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Custer v. Hartford Insurance Co.8/23/2005
Opinion Vote: AFFIRMED.
Smith, C.J., Lowenstein, Breckenridge, Howard, Newton, Holliger, and Hardwick, JJ., concur.
Smart, J., dissents in separate opinion filed.
Ulrich and Spinden, JJ., concur in dissent.
Opinion:
Hartford Insurance Company appeals from an award entered by the Labor and Industrial Relations Commission finding that Mark Custer was entitled to workers' compensation benefits for injuries he sustained in an automobile accident. Specifically, Hartford challenges the Commission's findings that Custer was acting in the course and scope of his employment when the accident occurred and that he was permanently and totally disabled as a result of the injuries he sustained. For the following reasons, we affirm the Commission's award.
In 1985, Hartford hired Custer as a claims adjuster in Springfield, Missouri. After about two and a half years, Custer was transferred to Hartford's office in Overland Park, Kansas. By September 22, 1997, Custer had worked his way up the corporate ladder and was working for Hartford as a claims coordinator. In that capacity, he was charged with working with the underwriting department to write new business with corporate clients and to retain current business. An important part of his job was entertaining clients and agents. He also served as a liaison between the underwriting and the claims departments in an effort to keep the bigger insureds and the agents happy. Custer's job involved extensive travel away from the office, and Hartford provided him with a company car for which Hartford paid all expenses. As part of his duties, Custer would go out and visit with an insured about once every two weeks and would go out and visit an outside agent once a week. In his job capacity, Custer also participated in golf games with insureds, agents and/or underwriters on at least a weekly basis. These activities were approved of and encouraged by Hartford and constituted an important part of Custer's job .
On September 22, 1997, Custer drove his company car 30-40 miles from his office to a golf tournament organized by Hartford at the Dubs Dred Golf Course in Wyandotte County, Kansas. The e-mail sent to Custer and two other individuals by the main underwriter at Hartford told Custer to arrive at noon for lunch and stated that the tournament was to start at 1 p.m. The e-mail provided instructions on how to get to the course. The e-mail further indicated that they would be having hors d'oeuvres and drinks after the round and "suggested" that he be available for dinner with agents after the event.
During the tournament, Hartford provided free beer to the participants, and Custer drank at least four beers on the course. Several rain delays occurred, and the participants consumed more alcohol in the clubhouse on these occasions.
When Custer left the golf club to head home at about 7:30 p.m., it was dark and foggy out. About one mile from the golf club, as he was attempting to cross U.S. 73 highway, Custer's company car was struck by a car travelling on the highway.
Custer was severely injured in the accident, sustaining a closed head injury, a lacerated spleen, left pneumothorax, a retroperitoneal hematoma, a nasal fracture, a fractured left clavicle, fractured ribs, a sciatic nerve injury, a pelvic fracture, and posterior urethral injuries. He was taken by ambulance to KU Medical Center for treatment. Custer underwent several surgical procedures for his injuries. He was comatose and remained on a ventilator almost two months after the accident. During his stay in the hospital, Custer also experienced sepsis and contracted pneumonia several times. He was eventua
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