Holtz v. Indem. Ins. Co. of N. Am.

2016 MTWCC 4

TAMARA L. HOLTZ Petitioner v. INDEMNITY INS. CO. OF NORTH AMERICA Respondent/Insurer.

WCC No. 2015-3577

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: October 1, 2015

April 6, 2016

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

Summary: Petitioner, a flight attendant, was injured in a motorcycle accident which occurred approximately 40 miles from her hotel during a paid layover in Cincinnati, Ohio. Respondent denied liability for her injuries and moved for summary judgment on the grounds that her injuries did not arise out of or occur within the course of her employment.

Held: This Court granted Respondent's motion for summary judgment because Petitioner's injuries did not arise out of or within the course of her employment under § 39-71-407(2)(a), MCA (2013).

¶ 1 Respondent Indemnity Ins. Co. of North America (Indemnity) moves for summary judgment, arguing that Petitioner Tamara L. Holtz's injury did not arise out of and in the course of her employment.¹ Holtz opposes the motion on the grounds that there are issues of material fact and that Indemnity is not entitled to judgment as a matter of law.²

FACTS

¶ 2 Holtz is a flight attendant for Delta Air Lines, Inc. (Delta).³ She has specified pre-flight, in-flight, and post-flight job duties.⁴

¶ 3 On June 21, 2014, Holtz signed in at the Salt Lake City, Utah, airport at approximately 7:00 p.m.⁵ Holtz received her rotation sheet, which showed her scheduled flights.⁶ Holtz was scheduled to depart Salt Lake City at 8:15 p.m. local time on a flight to Seattle, Washington, that was scheduled to land at 9:15 p.m. local time.⁷ Holtz was then scheduled to leave Seattle at 11:15 p.m. local time on a flight to Cincinnati, Ohio, which was scheduled to land at 6:26 a.m. local time on June 22, 2014.⁸

¶ 4 Holtz was then scheduled for a one-day layover in Cincinnati.⁹ Holtz was scheduled to be picked up at her hotel in Cincinnati on June 23, 2015, at 7:00 a.m. local time, and then to work a flight leaving Cincinnati at 8:20 a.m. local time and landing in Salt Lake City.¹⁰

¶ 5 Delta neither restricted where Holtz could go nor what she could do during her layovers.¹¹ However, provided that it follows the FAA Regulations requiring an 8-hour "legal rest" after flight attendants work a certain number of hours,¹² Delta may "reroute" its flight attendants, meaning Delta can change the flights on which they are to work.¹³ Holtz explained, "[T]hey can at any point call us and change this trip rotation. . . . If Delta calls you either on your cell phone or in your hotel room and they say we have a new trip schedule for you, you've been rerouted . . . ."¹⁴ Holtz estimates she is rerouted 25-30% of the time.¹⁵ Although Delta did not require Holtz to carry her cell phone on her layover,¹⁶she testified, "They have sent - they have been known to send hotel security to your hotel room . . . [i]f you do not answer the phone . . . ."¹⁷

¶ 6 Delta paid Holtz $2.40 per hour as a "per diem wage" upon her signing in at the Salt Lake City airport on June 21, 2014, for the entire time she was away, which is called "time away from base."¹⁸ Delta did not otherwise reimburse Holtz for her meals while she was on layover.¹⁹ In addition to her "per diem wage," Delta paid Holtz her flight attendant wages from the time the airplane's brakes were released until they were engaged upon landing.²⁰

¶ 7 On June 22, 2014, Holtz's flight to Cincinnati landed on time at the Cincinnati Northern Kentucky International Airport, which is west of Cincinnati in Hebron, Kentucky.²¹ She finished her post-flight duties and took a crew shuttle to the Millennium Hotel in downtown Cincinnati, a trip that took approximately 30 minutes.²² Delta provided the shuttle, and booked and paid for Holtz's hotel room.²³

¶ 8 Holtz checked into the Millennium Hotel around 7:30 a.m.²⁴ Holtz had stayed at the hotel on her previous layovers in Cincinnati.²⁵ The area within walking distance of the hotel has shops and restaurants.²⁶ Holtz had previously eaten at restaurants in the area.²⁷

¶ 9 Holtz took a nap in her room and woke up around noon.²⁸ Thereafter, Michael and Cheryl Scotland, friends who intended to take Holtz to lunch, arrived at the Millennium Hotel on their motorcycle.²⁹ The Scotlands were accompanied by Randy and Kim Ogden,who were on their motorcycles.³⁰ Although Holtz met Michael when he worked for Delta, he had retired and none of the others were current Delta employees.³¹

¶ 10 Holtz got on the back of Michael's motorcycle and Cheryl got on the back of Randy's. The group planned to take a scenic ride, cross the Ohio River on a ferry, and have lunch in Kentucky.³² After leaving Cincinnati, the group proceeded by motorcycle southeast on U.S. Highway 52, also known as the Ohio River Scenic Byway.³³ Holtz described it as a scenic, country road that is "remote."³⁴

¶ 11 At approximately 2:42 p.m., Randy crashed into Michael's motorcycle.³⁵ Holtz suffered a leg injury in the accident.³⁶ The accident occurred 40.4 miles away from the Millennium Hotel.³⁷ Holtz estimates that they had been riding for 40 minutes before the accident occurred.³⁸

¶ 12 Indemnity denied liability for Holtz's claim on the grounds that Holtz's injury did not arise out of or in the course of her employment.³⁹

LAW AND ANALYSIS

¶ 13 This case is governed by the 2013 version of the Montana Workers' Compensation Act (WCA) because that was the law in effect at the time of Holtz's injury.⁴⁰

¶ 14 This Court renders summary judgment when the moving party demonstrates an absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁴¹ After the moving party meets its initial burden to show the absence of a genuine issue of fact and entitlement to judgment, the burden shifts to the party opposing summary judgment either to show a triable issue of fact or to show why the undisputed facts do not entitle the moving party to judgment.⁴²

Issue 1: Whether there are any issues of material fact.

¶ 15 Holtz first argues that issues of material fact preclude summary judgment.⁴³ Indemnity argues that Holtz's purported issues of fact are "simply clarifications" and do not create any triable issues of fact.⁴⁴

¶ 16 Holtz argues that an issue of material fact exists concerning Indemnity's statements: "Delta pays its Flight Attendants an hourly per diem rate when they are on a layover," and "Delta did not pay for meals or otherwise reimburse its Flight Attendants for other expenses during the layover."⁴⁵ Holtz notes that she received $2.40 per hour the entire time she was on her rotation, including her scheduled layover.⁴⁶ She argues that Delta pays this fee to reimburse flight attendants for travel expenses.⁴⁷ However, from Holtz's deposition testimony, this Court understands that Delta paid Holtz $2.40 per hour starting when she signed in at Salt Lake City and until she returned to Salt Lake City and signed out. This Court also understands that when Indemnity stated that Delta did not pay for or otherwise reimburse Holtz for meals, it meant that Holtz did not submit receipts for her meals and receive a payment from Delta for the cost of her meals in addition to her per diem wage. There are no triable issues of fact regarding Holtz's wages.

¶ 17 Holtz also disagrees with Indemnity's contention that Delta had "no control over Holtz during the layover and did not restrict Holtz's activities during the layover."⁴⁸ Likewise, Holtz argues that a material issue of fact exists as to whether she was performing "any of her Flight Attendant job duties when the accident occurred."⁴⁹ Holtzmaintains that she was performing job duties the entire time she remained in Cincinnati and Delta had a significant amount of control over her because Delta flew her there, she stayed in a hotel where Delta told her to stay, Delta had the right to reroute her, and she was subject to be on-call for a trip rotation "at a moment's notice."⁵⁰ However, Indemnity does not dispute that Delta flew Holtz to Cincinnati, provided shuttle service to the hotel, paid for the hotel, and scheduled her for a day-long layover, or that Delta could have rerouted her.⁵¹ Thus, these facts are not disputed. Although Holtz disputes Indemnity's interpretation of these facts, "[a] mere disagreement about the interpretation of a fact or facts does not amount to genuine issues of material fact."⁵²

¶ 18 Holtz also argues that a material issue of fact exists as to what time she left the hotel.⁵³ Holtz testified that the Scotlands picked her up at the Millennium Hotel at approximately 1:00 p.m.,⁵⁴ they rode for approximately 40 minutes before the accident, and the accident report states that the accident occurred at 2:42 p.m.⁵⁵ She now concedes that the accident report is correct and the Scotlands picked her up around 2:00 p.m.⁵⁶ Although this Court understands that Holtz was on a "legal rest" and could not have been rerouted before approximately 2:26 p.m.,⁵⁷ the exact time Holtz left the hotel is not a material fact. "A material fact is a fact that involves the elements of the cause of action or defenses at issue to an extent that necessitates resolution of the issue by a trier of fact."⁵⁸ Under Montana law, this Court need not find the exact time Holtz left the hotel. Moreover, for purposes of ruling on Indemnity's summary judgment motion, this Court considers the evidence in a light most favorable to Holtz and draws all reasonable inferences in her favor.⁵⁹

¶ 19 Holtz has not set forth any disputed issue of material fact that would require this Court to weigh the evidence and make findings. Thus, Indemnity has met its burden of establishing that there are no issues of material fact.

Issue 2: Whether Holtz's injury arose out of and in the course of her employment.

¶ 20 For an injury to be compensable under the WCA, it must arise out of and in the course of employment.⁶⁰ The phrase "arising out of" denotes a "causal connection between the injury and employment."⁶¹ The phrase "'in the course of...