NOT FOR PUBLICATION FILED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.

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