Clarke v. Massey

                                            NO.     95-106
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                  1995


IN THE MATTER OF
DAVID     CLARKE,
               Petitioner/Appellant,
         -v-
                                                                    JUN 27 1995
SCOTT MASSEY, d/b/a   ALL
SEASONS CONSTRUCTION,
               Respondent/Respondent.




APPEAL FROM:          Workers'  Compensation Court
                      The Honorable  Mike McCarter,                   Judge     presiding.


COUNSEL OF RECORD:
               For   Appellant:
                       Mark       E. Jones,       Missoula,       Montana
               For   Respondent:
                       Kristine        L.   Foot,     Missoula,      Montana


                                                    Submitted      on Briefs:        June    1,     1995
                                                                     Decided:         June    27,     1995
Filed:
Justice          James        C. Nelson               delivered                 the        Opinion             of        the         Court.

          David        Clarke         (Clarke)                appeals               from       the       Workers'                    Compensation

Court's          order        and judgment                   dated          January            27,        1995,            dismissing                     with

prejudice            his      petition                for      attorney                fees        under            § 39-71-611,                      MCA.

We affirm.

                                                               Background
          This       case      began       with              Clarke's               claim          for     compensation                        for         on-

the-job           injuries           sustained                 in         February             1990.                As         it     turned              out,
Clarke's           employer,          Scott            Massey             d/b/a         All        Seasons               Construction                      and
Truss       Fabrication                  (Massey),                  did        not      carry            workers'                    compensation

insurance.                  Accordingly,                    Clarke's                workers'             compensation                         benefits
were      paid      by the         Uninsured                 Employers'                 Fund         (Fund),               which,             in     turn,

assessed           a penalty              against                  Massey            and       asserted                  its          right          to      be

repaid       for       benefits            it         had      paid            to     Clarke.                Massey                  brought              suit

against          the       Fund      and Clarke                    contending                 that         Clarke                   was    either            an
independent                  contractor                 or          acting              outside                the              scope          of          his

employment             when he was injured.                                On November                   12,        1991,            the      Workers'
Compensation                 Court        issued              its         decision              finding                  that             Clarke           was

Massey's           employee          and directing                        that         Massey            reimburse                   the      Fund         for

all     amounts            expended         on Clarke's                        claim          subject              to     the          limitations

prescribed             by      § 39-71-504,                    MCA.             The Workers'                       Compensation                      Court

denied       Clarke's             claim         for         attorney             fees         as having                 been made for                      the

first       time       in     proposed            findings                 filed           after          trial.
          Prior        to that        decision,                    however,             in     January              1991,            Clarke          filed

an      action         against            Massey              in      District                 Court           in         Missoula                 County

seeking           damages,           attorney                 fees         and        costs          under              §§ 39-71-515                        and

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516,      MCA.         In      that         action,              Clarke                contended,                   among other                 things,
that      he was entitled                         to        an award                 of     attorney                fees      against               Massey
incurred           in both               the Workers'                 Compensation                         Court       and District                  Court

proceedings.                   The         District                  Court            awarded               Clarke           damages            against

Massey       for      lost          wages and medical                            expenses                   (subject          to the           § 39-71-

518,     MCA, offset                     and the          5 39-71-511,                      MCA, reimbursement                            obligation

for     benefits            paid)           and for            attorney                    fees        and costs             in     the       District

Court       action.                 It     denied            Clarke's                  claim           for      attorney              fees          in    the

Workers'           Compensation                   Court          proceedings,                        however,              on the           basis        that

the     District            Court          did        not     have         jurisdiction                       to     award         fees        in    those

proceedings.
          The Workers'                     Compensation                     Court             file           was     closed           February              7,

1992.        Notwithstanding,                             on March               9, 1994,                  Clarke       filed            a motion           in

that       court           requesting                  an award                  of         some        $3,900          in        attorney               fees
incurred              in        his          defense                  of             the          underlying                  1991            Workers'

Compensation                 Court           action.                  The         court            reopened             the         file,           and     on

June      8, 1994,           entered              an order             denying,                   without           prejudice,                 Clarke's

motion        and permitting                          the     filing              of        a new petition.                         The Workers'

Compensation                 Court          concluded                 that            the      previous               denial             of    Clarke's

demand        for      attorney                  fees        was the                  law     of       the         case,      but           since        that
prior       ruling            had         been         on procedural,                             as       opposed           to      substantive,

grounds,            the       filing             of       a new petition                             for      attorney              fees        was not

precluded.                 On July               14,        1994,          the        court            again        closed           the       Workers'

Compensation                 Court's              file.

          Clarke            filed          his        petition              requesting                      attorney              fees        on August

25,     1994.          Following                 the        filing           of Massey's                      response,              both       parties


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filed        cross          motions             for      summary            judgment                   supported                 by briefs,                    Cn

January           27,       1995,         the     Workers'               Compensation                        Court          issued             its     final
order        and judgment                  granting                Massey's                 motion            for        summary               judgment,

denying              Clarke's             motion             and        dismissing                     with            prejudice                 Clarke's

petition.                  Clarke         appeals.

                                                                         Issue

          Did        the     Workers'                 Compensation                    Court            err        in     granting                Massey's

motion        for       summary            judgment             and in dismissing                                Clarke's            petition                for

attorney             fees?           Underlying                 that            question                is       the        issue         of         whether

the Workers'                Compensation                     Court        properly                interpreted                      the provisions

of      § 39-71-611,                 MCA (1989),                   in     this         case.
                                                        Standard                of    Review

          The         standard              of         review             for         an      appeal                   from         the          Workers'
Compensation                   Court's                grant         or      denial                of         a      motion            for            summary

judgment              is       the        same          as     that             used         by         a        district             court.                   We

determine             whether             there         is    an absence                    of genuine                  issues         of material

fact        and       whether             the         moving            party          is     entitled                   to        judgment             as         a

matter          of      law.          Our        review            of     the         court's                conclusions                    of        law      is

plenary;              we     simply             determine                whether              its            legal            conclusions                    are

correct.               Murer         v.     State            Compensation                    Mut.            Ins.        (1994),               267 Mont.

516,        519-20,          885 P.Zd                 428,     430.             Here,         there              are     no material                   facts

in      dispute,            and the             resolution                of         the     issue            presented                hinges               upon

the      Workers'              Compensation                    Court's               interpretation                           of     § 39-71-611,

MCA (1989).
                                                                Discussion

            Clarke          presents              two         arguments                on appeal.                        First         he contends


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that      reading                §§ 39-71-117,                   MCA, 39-71-401,                           MCA, and 39-71-611,                               MCA,
together              leads         to     the           conclusion                 that        Massey              was an       employer;                   that

he was,              therefore,                required                by law              to      carry            workers'             compensation
insurance               under            one        of        three          plans;              and       that,            since         he      did          not

enroll          in     either            the       state          fund        or retain                 the         services             of a private

insurer,               Ithe        should                be     consider                   [sic]           a        self-insured                  for          the

purposes               of        MCA 39-71-611."                                While              creative,                 Clarke             cites               no

persuasive                  authority                for        his     position,                     and we conclude                      that         it          is

without          merit.                 Common sense                   and the                plain        language             of       the     statutes
at     issue          dictate             that           an employer                    cannot,            at once,            be both               insured

and uninsured                      for      the           same workers'                       compensation                    claim.

           Secondly,                Clarke                argues         that            we should                  look      behind           the      plain

language               of        § 39-71-611,                      MCA,         and             somehow              glean           a    legislative

intent           that             the          statute,                 nevertheless,                           applies              to        uninsured

employers               because,                 "[iIt          stretches                  credulity                 that      any        legislature

would       intend               that      an individual                      who violates                      one law should                    benefit

by such          a violation."                            Clarke's              references                     to     words      of       wisdom             from

Justices              Holmes             and Hand and                        from         Judge         Traynor               notwithstanding,

we,      similarly,                     conclude                that         this          argument                 is      without            any      basis

whatsoever                  in     law.

           At        the      outset,              we note             that             the     1989           codes        apply         to     Clarke's

1990       injury.                Buckman                v.     Montana             Deaconess                  Hosp.         (X986),            224 Mont.

318,        321,            730         P.2d             380,         382.              Section                39-71-611,                 MCA        (1989),

permits               the          Workers'                   Compensation                         Court             to      award             reasonable

attorney                fees             against                insurers                  who         have            unreasonably                      denied

benefits               due a claimant.                            That         section                provides:


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uninsured             employers,             nor         is        there         any        indication              whatsoever           from
that        language           of      any     legislative                       intent            that      the       statute        be      so
applied.              The statute             refers           to     insurers                and to no one else.                       Under
39-71-116(E),                 MCA (1989),                 an "         [iInsurer'                   means      an employer              bound

by     compensation                   plan         No.        1,      an             insurance            company         transacting

business              under         compensation                    plan             No.      2,      the      state       fund         under

compensation              plan        No.     3,     or the            uninsured                   employers'           fund      provided
for    in      part      5 of       this      chapter."                    It        is    undisputed            that     Massey         does
not      fit     into         any      category               of      that            statutory             definition.               He is
simply         an      uninsured              employer,                and             § 39-71-611,                 MCA     (19891,           is
inapplicable              to        him by its                clear         and unambiguous                      terms.

          We      hold         that          the         Workers'                    Compensation                Court           correctly
interpreted              5 39-71-611,                MCA (1989),                      in    this      case      and,      in doing           so,

properly         granted            Massey's             motion            for        summary         judgment          and dismissed

with      prejudice             Clarke's            petition                   for        attorney          fees.

          AFFIRMED.




 ., ,
YTazLA         Chief      Justice




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