NO. 91-100
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
SAMUEL J. GRENZ,
Plaintiff and Appellant,
V.
MEDICAL MANAGEMENT NORTHWEST, INC.,
ROBERT D. SCHIMPFF, M.D., JOHN V.
STEPHENS, M.D., JOHN W. HILLEBOE, M.D.,
and EDWARD H. TRONTEL, Ph.D.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert S . Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Samuel J. Grenz, Pro Se, Whitefish, Montana
For Respondents:
James R. Halverson, Herndon, Hartman, Sweeney &
Halverson, Billings, Montana; Leonard L. Kaufman,
Murray & Kaufman, Kalispell, Montana; James E.
Aiken, Jardine, Stephenson, Blewett & Weaver,
Great Falls, Montana; Todd A. Hammer, Warden,
Christiansen, Johnson & Berg, Kalispell, Montana
Submitted on Briefs: June 6, 1991
Decided: September 18, 1991
Filed:
I
Cer
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Justice William E. Hunt, SI., delivered the opinion of the Court.
Samuel 3 . Grenz, pro se, brought suit against the defendants
in the District Court for the Eleventh Judicial District, Flathead
County, alleging fraud, professional negligence, conspiracy, and
bad faith against the defendants. The defendants' motions for
dismissal, which were treated as motions for summary judgment, were
granted by the District Court. Grenz appealed. We affirm.
The issues on appeal are:
1. Did the District Court err in granting summary judgment
for the defendants?
2. Should this Court assess sanctions/damages against the
appellant?
On August 22, 1984, appellant injured his right elbow while
working for the American Stud Company in Flathead County, Montana.
This accident and subsequent disputes over the compensation
benefits to which appellant is entitled, have been the source of
a flood of litigation instituted by appellant. The various
defendants in these suits have included essentially everyone even
peripherally involved with appellant's claim of entitlement to
benefits. Appellant has made numerous appearances in both District
Court and the Workers' Compensation Court in furtherance of his
claim to benefits. Additionally, excluding the present appeal,
appellant has appealed to this Court on five other occasions, all
involving issues arising fromthe same accident. Grenz v. American
Stud Company and EBI/Orion Group (appeal dismissed Sept. 2 7 , 1989);
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Grenz v. Orion Group (1990), 243 Mont. 486, 795 P.2d 444 (District
Court's dismissal of appellant's complaint affirmed); Grenz v.
Prezeau (1990), 244 Mont. 419, 798 P.2d 112 (District Court's
granting of defendant's summary judgment motion affirmed); Grenz
v. Stangle and Vocational Resources Inc., pending Supreme Court
Cause No. 91-195; and Grenz v. Fire and Casualty Ins. Co. of
Connecticut, pending Supreme Court Cause No. 91-221.
The facts pertinent to a determination of the present appeal
are similar to those set out in Orion and Prezeau. At the time of
appellant's injury, his employer was enrolled under Workers'
Compensation Plan 11. The insurer assumed liability forthe injury
and paid compensation and medical benefits to and for the
appellant. Appellant receivedtemporary total disability benefits.
In June 1987, the law firm of Garlington, Lohn and Robinson
(GLR) was hired by the insurer to review appellant's claim. Mr.
Daue, a partner in GLR assumed responsibility for the file. On
January 19, 1988, Mr. Daue, pursuant to § 39-71-605, MCA, requested
appellant undergo a physical examination for the purpose of
evaluating his disability and the feasibility of his returning to
work. Appellant did not contest the insurer's right to require him
to submit to such an evaluation. Mr. Daue made arrangements with
Medical Management Northwest, Inc. (MMN) to assemble and coordinate
a panel of physicians and medical care specialists to carry out the
examination. MMN is designed to provide parties involved with
medical or legal issues a source of expert, impartial evaluations
3
of medical conditions. MMN accomplishes this task by assembling
a multi-specialty panel of physicians to examine the individual in
question. In February 1988, defendant doctors Schimpff
(neurologist), Stephens (physical medicine and rehabilitation),
Hilleboe (orthopedic surgeon) and Trontel (clinical psychologist),
all participated in the examination/evaluation of appellant at the
request of MMN. A panel report, written primarily by Dr. Stephens,
summarized and consolidated the results of the various
examinations. The panel made several findings concerning
appellant's physical condition and the feasibility of future
employment.
Following the panel's written report appellant 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 appellant obtained from his associate
without appellant's consent.
On the basis of extensive medical, psychological, and
vocational data that had been received, Mr. Daue recommended to the
insurer that appellant's benefits be reduced from temporary total
disability to permanent partial disability. On August 2 4 , 1988,
appellant's benefits were reduced as recommended.
4
Subsequent to the reduction in his benefits, appellant
requested a mediation of his claim. The mediation was held and
ultimately appellant's temporary total disability benefits were
reinstated on December 15, 1988, retroactive to August 24, 1988.
Appellant filed a complaint on January 29, 1990, in which he
made the following allegations against the defendants:
[Dlefendants, [members of the panel] individually and/or
collectively, limited there (sic) evaluation/examination
of the plaintiff to such an extent as to deny him the
... [benefits to which he was entitled].
Defendants, individually and/orcollectively, during such
time as before mentioned, with actual fraud and/or
malice, conspired and/or neglected there (sic) legal
and/or moral and/or professional responsibility, within
the scope of there (sic) profession to the Plaintiff.
.... Defendants, knowingly and willingly, partook in
and/or contributed to such activities as to endanger the
Plaintiff and/or his interest. Furthermore, such bad
faith and/or tortious conduct contributed to Plaintiffs'
present condition of Permanent Total Disability.
I.
Did the District Court err in granting defendants' motions for
summary judgment?
Initially all defendants made motions to dismiss the
complaint. Defendant Trontel then moved for summary judgment. The
District Court heard oral argument on the motions and also
considered additional matters outside of the pleadings. Inasmuch,
the motions to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., were
treated as motions for summary judgment under Rule 56, M.R.Civ.P.
5
The District Court granted defendants' motions for summary
judgment.
Summary judgement is proper when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. Initially, the moving party must
show the absence of genuine factual issues. To prevail, the non-
moving party must set forth facts demonstrating that a genuine
issue exists. O'Bagy v. First Interstate Bank of Missoula (1990),
241 Mont. 44, 46, 785 P.2d 190, 191. The Court is under no duty
to anticipate proof to establish a material or substantial issue
of fact. Tucker v. Trotter Treadmills: Inc. (1989), 239 Mont. 233,
235, 779 P.2d 524, 525. The standard that this Court applies in
reviewing a grant of summary judgment is the same as that initially
utilized by the trial court under Rule 56, M.R.Civ.P. McCracken
v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894.
Appellant alleges in his complaint conspiracy by the
defendants: committed during their panel examination. To prove
civil conspiracy in Montana the following elements are required:
(1) Two or more persons, and for this purpose, a corporation is a
person: (2) an object to be accomplished: (3) a meeting of the
minds on the object or course of action; (4) one or more unlawful
overt acts; and (5) damages as the proximate result thereof. Duffy
v. Butte Teachers' Union No. 332 (1975), 168 Mont. 246, 251, 541
P.2d 1199, 1202. Additionally, this Court stated in Duffy "that
it is not really the conspiracy which gives rise to a right of
6
action, but the torts which may be committed in furtherance
thereof." Duffv, 541 P.2d at 1202. Appellant contends the
respondents agreed prior to the evaluation to act so as to deprive
him of the benefits he was receiving at the time. Aside from his
naked allegations there is absolutely no evidence of any
conspiracy. The record is barren of any evidence of either an
unlawful act or object by the respondents, or of any damages to
appellant. The evidence merely indicates that the respondents
examined appellant at the request of the insurer pursuant to 5 39-
71-605, MCA. The District Court found appellant failed to show the
existence of any tort or conspiracy. We agree.
In his complaint, appellant alleges fraud on the part of the
respondents, without setting forth any factual allegations with
respect to the nine elements this Court has indicated are required
to prove fraud. Lee v. Armstrong (1990), 244 Mont. 289, 293, 798
P.2d 84, 87. More important than the technical inadequacy of the
pleading is the finding by the District Court that appellant failed
to produce any evidence supporting his claim for fraud. We agree.
The record is completely devoid of any evidence concerning fraud.
Appellant also claimed a cause of action based on the tort of
bad faith. As this Court has previously stated, the tort of bad
faith applies only in exceptional circumstances. Story v. City of
Bozeman (1990), 242 Mont. 436, 451, 791 P.2d 767, 776. Absent a
specific statutory provision providing for a bad faith claim, or
a contract between the parties involving a special relationship as
7
described in Storv, no cause of action will lie. There is no
specific statutory basis for the claim in this instance.
Additionally, there was no special relationship between the
parties. In fact, there was not even a contract. We affirm the
District Court's grant of summary judgment on this issue.
Finally, appellant's claims of professional negligence must
also fail. There is no evidence of negligence anywhere in the
record.
The proper course of action for an aggrieved worker in these
circumstances was set forth by this court in Grenz, 798 P.2d 112,
115. There we indicated that "[slhould 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 workers' compensation judge." Appellant
followed this procedure and his benefits were retroactively
restored in full. The restoration of his benefits should have been
the end of litigation over this matter.
11.
Should this Court assess damages/sanctions against the
appellant?
The issue of sanctions has been raised on appeal. A request
for damages for having to defend against an appeal without merit
is governed by Rule 3 2 , M.R.App.P., which states:
If the supreme court is satisfied from the record and the
presentation of the appeal in a civil case that the same
was taken without substantial or reasonable grounds, such
8
damages may be assessed on determination thereof as under
the circumstances are deemed proper.
It is clear the appellant is frustrated at not obtaining all
the benefits to which he feels entitled. It is also true, as the
appellant's brief argues, that the courts of this state should be
freely open to citizens of the state who seek determination or
enforcement of their legal rights. However, this access to the
courts is not without limits. The judicial resources of the state
are finite and must by used efficiently. Additionally, individuals
must be protected from having to spend their time, energy, and
money defending themselves against claims without merit. AS
discussed above, the appellant has instituted litigation concerning
his claim for benefits against nearly every conceivable party
involved. His claims have been summarily rejected at the District
Court level and he has appealed in every instance. We find the
present appeal to have been taken without substantial or reasonable
grounds. Further appeals to this court regarding these settled
matters will result in an award of damages against appellant.
The District Court's grant of summary judgment to the
respondents is affirmed.
Jus
9
We concur:
/9
Justices
10
Justice John Conway Harrison concurring in part and dissenting in
part.
I concur in the majority's opinion affirming the District
Court's grant of summary judgment to the defendants; however, I
dissent to this Court's holding of not assessing sanctions/damages
against the appellant, Samuel J. Grenz.
Samuel 3 . Grenz is not an unfamiliar litigant to this Court
or to the District Court of the Eleventh Judicial District,
Flathead County. At the present time, this Court has four current
or "open" cases pending our decision involving Samuel J. Grenz as
the appellant; and four decided or Itclosed"cases involving Samuel
J. Grenz as the appellant. The respondents in these appeals
brought by Samuel J. Grenz have been required to hire counsel and
go through the painful procedure required in the appeal's process.
Rule 32, M.R.App.P., as stated in the majority opinion, notes
that "If the supreme court is satisfied from the record and the
presentation of the appeal in a civil case that the same was taken
without substantial or reasonable grounds, such damages may be
assessed .... It After reviewing the record concerning Samuel
J. Grenz, I am certainly satisfied and find it proper to assess
sanctions/damages against Samuel J. Grenz in the amount of $250 and
would so hold.
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September 18, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Samuel I. Grenz
104 Colorado Ave.
Whitefish, MT 59937
Leonard L. Kaufman
Murray & Kaufman
P.O. Box 728
Kalispell, MT 59903
James E. Aiken
Jardine, Stephenson, Blewett & Weaver
P.O. Box 2269
Great Falls, MT 59403
James R. Halverson
Hemdon, Hartman, Sweeney & Halverson
P.O. Box 20697
Billings, MT 59104
Todd A. Hammer
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
Kalispell, MT 59903-3038
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTAN
BY:
Depud J d