No. 90-011
IN THE SUPREME COURT OF THE STATE OF MONTANA
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2
SAMUEL J. GRENZ, -4 m cn
rTQ r"
Plaintiff and Appellant,
MICHAEL C. PREZEAU and
TERRY N. TRIEWEILER,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael J. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Samuel J. Grenz, Whitefish, Montana, Pro S e
For Respondents:
Terry Trieweiler, Esq., Whitefish, Montana
Michael C. Prezeau, Esq., Whitefish, Montana
Todd Hammer, Esq., Kalispell, Montana
Submitted on Briefs: August 23, 1990
I.
Decided: September 11, 1390
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
On September 29, 1989, Samuel J. Grenz filed this action in
the District Court of the Eleventh Judicial District, Flathead
County, Montana, alleging that attorney Michael C. Prezeau had
negligently represented him in connection with his workers9
compensation claim. Grenz further alleged that attorney Terry N.
Trieweiler was a partner of Prezeau and was vicariously liable for
Prezeau9s negligent conduct. On December 27, 1989, the District
Court granted the motions of Prezeau and Trieweiler for summary
judgment. From this judgment Grenz appeals. We affirm.
Appellant presents the following issues:
1. Did the District Court err in granting respondents'
summary judgment motions?
2. Did the District Court err in failing to find that at the
time of the alleged misconduct respondents were partners by
estoppel?
On August 22, 1984, Samuel Grenz injured his right elbow while
working for American Stud Company. He sought treatment from a
physician and continued to work until November 18, 1985, when he
quit because of pain in both elbows and his lower back.
On April 15, 1986, Grenz employed the Trieweiler Law Firm to
represent him in connection with his workers' compensation claim.
At that time, attorneys Michael Prezeau and Terry Trieweiler were
partners in the Trieweiler firm. Prezeau, who signed the
employment agreement with Grenz, handled all aspects of Grenz9s
claim.
On October 1, 1987, Trieweiler and Prezeau terminated their
partnership agreement. Prior to the dissolution of the
partnership, Trieweiler had met with Grenz on two occasions and had
not provided any services on Grenzls behalf. Trieweiler had no
contacts with Grenz subsequent to the partnership dissolution.
After the partnership was dissolved, Prezeau continued to represent
Grenz .
The events in issue occurred during the first three months of
1988. On January 19, 1988, the attorney for the workers1
compensation insurer requested an independent medical examination
of Grenz to be performed in Kalispell by Northwest Medical Panel,
a group of multi-disciplinary medical specialists. When informed
of the request, Grenz immediately agreed to participate. The Panel
consisted of a neurologist, an orthopedic surgeon, a physical
medicine and rehabilitation specialist, and a clinical
psychologist.
On January 22, Prezeau sent a schedule of his medical
appointments for the panel evaluation to take place February 1 and
2. In the letter, Prezeau advised Grenz that the Medical Panel
should have access to the records of Grenz's treating physicians,
Dr. Herbert Gray, a psychiatrist, and Dr. Janice Gray, a pain
management specialist. Prezeau asked Grenz "to contact both Drs.
Gray next week and give them authorization to discuss your case
with the doctors from the medical panel and to provide written
information as may be requested.#'
A few days later, on January 25, Prezeau received a letter
from Skip Schloss, who coordinated the Panel, requesting medical
summaries from Dr. Herbert Gray and Dr. Janice Gray, as well as
suggesting that a report from Dr. Arvin Wilson, a chiropractor, be
submitted. Prezeau sent a copy of Schloss' letter to Grenz and
again recommended that Grenz contact Dr. Herbert Gray and Dr.
Janice Gray, but noted that he did not see a need to involve Dr.
Wilson. Grenz did not contact any of the doctors as requested by
Prezeau.
As evidenced by Medical Management Northwest's Treatment
History Chart Review, the Medical Panel did have access to records
of Dr. Janice Gray through December 1987. In addition, the Medical
Panel possessed brief summarizations of the number of treatments
Grenz received from Dr. Herbert Gray and Dr. Wilson. Pursuant to
ARM 24.29.1405, physicians who treat an injured worker under the
Workers1 Compensation Act must provide reports to the insurer on
request. The insurer's attorney furnished these records to the
Medical Panel.
The ~edical Panel diagnosed Grenz as having lumbar
degenerative disease attributable to work-related injuries as well
as to Grenz's weight lifting avocation. The Panel felt that this
condition was at "maximum medical improvement1' and that Grenz
needed no further medical. treatment. In addition, the Medical
Panel found x-ray evidence of calcification and bone formation in
Grenz's elbow and again traced the condition to his work injury and
aggravation from his weight-lifting activities. Based on these
back and elbow injuries, the Panel rated Grenz's impairment as ten
percent of the whole man.
In relation to psychological difficulties, the Panel found
that Grenz no longer suffered from acute depression related to his
work injuries, and that the psychologist~s diagnosis of a
personality disorder and learning disability were not work-
related. The Medical Panel deferred to Grenz's own psychiatrist,
Dr. Gray, for a psychiatric impairment rating, llshouldone be
required.
In reviewing Grenz's suitability for five occupations
submitted by Jeannette Stangl, Vocational Rehabilitation
Specialist, the Medical Panel approved the job of Photograph
Finisher.
Prezeau sent Grenz a copy of the Panel Summary when he
received it and invited Grenz to meet with him on March 2 to
discuss the evaluation. Grenz strongly objected to the Medical
Panel's evaluation and insisted that Prezeau take immediate action.
Prezeau explained that the Panel's evaluation was not entirely
unfavorable, especially since the Panel deferred to Grenzts own
psychiatrist for consideration of his psychological condition and
counseled against taking any immediate action.
Grenz sent a letter to the insurer detailing numerous
objections, including: (1) the Panel's diagnosis overlooked many
of his work-related injuries; (2) the examination did not properly
address his mental and emotional state; (3) he was not informed by
his attorney of the need for obtaining various records and x-rays;
and (4) one of the physicians had consulted records of Grenz
obtained from his associate without Grenz's consent.
On March 23, Grenz terminated Prezeau's employment and
undertook his own legal representation. Until that time Grenz had
received temporary total disability benefits at the maximum
statutory rate. In August 1988, the benefits were reduced to
permanent partial disability status. At that point, Grenz retained
another attorney, and due to the second attorney's efforts, Grenzls
temporary total disability status was reinstated. Grenz continues
to receive biweekly benefits at the maximum rate.
I
Did the District Court err in granting respondents' summary
judgment motions?
Grenz filed his second amended complaint on November 28, 1989.
His allegations are summarized as follows: (1) Prezeau conspired
with the insurer's attorney to limit the Northwest Panel Medical
Evaluation "to such an extent as to deny plaintiff his legal
entitlements;'I (2) Prezeau -andTrieweiler 'Idid not properly advise
and representf1 Grenz or his interests; and (3) Prezeau and
Trieweiler "with actual fraud and/or malice, conspired and/or
neglected to attempt in good faith to effectuate prompt, fair and
equitable settlement of Plaintiff's Claim."
On the basis that the facts did not support Grenzls
allegations, Prezeau and Trieweiler moved for summary judgment.
A court grants summary judgment when no genuine issue exists
as to any material fact, and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Blaskovich
v. Noreast Development Corp. (Mont. 1990), 790 P.2d 977, 978, 47
St.Rep. 740, 742; Boles v. Simonton (Mont. 1990), 790 P.2d 977,
978, 47 St.Rep. 793, 796. The moving party through supporting
affidavits first must demonstrate that a genuine issue of fact does
not exist. The burden then shifts to the party opposing the motion
to show that there were genuine issues for trial. Rule 56(e),
M.R.Civ.P.; Blaskovich, 790 P.2d at 978, 47 St.Rep. at 742.
Grenz failed to meet his burden of supporting his accusations.
Grenz's claim of conspiracy is based upon the conclusions that: (1)
the insurer's attorney improperly influenced the Medical Panel, and
(2) that Prezeau must have known about it.
Grenz Is evidence consists of a letter sent by the insurer's
attorney to Skip Schloss, the coordinator of Medical Management
Northwest, on February 17, 1988, requesting the following:
As you and I have discussed, I am asking that
the Panel physicians limit their evaluation of
Mr. Grenz to his physical condition and his
physical restrictions affecting employment, to
the exclusion of any psychological factors
affecting Mr. Grenz. This will permit the
medical doctors on the Panel to limit their
opinions to their areas of expertise.
Grenz asserts that this letter represents an improper attempt on
the part of the insurer's attorney to limit the scope of the
Panel's examination and that Prezeau colluded with the insurer's
attorney to prevent the Panel from considering all of Grenz's
disabilities.
Insurers can request that claimants submit to physical
examinations pursuant to 5 39-71-605, MCA. The statute provides
no guidelines for the examination other than that consideration
will be given for the claimant's convenience, physical condition,
and ability to attend. Aside from those requirements, the insurer
is free to choose who will conduct the examination and where and
when the examination takes place. The statute does not address
whether the insurer is entitled to limit the examination in any
way.
Under 5 39-71-605, MCA, the claimant has no authority to
object to or control any aspect of the examination, other than that
he may have a physician present during the examination. On the
other hand, the claimant's failure to cooperate with the
examination could result in suspension of benefits. Section 39-
71-605 (1)(b), MCA (1983) .
Though the Medical Panel may have overlooked some of Grenzls
physical injuries or his psychological condition, prior to the
examination Prezeau could. do little to remedy the situation.
Should a medical examination result in denial or reduction of
benefits, the claimant can challenge the insurer's action through
a mediation procedure or in a hearing before the workers1
compensation judge. See 5 39-71-240 (I), MCA (1989); 5 39-71-2905,
MCA (1983) . After his benefits were reduced, the attorney Grenz
subsequently hired did take these steps, resulting in restoration
of full benefits to Grenz.
Even if the insurer's actions in limiting the examination were
improper, Grenz did not present any evidence that Prezeau had
knowledge of the insurer's request before he received, on the day
that the Medical Panel compiled the Panel Summary, a copy of the
letter sent by the insurer's attorney. The letter does not mention
Prezeau nor implicate him in any way. Grenz's charge of a
conspiracy between the two attorneys is completely unfounded.
Grenz's second allegation is that Prezeau did not properly
represent Grenz. Grenz claims that Prezeau fell short in his
representation of Grenz by failing to have all of his medical
records and x-rays sent to Medical Management Northwest, by not
requesting a second independent medical examination, and by not
taking steps to correct job classifications.
One of Grenz's principal complaints is that the Panel did not
have records regarding his mental and emotional condition, and that
if the Panel had had these records, the Panel's evaluation would
have been more favorable to Grenz.
First of all, Grenz is correct that the Medical Panel should
have had those records. However, the record indicates that Prezeau
sent two letters to Grenz asking him to authorize the release of
information from Dr. Herbert Gray, his psychiatrist, and Dr. Janice
Gray. Grenz did not follow through with his requests. Prezeau
testified that he requested Grenz to contact his treating
physicians, rather than getting a release and having the records
sent to himself, because of Grenzls extreme sensitivity about
release of medical information. Grenz's protest to the Panel
regarding the use by one physician of his partner's records
demonstrates his sensitivity in this area.
Secondly, although a psychologist on the Panel did examine
Grenz, the Panel deferred to Grenz's own physician, Dr. Gray, for
a psychiatric impairment rating. Prezeau pointed out that the fact
that the Panel deferred to Dr. Gray was favorable to Grenz.
We also note that the Medical Panel had access to most of
Grenzls records and x-rays from other sources.
As for requesting a second medical examination and objecting
to the job classification of photograph finisher, Prezeau was aware
of Grenzls wishes for quick action, but in his professional
judgment counseled against taking any immediate steps. In order
to determine whether Prezeau in this instance departed from the
prevalent standard of care, Grenz needed either expert testimony
or Prezeau's own testimony identifying his conduct as negligent.
Carlson v. Morton (1987), 229 Mont. 234, 239, 745 P.2d 1133, 1136.
Grenz provided neither.
Grenz contends that Prezeau failed to request a second
examination within two weeks from the mailing of the evaluation as
required by 5 39-71-711(3) (b)(i), MCA. The statute in effect on
the date of injury governs workers1 compensation benefits. Buckman
v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d
380, 382. Section 711 of the Workers1 Compensation Act did not
take effect until July 1, 1987. Since Grenzls injury occurred in
1984, § 39-71-711, MCA, does not apply.
Grenz's third allegation is that Prezeau failed to effectuate
a prompt and equitable settlement of his claim. Grenz's own
affidavit filed in opposition to the Motion for Summary Judgment
refutes this assertion:
The very first day, when I retained the
Defendants I told Terry Trieweiler that I
never, never intend to settle my Workers1
Compensation Claim and that all I wanted to do
is, to go to school and reeducate myself so I
could get on with my life. ... On November
13th, 1986, I again told the Defendants that
I donlt want to settle my Workers1
Compensation Claim, I just want to go to
school and rehabilitate myself.
Obviously, Grenz cannot charge the defendants with failing to
settle his claim when he himself directed otherwise.
In addition to showing that no genuine issue of material fact
exists, the party moving for summary judgment must establish that
he is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P.; Blaskovich, 790 P.2d at 979, 47 St.Rep. at 742.
In this case, the defendants had to show that at least one of
the elements of a legal malpractice action were not satisfied
because no genuine issue of fact supporting the element existed.
In a malpractice action, the plaintiff must prove that an
attorney-client relationship existed and that the act constituting
negligence or breach occurred. The plaintiff must show that Ifbut
forv1such negligence the client would have been successful in the
prosecution or defense of the action. Lorash v. Epstein (1989),
236 Mont. 21, 24, 767 P.2d 1335, 1337. Finally, the plaintiff must
establish that the negligent act proximately caused his damages.
Thelen v. city of ~illings (1989), 238 Mont. 82, 85-6, 776 P.2d
As a matter of law, Prezeau is entitled to summary judgment
because of the absence of facts indicating that he negligently
handled Grenz's legal affairs. Furthermore, Grenz has not
indicated, beyond mere allegations, actual damages or injury.
Grenz claims that the defendants8 tortious conduct prevented him
from "rising above his disability1' and preparing himself for
meaningful employment, as well as contributing to Grenz's "present
condition of permanent total disability.I1
No facts support these allegations. In fact, the record shows
the opposite--that during the entire time that Prezeau and his firm
represented him, Grenz received the maximum workerst compensation
benefits allowable by law. His benefits were reduced temporarily,
but not until some months after Prezeauls representation of Grenz
had been terminated.
We hold that plaintiff failed to demonstrate any genuine issue
of material fact and that defendants were entitled to summary
judgment as a matter of law.
I1
Did the District Court err in failing to find that at the time
of the alleged misconduct respondents were partners by estoppel?
The facts are uncontroverted that Trieweiler did not provide
any legal services for Grenz and that Trieweiler and Prezeau
dissolved their partnership on October 1, 1987, three months before
the events in question occurred. Since we find that Prezeau is
absolved of liability, Trieweiler cannot be held liable for
Prezeautsconduct. Therefore, we need not address the second issue
of whether a partnership by estoppel existed between Prezeau and
Trieweiler at the time of the alleged negligence.
The ~ i s t r i c tCourt's grant of summary judgment to Prezeau and
Trieweiler is affirmed.
We concur:
Chief Justice