IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 34854-2007

BARRY BRADFORD,

Claimant-Appellant,

v.

ROCHE MOVING & STORAGE, INC.,

Employer, and LIBERTY NORTHWEST

INSURANCE CORPORATION, Surety,

and

FRONTIER MOVING AND STORAGE,

Employer, and STATE INSURANCE FUND,

Surety,

Defendants-Respondents.

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Boise, May 2009 Term

2009 Opinion No. 88

Filed: July 7, 2009

Stephen W. Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The order of the Industrial Commission is affirmed.

Curtis & Browning, P.A., Idaho Falls, for appellant. Paul T. Curtis argued.

Harmon, Whittier & Day, Boise, for respondents Roche Moving & Storage, Inc., 

and Liberty Northwest Insurance Corporation. Kent W. Day argued.

Anderson, Nelson, Hall, Smith, Idaho Falls, for respondents Frontier Moving and 

Storage and State Insurance Fund. Scott R. Hall argued.

EISMANN, Chief Justice.

This is an appeal from a finding that the claimant was not an employee of either alleged 

employer. The claimant had arrived at the warehouse that had been owned by his former 

employer where he was to work for an out-of-town truck driver in unloading a truck. The former 

employer‟s business had been recently purchased, and claimant saw two employees of the new 

owner attempting to raise a stuck warehouse door. Claimant went over to help them, and was 

accidentally severely injured. We affirm the findings of the Industrial Commission that the 
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claimant was not an employee of either his former employer or the new owner at the time of the 

accident.

I. FACTS AND PROCEDURAL HISTORY

Roche Moving & Storage, Inc., (Employer 1) was a moving and storage company located 

in Idaho Falls. It packed and stored household and commercial goods in its warehouse, received 

goods into storage, and delivered goods it was holding in storage. Barry Bradford (Claimant) 

worked for Employer 1 in the 1990‟s and then again during most of 2005 and into January 2006. 

During this latter period, Employer 1 had ten employees. The owner and his secretary were fulltime salaried employees, and the remaining employees, including Claimant, were considered to 

be regular hourly employees. The regular hourly employees were paid a minimum of four hours 

per day and additional sums if they worked more than four hours. They were expected to report 

to work each morning Monday through Friday during the busy moving season and to be 

available to work during the remainder of the year. They accrued vacation time, and Employer 1 

withheld taxes from their earnings.

Employer 1 also hired day laborers during busy times as needed. The day laborers did 

not accrue vacation time, and Employer 1 did not withhold taxes from what it paid them. 

Employer 1 also maintained a list of persons willing to work as lumpers for out-of-town truck 

drivers. They were paid cash by the truck driver to load and/or unload the truck. On very rare 

occasions, Employer 1 paid the lumper if the truck driver was out of cash, and the truck driver‟s 

company then reimbursed Employer 1. Employer 1 did not consider lumpers to be its employees 

because they worked for, were directed by, and received payment from the out-of-town truck 

drivers.

During 2005, Employer 1‟s owner was diagnosed with cancer and underwent multiple 

treatments. His illness forced him to curtail his business activities. As a result, Claimant and a 

number of others were terminated as regular employees. In February 2006, Claimant began 

working for another moving and storage company. In late spring, Claimant was placed on 

Employer 1‟s lumper list at his request, and thereafter he was called periodically to work for outof-town truck drivers. In June and July 2006, Claimant also worked approximately 150 hours for 

Employer 1 as a day laborer.
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On occasion, lumpers who were waiting for a truck to arrive helped Employer 1‟s regular 

employees with warehouse duties. This assistance was typically for a few minutes and was 

provided voluntarily and gratuitously. Employer 1 did not pay them, nor did it require them to 

provide such assistance in order to be called in as a lumper. When Claimant came in as a 

lumper, he usually assisted Employer 1‟s regular employees for a few minutes while waiting for 

the truck to arrive, but he did not expect or request payment for doing so.

In the summer of 2006, Employer 1 began negotiating to sell its assets to Frontier 

Moving and Storage (Employer 2). They drafted a purchase and sale agreement with an 

effective date of August 1, 2006. The secretary who worked for Employer 1 was hired by 

Employer 2 to continue working in that role. Employer 2 also hired some of Employer 1‟s other 

employees, but not Claimant.

On August 3 and 4, 2006, the secretary called Claimant to come in as an hourly worker. 

Employer 1 paid Claimant for that work, and then Employer 2 reimbursed Employer 1. On 

August 7, 2006, Employer 2‟s manager arrived at the warehouse and began managing Employer 

2‟s business operations. 

On August 8, 2006, the secretary called Claimant to work as a lumper for an out-of-town 

truck driver. He was to meet the truck driver at 8:00 a.m. the next day at the warehouse parking 

lot and help him unload the truck.

On August 9, 2006, Employer 1‟s manager arrived at the warehouse and attempted to 

raise the main warehouse door. The door was about fourteen feet high; was comprised of 

multiple, hinged wooden panels; and was spring loaded. The sides of the door had rollers that

ran in vertical steel tracks. The rollers would occasionally stick due to weld spots in the tracks. 

When that occurred, the employees would try to force it open, including by using a crowbar. As 

the manager attempted to open the door, it jammed after raising about five feet. The manager 

and an employee unsuccessfully attempted to raise the door with a crowbar.

Claimant arrived shortly before 8:00 a.m. and met the truck driver for whom he was to 

work as a lumper. Claimant was wearing an Allied Van Lines shirt, which Employer 1 required 

both lumpers and its employees to wear. While the truck driver and Claimant were waiting for a 

second lumper to arrive, Claimant noticed the manager and employee struggling to open the 

warehouse door. Claimant was familiar with how to free the door‟s rollers from the times he 

helped open it while working for Employer 1, and he asked the truck driver if he could help raise 
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the door. The driver consented. The driver‟s load was not for delivery to the warehouse and had 

no connection with either Employer 1‟s or Employer 2‟s business. Claimant wanted to free the 

door in order to make a good impression on Employer 2‟s manager in the hope of being hired by 

Employer 2.

Claimant walked over to where the manager and employee were struggling to free the 

door. Claimant testified that he asked the employee if he needed a hand, and the employee 

answered in the affirmative. The employee testified that he asked Claimant to help with the 

door. It is undisputed that the manager did not ask Claimant to help and that the employee had 

no authority to hire Claimant to do so.

Claimant saw that one or more of the rollers were displaced from the tracks more than he 

had previously seen them and that a cable from the door was caught around a ladder affixed to an 

adjacent wall. After unsuccessfully attempting to help the employee free the door with the 

crowbar, Claimant climbed the ladder. He then stomped on the door with both feet, dislodging 

the cable and perhaps freeing the door. The spring-assisted door shot upward, launching 

Claimant high into the air. When he came down, he landed on the concrete floor, sustaining 

multiple severe injuries. Only a few minutes elapsed from the time Claimant arrived at the 

warehouse until he was injured. Claimant was taken by ambulance to the hospital, where his 

blood alcohol level was measured at 0.197. Claimant had been married on August 7, and had 

celebrated at his wedding reception on August 8.

On November 16, 2006, Claimant filed a worker‟s compensation complaint against 

Employer 1, and on November 30, 2006, he filed a worker‟s compensation complaint against 

Employer 2. The two claims were consolidated on January 22, 2007. They were heard by a 

referee, who issued proposed findings of fact and conclusions of law on November 2, 2007. The 

referee recommended that the Industrial Commission (Commission) find that Claimant had 

failed to prove that he was employed by either Employer 1 or Employer 2 at the time of the 

accident. On November 9, 2007, the Commission adopted the referee‟s proposed findings and 

entered an order that Claimant had failed to prove that he was an employee of either Employer 1 

or Employer 2. Claimant then timely appealed.

II. ISSUES ON APPEAL

1. Are the Commission‟s findings of fact supported by substantial and competent evidence?
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2. Is any party entitled to an award of attorney fees on appeal?

III. ANALYSIS

A. Are the Commission’s Findings of Fact Supported by Substantial and Competent 

Evidence?

Our standard for reviewing decisions of the Industrial Commission is as follows:

When this Court reviews a decision of the Industrial Commission, it 

exercises free review over questions of law, but reviews questions of fact only to 

determine whether substantial and competent evidence supports the Commission's 

findings. Substantial and competent evidence is relevant evidence that a 

reasonable mind might accept to support a conclusion. Because the Commission 

is the fact finder, its conclusions on the credibility and weight of the evidence will 

not be disturbed on appeal unless they are clearly erroneous. This Court does not 

weigh the evidence or consider whether it would have reached a different 

conclusion from the evidence presented. Whether a claimant has an impairment 

and the degree of permanent disability resulting from an industrial injury are 

questions of fact.

Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002) (citations 

omitted).

On appeal, Claimant asks us to reweigh the facts and find that he was an employee of 

either Employer 1 or Employer 2 at the time of the accident. That is something we cannot do.

The only legal issue raised by Claimant is that the Commission failed to consider the 

“emergency doctrine.” Claimant argues:

Such a finding also does not consider the long-standing rule regarding

emergencies at the work place, sometimes called the “emergency doctrine.”

Although apparently not addressed to date in case law in Idaho, this wellestablished doctrine in workers compensation law provides that “the scope of an 

employee‟s employment is impliedly extended in an emergency to include the 

performance of any act designed to save life or property in which the employer 

has an interest.

We need not address this doctrine or whether it would even apply to the facts of this case 

because Claimant did not raise it below. We will not address issues raised for the first time on 

appeal. Horne v. Idaho State Univ., 138 Idaho 700, 706, 69 P.3d 120, 126 (2003).

B. Is any Party Entitled to an Award of Attorney Fees on Appeal?
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Claimant requests an award of attorney fees pursuant to Idaho Code § 72-313. That 

statute has nothing to do with the awarding of attorney fees.1

Both Employers request an award of attorney fees against Claimant‟s counsel pursuant to 

Idaho Appellate Rule 11.1. “[T]his Court imposes sanctions pursuant to I.A.R. 11.1 only if the 

appellant‟s arguments are „made in bad faith‟ or „interposed for any improper purpose.‟” Rivas 

v. K.C. Logging, 134 Idaho 603, 609, 7 P.3d 212, 218 (2000) (quoting I.A.R. 11.1). This appeal 

certainly was not well grounded in fact and was not warranted by existing law. There was also 

no good faith argument for extension, modification, or reversal of existing law. “In determining 

whether sanctions are appropriate under the rule, the Court has declared that a lack of legal or 

factual grounds for an appeal, alone, is generally not enough to support an award of attorney fees 

without a showing that the appeal was brought for an improper purpose.” Glaze v. Deffenbaugh, 

144 Idaho 829, 834, 172 P.3d 1104, 1109 (2007). In Painter v. Potlatch Corp., 138 Idaho 309, 

315, 63 P.3d 435, 441 (2003), this Court held that although the issues raised on appeal had 

“dubious factual or legal foundations and none that might in good faith call for change or 

adjustment in existing law,” sanctions under Rule 11.1 would not be awarded where the Court 

could not conclude that the appeal was interposed for an improper purpose. Although it is a 

close case, we do not find that Claimant‟s appeal was brought in bad faith or for an improper 

purpose. We therefore decline to award sanctions on appeal pursuant to Idaho Appellate Rule 

11.1.

Employer 2 also requests attorney fees on appeal pursuant to Idaho Code § 12-121. That 

statute authorizes the award of attorney fees in “any civil action.” It does not apply to worker‟s 

compensation cases because they are not civil actions. Swanson v. Kraft, 116 Idaho 315, 322, 

775 P.2d 629, 636 (1989).

 

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Idaho Code § 72-313 provides as follows:

Whenever any claim is presented and the claimant‟s right to compensation is not in issue, 

but the issue of liability is raised as between an employer and a surety or between two (2) or more 

employers or sureties, the commission shall order payment of compensation to be made 

immediately by one or more of such employers or sureties. The commission may order any such 

employer or surety to deposit the amount of the award or to give such security thereof as may be 

deemed satisfactory. When the issue is finally resolved, an employer or surety held not liable shall 

be reimbursed for any such payments by the employer or surety held liable and any deposit or 

security so made shall be returned.
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IV. CONCLUSION

We affirm the order of the Industrial Commission. We award respondents costs on 

appeal, but not attorney fees.

Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.