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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