dissenting:
I respectfully dissent. The result of the majority opinion is that Robert Bennett, a teenage son of Hugh Bennett, of Bennett Well Service, will be awarded workers’ compensation for his fractured leg. On its face that is commendable. Unfortunately, the result is attained only by disregarding the specific statutory requirements for obtaining Workers’ Compensation coverage in Montana.
Following are significant facts from the record:
June, 1979 - Robert Bennett began work.
June 26- Robert fractured leg while working.
July 2 - Bennett Well Service submitted employer’s first report of occupational injury to Division.
July 10 - Family member endorsement sent to Division by Bennett Well Service containing the election to include Robert Bennett and Scott Bennett, sons of Hugh Bennett, members of the employer’s immediate family, under Workers’ Compensation. Endorsement accompanied by letter from Bennett Well Service attorney and affidavit of accountant.
July 18 - Division wrote Bennett Well Service and its attorney denying coverage for Robert’s injury and stating in part:
“When this firm enrolled with the State Fund a letter was forwarded to them carefully explaining that members of an employer’s family dwelling in the employer’s household were not covered under the Workers’ Compensation Act, unless endorsements were filed with the Fund indicating that the employer wished to cover and pay premiums on household employees. A copy of this letter dated September 29, 1975 that was forwarded to Bennett Well Service in care of John P. Moore, Box 997, Cut Bank, Montana, is enclosed. These endorsements were never filed to cover this man’s sons and the premium has never been paid to us for their employment. The payroll reports in our file indicate that they have never been listed as employees and payrolls have not been reported to us on their salaries and premium has not been paid on them.
“The endorsement you furnished us will be effective July 13, *281979, and Robert and Scott Bennett will be covered effective as of that date. However, there is no way I can effect coverage to Robert Bennett for his injury to cover medical and compensation benefits for his injury of June 26, 1979.”
July 31 - Bennett Well Service submitted quarterly report, and with it paid premium for the two sons, Robert and Scott. Before denial of coverage on July 18, there had been no payment by Bennett Well Service of a premium for Robert and retention by the Division of such premium payment. Therefore, one could not conclude that insurance coverage should be granted because of the payment and retention of premiums.
The majority opinion states that the controlling issue is whether the Division of Workers’ Compensation failed to publish rules governing the time and method of electing coverage for members of an employer’s family dwelling in the employer’s household. The opinion refers to section 39-71-2303, MCA, suggesting that section 39-71-2303 requires the Division to prescribe rules which are applicable here. We respectfully point out that section 39-71-2303 only refers to the procedure by which an employer may elect to be bound by compensation plan 3 - that being the plan under which an employer elects to be covered by the State Fund. In no way is that applicable here. That section does not require the promulgation of rules which apply where there is to be an election for coverage of a family member. It is true that the Workers’ Compensation Court incorrectly found in its Finding of Fact 22 that the Division had published rules concerning the way an employer may elect to bring his employees within the provisions of the Act. No specific rule was set forth by the Division, although forms for election are provided. However, the majority opinion has not suggested why this should be classed as reversible error.
Bennett Well Service started in business in 1975. At that time, the statutory provisions excluding certain employments from coverage by the Workers’ Compensation Act were in effect in the same manner as today. Section 39-71-401, MCA, makes it clear that the legislature decided that the Workers’ Compensation laws should not apply to certain types of *29employment unless an employer first takes an affirmative step to obtain coverage:
“(2) Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers’ Compensation Act does not apply to any of the following employments:
“(a) household and domestic employment;
“(b) casual employment as defined in 39-71-116(3);
“(c) employment of members of an employer’s family dwelling in the employer’s household;
“(d) employment of sole proprietors or working members of a partnership;
“(e) employment for which a rule of liability for injury, occupational disease, or death is provided under the laws of the United States;
“(f) any person performing services in return for aid or sustenance only;
“(g) employment with any railroad engaged in interstate commerce, except that railroad construction work shall be included in and subject to the provisions of this chapter.” Section 39-71-401(2), MCA. (Emphasis supplied.)
The result of the majority opinion is to negate the essential provisions of section 39-71-401(2), MCA. That law requires an election of coverage by an employer before the workers’ Compensation Act shall apply to certain described employments. The majority opinion will allow employers to adopt a “wait and see” approach to elections for coverage. The majority opinion suggests that an employer of household and domestic help, casual employees, members of an employer’s family, sole proprietors, working members of a partnership, and persons performing services for aid or sustenance only should wait until someone is injured before making an election for coverage. At that point, the employer can apparently elect coverage and have the coverage extended to an injury which has already taken place. The savings to employers in premiums is obvious. This decision actually reversed the requirements of the law because it finds that the Act applies to an injury even though there has been no election of coverage and even though the Act states that it “does not apply”.
*30We respectfully suggest that in the absence of an advance election of coverage for Robert Bennett, there was no coverage at the time of his injury and the decision of the Workers’ Compensation Court should be affirmed.