose doctrine, an employee is within the scope of his 

employment when he is traveling on some substantial mission 

for his employer, even though he may simultaneously be on a 

personal errand. Steffes, supra. Erik was not on any 
mission, substantial or otherwise, for his employer 

subsequent to the time he left Great Falls. 

As a final word, it should be noted that we decide this 

case based solely on the facts presented before us. What may 

be a reasonably immediate service of the employee in one case 

may not be so in another depending on the particular facts 

presented. Likewise, what may be a deviation in one case may 

not be so in another. Particularly in this area of the law, 

the facts of the individual case determine the result for 

that case. With this said, the judgment of the Workers' 

Compensation Court denying benefits to appellant is affirmed. 

We concur: 

Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent. 

The decedent, Erik Ogren, was killed in the course and 

scope of employment under the dual purpose and deviation 

rules. 

The dual purpose rule is defined as follows: 

Under the dual purpose doctrine, an employee may, 

while traveling, be on an errand of his own, but if 

he is at the same time on some substantial mission 

for his employer, he may be said to be within the 

course of his employment. If the work of the 

employee creates the necessity for travel, the 

employee is in the course of his employment though 

he is serving at the same time some purpose of his 

own. If, however, the work has had no part in 

creating the necessity for travel, i.e., if the 

journey would have gone forward though the business 

errand had been dropped and would have been 

cancelled upon failure of the private purpose 

though the business errand was undone, the travel 

is personal and not in the course of employment. 

N. Grossfield, Montana Workersv Compensation Manual, S 4.24 

at 21 (1979). 

Ogren offered to fly an employee, Petritz, to Great 

Falls so that the employee could work a full day and still 

attend a family reunion. Kathryn Ogren testified that Erik 

discussed the trip with her on Friday afternoon. He stated 

that Petritz needed to go to Great Falls but was also needed 

at work, so he was flying Petritz to Great Falls and could 

possibly pick up their daughter in Sherid.an. Clearly, this 

trip meets the definition of the dual purpose rule. The 

necessity to travel was created by the work of the employee. 

Petritz was needed in Missoula, but also needed to get to 

Great Falls that day. Petritz testified he believed Erik had 

said he was going to take the trip anyway. However, from the 

record I cannot agree that "the journey would have gone 

forward though the business errand had been dropped and would 
have been cancelled upon failure of the private purpose 

though the business errand was undone." The purpose of the 

trip was dual: to enable Petritz to work a full day in 

Missoula and still attend a reunion in Great Falls; and, to 

pick up Ogren's daughter in Sheridan and bring her to 

Blissoula. Since Ogren's trip involved a substantial benefit 

to his employer, the trip was within the course and scope of 

his employment. 

Ogren should also recover under the deviation rule. 

That rule is defined as follows: 

Under the deviation rule, when an employee departs 

from the area where his job requires him to be to 

pursue an objective which is not essential or 

incidental to any service he is being paid to 

perform, the continuity of the employment is 

severed, and remains severed until he returns to 

the point of deviation from the path of duty. The 

character of the employee deviation, whether 

pronounced or relatively inconsequential, and the 

materiality and purpose thereof, are given 

consideration in determing the applicability of the 

rule. Equal consideration is also given to the 

reasonableness of the employee's behavior in the 

light of all the circumstances, and whether the 

deviation caused or contributed to the injuries 

suffered. Time and space are considered in 

determining whether the rule is applicable. A line 

of demarcation between the disqualifying deviation 

and one which does not disqualify is ordinarily a 

matter of judgment for the trier of fact. 

N. Grossfield, Montana Workers' Compensation Manual, S 4.25 

The majority holds that Ogren's trip from Great Falls to 

Sheridan was such a major deviation as to totally sever the 

employment connection. I disagree. Clearly the trip from 

Missoula to Great Falls was for a business purpose. The trip 

from Great Falls to Sheridan was a d.eviation, but not such a 

major deviation as to totally sever the business connection. 

Ogren was travelling in a twin engine airplane capable 

of covering the 280 air miles from Great Falls to Sheridan in 
less that 90 minutes. Had he not had engine trouble in 

Sheridan, and been able to fly back to Missoula there would 

have been no need to travel without rest in order to reach 

Missoula in time to be at his employment as he planned to do 

when he left on the trip. Such a deviation did not totally 

sever the business connection. Once Ogren began the trip 

back to Missoula, the deviation ended and he was once again 

in the course and scope of his employment. 

This case is similar to a case cited by the majority, 

Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 

P.2d 450. In Steffes, an employee travelled from Missoula to 

Seeley Lake to exchange an automobile for that belonging to a 

customer. In Seeley, the employee met the customer in a bar 

and spent several hours drinking. He then discovered the car 

he was driving had been stolen. The employee left Seeley 

with a friend and headed toward Missoula. He was involved in 

an automobile accident on the way and was killed. Although 

the employee intended to spend the night in Seeley, he wanted 

to return to Missoula to look for the missing car. We held 

that his death was compensable. The employee fell within the 

purview of the dual purpose rule and we held that "the 

evidence shows that Steffes' trip back to Missoula was for 

the benefit of his employer and he was acting in the course 

and scope of his employment at the time of his death." 

Similarly, Ogren's trip to Great Falls was for the 

benefit of his employer and in the course and scope of his 

employment. While the trip to Sheridan was a deviation, the 

deviation ended when Ogren started back toward Missoula. 

Kathryn Ogren testified that she suggested Ogren remain in 

Billings overnight given the lateness of the hour. Ogren 

refused, stating he had to be in Missoula by 10:OO the 
following morning for a business meeting. The drive to 

Missoula in the early morning hours of July 14, 1984, was for 

the benefit of the employer, and he was acting within the 

course and scope of his employment at the time of his death. 

I would reverse the Workers' Compensation Court. 

We concur in the foregoing dissent.05 Justice Hunt: 

/ 

i 

Justice