author: JUSTICE HARRISON JUSTICE SHEEHY,

text:
    MORGAN HARTFIELD, Claimant and Appellant, v. CITY OF BILLINGS, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 90-214.
    Submitted on Briefs Aug. 30, 1990.
    Decided Oct. 25, 1990.
    246 Mont. 259.
    805 P.2d 1293.

      James M. Regnier, Regnier, Lewis & Boland, P.C., Great Falls, for claimant and appellant.

      William O. Bronson, James, Gray & McCafferty, Great Falls, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The claimant, Morgan Hartfield, brought this action in Workers’ Compensation Court to reopen his full and final compromise settlement with the State Compensation Mutual Insurance Fund, approved on March 25,1982. In its order of March 27,1990, the Workers’ Compensation Court rejected Hartfield’s claims that the settlement should be set aside because of constructive fraud, lack of consideration, or unilateral mistake of law, and found for the defendants. From this judgment, Hartfield appeals. We affirm.

Appellant presents the following issues:

1. Did the Workers’ Compensation Court err in refusing to set aside the settlement agreement between Hartfield and the State Fund on the ground of constructive fraud?

2. Did the Workers’ Compensation Court err in refusing to set aside the settlement agreement on the basis of unilateral mistake?

3. Did the Workers’ Compensation Court err in failing to determine the settlement agreement void for lack of consideration?

4. Did the Workers’ Compensation Court err in finding that Hartfield’s petition to reopen his settlement agreement with the State Fund was barred by the applicable statute of limitations?

On January 14, 1981, Morgan Hartfield injured his neck in the course of his employment with the City of Billings as an assistant building maintenance supervisor. Prior to the 1981 injury, Hartfield had suffered other neck injuries and had undergone two cervical fusions. Hartfield had negotiated an earlier settlement agreement with the State Compensation Mutual Insurance Fund (State Fund) in the amount of $6,500 for a 1977 injury.

Because of Hartfield’s injury, his physician, Dr. John Dorr, an orthopedic surgeon, concluded that Hartfield should not return to work. At the request of the State Fund, Dr. Dorr later estimated that Hartfield’s permanent physical impairment was 20 per cent of the whole body, at least 10 percent attributable to his 1981 accident.

Hartfield applied for and received social security disability benefits. Hartfield, a retired Air Force Chief Master Sergeant having served on active duty for 27 years prior to his employment with the City of Billings, also received service retirement benefits. In November 1981 the State Fund responded to Mr. Hartfield’s application for benefits by awarding him approximately $4,000 in retroactive benefits and informed him that he would continue to receive $166.36 per week in temporary total disability benefits. Since the weekly benefit was offset by Hartfield’s social security benefits, he actually received $107.46 per week.

In February 1982, a field representative of the State Fund, Timothy Tindall, met with Hartfield in his home to discuss the settlement award. Hartfield, who was not represented by an attorney, signed the “Petition for Full and Final Compromise Settlement of Total Disability Benefits,” a preprinted form. The agreement became final when approved by the Workers’ Compensation Court in March 1982.

The agreement recited that the claimant “appears to be totally disabled from finding regular employment of any kind in the normal labor market.” Hartfield agreed to accept $21,000, payable in monthly installments of $405.99 for 60 months. As stated in the agreement, the $21,000 represented approximately 191 weeks of total disability benefits “after the rate has been reduced as a result of the offset taken against the claimant’s social security benefits.” The payments included interest, bringing the total settlement amount to approximately $24,300. Hartfield continued to receive social security disability benefits until he reached retirement age.

Prior to his injury, Hartfield had read a pamphlet indicating that workers’ compensation benefits could be paid to the claimant until his death. Under the law in effect at the time of Hartfield’s injury, he could be paid total permanent disability benefits “for the duration” of his disability. Section 39-71-702(1), MCA (1979). Hartfield claimed that he had asked Tindall about receiving benefits beyond retirement age and that Tindall informed him that benefits ceased at age 65. Hartfield further asserted that he did not know that after signing the settlement agreement his monthly payments would be less than he was currently receiving monthly.

In December 1986 Hartfield read a news article about a workers’ compensation case involving an insured who had terminated workers’ compensation benefits when the claimant reached retirement age. In the case, this Court held that a totally disabled individual was entitled to permanent partial disability benefits after reaching the age of 65. SeeHunter v. Gibson Products of Billings (1986), 224 Mont. 481, 730 P.2d 1139. According to Hartfield’s testimony, the article motivated him in January 1987 to consult an attorney in regard to his settlement agreement with the State Fund. This action was then filed.

I

Did the Workers’ Compensation Court err in refusing to set aside the settlement agreement between Hartfield and the State Fund on the ground of constructive fraud?

Hartfield argues that the circumstances surrounding his signing of the settlement agreement amounted to constructive fraud because Tindall misrepresented facts concerning workers’ compensation benefits. Specifically, Hartfield alleges the following: (1) he was told that he would not be entitled to receive any benefits after age 65; (2) the settlement sum of $21,000 was inadequate for an individual who was totally disabled; (3) the monthly sum was less than he had received prior to the settlement; (4) the settlement was not negotiated; and (5) Tindall did not inform him that he had a right to consult an attorney prior to signing the agreement.

According to § 28-2-406, MCA, constructive fraud consists in:

“(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or (2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.”

A plaintiff must plead and prove the following elements of fraud:

1. A representation;

2. Falsity of the representation;

3. Materiality of the misrepresentation;

4. Speaker’s knowledge of the falsity of the representation or ignorance of its truth;

5. Speaker’s intent that it be relied upon;

6. The hearer’s ignorance of the falsity of the representation;

7. The hearer’s reliance on the representation;

8. The hearer’s right to rely on the representation; and

9. Consequent and proximate injury caused by the reliance.

Wiberg v. 17 Bar, Inc. (1990), 241 Mont. 490, 788 P.2d 292, 295, 47 St.Rep. 429, 433. Constructive fraud requires a showing of all these elements, except the fifth one, the “speaker’s intent that the representation be relied upon.” Under the statute, an intent to deceive is not necessary to prove constructive fraud. Section 26-2-406, MCA; Batten v. Watts Cycle and Marine, Inc. (1989), 240 Mont. 113, 783 P.2d 378, 381, 46 St.Rep. 1984, 1987.

The Workers’ Compensation Court found insufficient evidence to support Hartfield’s claim that Tindall erroneously informed him about receiving workers’ compensation benefits past age 65. This Court will not substitute its judgment for that of the Workers’ Compensation Court concerning the credibility of witnesses or the weight given their testimony. Houtchens v. State Employment Security Division (1988), 232 Mont. 99, 102, 754 P.2d 824, 826.

The record shows that Tindall and Hartfield had met twice before February 17, 1982, when the settlement agreement was signed. The next day Tindall wrote a memorandum noting that the settlement agreement had been fully discussed:

“A petition for Full and Final Compromise Settlement for total disability was read by the claimant. The claimant and I then discussed the petition in full.”

In the memorandum Tindall describes the details of the settlement agreement, including Hartfield’s Air Force retirement benefits, his social security disability benefits, and the fact that he is still entitled to medical and hospital benefits relating to his injury. He then concludes:

“[TJhis settlement will enable the claimant to budget and arrange his livelihood until he can receive regular Social Security Retirement.”

Although Hartfield’s retirement income was a consideration in deciding the terms of the settlement, Tindall testified that “at no time did I mean to imply then, prior to that time or now that a person would have their benefits terminated just because they reached age 65.” Tindall further testified that in discussing the agreement with Hartfield, he could not have confused which law applied to Hartfield’s injury “because it is cast in stone that the statutes that we are to use on an individual claim are the statutes that are in effect on the date of injury.”

In his testimony, Hartfield claimed that Tindall had been “emphatic” that benefits would cease at age 65. However, Hartfield admitted that he had a difficult time remembering the events surrounding the signing of the settlement agreement, and could not recall his two contacts with Tindall prior to the signing of the settlement agreement.

The trier of fact is the exclusive judge of a witness’ credibility. Section 26-1-302, MCA; Emick v. Koch (1987), 227 Mont. 365, 368, 739 P.2d 947, 949. In addition to observing the demeanor of the witness, the trier of fact can take into account the witness’ capacity to recollect events, his inconsistent statements, and other evidence contradicting the witness’ testimony. Section 26-1-302, MCA. In this case, we find that the Workers’ Compensation Court had reason to discredit Hartfield’s testimony.

Furthermore, the plaintiff must present more than his own opinion as evidence of fraudulent conduct. Batten, 783 P.2d at 381, 46 St.Rep. at 1987. Hartfield cites an inadequate settlement sum and lower monthly payments as proof that he would not have agreed to them unless he believed that he could not receive benefits beyond age 65. However, the settlement was advantageous to Hartfield in many respects. The fact that Hartfield may not have received a maximum lifetime payout is not enough for a finding of constructive fraud.

Hartfield makes much of the fact that monthly payments under the settlement agreement were less than the monthly amounts he was receiving at the time of the settlement in temporary total disability benefits. However, Hartfield knew how much he was receiving before the contract was signed, as well as the amount of each monthly payment under the settlement agreement. A party is presumed to know the contents of a contract and to assent to those terms. Quinn v. Briggs (1977), 172 Mont. 468, 476, 565 P.2d 297, 301. A party asserting fraud “is put on inquiry notice of the other party’s misdeeds, and must exercise ordinary diligence to discover the facts constituting the fraud.” Holman v. Hansen (1989), 237 Mont. 198, 202, 773 P.2d 1200, 1203; but see Jenkins v. Hillard (1982), 199 Mont. 1, 7-8, 647 P.2d 354, 358 (holding that opportunity to inspect real estate premises is not a defense to plausible misrepresentations). At the time of the agreement Hartfield could have discovered the difference in the amount of monthly payments.

Hartfield claims that the State Fund should have advised him that he could have an attorney and that he could negotiate the settlement amount. The party must show that the circumstances concerning the acts of fraud were such that he could not have discovered the fraud at the time. Mobley v. Hall (1983), 202 Mont. 227, 232, 657 P.2d 604, 607.

The record indicates that at the time of the agreement Hartfield was at least aware that an issue existed regarding benefits continuing past retirement age. The court concluded that Hartfield was an “intelligent, articulate man, well aware of the significance of a sound economic future for himself and his family.” Hartfield had served 27 years in the Air Force and had negotiated a settlement once before with the State Fund. We conclude that in itself failure to inform Hartfield of his right to seek an attorney or his right to negotiate the settlement sum does not constitute or contribute to constructive fraud. We hold that Hartfield did not meet his burden of showing that the State Fund had misrepresented facts surrounding the settlement agreement.

II

Did the Workers’ Compensation Court err in refusing to set aside the settlement agreement on the ground of unilateral mistake?

Hartfield alleges that he entered into the settlement agreement under the mistaken belief that the law had changed and that he could not receive workers’ compensation benefits beyond the age of 65.

Consent to the contract is lacking if the parties enter into the contract through mistake. Weldele v. Medley Development (1987), 227 Mont. 257, 260, 738 P.2d 1281, 1283. According to § 28-2-410(2), MCA, unilateral mistake arises from “a misapprehension of the law by one party of which the others are aware at the time of contracting but which they do not rectify.” In order for unilateral mistake to operate as a rescission of the contract, the plaintiff must show that the defendant knew of the other party’s misapprehension of the law. Quinn, 172 Mont. at 478, 565 P.2d at 302. As noted above, the Workers’ Compensation Court determined that Hartfield failed to prove any misrepresentation of the law by Tindall. In addition, Hartfield has not shown that Tindall was aware that Hartfield misunderstood the law. Therefore, we find that Hartfield’s claim of unilateral mistake is unsupported by the facts.

Ill

Did the Workers’ Compensation Court err in failing to determine the settlement agreement void for lack of consideration?

Hartfield contends that under the terms of the settlement contract, he was not afforded any consideration because he received $60 less per month than he had been receiving from bi-weekly temporary total disability benefits and because he could have collected those benefits for the rest of his life.

Sufficient consideration is essential to the existence of a contract. Section 28-2-102(4), MCA. Consideration is defined by § 28-2-801, MCA, as:

“Any benefit conferred or agreed to be conferred upon the promisor by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor ...”

Written contracts are presumptive evidence of consideration. Section 28-2-804, MCA. The burden of showing a lack of consideration lies with the party seeking to invalidate the contract. Section 28-2- 805, MCA.

Hartfield failed to overcome the presumption that the written contract was evidence of consideration. Besides the $21,000, in reaching the settlement Hartfield avoided the possibility for adjustment of his claim and, if necessary, litigation of his disability status. Hartfield argues that the settlement agreement gave him total disability status. However, the contract only states that the claimant “appears to be totally disabled.” Moreover, the settlement agreement states that “a controversy exists between the claimant and insurer over the amount and duration of compensation benefits.” Had Hartfield not signed the agreement, litigation of his disability status, which controlled the duration and amount he would eventually receive, was a possibility.

The agreement conferred other benefits on Hartfield as well. Prior to signing the agreement, in the event of his death, workers’ compensation payments would have ceased. Section 39-71-726, MCA (1979). Under the settlement agreement, benefits would have continued to be paid to his estate after his death. In addition, Hartfield was still entitled to receive medical and hospital benefits. We affirm the Workers’ Compensation Court’s conclusion that $21,000 constituted good and valuable consideration even though it may not have represented the maximum amount that Hartfield could have received.

When reviewing decisions of the Workers’ Compensation Court, our function is confined to determining whether the court’s judgment is supported by substantial credible evidence. Houtchens, 232 Mont. at 102, 754 P.2d at 826. We hold that the refusal of the court to set aside the settlement agreement on the grounds of constructive fraud, unilateral mistake of law, or lack of consideration is supported by substantial evidence.

IV

The Workers’ Compensation Court also found that the claims of constructive fraud and mistake were barred by the two-year statute of limitations which provides that the statute is tolled until the “discovery by the aggrieved party of the facts constituting the fraud or mistake.” Section 27-2-203, MCA. Hartfield claims that he discovered the fraud or mistake in December 1986 when he read the newspaper account of the Hunter case, stating that claimants could receive benefits after reaching age 65.

Since we agree with the court’s decision that Hartfield failed to establish either constructive fraud or unilateral mistake of law, we need not farther address whether the statute of limitations was tolled.

The judgment of the Workers’ Compensation Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, WEBER, and McDONOUGH concur.

JUSTICE SHEEHY,

dissenting:

I dissent. It is not necessary to discuss such legal quanta as constructive fraud, unilateral mistake, consideration or any other variant of contract or limitations law. It is only necessary to consider here an injured worker who, innocently or not, was induced to trade a $54,750 asset for $21,000. The very purpose of the Workers’ Compensation Act is ignored here by the majority: that purpose to restore in some measure to the worker the losses he sustains from injuries in industry without requiring litigation, all in return for the worker giving up his common law rights of action against his employer. That is the consideration we should regard, and then insist that the worker be protected in that end.

It is simple folly to accept that an injured worker, unskilled in law, is on an equal contractual footing with an agent of the Fund in a discussion of settlement, a settlement initiated by the Fund, holding out visions of sugar plums to the worker to give up his full rights. This is dirty business, and I will not condone it. I would reverse and set aside the unjust agreement.

JUSTICE HUNT concurs in the dissent of JUSTICE SHEEHY.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    CRAIG BERENS, Plaintiff and Appellant, v. WILLIAM P. WILSON, Defendant and Respondent.
    No. 90-288.
    Submitted on Briefs Sept. 13, 1990.
    Decided Oct. 25, 1990.
    246 Mont. 269.
    806 P.2d 14.

      George T. Radovich, Billings, for plaintiff and appellant.
    Donald L. Harris and Mary E. Duncan, Billings, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Thirteenth Judicial District, in and for the County of Yellowstone. Plaintiff brought a negligence action against defendant. The District Court found in defendant’s favor on a motion for summary judgment. Plaintiff appeals from that order. We affirm.

The only issue before this Court on review is:

Did the District Court err in entering summary judgment for the defendant?

Plaintiff, Craig Berens, brought this negligence action in the District Court to recover damages for injuries he received when he jumped over a picket fence located on defendant William Wilson’s property. Defendant moved for summary judgment. Subsequently, briefs were filed and the District Court granted the motion on April 16, 1990 in a memorandum order.

The uncontroverted facts are as follows:

A wooden picket fence contains defendant’s property and a portion of the fence, which is the subject of this appeal, separates defendant’s archery range from the rest of his property. It is this portion of the fence, adjacent to defendant’s archery range, which plaintiff jumped with incident of injury. The fence is approximately four feet high. Defendant built the fence around the year 1980, burying the posts in the ground with rocks tamped down solid on the sides for stability.

Plaintiff and defendant have been neighbors since 1981 and often visited. On May 26, 1988, defendant invited plaintiff over to defendant’s house to admire defendant’s newly acquired bow. After a few minutes passed, they decided to witness the bow’s performance and walked to defendant’s backyard archery range. When they arrived at the subject wooden fence which separated them from the archery range, defendant handed plaintiff the bow and jumped over the fence without incident. As defendant jumped the fence, the fence did not “wobble” nor did defendant fall. Plaintiff then surrendered the bow to defendant, walked down a few feet along the fence line, placed his hands on the top of the fence rail next to a post and jumped over. While in mid-jump, the fence “wobbled”, plaintiff lost his balance, landed on his left foot and injured his knee. There were no rotted or broken posts on the fence line where either man jumped.

Upon appeal the threshold question is whether there exists a genuine factual issue concerning the fence’s alleged hazardous character. As his first assignment of error, plaintiff maintains that in granting summary judgment the District Court incorrectly concluded that defendant sustained his burden of demonstrating a complete absence of any genuine issue of material fact.

The purpose of Rule 56, M.R.Civ.R, is to dispose of those actions which fail to raise genuine issues of material fact, thereby eliminating the burden and expense of an unnecessary trial. VanUden v. Hendricksen (1980), 189 Mont. 164, 615 P.2d 220. Summary judgment should be granted if the moving party successfully carries its burden to establish that there is no genuine basis of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R To satisfy its burden of proof, the movant must provide the court with evidence which clearly indicates what the truth is, and which excludes any real doubt as to the existence of a genuine issue of material fact. VanUden at 167, 615 P.2d at 222. Once the movant has discharged its burden of proof under Rule 56(c), it becomes incumbent upon the party opposing the motion to come forward with substantial evidence raising a genuine issue of material fact. Rule 56(e), M.R.Civ.R, Riley v. Carl (1981), 191 Mont. 128, 622 P.2d 228.

We have reviewed the entire record before us. We find that the supporting documents filed by defendant discharged his burden of proof under Rule 56(c), M.R.Civ.P. We further find that plaintiff has failed to provide the District Court with substantial evidence raising a genuine issue of material fact.

Plaintiff asserts that he has carried his burden by claiming that the fence constituted a “hidden or lurking” hazard. However, the substantial evidence which raises a genuine issue of material fact must be material and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious. VanUden at 169, 615 P.2d at 224. Here plaintiff concluded, based on his own speculation and opinion rather than objective evidence contained in the record, that the wooden fence was a “hidden or lurking” hazard simply because it wobbled when he jumped over it. To paraphrase the irrefutable Gertrude Stein: Afence, is a fence, is a fence. Plaintiff would have us believe that a wooden fence should stand, as a brick wall, undaunted. We are not persuaded by plaintiff’s erroneous, if not completely arcane, reasoning that a wooden fence is a “hidden or lurking” hazard merely because it “wobbles” when one jumps over it. As such, we find that plaintiff’s claim is not based on substantial evidence and that the fence was not a “hidden or lurking” hazard.

As his second assignment of error, plaintiff maintains that in granting summary judgment the District Court incorrectly concluded that defendant was entitled to judgment as a matter of law. Plaintiff contends that defendant was not entitled to judgment as a matter of law because he breached his duty to warn plaintiff of the alleged hazardous fence. Plaintiff argues that from the existence of a “hidden or lurking” hazard emerges a legal duty to warn incumbent upon defendant landowner. Our finding that the fence was not a “hidden or lurking” hazard absolves us of the need to rule on this issue. Without a hidden hazard, there exists no duty to warn of one, In conclusion, we hold that the defendant did not breach any duty owed plaintiff and was entitled to summary judgment as a matter of law under Rule 56(c), M.R.Civ.P. We therefore affirm the order of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, SHEEHY, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE McDONOUGH

text:
    The GALLATIN SADDLE AND HARNESS CLUB, Plaintiff and Appellant, v. RAMON S. WHITE, Jane Jelinski, A. D. Pruitt, individually and as members of the Board of County Commissioners of the County of Gallatin, and The County of Gallatin, Defendants and Respondents.
    No. 90-308.
    Submitted on Briefs Sept. 13, 1990.
    Decided Oct. 25, 1990.
    246 Mont. 273.
    805 P.2d 1299.

      Timothy C. Bolton, Big Sky Law Office, Big Sky, for plaintiff and appellant.
    A. Michael Salvagni, County Atty., Bozeman, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff, the Gallatin Saddle and Harness Club (Saddle Club), appeals from an order of the Eighteenth Judicial District, Gallatin County granting summary judgment in favor of the Board of County Commissioners of Gallatin County. We affirm.

Both the Saddle Club and the county commissioners raise numerous issues on appeal, including sovereign immunity, failure to join an indispensable party, eminent domain, constitutional issues, mootness and standing. We hold, however, that one issue is dispositive of this appeal. The issue is:

Whether the County Commissioners have the authority to lease 8.55 acres of the Gallatin County Fairgrounds to Bozeman Baseball, Inc., for the purpose of building a ball field.

Gallatin County received the property, unencumbered, on which the Gallatin County Fairgrounds is located from Syracuse University in 1914. Through the years the fairgrounds has been used for many purposes. One of the primary purposes has been the holding of an annual county fair. The property has also been utilized by other organizations, however. It has been the site for antique fairs, auctions, fraternity and sorority functions, and school athletic events.

The Gallatin County Saddle and Harness Club is one of the many organizations that have utilized the fairgrounds. The Saddle Club is a private non-profit organization with a primary purpose of developing equestrian activities for its members who own, train and breed pleasure horses. In pursuit of this endeavor, the Saddle Club constructed a Hunt Course on the fairgrounds property. Apparently the Hunt Course is utilized several times a year. One of the events utilizing the course is the Bob Miller Horse Show, which is the largest horse show in the State of Montana.

In January of 1989, the County Commissioners published a notice in the Bozeman Chronicle which stated that a hearing would be held to “consider selection of a multi-purpose ballfield site.” The notice further stated that the County Fairgrounds was under consideration as a site for the multi-purpose fields.

Following this hearing, the County Commissioners appointed six individuals to develop a management plan for the ball field facility, which was to be located in the northeast comer of the fairgrounds. Apparently, this proposed site was located in the same area as the Saddle Club’s Hunt Course.

Eventually, a management plan was adopted and a decision was made to lease the site to Bozeman Baseball, Inc. for the purpose of constructing a baseball diamond. The Saddle Club maintained that this action, taken by the County Commissioners, was arbitrary, capricious and in violation of Montana law. It therefore filed a lawsuit seeking an order enjoining the County Commissioners from entering into the lease agreement. It also sought a declaratory judgment that the County Commissioners’ actions were in contravention of various sections of the Montana code. The County Commissioners moved for summary judgment on December 29, 1989. On April 2, 1990, this motion was granted and this appeal followed.

The Saddle Club maintains that the County Commissioners failed to comply with several statutory directives when they decided to lease the land to Bozeman Baseball, Inc. It states in its brief that all of the statutes relating to the lease of county property must be read together as one consistent whole. The Saddle club therefore argues §§ 7-8-2231, 7-8-2502, 7-8-2508, and 7-21-3407, MCA, should be applied in reviewing the decision of the County Commissioners.

Expanding upon this argument, the Saddle Club maintains that before the County Commission could validly lease the fairground property, it had to first find that the land was not necessary to the county’s business and that it could not be immediately sold. See §7-8-2231, MCA. It further argues that the County Commissioners did not determine that the proceeds of the lease equaled the taxes which could be levied upon the land if it was privately owned. Therefore, the Saddle club argues that the County Commissioners violated § 7-8-2508, MCA. Finally, it argues that baseball is not an agricultural activity and that the lease therefore violates the mandate that the County Fair be held for agricultural purposes. See § 7-21-3407, MCA.

We disagree with the assertion that the County Commissioners were required to follow the mandate of these statutes. On the contrary, § 7-21-3409, MCA, specifically sets out their duty when they lease county fairgrounds property. This statute states:

“Boards of County Commissioners ... are hereby authorized to lease county fairgrounds and buildings thereon on such terms as they deem proper. Section 7-21-3409(1), MCA.”

There is an obvious conflict between this statute and the general statutes cited above. For example, § 7-21-3409(1), MCA, grants discretion to the County Commissioners to determine the terms of the lease. Section 7-8-2508, MCA, on the other hand, imposes some of the terms of the lease. In interpreting conflicting statutes, this Court follows the rule that where a specific statute conflicts with a general statute, the specific controls over the general to the extent of any inconsistency. See Browman v. Wood (1975), 168 Mont. 341, 543 P.2d 184. The inconsistencies between these statutes lead to the obvious conclusion that the County Commissioners are required to follow § 7-21-3409(1), MCA, when leasing fairground property. There is no evidence the County Commissioners abused their discretion in carrying out this duty, nor is there any evidence that the baseball fields will interfere with the annual county fair.

The order of the District Court granting summary judgment in favor of the County Commissioners is therefore affirmed.

JUSTICES HARRISON, BARZ, HUNT and SHEEHY concur.


author: JUSTICE HUNT

text:
    ANESTHESIOLOGY, P.C.; Dr. C. W. McCoy; Dr. Gerald H. Siemens; Dr. Norman J. Nickman; and Dr. J. E. Jarrett, Plaintiffs and Respondents, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, A corporation, Defendant and Appellant.
    No. 90-068.
    Submitted Sept. 5, 1990.
    Decided Oct. 26, 1990.
    246 Mont. 277.
    806 P.2d 16.

      Hughes, Kellner, Sullivan & Alke, John Alke argued, Helena, for defendant and appellant.
    Snavely & Phillips, Robert J. Phillips argued, Missoula, for plaintiffs and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant and defendant Blue Cross and Blue Shield of Montana appeals from the order of the District Court of the First Judicial District, Lewis and Clark County, granting summary judgment to plaintiff and respondent, Dr. C. W. McCoy, for a lien filed for services rendered to an insured of the defendant.

We reverse and remand for further proceedings in accordance with this opinion.

The sole issue raised by this appeal is whether the 1987 amendments to the Montana Insurance Code affect appellant’s immunity from liens under the Physicians’ Lien Act.

Blue Cross is a health service corporation, governed by §§ 33-30-101 through § -102, MCA, operating a nonprofit health care plan within the State of Montana. It enters into contracts with health care providers for services to its insureds. In the case of a contract between Blue Cross and a physician, the physician becomes a “professional member.” The professional member agrees to accept, as payment in full, a fee established by Blue Cross for services to Blue Cross insureds. The physician also forfeits the right to “balance bill” the Blue Cross insured for any difference between the physician’s charge and the fee allowed by Blue Cross. The contract between Blue Cross and the professional member allows the professional member to directly bill Blue Cross for services provided to the insured.

A physician who does not have a contract with Blue Cross is a “nonmember physician.” A nonmember physician must bill the insured for the entire cost of the services provided, and look to the insured for payment of those costs. Payments made by Blue Cross for services rendered by nonmember physicians are made directly to the insured. Any balance of the bill must be paid by the insured.

Respondent, Dr. C. W. McCoy (a nonmember physician) provided health care services to Pamela Dark on December 15, 1987. Pamela was billed $1,790.00 for these services. On January 4, 1988, Dr. McCoy sent a lien notice to Blue Cross, claiming a lien against insurance benefits payable by Blue Cross to or on behalf of Pamela. Blue Cross ignored the lien and made payment directly to Pamela.

In the action against Blue Cross, plaintiff McCoy was joined by Anesthesiology, P. C. The District Court granted judgment to Dr. McCoy but found that because Anesthesiology had filed its claim on November 2,1987, before the 1987 amendments to the insurance code became effective, its claim was barred. Anesthesiology did not appeal that decision and is not a party to these proceedings.

Appellant argues that the physicians’ lien statutes of 1979 were not affected by the 1987 amendments to the Montana Insurance Code, and that appellant’s immunity from physicians’ liens still exists. The physicians’lien statutes, § 71-3-1111 through § 71-3-1118, MCA, were enacted in 1979. They provide in part:

“If a person is an insured or a beneficiary under insurance which provides coverage in the event of injury or disease, a physician ... upon giving the required notice of lien, has a lien for the value of services rendered on all proceeds or payments ...”

Section 71-3-1114(2), MCA. At the time the lien statutes were enacted, health corporations such as Blue Cross were specifically excluded from the guidelines of Title 33 of the Montana Code (the Montana Insurance Code).

The corporations were excluded by the 1979 insurance code. Specifically the legislature provided:

“This code shall not apply to health service corporations to the extent that the existence and operations of such corporations are authorized by Title 35, chapter 2, and related sections of the Montana Code Annotated.”

Section 33-1-102(3), MCA. In 1987 the legislature amended the insurance code to include health service corporations.

“For the purposes of this code, the following definitions apply unless the context requires otherwise:
“(6) ‘Insurer’ includes ... a health service corporation in the provisions listed in 33-30-102.”

Section 33-1-201, MCA.

The District Court found that because health service corporations were excluded from the insurance code from 1979 to 1987, they were not subject to physicians hens during that time. The court then found that the legislature intended that physicians liens apply to health service corporations after the 1987 amendments. Appellant argues otherwise, contending that the legislature never intended the 1987 amendments to the insurance code to imply that health service corporations are now subject to physicians’ lien statutes of 1979. We agree with appellant.

This Court will not intrude in areas properly the province of the legislature. We have consistently held that only in extreme circumstances is it appropriate to construe a subsequent statute against a former one without express legislative direction. “The presumption is that the legislature passes a law with deliberation and with a full knowledge of all existing ones on the same subject, and does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable.” London G. & A. Co., v. Industrial Accident Board, 82 Mont. 304, 310, 266 P. 1103, 1105 (1928). The Court followed the London reasoning in Fletcher v. Paige, 124 Mont. 114, 220 P.2d 484 (1950): “It will not be presumed that a subsequent enactment of the legislature intended to repeal former laws upon the subject when former laws were not mentioned.” Fletcher at 119, 220 P.2d at 487.

In the case before us, the legislature failed to mention the physicians’ lien statutes when it amended the code in 1987. That the legislature intended the amendments to apply only to the insurance code is evidenced by the introduction to the definitions of the code, which states: “For the purposes of this code, the following definitions apply ...” (Emphasis added.) Section 33-1-201, MCA. By leaving intact these introductory words, the legislature clearly intended that the 1987 amendments be limited to the insurance code.

Had the legislature intended to amend the physicians’ lien statutes when it revised the insurance code, it would have expressly stated that intention. Unless and until the legislature specifically amends the physicians’ lien statutes, we will not infer an intent to do so.

Reversed and remanded for further proceedings in accordance with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ, McDONOUGH and WEBER concur.

JUSTICE SHEEHY did not participate in these proceedings.


author: JUSTICE SHEEHY JUSTICE BARZ,

text:
    DENNIS HUETH, Petitioner and Appellant, v. MARK JOHNSON MASONRY/STATE COMPENSATION INSURANCE FUND, Employer/Defendant and Respondent.
    No. 89-571.
    Submitted March 8, 1990.
    Decided Oct. 30, 1990.
    246 Mont. 281.
    805 P.2d 1312.

      James D. McKenna, Bozeman, for petitioner and appellant.
    Mike McCarter, Helena, for employer/defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This appeal involves an application by Dennis Hueth to the former division of Workers’ Compensation, Department of Labor and Industry, for a waiver of the 12-month statute of limitations applicable to the filing of a Workers’ Compensation claim. Section 39-71-601, MCA. On July 30, 1987, the Division issued an order denying the application for waiver. Eventually the Workers’ Compensation Court on appeal affirmed the denial of the application. Dennis Hueth has appealed from the decision of the Workers’ Compensation Court. On consideration, we reverse.

Hueth alleged that he suffered a compensable work-related injury in January, 1986, while employed by Bronken’s Distributing, whose compensation insurer at the time was the Orion Group. His employment with Bronken’s continued until the end of February, 1986, when he was laid off. He went to work in early March, 1986, for Mark Johnson Masonry and worked there for approximately a week and a half. Hueth alleges that he aggravated the injuries to his knees while working for Mark Johnson Masonry, citing at least two separate instances of aggravation. He alleges that the aggravating instances occurred on March 7, 1986.

Hueth retained the services of Attorney Jerry Bechhold (an attorney later disbarred by this Court) to represent him in his Workers’ Compensation claims. One of those claims was pursued before the Division and later in the Workers’ Compensation Court against Bronken’s Distributing. While that claim was pending, on June 1, 1987, Hueth filed a Workers’ Compensation claim respecting his alleged injuries at Mark Johnson Masonry. On July 13,1987, he made application to the Division for a waiver of the 12-month statute of limitations in § 39-71-601, MCA, pursuant to the power given in that statute to the Department to waive the time requirements up to an additional 24 months. On July 30, 1987, the Division denied his application for waiver. No appeal was taken from that decision.

In the meantime, in the parallel action relating to Bronken’s Distributing, to which the State Fund had been made a party, the Workers’ Compensation Court dismissed the claim against the State Fund, the insurer for Mark Johnson Masonry, based on the denial of the application for waiver entered by the Division. On August 19, 1987, the Workers’ Compensation Court granted the motion of the State Compensation Insurance Fund to dismiss.

Hueth thereafter pursued his claim against Bronken’s Distributing, and its insurer, the Orion Group. On December 11, 1987, the Workers’ Compensation Court dismissed that claim upon the grounds that Hueth had failed to notify his employer, Bronken’s Distributing, of his injury as required by § 39-71-603, MCA. While the Workers’ Compensation Court gave the failure to notify the employer as grounds for its decision dismissing Hueth’s claim, it is apparent from the findings that the Court had considerable doubt that Hueth’s claim against Bronken’s had occurred on the day and in the way that Hueth had alleged.

The claim against Bronken’s and Orion was dismissed on December 11, 1987.

On February 29, 1988, when Hueth was represented by a new attorney, Michael Sand, he filed a petition for a contested case hearing respecting his application for waiver of the one year filing requirement. This hearing was held before a hearing examiner appointed by the Division, who entered findings of fact and conclusions of law on July 28,1988. Hueth appealed from the adverse decision in that order to the Workers’ Compensation Court, where it was discovered that the Division’s recording of the hearing had been misplaced. The Workers’ Compensation Court entered an order remanding the matter to the Division for a new hearing.

The second hearing was held before the hearing examiner in Bozeman on January 5,1989. At that time, claimant was represented by another attorney, James McKenna. After the hearing, the hearing examiner filed findings of fact, conclusions of law and a final order, which was adopted by the Division, and which denied relief from the agency decision respecting the waiver.

Hueth went again before the Workers’ Compensation Court on an appeal from the decision in his contested case, and again, the Workers’ Compensation Court upheld the denial of the waiver. It is from that order of the Workers’ Compensation Court that this appeal ensued.

In essence, Hueth alleges that he injured his knees in January of 1986, while delivering kegs of beer during his employment with Bronken’s Distributing. He further claims that on or about March 7, 1986, he aggravated the injuries to his knees while working for Mark Johnson Masonry, citing at least two separate instances of aggravation.

He did not file a Workers’ Compensation claim respecting the injuries at Mark Johnson Masonry until June 1, 1987, 15 months after the alleged instances of aggravation.

In his testimony before the hearing examiner respecting the denial of his requested waiver, Hueth testified that he had related the alleged aggravations of his knee injuries at Mark Johnson Masonry to his attorney Jerry Bechliold in April, 1986, but he claimed that he had not realized until April 24,1987, when his physician’s deposition was taken, that an aggravation of a preexisting injury was “compensable” under the Workers’ Compensation laws. He alleges that the failure to file a claim against Mark Johnson Masonry within a year of his aggravation is the fault of his former attorney Bechhold and although he filed an affidavit stating otherwise, that he was merely following Mr. Bechhold’s instructions in not pursuing his claim against Mark Johnson Masonry.

Bechhold himself testified at the hearing that he was aware of the alleged aggravations in April, 1986, and that he had advised Hueth at that time that Hueth had a possible claim against Mark Johnson Masonry. He testified that Hueth had a hard time understanding Workers’ Compensation matters and may not have fully understood his rights.

Hueth’s contentions on which he requests reversal are, first, that he was unaware that the injury he sustained at Mark Johnson Masonry was a compensable injury and, second, that his attorney, Bechhold, failed to pursue that claim until after the 12-month period had ended, although Bechhold knew about the injury at Mark Johnson Masonry shortly after it occurred. Because there is no dispute as to the facts in this case, he contends that the standard of review in this Court is whether the Workers’ Compensation Court’s interpretation of the law is correct, and that this Court is free to reach its own conclusions about the proper application of law to the facts of the case. Wassberg v. Anaconda Copper Company (1985), 215 Mont. 309, 697 P.2d 909; Solheim v. Tom Davis Ranch (1984), 208 Mont. 265, 677 P.2d 1034.

The State Fund, on the other hand, contends that Hueth’s appeal is blocked because he did not request a contested case hearing before the Division following the denial of his application for waiver under Division rules then promulgated by the Division, and secondly, that his lack of knowledge of his specific legal remedies and the neglect of his own counsel are not grounds for waiving the one-year statute of limitations.

As the Workers’ Compensation Court noted, this Court has tolled the statute of limitations in cases of latent injury, Bowerman v. State Compensation Fund (1983), 207 Mont. 314, 673 P.2d 476; and when there is estoppel based on the employer’s conduct, Davis v. Jones (1983), 203 Mont. 464, 661 P.2d 859. Here, Hueth relies on other circumstances which may have tolled the statute as this Court stated in Bowerman:

“It is not exclusively evident that in enacting subsection (2) of section 39-71-601, MCA, the legislature was acting only with respect to latent injuries unsuspected by claimant. The language of subsection (2) is broad and could encompass any number of situations where in equity the Division would be moved to extend the time for filing the notice of claim up to the 24 months provided ...”

207 Mont, at 318, 319, 673 P.2d at 478.

The pertinent statute, as it existed at the time of Hueth’s injury read as follows:

“39-71-601. Statute of limitations on presentment of claim — waiver. (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.
“(2) The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.”

In Dodd v. Champion International Corporation, (1989), 239 Mont. 236, 238, 779 P.2d 901, 903, we stated with respect to subdivision (2) of § 39-71-601, MCA:

“In Bowerman, this Court established a three-part analysis to determine whether the one year statute had been tolled and the time for filing should be extended by the Division: First, did the claimant recognize the nature of his injuries? Secondly, did the claimant recognize the seriousness of his injury? Thirdly, did the claimant recognize the probable, compensable character of his injury? Bowerman, 673 P.2d at 479.”

In determining, whether under Bowerman, the time for filing his claim should have been extended by the Division, we find the evidence shows that the claimant recognized the nature of his injury, and that he also recognized the seriousness of his injury. It is the third requirement, whether he recognized the probable, compensable character of his injury, to which we must address our attention.

The difficulty for us, and for the Workers’ Compensation Court and indeed the hearing examiner, was the competency of the attorney, Jerry Bechhold, who was representing Hueth at the time. In this connection, the findings of the hearing examiner are important:

“10. While Mr. Bechhold testified that he now is of the opinion that Claimant suffered an aggravation of a preexisting injury while working for Mark Johnson Masonry, he could not recall what his belief was back in 1986 and could not recall whether in 1986 he was familiar with Workers’ Compensation Court decisions dealing with aggravation.
“11. Assessing the witnesses and the circumstances of this case, it is doubtful to the hearing examiner that Mr. Bechhold understood that aggravations of pre-existing injuries were compensable under Montana Workers’ Compensation law or that he properly advised Mr. Hueth of his potential claims against Mark Johnson Masonry and its insurer. It appears more likely, based upon a reading of the pleadings in the Workers’ Compensation Court case and Dr. Anderson’s deposition, that Mr. Bechhold was belatedly alerted to the possibility of a claim against Mark Johnson Masonry by Steve Carey, the attorney for the insurer against whom Claimant was pursuing a claim in early 1987.”

Nevertheless, the hearing examiner denied Hueth’s claim for a waiver, and the examiner’s decision was adopted by the Division. When the matter was appealed by Hueth from the Division decision to the Workers’ Compensation Court, that court took the position that Hueth’s failure to understand legal theories did not of itself toll the statute. The court stated:

“Clearly, Bechhold and Hueth knew of the claimant’s knee problem in 1986 and his employment history in 1986. Claimant’s failure to understand legal theories of compensability will not in and of itself toll the statute. (Citing cases.)”

The Workers’ Compensation Court then went on to hold that the failures of Bechhold as an attorney for Hueth were attributable to Hueth under Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 512 P.2d 1304. The Workers’ Compensation Court noted that the attorney’s failures were also that Bechhold failed to file a claim for compensation against Mark Johnson Masonry, he failed to seek a contested case hearing before the Division to extend the time, he failed to timely appeal the Division order and he pursued the case with Hueth in full support against Bronken’s Distributing.

In the light of the findings of the hearing examiner, however, since Bechhold himself apparently did not understand the Workers’ Compensation law, it cannot successfully be asserted that Hueth, as a claimant, met the third part of the Bowerman test, that he recognized the probable compensable character of his injury, as against Mark Johnson Masonry. Under the findings, Hueth obviously did not recognize the probable compensable character of his injury. Under these circumstances, the Workers’ Compensation Division should have granted a waiver under § 39-71-601(2), MCA, when the filing was only three months past the 12-month statutory deadline, and where the Division had discretion to extend the time for an additional 24 months.

The State Fund has also argued that since Hueth did not file a request for a contested case hearing within 90 days of the adverse decision of the Division denying waiver, that such failure precludes a court review of the substance of his case. The State Fund cites Division Rule § 24.29.215 A.R.M., which was effective July 31, 1987, one day after the Division denied Hueth’s waiver request. The State Fund may not rely on this administrative rule, however, for the reason that the Division did not rely on it. The hearing examiner noted the provisions of § 24.29.215 A.R.M., but stated that instead of relying on the rule, “the Division intends to make a full record for further review.” In addition, subdivision (4) of the administrative rule provides that the time limits for request from a contested case hearing may be extended by the Division for good cause. The same reasons on which we have determined that the 12-month statute of limitations for filing a claim should have been waived by the Division are the same reasons why the Division would have had to extend the time for a contested case hearing request. The result would be the same in any event. The administrative rule does not affect the jurisdiction of the Workers’ Compensation Court to determine disputes as to workers’ benefits under § 39-71-2905, MCA, nor the power of this Corut to affirm, reverse or modify the decisions of the Workers’ Compensation Court on appeal. Section 39-71-2904, MCA and § 3-2-204, MCA.

We therefore reverse the Workers’ Compensation Court in this matter. The cause is remanded to the Workers’ Compensation Court for such other proceedings relating to the compensability of Hueth’s claim, as may be required, without regard to the provisions of § 39-71-601, MCA.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH and WEBER conur.

JUSTICE BARZ,

dissenting:

I dissent.

The majority opinion states that the difficulty for the Workers’ Compensation Court and for this Court was the competency of the claimant’s attorney. That was not the only difficulty. Another difficulty was the claimant’s credibility on whether he suffered a work-related injury at all on January 2, 1986, let alone aggravated the injury on March 7, 1986, while working several days at Mark Johnson Masonry. The findings of fact of the Workers’ Compensation Court dated December 11, 1987, state as follows:

“January 2.1986 Incident
“3. On January 2, 1986, claimant alleges he injured his knees while delivering kegs of beer down the stairs at the Zoo Bar in Bozeman, Montana. He felt that ‘... going down the stairs had just aggravated them to the point where they started hurting more.’ (Transcript at 15,16; Hueth April Deposition at 85.)
“4. Following the alleged January 2,1986 injury, the claimant continued to work throughout the entire months of January and February without missing any work until he was laid off on February 28, 1986. (Transcript at 39.)
“5. Claimant did not seek any medical treatment for his alleged injury at Bronken’s Distributorship. He did not take any medication for this alleged injury. He would have continued working if he had not been laid off. (Transcript at 40; Bronken Deposition at 38.)
“6. Records of business transactions with the Zoo Bar, kept in the ordinary course and scope of business at Bronken’s Distributorship show there were no deliveries to the Zoo Bar on January 2. There were no deliveries to the Zoo Bar from Bronken’s between November 21,1985 and January 8, 1986. (Exhibit No. 4.) The Zoo Bar is a college-oriented bar which is essentially closed for Christmas break. (Transcript at pages 56- 58.)
“7. Every transaction involving the sale or exchange of kegs of beer by Bronken’s employees requires that an invoice be made. There was no evidence, by way of invoice or other document, to show a delivery to the Zoo Bar on January 2, 1986. (Transcript at 58, 59, 66.)
“8. Claimant’s uncorroborated testimony that he delivered kegs to the Zoo Bar on January 2, 1986, is not persuasive.
“Notice
“9. The claimant wrote on his claim for compensation which was received by the insurer on April 14,1986, that he had not notified his employer of the alleged injury. After the phrase, ‘Who did you notify?’, the claimant wrote in ‘no one.’ (Transcript at 32, Exhibit No. 1.) Claimant, in his first deposition, stated that he did not notify anyone at Bronken’s about the alleged injury. (Hueth April Deposition at 85; Transcript at 20, 32.) After stating on his claim for compensation that no notice was given and in his first deposition, the claimant then filed an Affidavit to Modify Deposition Testimony which was dated July 10,1987. The Affidavit stated the claimant had given Peter Bronken notice of the alleged injury three to five days after it occurred. (Transcript at 33.)
“10. Claimant believes that he told Bronken about the injury as ‘... kind of a passing thing.’ (Transcript at 16.)
“11. Claimant’s testimony is that he was confused and nervous when he had written and stated that he had not given notice to his employer. The claim form was submitted on April 11,1986, over three months after the alleged injury and after he retained counsel. (Transcript at 37, 38.)
“12. Claimant had filed previous workers’ compensation claims, including one for an injury which occurred on October 15,1985. This claim was filed two and one-half months prior to the alleged injury of January 2,1986. (Transcript at 36,37.)
“13. Peter Bronken, who was a credible witness, testified that he first learned of the alleged injury on March 21, 1986 in a phone call to his business while he was out of state. (Transcript at 60; Bronken Deposition at 16,17.)
“14. Claimant did not report to Peter Bronken that he had suffered a knee injury on January2,1986, or at anytime during January or February of 1986. No other employees of Bronken reported that Hueth had suffered a knee injury. (Transcript at 55.) Claimant has made no statement that he notified any other supervisor at Bronken’s Distributorship and there is no evidence otherwise.
“15. Bronken filed an employer’s first report and indicated that he had no notice of the alleged injury. (Transcript at 61.)
“16. On page two of the accident history taken in a chiropractor’s office and signed by the claimant, it is indicated that the claimant had notified his employer of the alleged injury on March 3, 1986. On that date claimant was not employed at Bronken’s. (Hueth Deposition at 87.) (Emphasis in original.)”
The claimant clearly had knowledge about filing claims prior to the January 1986 alleged injury. He is a man with several years of college. When the claimant filed seeking a waiver on January 13, 1987, he submitted an affidavit in which he disavowed any claim against Mark Johnson Masonry. In it he stated:
“1. It has always been my position that Mark Johnson Masonry is not the proper party with respect to my industrial injury. That I have always believed that Bronkens [sic] Distributorship is responsible for my industrial injury. Therefore, at the time that I filed my Claim Form 54 against Bronkens [sic] Distributorship, I did not file a Claim Form 54 against Mark Johnson Masonry. However, subsequent to my filing my Form 541 have learned that possibly Mark Johnson Masonry could be responsible for my industrial injury. Said responsibility is premised upon the fact that at the time I realized I could no longer work, I was employed by Mark Johnson Masonry and not Bronkens [sic] Distributor-ship. However, it is still my position and will always be my position that Bronkens [sic] Distributorship is the party responsible for my industrial injury. However, at this time I would request that I be allowed to file a Claim Form 54 so that the Workers’ Compensation Judge may make a decision with respect to the liability of Mark Johnson Masonry and Bronkens [sic] Distributorship.
“I declare the above to be true and correct under penalty of perjury.”

In the deposition taken April 20,1987, the claimant testified that he was never injured on the job while working for Mark Johnson Masonry which contradicts his later testimony that he had suffered such injuries and told attorney Bechhold about them.

The applicable statute at the time of injury, § 39-71-601, MCA(1985), provided:

“(2) The division may upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months. (Emphasis added.)”

The hearing examiner and the Workers’ Compensation Court have not erred in consistently rejecting this claimant’s contentions that the statute should be waived.


author: JUSTICE BARZ

text:
    In re the CUSTODY AND VISITATION OF C. A. C.
    No. 90-009.
    Submitted on Briefs Aug. 30, 1990.
    Decided Oct. 30, 1990.
    246 Mont. 291.
    806 P.2d 19.
    Arnie A. Hove, Circle, for appellant.
    Art Tadewaldt, Great Falls, for respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Petitioner Dale Kemmis and respondent Joyce King Isakson are parents of a minor child, C.A.C. Kemmis filed a petition for custody and visitation of the minor child in the Eighth Judicial District, Cascade County. Isakson responded by filing a motion for change of venue to Valley County. The District Court denied Isakson’s motion for change of venue and issued an order granting Kemmis reasonable and liberal visitation with the minor child. Isakson now appeals. We reverse.

During the late 1970’s Dale Sidney Kemmis and Joyce King Isakson lived together in Glasgow, Montana. On August 27, 1977, a daughter, C.A.C., was bom to the parties. When the petitioner and the respondent separated in October 1978, they entered into a custody and support agreement. The agreement provided that the respondent would have custody of the child and the petitioner would have liberal visitation rights and pay $75 per month in support. The agreement also stated that “insofar as is legally permissible” the parties designate the Seventeenth Judicial District Court in Valley County as the court of proper jurisdiction regarding enforcement or modification of the agreement.

Shortly after the separation the respondent mother and child moved to Colorado. After being denied visitation, the petitioner obtained an order from the district court in Rio Blanco County, Colorado establishing visitation and custody, but making no mention of a support obligation. The petitioner, however, had no further visitation or contact with the child until beginning the current action.

The respondent mother and child moved back to Montana in 1980 and have lived in Valley County for most of the time since. Department of Revenue records indicate that the petitioner paid only $434 in support between May, 1981 and the time of the filing of this action. The respondent mother received AFDC payments from May, 1981 through January, 1989.

In January, 1989, the petitioner filed an action in District Court, Cascade County, the county of his residence, asking the court to adopt and enforce the Colorado order, make provisions for custody and visitation of the parties’ minor child, require his surname be given to the parties’ minor child and a substitute birth certificate be issued, and determine the support obligation. In March, 1989, the respondent mother filed a motion, brief and affidavit to change venue to Valley County, the resident county of the child. The Montana Department ofRevenue was joined as a necessary party and the court issued a temporary visitation order without ruling on the change of venue motion on July 31, 1989.

The hearing on an order to show cause was held October 24,1989, before Judge Thomas McKittrick. The petitioner was present with counsel but neither the respondent nor her attorney appeared. At the hearing, the District Court denied the respondent’s motions for continuance and change of venue. On November 1, 1989, the court entered an order granting the petitioner liberal and reasonable visitation. The respondent mother appeals.

The dispositive issue in this case is whether venue properly lies in the county where the petitioner resides or the county of the child’s residence.

The petitioner argues that Cascade County, where he resided 90 days prior to filing the petition for custody and visitation, is the proper venue pursuant to § 25-2-118, MCA. In her initial appearance the respondent filed a motion for change of venue arguing that Valley County as the child’s residence is the proper venue pursuant to § 40-4-211, MCA.

The general venue statute provides:

“Unless otherwise specified in this part:
“(1) except as provided in subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action;
“(2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint;
“(3) the proper place of trial of an action brought pursuant to Title 40, chapter 4, is the county in which the petitioner has resided during the 90 days preceding the commencement of the action.”

Section 25-2-118, MCA. Subparagraph (3) of § 25-2-118, MCA, provides an exception for cases brought under the Uniform Marriage and Divorce Act found in Title 40, chapter 4.

Although the petitioner repeatedly claims that this case was filed under the Uniform Marriage and Divorce Act (UMDA), it is clear that this action was brought under the Uniform Child Custody and Jurisdiction Act (UCCJA).

In both the Colorado action and the present action the petition was for custody and visitation. The petition was not for dissolution of a marriage, as the parties were never married. In Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d 1086, this Court outlined the two-part process required to determine whether Montana has jurisdiction to modify another state’s decree under the UCCJA. That process required: (1) a determination that Montana had jurisdiction under § 40-1-104, MCA, which by reference incorporates the jurisdictional prerequisites of § 40-4-211, MCA; and (2) a determination that the decree state no longer had jurisdiction or had declined to exercise its jurisdiction. Pierce v. Pierce (1982), 197 Mont. 16, 21, 640 P.2d 899, 902-03. Under the UCCJA the proper county for venue in a child custody caséis found in § 40-4-211, MCA, which reads in pertinent part:

“(4) A child custody proceeding is commenced in the district court:
“(a) by a parent, by filing a petition:
“(i) for dissolution or legal separation; or
“(ii) for custody of the child in the county in which he is permanently resident or found; or
“(b) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.”

Section 40-4-211(4), MCA.

In this case, the child has been a continuous resident of Valley County for nearly two years. In addition, she has been a resident of Valley County for most of her life. Thus, the proper county under the UCCJA is Valley County.

The instant case illustrates the need for the entire matter to be heard in the child’s home county where an informed decision concerning her best interests can be made on child support and custody as well as visitation. The respondent’s motion for change of venue should be granted. We therefore vacate the District Court’s order dated November 1,1989 and remand to the District Court with instructions to grant the motion for change of venue to Valley County.

Reversed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and McDONOUGH concur.


author: JUSTICE SHEEHY

text:
    DOUG JOHNS REAL ESTATE, INC., a Montana Corporation, Plaintiff and Appellant, v. VESTER R. BANTA and Theila C. Banta, Defendants and Respondents.
    No. 90-119.
    Submitted Oct. 11, 1990.
    Decided Oct. 30, 1990.
    246 Mont. 295.
    805 P.2d 1301.

      Daniel D. Johns, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for plaintiff and appellant.
    Linda Osorio St. Peter, Missoula, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case we reverse the order of the District Court, Eleventh Judicial District, Flathead County, which dismissed the plaintiff’s complaint -under Rule 41(b), M.R.Civ.P. for lack of prosecution.

Doug Johns Real Estate, Inc., (Johns) is a Montana corporation doing business as a real estate broker in Kalispell, Montana. On June 15,1987, Vester R. Banta and Theila C. Banta executed and delivered to Johns a standard listing contract, listing for sale certain real property owned by them in Flathead County. On August 25, 1987, Johns received and forwarded to the defendants an agreement signed by prospective buyers to purchase the Bantas’ property. The agreement of purchase was rejected by the Bantas.

It is apparent from the pleadings that the real estate agent claims that the prospective buyers’ agreement to purchase met the terms of the listing agreement. The Bantas contend that the terms and conditions of the proposed pinchase agreement did not meet the listing agreement. Johns contends that it has performed its broker’s agreement pursuant to the terms of the listing contract and is thereby entitled to a real estate commission equal to 10 percent of the sales price or $3,000.

Johns’ attorney made written demand for payment of the commission on November 3, 1987, upon the Bantas who reside in California. Thereafter William L. Feeney, an attorney practicing in Lake Port, California, got in touch with counsel for Johns. Negotiations between counsel apparently failed and Johns’ attorney filed a complaint in the District Court against the Bantas on March 30, 1988. A copy of the complaint was forwarded to the Bantas with a request that they acknowledge service as an alternative to being personally served by Johns.

As far as the filings in the District Court record reveal, nothing further occurred in the matter until October 25, 1988, when a written acknowledgment of service was filed on behalf of the Bantas by their local counsel, Linda Osorio St. Peter of Missoula. On November 10 , 1988, Bantas’ Montana counsel filed an answer and counterclaim. The answer in general denies the allegations of the Johns’ complaint, and counterclaims for reasonable attorneys fees and costs.

On September 27, 1989, Montana counsel for the Bantas filed a motion to dismiss for failure to prosecute pursuant to Rule 41(b), M.R.Civ.P. ssssssJohns responded to the motion on October 6, 1989, objecting to the motion to dismiss, and requesting that the court issue a scheduling order pursuant to Rule 16(b), M.R.Civ.P. Johns filed a reply to the counterclaim on October 10, 1989.

After briefs were submitted by each counsel respecting the motion to dismiss, the District Court ordered the complaint to be dismissed on January 16, 1990. The principal grounds stated by the District Court for its order follows:

“In the instant case, Plaintiff did nothing after filing his complaint. Service was not perfected on Defendants until seven (7) months after filing the action. He instituted no discovery, made no motion for scheduling order, and failed to respond to the counterclaim until the motion to dismiss was filed. Additionally, Plaintiff has given the court no reason that the action was in a “holding pattern” after he filed a complaint in March, 1988. The Supreme Court, in Thomas v. Wilson, [236 Mont. 33, 767] P.2d [1343], 46 St.Rep. 160 (1989) affirmed dismissal of a complaint in which the appellant (plaintiff) conducted no discovery and delayed any response to respondent’s discovery requests. The Court noted a conspicuous absence of any reasonable excuse for the appellants’ lack of prosecution.”

The defendants filed a notice of entry of judgment based upon the January 16, 1990, order of the District Court and Johns timely appealed from the order. Still pending in District Court is the motion of the defendant for summary judgment requesting the District Court to set reasonable attorneys fees for the Bantas.

This Court has had several occasions to deal with involuntary dismissals under Rule 41(b), M.R.Civ.P. See for example Thomas v. Wilson (1989), 236 Mont. 33, 767 P.2d 1343; Chisholm v. First National Bank of Glasgow (1989), 235 Mont. 219, 766 P.2d 868; Timber Tracts, Inc. v. Fergus Electric Co-Op, Inc. (1988), 231 Mont. 40, 753 P.2d 854; Cox v. Myllymaki (1988), 231 Mont. 320, 752 P.2d 1093; Brymerski v. City of Great Falls (1981), 195 Mont. 428, 636 P2d 846, among others.

The general rules that may be distilled from our cases are that the district court’s decision will not be disturbed unless the court clearly abuses its discretion, Timber Tracts, supra; the trial court’s discretion should not be disturbed unless there is definite and firm conviction that the district court committed a clear error in weighing the relevant factors, Schackleton v. Neil (1983), 207 Mont. 96, 101, 672 P.2d 1112, 1115; courts exist primarily to afford a forum to settle litigable matters between disputing parties, Brymarski, supra; a balance must be struck between judicial efficiency and a plaintiff’s right to meaningful access to the justice system, Cook v. Fergus Electric Co-Op, Inc. (1988), 235 Mont. 173, 176, 765 P.2d 1138, 1140; and because an involuntary dismissal is a severe result, courts should refrain from dismissing an action or claim unless there is no other adequate remedy available and the facts sufficiently call for such a result. Chisholm, supra.

The principal point of the District Court’s decision, as appears .from the paragraph we have set forth above, is that the District Court record revealed no activity concerning the case between the parties for seven months after filing the complaint. It does not appear that the District Court considered, however, in granting the motion for dismissal, copies of letters between the parties which appear to substantiate the contention of Johns’ counsel that an attempt had been made to negotiate a settlement of the claim during those seven months. On May 9, 1988, the California counsel for the Bantas, Mr. Feeney, wrote a letter to counsel for Johns, in which the California counsel indicated his understanding from a telephone conversation that Johns’ counsel had agreed to an extension of time for the Bantas to respond to the complaint, and “no default will be entered pending the outcome of our settlement negotiations.” It also appears true from those filings that counsel for Johns had forgotten that service had not been perfected until he was reminded by Montana counsel in October, 1988. The file does reflect, however, on-going correspondence over the several months between the filing of the complaint and the filing of the the answer and counterclaim with at least one offer of settlement having been made. In a letter of October 17, 1988, Montana counsel for the Bantas acknowledged a letter from Johns’ counsel dated October 3,1988, and stated that service would be accepted on behalf of Mr. and Mrs. Banta. All of this seems in accordance with an apparent understanding between the parties that the first appearance in the lawsuit of the Bantas depended upon the outcome of negotiations between the parties.

A further factor to consider is the effect of an attempt to serve summons and complaint under Rule 4D(b)(i), M.R.Civ.R That provision allows a plaintiff to serve a defendant by mail with a copy of the summons and complaint together with a notice of acknowledgment to be signed by the defendants. The benefit to the defendants by such a mode of service is that they avoid the payment of costs for personal service which would accrue in the event of an adverse judgment if they did not complete and return the acknowledgment of receipt of summons. Rule 4D(b)(ii), M.R.Civ.R

It is true, of course, following the acknowledgment of service and the filing of the answer to a counterclaim, that plaintiff did nothing further as far as the District Comb file reveals, until the motion for dismissal was made. Thereupon Johns promptly filed a reply to the counterclaim, and asked that a scheduling order be entered by the District Court. While no discovery had been attempted by either party, it is also true that the modest amount of damages sought perhaps did not merit discovery beyond presenting to the District Court a pure question of law as to whether the proffered purchase agreement met the terms of the listing agreement so as to entitle one party or the other to judgment. Under Chisholm, supra, there was another adequate remedy available here, for the District Comb could simply have scheduled the case for trial under Rule 16(b)(4), M.R.Civ.R

This Court has held that another factor to consider in determining whether an involuntary dismissal is properly granted is whether there has been a prior warning to the party occasioning the delay. Cox, 752 P.2d at 1094; Becky v. Norwest Bank Dillon, et al. (Mont. 1990), [245 Mont. 1,] 798 P.2d 1011, 47 St.Rep. 1795, 1799. In the circumstances of this case, a warning would have been appropriate.

Counsel for appellant has argued that a ten-month delay from the acknowledgment of service to the motion for dismissal is not a long enough delay to require an involuntary dismissal, and has cited to us examples of longer delays appearing in the several cases, some of which are cited above. We will not involve ourselves with that contention in this case. At the time the District Court made its order of dismissal, this case was at issue, although Johns’ reply was prompted by the motion to dismiss, and an adequate remedy was available to set the cause for trial and determine the legal issue involved. On that basis we determine that the District Court abused its discretion and reverse the order of involuntary dismissal. Cause is remanded to District Court for further proceedings.

JUSTICES HARRISON, BARZ, McDONOUGH and WEBER concur.