text:
    LARRY C. PLAINBULL, Petitioner and Appellant, v. TRANSAMERICA INSURANCE COMPANY/DRANEY INFORMATION SERVICE, Defendant/Employer and Respondent.
    No. 93-432.
    Submitted on Briefs January 13, 1994.
    Decided March 10, 1994.
    51 St.Rep. 181.
    264 Mont. 120.
    870 P.2d 76.

      For Petitioner and Appellant: Don Edgar Burris, Billings.
    For Defendant/Employer and Respondent: James G. Edmiston, HI, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

The claimant, Larry C. Plainbull (Plainbull), appeals from Findings of Fact, Conclusions of Law, and a Judgment entered by the Workers’ Compensation Court in favor of the respondent. We reverse and remand.

The issue on appeal is whether the Workers’ Compensation Court correctly interpreted § 39-71-407, MCA (1989).

The facts of this case are straightforward and essentially undisputed. On May 10, 1991, Plainbull was employed as a laborer for Draney Information Service (Draney) on the movie set for “The Irish Story” (later renamed “Far and Away”). Plainbull was cleaning the walls of a train tunnel when a rock or other material hit him in the left eye. Plainbull was initially treated by Drane/s on-location registered nurse, Sandie Sharkey-Knox (Sharkey-Knox), who washed out the eye and placed an ointment in it. At that time, Sharkey-Knox saw no abrasions or foreign bodies.

Plainbull’s claim for workers’ compensation benefits was initially accepted as a medical-only claim and he was paid medical benefits. Respondent Transamerica Insurance Company Draney’s insurer, contended that the choroidal rupture in the left eye predated the May 10, 1991 incident, and was thus not a compensable injury.

A hearing on the matter was held on September 22, 1992, and depositions were taken and submitted to the Workers’ Compensation Court. The following testimony was before the Workers’ Compensation Court and is the basis for its findings and conclusions.

On May 13, 1991, Plainbull saw Stephen R. Shaub, D.O. (Dr. Shaub), who noted that the injury occurred on May 10,1991, and that Plainbull had experienced pain in the eye since that time. Dr. Shaub diagnosed a corneal abrasion. On May 15,1991, Plainbull again saw Dr. Shaub, complaining of persistent discomfort in the left eye. Dr. Shaub diagnosed a corneal abrasion with a possible foreign body.

On May 16, 1991, Plainbull saw Muzaffar H. Kirmani, M.D. (Dr. Kirmani), an ophthalmologist, who diagnosed a choroidal rupture with a macular hole. Dr. Kirmani was unable to ascertain the age of the lesion. On June 14, 1991, Dr. Kirmani reported that Plainbull’s left eye vision was “compromised secondary to trauma and choroidal rupture with a macular hole and a complete posterior vitreous detachment of the left eye.”

On July 2, 1991, Plainbull saw another ophthalmologist, J. Thomas Priddy, M.D. (Dr. Priddy), who also diagnosed a choroidal rupture in the left eye. On August 12,1991, Dr. Priddy indicated that he was not able to say that the choroidal rupture predated the May 10 injury. In a letter dated January 14, 1992, Dr. Priddy stated that he saw nothing about the injury that suggested it was old. On April 21, 1992, Dr. Priddy indicated that he believed it was possible that Plainbull’s injury was caused by the May 10 accident.

On August 6, 1991, Plainbull visited an optometrist, John T. Gingrich, O.D. (Dr. Gingrich), and told Dr. Gingrich that the eye injury occurred on May 10, 1991. Dr. Gingrich noted a choroidal rupture with macular involvements. However, Dr. Gingrich did not make this diagnosis. He testified that such a diagnosis was outside his field expertise and that the diagnosis was the opinion of Dr. Fishburn, a retinal specialist who practiced in the same office.

At deposition, Dr. Gingrich opined that the May 10 incident did not cause the left eye condition. However, when questioned further on the basis of that opinion, including questioning as to what could cause a choroidal rupture with macular involvements, Dr. Gingrich repeatedly testified that certain questions were “out of the scope of [his] expertise” and “out of [his] range of expertise.” Dr. Gingrich also testified that he was “suspicious” as to why Plainbull “waited three months to come in to see me,” apparently unaware that Plainbull had been to a number of other doctors. In addition, Dr. Gingrich admitted that all of his comments and opinions regarding the choroidal rupture were based on Dr. Fishburn’s opinions and were not his own, as he was clearly outside his area of expertise. He stated he based his opinions regarding the cause of the injury “on the opinion of the expert,” Dr. Fishburn.

Various other medical records were submitted to the Workers’ Compensation Court. These included a note dated January 18,1992, by Gary D. Mundy, M.D., indicating that Plainbull had visited the emergency room with complaints of a headache and pain behind the left eye. He noted that Plainbull suffered an eye injury the previous year when he was hit in the left eye with a rock and that Plainbull had suffered from intermittent pain off-and-on since that time. Another note, dated January 21, 1992, by Deniz Tek, M.D., indicated Plainbull had been suffering from recurrent headaches centered about the left eye over the past one and one-half years.

On February 4, 1992, Plainbull went to the emergency room with left eye pain. A July 20, 1992 record from St. Vincent Hospital indicated that Plainbull complained of a headache from an old injury, which occurred when he was hit in the left eye with a rock on May 10, 1991. Plainbull returned to the emergency room on August 5, 1992, again complaining of left eye pain. Plainbull was eventually referred to the Billings Clinic for a neurological examination. This examination took place on October 5, 1992.

The report from this examination indicated that Plainbull had suffered severe head injuries in the mid-1970s and that he underwent a right parietal craniectomy to remove a subdural hematoma in 1974. Roger S. Williams, M.D. (Dr. Williams), summarized that Plainbull had neuralgia and possibly vascular pain in the left orbit in the territory branches of the left external carotid artery. Dr. Williams further stated that the injury could have been caused by the May 10 incident if Plainbull’s description of the incident was correct and if his pain did not predate the injury.

On October 18, 1992, records indicate that Plainbull went to the emergency room complaining of pain in the eyes caused when Plain-bull was hit in the left eye with a rock.

Plainbull presented evidence regarding his vision prior to the May 10 incident. In a firefighter’s physical dated June 9,1988, Plainbull’s uncorrected left eye visual acuity was 20/40. On May 13, 1991, Dr. Shaub recorded Plainbull’s corrected left eye visual acuity at 20/50. On May 16, 1991, Dr. Kirmani recorded the corrected vision to be 20/70. By June 14, 1991, Dr. Kirmani indicated Plainbull’s corrected vision was 20/200. On July 2,1991, Dr. Priddy recorded the corrected vision in the left eye at 20/400. On August 6, 1991, Dr. Gingrich also recorded the corrected left eye vision at 20/400.

Plainbull testified that he did not have any problems or suffer from any injuries to his left eye during the period of time from his last eye examination on January 14,1989, until the May 10, 1991, incident.

Based on this testimony, the Workers’ Compensation Court entered Findings of Fact, Conclusions of Law, and Judgment on July 26, 1993, concluding that § 39-71-407, MCA (1989), required Plain-bull to prove that it was medically more probable than not that the injury of May 10,1991, caused his medical condition and that Plain-bull had failed to establish his burden of proof. From those findings, conclusions, and judgment, Plainbull appeals.

Our standard of review relating to conclusions of law is whether the workers’ compensation judge’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The Workers’ Compensation Court determined that Plainbull had failed to carry his burden of proof pursuant to § 39-71-407, MCA (1989), which provides, in pertinent part:

(1) Every insurer is liable for the payment of compensation ... to an employee of an employer it insures who receives an injury arising out of and in the course of his employment. ...
(2)(a) An insurer is liable for an injury as defined in 39-71-119 if the claimant establishes it is more probable than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that such claimed injury aggravated a preexisting condition is not sufficient to establish liability.

The claimant must also prove that the work-related injury caused the condition at issue. See Norman v. City of Whitefish (1991), 248 Mont. 490, 812 P.2d 1259; see also Welch v. Am. Mine Services, Inc. (1992), 253 Mont. 76, 831 P.2d 580.

The Workers’ Compensation Court found that Plainbull was injured on May 10, 1991, while employed by Draney, and that the injury occurred when Plainbull was cleaning the walls of a train tunnel with a shovel and a marble-sized rock struck him in the eye. The court concluded that “the deteriorating condition of claimant’s eye sight seems to indicate an inciting event occurring sometime around the date of injury.” The court further concluded, however, that the medical testimony and opinions of the doctors did not support Plainbull’s claim for compensation, because Plainbull had not established that it was “medically more probable than not that the accident described by the claimant caused his eye injury.”

We hold that the Workers’ Compensation Court erred in so concluding and find that Plainbull established his burden of proof with respect to both the occurrence and compensability of the May 10,1991 injury.

Section 39-71-407, MCA (1989), cited above, requires that Plain-bull establish that it is “more probable than not” that a claimed injury has occurred or that a claimed injury aggravated a preexisting condition. In this case, Plainbull contends that an injury occurred on May 10,1991, which caused his left eye condition and that he had no preexisting condition prior to that time. In fact, the Workers’ Compensation Court found that Plainbull had suffered a work-related injury on May 10,1991. However, the court went on to conclude that the injury was not compensable because Plainbull did not establish that it was medically more probable than not that the injury caused the condition.

Section 39-71-407(2), MCA(1989), does not require that a claimant establish that the injury occurred through medical testimony. Subsection (b) of that statute provides that a medical possibility that a claimed injury occurred is insufficient proof to establish liability. However, nothing in subsection (a) requires a medical opinion as to whether the injury actually occurred or not. Given traditional rules of statutory interpretation, we decline to read the “medical opinion” language of subsection (b) into the burden of proof contained in subsection (a). Under the plain language of the statute, it is not necessary that Plainbull establish that his injury occurred out of and in the course of his employment, pursuant to § 39-71-407, MCA (1989), through medical testimony. The claimant’s burden under § 39-71-407(2)(a), MCA (1989), is met when, with or without medical evidence, he establishes that it is “more probable than not” that his injury occurred out of and in the course of his employment.

In this case, the Workers’ Compensation Court concluded that Plainbull had suffered a work-related injury, but also concluded that he did not establish that the work-related injury caused the condition at issue. The court held that medical testimony was required to establish this causal connection, and that the testimony presented by Plainbull did not establish that it was “medically more probable than not” that the injury caused the condition.

Again, there is nothing in the workers’ compensation statutes relevant here that requires that the causal connection, which we referred to in Norman, be established through the use of medical testimony. While § 39-71-407(2)(b), MCA (1989), provides, and our prior case law holds, that simply proving, without more, that a causal connection between the injury and condition is “medically possible” is insufficient, (See Viets v. Sweet Grass County (1978), 178 Mont. 337, 583 P.2d 1070; Hash v. Montana Silversmith (1991), 248 Mont. 155, 810 P.2d 1174), we have also held that causation may be established by indirect evidence where medical science is unable to provide definitive proof. See Conway v. Blackfeet Indian Developers, Inc. (1983), 205 Mont. 459, 669 P.2d 225; Hengel v. Pacific Hide & Fur Depot (1986), 224 Mont. 525, 730 P.2d 1163; Moffett v. Bozeman Canning Co. (1933), 95 Mont. 347, 26 P.2d 973.

Under our present statutory scheme, all that the legislature has required of a claimant is that he establish that it is “more probable than not” that his injury or aggravation of a preexisting condition occur out of and in the course of his employment and, implicitly, under the case law, that the injury cause the condition for which he is seeking workers’ compensation benefits. Whether the claimant chooses to meet that burden with medical evidence, non-medical evidence or a combination of both, is up to him and, obviously, depends on the facts and circumstances of his particular case, the nature of the claimed injury, and the evidence available.

We emphasize that the burden of proof remains the claimant’s. He is entitled to prove his case with whatever probative evidence he chooses or has available. In order that claimants not read into this case more than is intended, we also point out, however, that in most cases, while the occurrence of the injury may be susceptible to proof without medical evidence, the causation of the claimant’s condition may very well require medical evidence if the claimant is to successfully meet his burden of proof, especially in the face of contrary medical evidence presented by the carrier. While we will not read into the statute and into claimant’s burden to prove causation the requirement that he use medical evidence, neither do we, here, in any manner, eliminate the necessity for such evidence where that sort of evidence is a necessary part of the claimant’s case and where, without medical evidence, he will not successfully meet his burden of proof.

Applying the above, we review the record of the lower court to determine whether the evidence presented establishes that Plain-bull’s condition was more probably than not caused by the work-related injury of May 10, 1991.

The Workers’ Compensation Court concluded that Plainbull did not establish that the injury caused his condition. Our standard of review of the Workers’ Compensation Court decision is to determine whether there is substantial credible evidence to support the findings and conclusions of the court. EBI/Orion Group v. State Comp. Mutual Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 1070, 1072.

The Workers’ Compensation Court relied entirely on the opinion testimony of Dr. Gingrich, an optometrist, who testified that, to a reasonable degree of medical certainty, the injury of May 10, 1991, did not cause the left eye condition. Dr. Gingrich was unable to give an opinion as to what did cause the left eye condition, and when asked what could cause the diagnosed choroidal rupture with macular involvements, Dr. Gingrich was unable to answer. He repeatedly testified that certain questions were “out of the scope of [his] expertise” and “out of [his] range of expertise.” He also admitted that he based his opinions on the opinions of Dr. Fishburn, an ophthalmologist who did not testify.

Two ophthalmologists who examined Plainbull diagnosed a choroidal rupture in the left eye. Dr. Kirmani testified that he was unable to ascertain the age of the injury at the examination on May 16,1991, but did not testify that the condition predated the May 10 injury. Dr. Kirmani also testified that, initially after the injury, hemorrhaging would appear around the rupture site, but that the hemorrhage would disappear within a few days, and all that would be left would be the rapture itself. He stated that the injury causing the rupture to the eye could have occurred on May 10, 1991.

Dr. Priddy indicated on August 12,1991, that he was unable to say that the choroidal rapture predated the May 10 injury, but in a letter dated January 14,1992, stated that he saw nothing about the injury that suggested it was old. In addition, on April 21, 1992, Dr. Priddy indicated that he believed it was possible that Plainbull’s injury was caused by the May 10 accident.

In addition, Plainbull testified that he had no eye injuries prior to the May 10 injury. He also presented evidence regarding his vision prior to the May 10 incident. In a firefighter’s physical dated June 9, 1988, Plainbull’s uncorrected left eye visual acuity was 20/40. Three days after the injury, on May 13,1991, Dr. Shaub recorded Plainbull’s corrected left eye visual acuity at 20/50. Within six days after the injury, the left eye corrected vision was 20/70, and by July 2, 1991, the corrected vision in the left eye was 20/400.

Based on this record, we find that there is not substantial credible evidence to support the Workers’ Compensation Court’s findings and conclusions that the May 10 injury did not cause Plainbull’s condition. The court relied on the opinion of an optometrist who repeatedly testified that he was outside his field of expertise and who admitted that the opinions he gave were not his own. Prior to May 10, 1991, Plainbull had no left eye condition and less than two months after the injury his condition had deteriorated substantially. None of the doctors with expertise in the area testified that the May 10, 1991 injury did not cause Plainbull’s condition and, in fact, one of the doctors testified that the injury could have caused the condition. In fact, the Workers’ Compensation Court concluded that the deteriorating condition of Plainbull’s eye “seem[ed] to indicate an inciting event occurring sometime around the date of injury.” Taken together, the medical and non-medical evidence presented in this case proves beyond a medical possibility the causal connection between Plain-bull’s injury and his condition. Such evidence, in fact, establishes that Plainbull’s injury more probably than not caused the condition for which he seeks workers’ compensation benefits; that is all that the law requires. Based on this record as a whole, we hold that the Workers’ Compensation Court erred in holding Plainbull to a higher standard of proof than that required by the statute and in concluding that the “medically more probable than not” standard must be satisfied to establish a compensable injury. Moreover, we hold that Plain-bull satisfied his burden of proof that it was more probable than not that his injury arose out of and in the course of his employment, and that the injury caused the left eye condition.

We note that Plainbull has requested an award of attorney’s fees and the statutory twenty percent penalty. Because the Workers’ Compensation Court found in favor of the insurer, it never reached those issues. Inasmuch as we are reversing for entry of judgment in favor of Plainbull, we also remand to the Workers’ Compensation Court for a determination of whether an award of the penalty and attorney’s fees is appropriate and, if so, the amount to be awarded.

Reversed and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, HUNT, GRAY and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    DAVID SMITH, Plaintiff and Appellant, v. STATE FARM INSURANCE COMPANIES, a non-resident corporation, Defendant and Respondent.
    No. 93-454.
    Submitted on Briefs December 22, 1992.
    Decided March 10, 1994.
    51 St.Rep. 186.
    264 Mont. 129.
    870 P.2d 74.

      For Plaintiff and Appellant: John Houtz, Forsyth.
    For Defendant and Respondent: K. Kent Koolen, Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

David Smith appeals from the Sixteenth Judicial District Court, Rosebud County, Montana, granting summary judgment to respondent State Farm Insurance Companies, finding that State Farm properly denied insurance coverage for injuries caused by Smith because his conduct was an intentional act which the policy excluded.

We affirm.

We restate the issue as follows:

Did the District Cornt err in granting summary judgment to State Farm when it found that Smith’s assault upon Charmaine Kinsey, which he has no memory of, was an intentional assault, thus precluding insurance coverage?

On September 30,1990, Smith hired Charmaine Kinsey to baby-sit his daughter. During an argument between Kinsey and Smith, he hit Kinsey in the face with his fist, knocking her tooth out, and cutting his knuckle by the blow. Smith contends that Kinsey first hit him on the head with an unknown object, rendering him momentarily unconscious, whereupon he hit her in response or in a reflex action. Criminal charges were instituted against him, and on May 20,1991, he entered into a plea bargain, agreeing to plead guilty to assault, a misdemeanor, believing he would be found guilty. During court proceedings on May 28,1991, Smith pled guilty to misdemeanor assault, while maintaining that he was unconscious during the act. However, the court questioned Smith concerning his guilty plea, and Smith acknowledged that he knew that he hit her and it was wrong to do so. Judgment was subsequently entered with his sentence conditioned upon his payment of Kinsey’s medical expenses.

Smith did not pay Kinsey’s medical expenses, and on July 19,1991, Kinsey brought a civil action to recover damages sustained as a result of her injuries. Smith submitted the defense of the suit to his homeowner’s insurance carrier, State Farm. In response to State Farm’s request for admission, Smith admitted that “Charmaine Kinsey was injured as a result of Plaintiff [Smith] striking her in the face with his fist.” State Farm denied coverage referring to the policy’s exclusion for any “bodily injury which is either expected or intended by an insured; or ... which is the result of willful and malicious acts of an insured.” Smith settled the case rather than go to trial.

On October 1, 1992, Smith filed a complaint in District Court against State Farm for breach of contract and for violations of the Unfair Claims Settlement Practices Act under §§ 33-18-201(1), (4) and (6) and -242, MCA. Smith requested recovery for Kinsey’s medical expenses, damages for costs incurred by State Farm’s refusal to cover the claim, and punitive damages. The District Court granted summary judgment to State Farm, finding that Smith’s conduct was an intentional act which was excluded by the insurance policy. Smith appeals.

Did the District Court err in granting summary judgment to State Farm when it found that Smith’s assault upon Charmaine Kinsey, which he has no memory of, was an intentional assault, thus precluding insurance coverage?

Summary judgment is properly granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. If the movant meets this burden, then the burden shifts to the non-moving party to demonstrate a genuine issue of material fact. Thelen v. City of Billings (1989), 238 Mont. 82, 776 P.2d 520. “Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue.” Thelen, 776 P.2d at 522 (quoting Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287). If no material facts are at issue, then the court determines whether the moving party is entitled to judgment as a matter of law. Lindey’s, Inc. v. Professional Consultants, Inc. (1990), 244 Mont. 238, 797 P.2d 920.

Smith argues that the District Court erred when it found that his conduct was an intentional act. He argues that he was unconscious when he hit Kinsey with his fist, and the act was an accidental reflex to her initial assault upon him; therefore, the court improperly granted summary judgment because factual questions existed for a jury to decide as to whether Smith intentionally hit Kinsey.

We disagree.

Before granting summary judgment, the District Court considered whether factual questions were present. The court noted that Smith pled guilty to misdemeanor assault charges, stating to the court “I know that I hit her and it was wrong.” The court also considered Smith’s response to State Farm’s request for admission where he admitted “that Charmaine Kinsey was injured as a result of Plaintiff [Smith] striking her in the face with his fist.” Upon these facts, the court found evidence that Smith intentionally injured Kinsey.

Striking another person in the face is an intentional act because of the certainty of causing harm, and any argument stating the opposite does not change this rule. American States Ins. Co. v. Willoughby (1992), 254 Mont. 218, 222, 836 P.2d 37, 40 (citing Mutual Service Cas. Ins. Co. v. McGehee (1985), 219 Mont. 304, 307, 711 P.2d 826, 828). In McGehee, the insured struck a person in the face, breaking his cheek bone. The insured argued that the injury was unintentional because he intended only to “shut him up.” This Court held that the act was intentional because where a person aggressively and intentionally strikes another, it is irrelevant that a different injury in character or magnitude resulted than what he intended. McGehee, 711 P.2d at 828. Similarly, in Willoughby, during an altercation where security officers were attempting to restrain an insured, the insured bit, kicked, and hit the security officers, and pushed or fell on one of the officers, causing injuries to the officers. The insured argued that his actions were accidental, therefore, the insurance exclusionary provision was not applicable. This Court stated that biting, kicking, and hitting are actions similar to the intentional acts in McGehee-, also, because the insured pled guilty to misdemeanor assault, additional support was present to prove that the acts were intentional, precluding insurance recovery. Willoughby, 836 P.2d at 40. Similarly, in the present case, Smith hit Kinsey in the face with his fist and also pled guilty to misdemeanor assault.

Smith argues that neither McGehee nor Willoughby apply in this case because neither case involved facts where the insured claimed to be unconscious during the offending act. We note that in Northwestern Nat’l Cas. Co. v. Phalen (1979), 182 Mont. 448, 597 P.2d 720, the insured hit a man who then ran from him and was tripped by another person, causing him to crash on the pavement on his face. This Court stated that summary judgment would be improper where questions remained as to whether the injuries were inflicted by the insured when he hit the man, or whether the insured intended or expected that the man would be injured by an intervening cause of being tripped by an independent party. Phalen, 597 P.2d at 726-27. In the present case, no questions of causation are present, and Smith admits that he caused Kinsey’s injury because he was the only other person present when she was injured.

The applicability of an exclusion clause for intentional acts is analyzed by using a two-pronged test in New Hampshire Insurance Group v. Strecker (1990), 244 Mont. 478, 481, 798 P.2d 130, 132. If either prong is satisfied, the acts fall within the exclusions and preclude recovery. Willoughby, 836 P.2d at 40. “The first prong is satisfied if the injury was not caused by an accident. The second prong is satisfied if the injury was either expected or intended from the standpoint of the insured.” Strecker, 798 P.2d at 132. In Willoughby, this Court held that both prongs of the test were met because the insured’s acts “evince an intent to injure by their very nature.” Willoughby 836 P.2d at 41. In Strecker, this Court held that when the insured sexually molested his daughter it was an intentional act, and intent to injure was present, regardless of protests to the contrary. Strecker, 798 P.2d at 132. Likewise, Smith’s conduct of hitting Kinsey with his fist, by its nature, evinces an intent to injure, regardless of his protests to the contrary.

We agree with the District Court’s finding that:

Even taken as true, the fact that Plaintiff Smith does not remember striking Kinsey does not render the act accidental, any more than claiming not to remember committing a sexual assault would somehow render that assault accidental.

Public policy forbids indemnifying willful wrongdoing and there is no insurance coverage for striking someone in the face. McGehee, 711 P.2d at 828. Because State Farm properly denied coverage, its conduct was not bad faith, nor did the conduct violate the Montana statute. We hold that the District Court did not err in granting summary judgment to State Farm when it found that Smith’s assault upon Charmaine Kinsey was an intentional assault that precluded insurance coverage.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and WEBER concur.


author: JUSTICE WEBER

text:
    REBECCA L. PRILLAMAN, Claimant and Appellant, v. COMMUNITY MEDICAL CENTER, Employer, and MONTANA HOSPITAL ASSOCIATION, WC TRUST, Defendant and Respondent.
    No. 93-283.
    Submitted on Briefs November 18, 1993.
    Decided March 11, 1994.
    51 St.Rep. 189.
    264 Mont. 134.
    870 P.2d 82.

      For Claimant and Appellant: Morgan Modine, Modine & Thompson, Missoula.
    For Defendant and Respondent: Robert E. Sheridan, Garlington, Lohn & Robinson, Missoula.
    For Amicus: John J. Richardson, Beck Law Offices, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

Rebecca Prillaman appeals from a Workers’ Compensation Court decision denying her compensation for her injury. We reverse and remand.

We consider the following issue on appeal:

Did the Workers’ Compensation Court err in concluding that medical opinion evidence was required to meet claimant’s burden that it was “more probable than not” that an accident occurred at work and that it caused the claimant’s condition?

Rebecca Prillaman (claimant) is a nurse at Community Medical Center in the outpatient surgery department. She suffered two lumbar vertebrae fractures and contends that the injuries occurred while at work on March 4,1992, following her attempt to lift a patient. The patient was in recovery from surgery but was not responding as expected. In an attempt to help the patient come out of anesthesia more quickly, claimant lifted patient from a prone position to a sitting position without assistance from the patient.

Claimant testified that she felt the pain in her back immediately but that she was determined to finish her shift because there was no other nurse on duty. She was in great pain throughout the evening and remained in pain throughout the night. Because she was the only nurse scheduled for the next day’s 2:00 p.m. shift, claimant went to work, but she testified that within an hour she was forced to call her supervisor because the pain was unbearable.

Claimant went to the medical center emergency room for back x-rays which revealed compression fractures in two vertebrae. She first sought medical help from Dr. Lennard Wilson, a neurologist. Dr. Wilson determined that this type of fracture was “extremely remarkable for this type of activity” and referred her to an orthopedic surgeon. Claimant then went to see Dr. James Burton, an orthopedic surgeon. Dr. Burton stated that, although her back injury was unusual given the activity that spawned it, he had no reason to doubt that her injury was caused by the incident of March 4, 1992.

Did the Workers’ Compensation Court err in concluding that medical opinion evidence was required to meet claimant’s burden that it was “more probable than not” that an accident occurred at work and that it caused the claimant’s condition?

This case involves the determination of when liability attaches to the insurer for purposes of workers’ compensation. We are concerned with the statutory interpretation of § 39-71-407(2), MCA, and the interplay between this statute and § 39-71-119, MCA, to which subsection (a) refers and to the interplay between subsection (a) and (b) of § 39-71-407 (2), MCA, which provides:

(2)(a) An insurer is liable for an injury as defined in 39-71-119, [MCA] if the claimant establishes it is more probable than not that:
(i) a claimed injury occurred; or
(ii) a claimed injury aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that such claimed injury aggravated a preexisting condition is not sufficient to establish liability. (Emphasis added.)

The Workers’ Compensation Court interpreted this statute to mean that the “more probable than not” burden of proof required of claimant must be based on “medical opinion.” Our review of a Workers’ Compensation Court’s legal interpretation is plenary. See St. John’s Lutheran Church v. State Compensation Ins. Fund (1992), 252 Mont. 516, 830 P.2d 1271.

Subsection (a) of the above mentioned statute specifically attaches the burden of proof “more probable than not” to § 39-71-119, MCA, which provides:

Injury and accident defined. (2) An injury is caused by an accident. An accident is:
(a) an unexpected traumatic incident or unusual strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected;
and (d) caused by a specific event on a single day or during a single work shift. (Emphasis supplied.)

We have interpreted the current version of § 39-71-119, MCA, in Welch v. American Mine Services, Inc. (1992), 253 Mont. 76, 831 P.2d 580:

A compensable injury must meet all three definitional requirements contained in § 39-71-119, MCA (1987): there must be an “injury” and an “accident,” and the injury must be “caused by” the accident.

Welch, 253 Mont. at 81, 831 P.2d at 584. Therefore, by reference, § 39-71-407, MCA, dictates that “accident,” “injury” and “causation” must be proven by the claimant with the “more probable than not” burden of proof.

Respondents argue that because the word “medical” is used in subsection (b), of § 39-71-407(2), MCA, that claimant must establish this burden by “medical opinion evidence.” Claimant contends that subsection (a) of § 39-71-407(2), MCA, does not contain the word “medical” when defining her burden of proof. Therefore, claimant contends that, although she must prove that her injury occurred at work, and that it caused her current condition, she does not have to prove this through medical testimony.

A plain reading of subsection (a) shows that claimant is not required to prove occurrence pursuant to § 39-71-407(2) and by referencé, causation as called for by § 39-71-119, MCA, by use of “medical opinion evidence.” Although our function as a reviewing court is to ascertain what the legislature meant by writing a statute a particular way, we are bound by law to ascertain that meaning if possible from the words in the statute. Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 715 P.2d 443. Subsection (a) does not contain the words “medical opinion evidence.”

Subsection (a) is separate from subsection (b) because the legislature used a period to separate the two subsections; thus, we have two separate thoughts. See, N. Singer, 2A Sutherland on Statutes and Statutory Construction (5th ed.) § 47.01, p. 136 (1992); see also Regents of the University of Michigan v. Washtenaw County Coalition Against Apartheid (Mich. 1980), 296 N.W.2d 94, 98. This brings us to the observation that unless the context of subsection (a) specifically refers to it, subsection (b)’s reference to “medically possible” proof cannot be inserted into subsection (a). Section 1-2-101, MCA.

In the present case, six individual witnesses testified. These witnesses included claimant, the claimant’s roommate (also a nurse), the claimant’s chiropractor, claimant’s co-workers, and claimant’s supervisor. These six witnesses testified as to claimant’s pain and other factors which were significant in determining if the accident occurred at work and whether it had any connection or nexus to the claimant’s present injury.

Here, where no eyewitness exists to the accident, testimony such as that of claimant’s chiropractor, James Scott Garr, becomes important as to whether the alleged accident caused the injury of which claimant complains. Dr. Garr saw claimant in Missoula and stated before the Workers’ Compensation Court that, given Rebecca’s abnormal formation of certain vertebrae and her osteoporosis, attempting to lift the dead weight of a patient could very easily have caused the damage (injury).

The court also ignored the testimony of other witnesses who gave “before and after” the occurrence testimony. Claimant’s house-mate, Jane Dubbe, testified that claimant had not shown any signs of abnormal back pain before she went to work on the day of the accident, March 4, or as late as 4:30 p.m. that same day when Dubbe left her shift as RN at the same medical center. Dubbe also stated that when claimant came home at about midnight on March 4, she told Dubbe about the incident in which she attempted to lift the woman and that she had been in severe pain since that time.

Claimant’s immediate supervisor, Carol Matthews, also testified that when claimant arrived at work the day after, on March 5, she told her supervisor what had happened and that she was in great pain. Matthews sent claimant to the emergency room where x-rays revealed that she had two compression fractures. Matthews also testified that claimant was an excellent employee. Another fellow employee, Patrice Moffitt, testified that claimant was fine late in the afternoon of March 4th, but that the next day when she saw her she complained of severe back pain. Moffitt also saw claimant after her visit to the emergency room on March 5. Moffitt testified that claimant said that she was going home because she was in so much pain. Moffitt also characterizes claimant as an honest person.

The two treating physicians testified by way of deposition. The Workers’ Compensation Court considered only the doctor’s testimony which revolved around whether such an occurrence could have possibly caused claimant’s permanent back injury. It is clear from the Workers’ Compensation Court opinion that it intertwined the ideas of “occurrence” and “causation.” Yet, as we stated in a similar case, Plainbull v. Transamerica Ins. Co., [264 Mont. 120] 870 P.2d 76 (1994) 51 St.Rep. 0181: “while the occurrence of the injury may be susceptible of proof without medical evidence, the causation of the claimant’s condition may very well require medical evidence if the claimant is to meet his burden of proof, especially in the face of contrary medical evidence presented by the carrier.” The facts of each case must dictate the degree to which medical evidence is needed, if at all. Here, where both facts surrounding the “occurrence” and conflicting views as to medical opinion of “causation” are at issue, it is essential that all testimony, including the medical, be considered by the Workers’ Compensation Court. Yet neither “occurrence” of an accident nor the connection between the accident and the injury (cause) statutorily require medical opinion evidence.

On remand, the Workers’ Compensation Court must consider and weigh all testimony, whether “medical opinion evidence” or not. We do not mean to say that the Workers’ Compensation Court should cast aside the depositions of the doctors, but the wording of the applicable statutes make it clear that such evidence, while potentially valuable, is not the only source from which claimant can prove that an accident caused her injury. We conclude that the Workers’ Compensation Court erred when it stated that:

Despite admirable efforts by claimant’s counsel, neither Drs. Wilson nor Burton would waiver from their positions that while claimant’s fractures might possibly have occurred as she described, they could not say it was more probable than not that the injury occurred in that fashion. ... Claimant has failed to sustain her burden of proof that it is more probable than not that her compression fractures in her lower back were caused by and arose from her employment..... “More probable than not” is a burden of proof requiring a medical opinion. [Emphasis added.]

Because of its conclusion, the court considered only the doctors’ medical opinions as to occurrence and “cause.” We finally conclude that the requirement of § 39-71-407(2)(a), MCA, that the claimant establish that it is “more probable than not” that a claimed injury occurred at work and that it caused the current condition do not require “medical opinion evidence”.

We hold that the Workers’ Compensation Court erred in concluding that “medical opinion evidence” was required to meet claimant’s burden that it was “more probable than not” that an accident occurred at work and that it caused the claimant’s condition.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY, NELSON and TRIEWEILER concur.


text:
    DICK LEWIS, d/b/a DICK LEWIS ELECTRIC SERVICE, Plaintiff and Appellant, v. DENISE HUYSER, ANTHONY HUYSER, BARBARA HUYSER, AIMEE HUYSER, JOHN C. MALPELI, JR., and BOB BIGGERSTAFF, d/b/a BIGGERSTAFF CONSTRUCTION, Defendants and Respondents.
    No. 93-396.
    Submitted on Briefs December 16, 1993.
    Decided March 15, 1994.
    51 St. Rep. 192.
    264 Mont. 141.
    870 P.2d 95.
    For Plaintiff and Appellant: James J. Serenar, Bozeman.
    For Defendants and Respondents: Wayne Jennings, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff/appellant, Dick Lewis, appeals from a judgment of the Eighteenth Judicial District Court, Gallatin County, finding that his actions in refusing to continue the contract were a breach of the parties’ construction contract and awarding respondent, Biggerstaff Construction, its costs, disbursements, attorney fees, and ordering release of its posted bond on the subject property.

Affirmed and remanded for a determination and award of respondents’ additional attorney fees on this appeal.

The dispositive issue is whether appellant breached his contract with respondent Biggerstaff Construction when he refused to continue work because of his belief that the work required of him would be in violation of Montana building codes, and his further belief that the parties’ contract was unlawful.

Appellant Lewis is a licensed electrical contractor with his principal place of business in Big Sky, Gallatin County, Montana. Respondent Biggerstaff is a building contractor whose principal place of business is also in Big Sky. John Malpeli, Jr., is a developer of the property, San Marino Subdivision, at issue in this case. Denise, Anthony, Barbara, and Aimee Huyser are the current record owners of the San Marino Subdivision. The subdivision consists of eight residential lots, upon which Malpeli developed eight single-family log residences with common areas. The units in San Marino Subdivision are not commercial buildings or buildings to house five or more families.

In 1989, Malpeli contracted with respondent to construct the homes. Respondent proceeded with construction of the units as needed by Malpeli, with several units under construction at one time. Later in 1989, respondent and appellant entered into a real estate improvement contract in which appellant was to provide electrical supplies and perform the electrical services on the units. Appellant’s tasks included completing the “rough-in” phase of the electric wiring and ordering an inspection from the state electrical inspector when the wiring was completed. The rough-in phase consists of installing all of a building’s meter services, wiring, and electrical boxes and circuits before installation of insulation and interior walls. As the electrical contractor, appellant had the option of ordering a preliminary inspection of the rough-in phase of the wiring. Respondent and appellant agreed that their contract price was $5302. From 1989 to early 1990, appellant completed electrical work on four of the units. In March 1990, appellant began work on the fifth unit.

On about May 7, 1990, respondent’s construction supervisor was asked by the purchaser of unit three to remove kitchen cabinets being stored there for later placement in unit five. In so doing, the construction supervisor hung the cabinets in unit five after installing tongue and groove boards and covering a portion of the wiring, despite appellant’s warning not to do so.

Portions of the wiring in the first four units which appellant had completed also had been covered, but the electrical inspector had not required that all the wiring be visible upon inspection of the rough-in wiling.

Appellant discussed the boards covering the wiring in unit five with several of respondent’s employees. The employees suggested to appellant that the work in unit five remain covered until the state electrical inspector was ready to view the work. Appellant did not accept this proposal and refused to proceed with the job until respondent’s employees removed all the wallboards covering the wiring in unit five. Appellant contended that if they did not remove the wall-boards, he could lose his electrical contractor’s license because the action was illegal. For several days and nights, appellant checked to see if respondent’s employees had removed the wallboards covering the rough-in wiring, but they had not.

On May 12, 1990, appellant met with respondent and another of respondent’s employees at respondent’s office. Appellant had not contacted the state electrical inspector prior to this meeting. At the meeting, appellant became agitated and complained that the covered wires in unit five had jeopardized his electrical contractor’s license. Respondent informed appellant that some of the wallboards had been removed. Respondent testified that throughout the meeting he attempted, without success, to work out a resolution with appellant in order to get him to finish the job. However, when appellant told respondent that he already had contacted an attorney about a construction lien for the work he had completed, respondent informed appellant that he should leave his office. Before leaving the office, appellant presented a prepared bill to respondent for the services he had provided on the project, stating that he had completed about 55 percent of the wiring for unit five and that he was through with the project.

Appellant did not return to the job. He contacted the state electrical inspector to inform him of the conflict and to discuss the situation. The inspector told appellant that the covered wiring would not jeopardize the inspection or appellant’s electrical contractor’s license.

Respondent gave appellant several weeks to cool down, but appellant did not return. Respondent then hired a substitute electrical contractor to finish the job. In order to complete the job, the substitute electrical contractor was required to determine where all the wires ended, locate dead shorts, supply the fixtures which appellant had retained, and complete the wiring. Their bill to respondent to complete work on unit five and the remaining units was $5344, or $42 more than the total of respondent’s original contract with appellant.

On May 16, 1990, after appellant left the project, he filed a notice of right to claim lien with the Gallatin County Clerk and Recorder for electrical services and electrical fixtures he had provided for unit five. The amount of the lien was $2916.10. Appellant testified that he had installed meter services to the unit as early as two months prior to May 12, 1990. The construction lien statutes required appellant to file his lien no later than 20 days after he first provided services or supplies. Appellant mailed the notice to Malpeli more than 20 days after he had begun work on the project.

On December 5, 1990, and May 7, 1992, respondent posted two substitute bonds to replace and release appellant’s lien on the subject property, totaling one and one-half times the amount of the lien.

On May 3, 1993, the District Court found that appellant breached the parties’ contract without justification because appellant left the project after the electrical inspector had informed him that if no other problems existed, appellant could complete the rough-in and the inspector would not order a compliance, and would approve it. In addition, the court found that nothing had prevented appellant from completing the rough-in and calling for an inspection of the wiring, other than his failure to keep his temper under control. On June 8, 1993, the court entered its judgment awarding respondent $42 in damages, $251 in costs and disbursements, and $3931.50 in attorney fees, pursuant to § 71-3-124, MCA. The court also awarded the Huysers and Malpeli $250 in costs and disbursements, and $810 in attorney fees. Further, the court ordered that respondent’s posted bond, which had replaced and released appellant’s construction lien, be released to respondent.

On July 2, 1993, appellant filed this appeal from the judgment of the District Court.

Did appellant breach his contract with respondent Biggerstaff Construction when he refused to continue work because of his belief that the work required of him would be in violation of Montana building codes, and his further belief that the parties’ contract was unlawful?

Appellant asserts that respondent flaunted the law and performed an illegal act when it covered up the rough-in wiring in unit five which in turn prevented him from future performance of the parties’ contract. Appellant also asserts that respondent’s actions violated his responsibility as an electrician and jeopardized his electrical contractor’s license.

Appellant contends that the effect of the District Court’s decision is to allow general contractors to interfere with electrical contractors’ responsibilities and legal duties.

Montana’s Building Code Bureau guides electrical contractors and electrical inspectors regarding rough-in inspections as follows:

COVER (ROUGH-IN) INSPECTIONS (1) Cover (rough-in) inspections are made by a state electrical inspector wherever possible. Insulation and wallboard shall not be applied before inspection unless 48 hours, excluding Saturdays, Sundays, and holidays, have expired after notice to inspect has been received.
(2) Whenever violations are found upon inspection, the inspector will notify the installer verbally or with a written compliance order as to the nature of the violations. [Emphasis added].

8.70.405, ARM.

Appellant argues that the statute clearly prohibits covering the rough-in electrical wiring by insulation or wallboard before an inspector may waive a called-for inspection. Although the regulation provides that electrical wiring shall not be covered before inspection, a reasonable reading is that the rough-in cannot be covered at the time of the inspection, and that the electrical inspector, in his discretion, may waive an inspection of covered rough-in wiring.

The record is clear that the parties had established a course of conduct allowing for the covering of some of the rough-in wiring in some of the other units completed before unit five, and that the electrical inspector approved. In addition, the former chief electrical inspector for the State of Montana, who was the inspector in the spring of1990, when problems on unit five first arose, testified that an inspector must be given discretion in complying with the regulations:

Q: Is it physically possible for Mr. Lamke [the electrical inspector in Gallatin County] within a forty to forty-five hour week to do every inspection called for in the code?
A: I wish it were. No it isn’t.
Q: Okay. And that’s understood right from the beginning, isn’t it?
A: Yes, sir.
Q: Now, the administrative rule that Mr. Serenar read to you contemplates some discretion on the part of the inspector does it not?
A: Yes, sir.

At trial, appellant acknowledged that electrical inspectors are vested with discretion as to whether they will inspect all of the wiring prior to some of it being covered up. In addition, he testified that the wiring in the ceiling and all the wiring around the window and door openings in unit five had been covered prior to an inspection, based on a pre-agreement with the inspector.

The record is clear that appellant had been assured by the Gallatin County Electrical Inspector that the covered work in unit five was not a problem, and he gave no indication that he would issue a verbal or written warning or compliance order to appellant. The inspector testified that the technical violation by respondent in covering some of the rough-in wiring in unit five was not very serious. In fact, respondent removed some of the wallboards, as requested by appellant, in unit five before appellant left the job. Yet, appellant did not return. Because respondent cooperated by taking down the wall-boards in unit five and attempted to resolve the problem by the time the parties met to discuss the situation on May 12,1990, respondent did not interfere with appellant’s responsibilities as an electrician.

As to appellant’s argument that respondent’s actions jeopardized his electrical license, the regulations do not provide that an electrical contractor’s license can be suspended or revoked because the wiring is covered prior to inspection. Reasons for which an electrical contractor’s license may be suspended or revoked are:

(1) violation of this chapter, the national electrical code, or the rules of the [state electrical] board [Title 30, chapter 68];
(2) any cause for which issuance of the license could have been denied had it existed and been known to the board;
(3) commission of any act of gross negligence, incompetency, or misconduct as may be determined by the board in the practice of a master, journeyman, or residential electrician or the business of an electrical contractor; or
(4) making a material misstatement, misrepresentation, or fraud in obtaining a license.

Section 37-68-321, MCA. Respondent’s actions did not jeopardize appellant’s electrical contractor’s license.

Finally, appellant was not prevented from completing the project by any other of respondent’s actions. Both appellant and respondent testified that no one at Biggerstaff Construction told him that he could not finish the project. The evidence is that respondent asked appellant to complete the job. No other evidence was presented at trial to indicate that respondent jeopardized appellant’s electrical contractor’s license.

Appellant was not reasonable in his assumption that the situation as of May 12,1990, prevented him from performing the contract and jeopardized his electrical contractor’s license. After respondent removed the wallboards in unit five and offered solutions to the problem at the May 12 meeting, completion of the parties’ contract was in appellant’s hands alone. Appellant’s obligation was to act in good faith and observe reasonable commercial standards of fair dealing in the trade. Section 28-1-211, MCA; Kuhns v. Scott (1993), 259 Mont. 68, 75, 853 P.2d 1200, 1205; Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775. After May 12,1990, when appellant still refused to perform the remainder of the contract, he did not act in good faith.

In addition to the foregoing arguments, appellant argues that the parties’ entire contract is void because the object of the contract was unlawful. He cites case law interpreting rules against unlawful contracts and the Montana Uniform Commercial Code to support this proposition. Appellant’s application of the UCC, applicable to the sale of goods, is misplaced. Further, nothing in the parties’ contract was contrary to an express provision of law, contrary to the policy of express law though not expressly prohibited, or otherwise contrary to good morals. Section 28-2-701, MCA. We hold that the parties’ construction contract was not unlawful.

In sum, we hold that appellant breached the contract and justified respondent’s recovery and release from his posted bond.

Affirmed and remanded for a determination and award of respondents’ additional attorney fees on this appeal.

JUSTICES HARRISON, GRAY, NELSON and TRIEWEILER concur.


author: JUSTICE HARRISON

text:
    ALFRED J. LUCIANO, d/b/a FARM HARVESTING OF EUREKA, INC., Plaintiff and Appellant, v. NORTHWEST PIPE AND CASING CO., Defendant, Cross-claimant and Respondent, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant, Cross-defendant and Appellant.
    No. 93-523.
    Submitted on Briefs February 3, 1994.
    Decided March 15, 1994.
    51 St.Rep. 196.
    264 Mont. 148.
    870 P.2d 99.

      For Plaintiff and Appellant: William A. Douglas, Douglas & Sprinkle, Libby.
    For Defendant, Cross-claimant and Respondent: Dana L. Christensen and Mikel L. Moore, Murphy, Robinson, Heckathorn & Phillips, Kalispell.
   JUSTICE HARRISON

delivered the Opinion of the Court.

General contractor Alfred J. Luciano d/b/a Farm Harvesting of Eureka, Inc. (Farm Harvesting) appeals the Nineteenth Judicial District Court, Lincoln County, order which entitled Northwest Pipe and Casing Company (Northwest) to receive $46,879 under Farm Harvesting’s labor and materials payment bond pursuant to Montana’s Little Miller Act — §§ 18-2-201 et seq., MCA. We affirm.

In December 1987, Glen Lake Irrigation District (GLID) contracted with Farm Harvesting to install a forty-two inch inverted syphon pipeline for GLID. In accordance with §§ 18-2-201, et seq., MCA, Farm Harvesting posted a labor and materials payment bond purchased from Fidelity and Deposit Company of Maryland.

Farm Harvesting then entered into a subcontract with Petroleum Pipe and Supply Company (Petroleum). Petroleum agreed to supply pipe and materials for the GLID pipeline project. Petroleum then entered into a separate contract with Northwest. Northwest agreed to provide pipe to Petroleum for installation at the GLID project.

On December 28, 1987, Farm Harvesting paid Petroleum $70,661.92 for pipe and material, including the pipe and materials supplied by Northwest. On February 23,1988, Northwest sent GLID, Petroleum and Farm Harvesting a notice by certified mail explaining that Northwest was delivering pipe and materials directly to GLID’s Eureka property and to Petroleum. Northwest delivered a total of $46,879 in pipe and related materials to the GLID project and to Petroleum.

In March 1988, Petroleum filed for bankruptcy. Northwest did not know, prior to Petroleum’s bankruptcy petition, that Farm Harvesting had paid Petroleum for the pipe that Northwest supplied. Moreover, Northwest did not expect to be paid immediately for the pipe it supplied.

Farm Harvesting instituted this declaratory action against Northwest on August 10, 1988. Farm Harvesting sought judicial interpretation of § 18-2-208(1), MCA. Farm Harvesting alleged that § 18-2-208(1), MCA, precluded Northwest’s recovery against Farm Harvesting’s labor and materials payment bond. Northwest answered, counterclaimed, cross-claimed and filed third-party claims seeking a declaration that it was entitled to recovery under the bond. Northwest also sought a judgment for $46,879, interest and attorney’s fees.

Northwest and Farm Harvesting filed cross-motions for summary judgment. The District Court denied Farm Harvesting’s motion and granted Northwest summary judgment. The District Court entered judgment for Northwest in the amount of $46,879, plus ten percent interest from March 1,1988, $5,817.75 in attorney’s fees, and $418.45 in costs. Farm Harvesting appeals and presents this issue:

If a contractor advances funds to a subcontractor who later fails to pay its supplier because of bankruptcy, do the provisions of § 18-2-208(1), MCA, preclude the subcontractor’s supplier from securing payment against the contractor’s surety bond?

Our standard of review on a grant of summary judgment is identical to that of the trial court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We examine the record to determine whether genuine issues of material fact exist. Minnie, 257 Mont. 429, 849 P.2d at 214. If no genuine issues of material fact exist, then we examine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

Here, no genuine issues of material fact exist and we must examine whether § 18-2-208(1), MCA, precludes Northwest’s right to make a claim against Farm Harvesting’s bond. Farm Harvesting recognizes that our decision in Robintech, Inc. v. White & McNeil Excavating, Inc. (1985), 218 Mont. 404, 709 P.2d 631, provides Northwest with a cause of action against Farm Harvesting’s bond. However, Farm Harvesting argues that since it advanced money to Petroleum, § 18-2-208(1), MCA, precludes Northwest from recovering money from Farm Harvesting’s bond.

When analyzing and applying a statute, we strive to “effect the intention of the legislature.” Thiel v. Taurus Drilling Ltd. (1985), 218 Mont. 201, 205, 710 P.2d 33, 35. We determine legislative intent by first looking to the language of the statute. Thiel, 710 P.2d at 35. If the legislature’s intent is clear from the language of the statute, we look no further. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204.

Section 18-2-208(1), MCA, provides that:

The provisions of this part shall not apply to any money loaned or advanced to any such contractor, subcontractor, or other person in the performance of any such work.

The language of this statute is hardly a model of clarity. “If intent cannot be determined from the content of the statute, we examine the legislative history.” State ex rel. Roberts v. Public Service Commission (1990), 242 Mont. 242, 246, 790 P.2d 489, 492, quoting Thiel, 710 P.2d at 35. Section 18-2-208(1), MCA, was enacted in 1931 and its legislative history is not available.

The District Court in its interpretation found that § 18-2-208(1), MCA, only applied to banks or lending institutions. However, the plain language of § 18-2-208(1), MCA, simply does not limit its application to banks and lending institutions. We refuse to insert omitted terms into a statute. Neuhausen, 833 P.2d at 204. Since § 18-2-208(1), MCA, does not limit its application to banks and lending institutions, we conclude that the legislature must have intended that this statute applies to any person or entity who loans or advances money to a “contractor, subcontractor or other person....” Section 18-2-208(1), MCA.

Historically, courts have liberally construed bonding statutes to effectuate the overall purpose of compensating those who contribute materials and supplies to a public project. Hill v. American Surety Co. (1906), 200 U.S. 197, 202-03, 26 S.Ct. 168, 170, 50 L.Ed. 437, 440. It necessarily follows that a statute which precludes recovery by a subcontractor, supplier or other person is to be strictly construed to compensate those who contribute materials and supplies.

Here, Farm Harvesting does not dispute that the Montana bonding statutes were enacted to protect subcontractors, suppliers and materialmen who supply contractors or subcontractors working on public projects. Section 18-2-208(1), MCA, must be strictly construed to effectuate that purpose. Although § 18-2-208(1), MCA, permits contractors to loan or advance money, we conclude that the statute only prevents a subcontractor or other person from making a claim against the contractor’s bond if the contractor has loaned or advanced money to that specific subcontractor or other person.

Here, Farm Harvesting advanced money to Petroleum, not to Northwest. Since no money was advanced to Northwest, it retains its statutory right to recover against Farm Harvesting’s bond. We hold that Northwest is entitled to recover $46,789 from Farm Harvesting’s bond for the pipe and related materials which it supplied to the GLID project. See §§ 18-2-201, -204 and -205, MCA.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and HUNT concur.


author: JUSTICE WEBER JUSTICE GRAY

text:
    ALEXA M. STRZELCZYK, Individually, and as Personal Representative of the Estate of JOHN MATTHEW STRZELCZYK, deceased; and ALEXA M. STRZELCZYK as next friend of JEREMIAH S. STRZELCZYK, and AMANDA M. STRZELCZYK, minors, Plaintiffs, v. STANLEY JETT, M.D., Defendant.
    No. 93-173.
    Certified Question Submitted February 16, 1994.
    Decided March 17, 1994.
    51 St.Rep. 206.
    264 Mont. 153.
    870 P.2d 730.

      For Plaintiffs: John Iwen, Timothy J. McKittrick, McKittrick Law Firm, Great Falls.
    For Defendant: Neil E. Ugrin & Nancy P. Cory, Ugrin, Alexander, Zadick & Slovak, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This case is before the Court on Certified Question from the United States District Court, District of Montana, Great Falls Division. This Court heard oral arguments on February 16,1994 concerning the following question:

Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?

Under the facts of this case, the answer is yes.

The facts of this case are not in dispute. At the time of the delivery, Alexa Strzelczyk (Alexa) and Dr. Stanley Jett (Jett), were both residents of the State of Montana residing in the Chinook area. Dr. Jett was licensed to practice medicine in this state. On or about June 12, 1989, Alexa visited Dr. Jett for the first time and thereafter, became his patient.

Medical records show that Alexa’s expected date of delivery was January 7, 1990. Alexa was diagnosed as a diabetic during her pregnancy, but medical records indicate that she controlled her diabetes. The fetus maintained a normal heartbeat throughout the pregnancy and as late as January 15,1990, the heartbeat was normal at 140. On January 17,1990, an ultrasound was performed on Alexa and it was determined at that time that the fetus had died. Dr. Frank Miller was called in and delivered the stillborn fetus on January 18, 1990, at Northern Montana Hospital, Havre, Montana.

Alexa filed an application with the Medical Malpractice Panel pursuant to § 27-6-701, MCA, against Dr. Jett on December 24,1991. A decision was rendered on July 14, 1992, determining that a cause of action existed. Subsequently, on August 11, 1992, Alexa filed a complaint alleging malpractice against Dr. Jett. Dr. Jett removed the action to federal district court on January 6, 1993, because of diversity. Both Dr. Jett and Alexa now live in different states.

United States Magistrate Robert M. Hotter, heard oral argument on the case and recommended that the matter be certified to the Montana Supreme Court because of this Court’s holding in Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916. Kuhnke held that the then existing wrongful death statutes did not support a claim for wrongful death of a stillborn fetus. In view of the legislature’s subsequent revisions of the wrongful death statutes, and Judge Holter’s recommendation, Federal Judge Paul G. Hatfield certified the question to this Court. Pursuant to Rule 44 of the Montana Rules of Appellate Procedure, this Court accepted jurisdiction by order dated April 15, 1993.

Does the State of Montana recognize a claim of wrongful death for a stillborn fetus?

Dr. Jett filed a motion to strike that part of the amended complaint which refers to the wrongful death action, arguing that the Montana Court in Kuhnke would not recognize such a claim for a stillborn fetus. On appeal, plaintiff argues that the Kuhnke case was decided before the legislature modified the applicable wrongful death statute. Following the Kuhnke decision, the legislature changed the statute and according to plaintiff, a plain reading of that statute in conjunction with other applicable statutes indicates that a wrongful death claim for a stillborn fetus is appropriate.

Dr. Jett contends that the legislature changed the statute only to prohibit double recovery on claims. Further, Dr. Jett argues that the Kuhnke case is still applicable because this Court stated therein that any future recovery by a fetus must await a statutory change by the legislature. Dr. Jett’s assertion is that although the legislature changed the wording of the statute it did not provide wording that would allow recovery for a wrongful death action.

While it is true that Kuhnke held that no cause of action for wrongful death will lie for a stillborn fetus, it did so based upon the 1985 language in the wrongful death statute. We confine ourselves to a comparative consideration of two versions of the applicable statutes, the version of statutes reviewed by the Kuhnke Court and the 1987 changes to those statutes which govern the case before us.

At the time of the Kuhnke decision, Montana’s wrongful death statute stated:

Section 27-1-512, MCA (1985). Action by parent or guardian for injury to or death of child or ward. Either parent may maintain an action for the injury or death of a minor child and a guardian for injury or death of a ward when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death or, if such person be employed by another person who is responsible for his conduct, also against such other person. (Emphasis added.)

In 1987, this section was changed to read:

Section 27-1-512, MCA (1987-1993). Action by parent or guardian for injury to child or ward. Either parent may maintain an action for the injury to a minor child and a guardian for injury to a ward when such injury is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or, if such person be employed by another person who is responsible for his conduct, also against such other person. (Emphasis added.)

We note that “or death” has been excised from this statute. The attendant statute previously read:

Section 27-1-513, MCA (1985). Action for wrongful death of adult. When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. (Emphasis added.)

In 1987, this section was also changed to read:

Section 27-1-513, MCA (1987-1993). Action for wrongful death. When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent’s estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. (Emphasis added.)

Kuhnke interpreted the term “minor child” for purposes of a wrongful death claim. We determined that a fetus was not a minor child and could not, based upon this lack of connection, maintain a cause of action for wrongful death. In 1987, § 27-1-512, MCA, dropped all language indicating an action for “death” of a minor child; only injury was still included. Also, the 1987 changes to § 27-1-513, MCA, dropped all distinction between minor and adult and only specified “one person.” Therefore, what we must interpret is “person” not “minor child.”

Considering the language in Kuhnke indicating that we must wait for the legislature to change the law to permit an action for wrongful death of stillborn fetus, we note that the legislature has changed certain language in the wrongful death statute. It has not placed the words “stillborn fetus” into the statute, but it remains for us now to interpret who is a “person” for purposes of this case. We will not read into statutes something that is not there. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 833 P.2d 201. Our function as an appeals court is to ascertain what the legislature meant and to do that if possible, by looking to the plain meaning of the words in the statute. State ex rel. Roberts v. Public Service Com’n of the State of Montana (1990), 242 Mont. 242, 790 P.2d 489. Therefore, we will not consider the legislative history of the changes made to these statutes if we can interpret the statutes themselves without such a quest.

In our attempt to ascertain who all the legislature included in the word “person” with the 1987 changes we look to another of the legislature’s own definitions of what constitutes an “unborn child”:

A child conceived but not yet born is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth. (Emphasis added.)

Section 41-1-103, MCA. The case before us presents us with a healthy fetus until past its delivery date. It was a child conceived, but not yet born. It was subsequently born, but not alive. Yet, the statute does not indicate that a live birth is necessary for the child to be a “person.” We decline to read the word ‘live” into this statute.

The legislature could have very easily inserted the word “live” in § 41-1-103, MCA, just as it did in § 50-15-101(1), MCA:

“Fetal death” means a birth after 20 weeks of gestation. ... that is not a live birth. (Emphasis added.)

We determine that the legislature knew that a birth could be live or not live and it would have used the term ‘live birth” if that is what the legislature meant. Therefore, we conclude the word “birth” in § 41-1-103, MCA, means all forms of birth, including a “still” birth.

Section 41-1-103, MCA, also contains the words “so far as may be necessary for its interests.” This phrase makes the determination of whether a fetus is a person fact specific. It indicates that each case must be considered carefully in order to determine if the circumstances present make it “necessary” for the fetus to be determined a person in order to protect some interest.

We conclude that according to the facts stated previously, this full-term fetus should be considered a “person.”

We hold that under the facts of this case the State of Montana recognizes a claim of wrongful death for a stillborn fetus.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, NELSON and TRIEWEILER concur.

JUSTICE GRAY

specially concurring.

I concur in the Court’s opinion on this purely legal certified question and in its straightforward analysis and interpretation of the statute at issue and its application to the facts before us. As a result of emotional and unsupported oral arguments made by counsel for Dr. Jett, I specially concur here in order to address briefly what this case is not about.

This is not an abortion case or a case related in any way to a woman’s constitutional right to privacy and to an abortion under Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. The termination of a pregnancy by abortion is an intentional, consensual act by a woman and her physician which the law specifically allows. The case before us, like virtually all wrongful death actions, is based on an allegation that the pregnancy was terminated by the wrongful act or omission of Dr. Jett; that is, it is an action based in negligence.

Counsel’s related, but ill-developed, arguments that permitting a wrongful death action -under these facts would somehow criminalize abortion or conflict with Uniform Probate Code provisions are equally unsupportable. Counsel cited no authority whatsoever in support of her arguments that our holding in this case would have the adverse and dire consequences she predicts.

Given the fact that at least 32 states allow a wrongful death action ■under facts similar to those before us, counsel’s total failure to support the arguments advanced is notable, indeed. The purpose or intent of such arguments can only be a matter of speculation. Suffice it to say that the arguments were not grounded in legal analyses or interpretation.

JUSTICE TRIEWEILER and JUSTICE NELSON join in the foregoing special concurrence of JUSTICE GRAY.