No. 92-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

ELAINE S. WILDIN, 

Claimant and Respondent, 

-vCNA INSURANCE COMPANY, 

Insurer and Appellant. 

APPEAL FROM: The Workers' Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Todd A. Hammer, Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana 

For Respondent: 

Victor R. Halverson, Halverson, Sheehy & Plath, 

Billings, Montana; James G. Edmiston, Billings, 

Montana; L. Randall Bishop, Jarussi & Bishop, 

Billings, Montana 

submitted on Briefs: October 22, 1992 

Decided: February 4, 1993 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from the Workersq Compensation Court order 

affirming a Department of Labor and Industry (DOLI) hearing 

examiner's allocation of a settlement between the Claimant and 

State Farm Insurance. We affirm. 

There are two issues on appeal: 

1. Did the DOLI have jurisdiction over this matter? 

2. Did the DOLI err in allocating the money from the 

settlement between the Claimant and State Farm? 

Elaine Wildin (Claimant) was injured in a rear end collision 

with another motor vehicle while in the course and scope of her 

employment. CNA Insurance company (CNA) insured Claimant's 

employer, the ~illings Gazette, with workers8 compensation 

coverage. State Farm c ire and Casualty Company (State Farm) 

insured the driver of the vehicle which hit Claimant. CNA paid to 

the Claimant medical and disability benefits of over $35,000 after 

accepting liability for the payments. 

Shortly thereafter, Claimant filed a civil action against 

State Farm's insured and contacted CNA to determine if they would 

join the action. Claimant's attorney never received an answer 

regarding CNAts participation in the action. In July 1989, the 

Claimant and State Farm agreed on a settlement of $15,000 in 

exchange for a full release and discharge of the claims in the 

third party action. Drafts and the release were forwarded. CNA 

would not agree with the terms of settlement and took the position 

that $15,000 was insufficient considering the overall amount of 

2 
workers' compensation benefits already paid. 

Claimant then filed a "Petition for Division Order Determining 

Subrogation" to allocate the settlement funds. CNA responded to 

the petition stating that the settlement payment was inadequate. 

The DOLI concluded that it had jurisdiction over the allocation 

determination and that CNA should receive $6,666.67 and Claimant 

should receive $3,333.33 after a $5,000 deduction for attorney's 

fees. CNA appealed to the Workers' Compensation Court which 

affirmed the hearing examiner. CNA now appeals to the Montana 

Supreme Court. 

Our standard of review as to findings of fact, made by the 

Workers' Compensation Court, is whether they are supported by 

substantial evidence. McIntyre v. Glen Lake Irr. Dist. (1991), 249 

Mont. 63, 67, 813 P.2d 451, 454. "[O]ur standard of review 

relating to conclusions of law, whether the conclusions are made by 

an agency, workers' compensation court, or trial court, is whether 

the tribunal's interpretation of the law is correct." Steer Inc. 

v. Dept. of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 

603. 

The first question on appeal is whether the DOLI had 

jurisdiction to allocate the funds from the settlement between the 

Claimant and State Farm. The jurisdiction question actually hinges 

upon whether State Farm and the Claimant had actually settled the 

claim and whether the Claimant could settle the claim without CNA1s 

consent. 

Section 39-71-412, MCA, provides that: ". . . the employee 
. . . shall, in addition to the right to receive compensation under 

this chapter, have a right to prosecute any cause of action he may 

have for damages against such persons or corporations." The 

statute provides that the right to bring a cause of action against 

the third party belongs to the claimant alone. There is no 

provision which mandates the insurer's consent before the action 

can be brought. The "[f]unction of the Supreme Court when 

construing a statute is simply to ascertain and declare what is in 

substance stated therein, and not to insert what has been omitted 

or to omit what has been inserted. " Mont. Dept. of Rev. v. Am. 

Smelting & Refining (1977), 173 Mont. 316, 324, 567 P.2d 901, 905- 

906. Here, CNA would have us insert language to provide that the 

insurer also controls the handling of the action. The right to 

bring an action would be meaningless without the right to also 

dispose of the action through settlement or other means. 

Moreover, 5 39-71-414, MCA, provides for the insurer's role in 

the action. It provides that the insurer is entitled to 

subrogation for compensation and benefits paid. If the claimant 

brings an action against the third party, claimant is to inform the 

insurer, who may decide to participate in the action. It also 

states that the insurer may bring an action itself if the claimant 

does not bring an action within a year of the date of the injury 

and that the insurer may enter its own settlement for subrogation, 

The statute provides for no more than these rights. The insured 

may settle an action without the consent of the insurer. If the 

legislature wanted the insurer to exercise such control over the 
insured, they would have so stated. 

The question of whether the Claimant and State Farm had 

settled their claim before the Claimant petitioned the DOLI to 

allocate the proceeds of the settlement is answered in the 

affirmative. Subsection (5) of 5 39-71-414, MCA, states that: 

"[ilf the amount of compensation and other benefits payable have 

not been fully determined at the time the employee, . . . have 

settled in anv manner the action as provided for in this section, 

the division shall determine what proportion of the settlement 

shall be allocated under subrogation. . . ." (Emphasis added.) In 

this case, the Claimant and third party (State Farm) fulfilled this 

requirement before the Claimant petitioned for the allocation of 

the settlement funds. 

Claimant's attorney informed the CNA Claims Adjuster in charge 

of Claimant's workers' compensation case, that he had received a 

settlement draft for $15,000. CNA took the position that $15,000 

was inadequate compensation considering the payments and benefits 

already paid. The Claimant thereafter filed a petition with the 

DOLI Workers' Compensation Division for an allocation of the 

settlement funds. 

As far as the Claimant and State Farm were concerned, there 

was total agreement on the third party settlement. This is 

sufficient to meet the 5 39-71-414(5), MCA, requirement that the 

action be "settled in any manneru before the DOLI could allocate 

the settlement funds. 

CNA argues that the case should not have been settled because 
the Claimant had not arrived at maximum healing before she settled 

her claim with State Farm. There is no provision in 5 39-71-414, 

MCA, which mandates that a third party action cannot be settled 

until the claimant reaches maximum healing. 

Subsection (5) of 39-71-414, MCA, contemplates that 

compensation and other benefits may not be completely decided when 

the claim is settled and the Division is asked to allocate the 

funds. Subsection (5) states that "Jil f the amount of compensation 

and other benefits payable under the Workers' Compensation Act have 

not been fullv determined at the time the emolovee, ... have settled 

in anv manner the action . . . , the division shall determine what 

proportion of the settlement shall be allocated under subrogation." 

(Emphasis added.) 

This Court stated in First Interstate Bank v. Tom Sherry Tire 

(1988), 235 Mont. 48, 52, 764 P.2d 1287, 1289, that "where the 

settlement of a third-party action precedes full determination of 

the workers' compensation claim, the Division is the proper forum 

for resolving the issue of the proper amount of subrogation 

allocated to the insurer." Maximum healing does not have to occur 

before a claimant can settle her claim. 

Finally, CNA argues that the hearing examiner and the lower 

court ignored principles of equity and fairness in their 

disposition of this case. However, this Court has stated that 

"[ilt has always been our rule that it is the province of courts to 

construe and apply the law as they find it and to maintain its 

integrity as it has been written by a coordinate branch of the 
state government. When the terms of the statute are plain, 

unambiguous, direct and certain, it speaks for itself and there is 

no room for construction." Bay v. State, Dept. of Admin. (1984), 

212 Mont. 258, 265, 688 P.2d 1, 4. 

AFFIRMED. 

@c-&A&~/ Justice 
February 4, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Todd A. Hammer 

WARDEN, CHRISTIANSEN, JOHNSON & BERG 

P.O. Box 3038 

Kalispell, MT 59903-3038 

L. Randall Bishop 

Attorney at Law 

P.O. Box 3353 

Billings, MT 59103-3353 

James G. Edmiston 

Attorney at Law 

P.O. Box 7187 

Billings, MT 59104-7187 

Victor R. Halverson 

Halverson, Sheehy, and Plath 

P. 0. Box 1817 

Billings, MT 59103-1817 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA