Rochdale Insurance Company v. Skylar Dixon ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCHDALE INSURANCE COMPANY, No. 20-35586
Plaintiff-Appellee, D.C. No. 9:19-cv-00068-DWM
v.
MEMORANDUM*
SKYLAR DIXON,
Defendant-Appellant,
and
FELDER & COMPANY, LLC, DBA
Stillwater Fish House,
Defendant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted June 8, 2021**
Portland, Oregon
Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,*** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
Judge.
Skylar Dixon was injured in a car accident on his way home from work. After
Dixon sued his employer for negligence, its workers’ compensation insurer—
Rochdale Insurance Company—filed this diversity action, seeking a declaration that
Dixon’s injuries did not fall within the employer’s policy because they did not “arise
out of and in the course of his employment.” The district court granted summary
judgment to Rochdale. We have jurisdiction under 28 U.S.C. § 1291. Reviewing
de novo, Fitzgerald Living Tr. v. United States, 460 F.3d 1259, 1263 (9th Cir. 2006),
we affirm.
The Montana Supreme Court has interpreted the phrase “arise out of and in
the course of employment” to cover claims that arise when an employee is providing
some “reasonably immediate service to the employer.” Ogren v. Bitterroot Motors,
Inc., 723 P.2d 944, 946 (Mont. 1986) (quoting Morgan v. Indus. Acc. Bd., 321 P.2d
232, 236 (Mont. 1958)). Montana has also adopted the familiar “going-and-coming”
rule, which, subject to several, limited exceptions, denies recovery “for injuries
sustained by an employee traveling to or from the regular work place.” Ogren, 723
P.2d at 947 (quoting Courser v. Darby Sch. Dist. No. 1, 692 P.2d 417, 418 (Mont.
1984)).
Dixon’s accident—which happened on his way home, after he clocked out,
District of Arizona, sitting by designation.
2
after the restaurant closed, and four miles from the restaurant—falls squarely within
the purview of the going-and-coming rule. See, e.g., Voorhies v. Park Cafe, Inc.,
573 P.2d 202, 204 (Mont. 1978); Hetland v. Magnum Petroleum, 733 P.2d 343, 345
(Mont. 1987); Heath v. Mont. Mun. Ins. Auth., 959 P.2d 480, 482–85 (Mont. 1998).
None of the exceptions set forth by the Montana Supreme Court to that rule in
Hagerman v. Galen State Hospital, 570 P.2d 893, 894 (Mont. 1977), apply to this
case. See Ogren, 723 P.2d at 947–48. Although Dixon contends that a “special
hazard exception” applies, the Montana Supreme Court has not adopted that
exception to the going-and-coming rule. See Heath, 959 P.2d at 484 (citing
Voorhies, 573 P.2d at 203).
AFFIRMED.
3