This is an unpublished case from District IV of the Wisconsin Court of Appeals filed on 5/22/14.
ISSUE: Was the lawyer in the course and scope of his employment when he was on a trip to a motorcycle rally with a client?
ANSWER: Not in this case – work comp benefits denied.
FACTS:
Westerhof was an attorney and shareholder in the law firm of DeWitt, Ross & Stevens. In an effort to market himself he joined a poker group which included small business owners and a real estate appraiser, S. Franken. The law firm would reimburse Westerhof for expenses involving this poker group from time-to-time.
Westerhof handled a small claims action for Franken which involved a cabin Franken owned near Wisconsin Rapids. Westerhof filed an answer to the complaint of Franken’s behalf, and also moved to void an insurance release.
A few months later, Westerhof asked Franken if he could go with Franken and his wife to a Harley-Davidson Rally in Tomahawk. There is some inconsistent testimony on whether the three of them had originally planned to take some pictures of the cabin on the way up to the Rally. Regardless, the plan changed due to a delay in their departure from Madison, and they did not stop at the cabin. Nevertheless, Westerhof testified that he considered the excursion to be a business trip.
Somewhere near Wausau, Westerhof lost control of the motorcycle and was severely injured.
Westerhof sought worker’s compensation benefits claiming that the injury arose out of his employment because at the time he was “rainmaking” or “networking” on behalf of the firm.
The Administrative Law Judge and the Labor and Industry Review Commission (LIRC) denied Westerhof’s claim. Westerhof appealed to the circuit court which affirmed LIRC’s decision.
The Court of Appeals affirmed the lower court’s decision and ruled that in this set of facts, Westerhof was not in the course and scope of his employment. Westerhof did not initiate the event to entertain a client. Rather he was a guest on a personal trip initiated by Franken.
The court stated that even if the poker games could be considered client entertainment or business-related networking, it does not follow that every trip or activity that Westerhof and Franken undertook together was client entertainment or business-related networking.
COMMENTS:
The case is available if you want to read it. It reviews prior cases where work comp benefits were awarded, and then distinguishes this case from those.
This material is for informational purposes only and not for the purpose of providing legal advice. R&R Insurance Services, Inc. is not a law firm. You should contact your attorney to obtain advice with respect to any issue or problem specific to your business.
