No. 14989 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES E. SHANNON, 

Claimant and Appellant, 

-vsPAUL C. KELLER and LYNN SORDIE, 

d/b/a K & S TRANSPORT, 

Employer, 

and 

STATE COMPENSATION UNINSURED EMPLOYERS' 

FUND, 

Defendant and Respondent. 

Appeal from: Workers' Compensation Court, The Honorable 

William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Olsen, Christensen & Gannett, Billings, Montana 

For Respondent: 

Tim Reardon, Helena, Montana 

Submitted on Briefs: March 27, 1980 

Decided: JUN 2 4 

- i yd&Q Filed: - 

t\Jp! lt -- 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Claimant-appellant James E. Shannon sought benefits from 

the Uninsured Employers' Fund for injuries received September 24, 

1977. Claimant appealed to the Workers' Compensation Court 

after relief had been denied by the Division of Workers' Compensation. The Workers' Compensation Court also denied relief and 

Shannon brings this appeal. 

Claimant, James E. Shannon, was employed by Paul C. Keller 

and Lynn Sordie, d/b/a K & S Transport, in September 1977. On 

September 24, 1977, Shannon was seriously injured when a tractortrailer rig was involved in an accident in Deer Lodge County. At 

the time of the accident, claimant was a relief driver and was in 

the truck sleeper. His injuries consisted of multiple fractures 

and resulted in hospitalization and extensive treatment. Shannon's 

employer did not have workers' compensation insurance coverage. 

In June 1978, claimant filed a claim with the Division 

of Workers' Compensation, seeking benefits from the Uninsured 

Employers' Fund. His claim was denied on the ground that his injury occurred before the effective date of the payout provision of 

the Uninsured Employers' Fund. 

Claimant's petition to the Workers' Compensation Court 

was denied. The judgment was based on the following provision 

contained in section 92-214, R.C.M. 1947 (not codified in MCA): 

"Effective date of uninsured employers fund. 

Except as provided in this section, 92-212 is 

The Workers' Compensation Court found: 

"That the Division's position relative to the 
retroactive effect of the Uninsured Employers' 

Fund to cover accidents occurring prior to January 

1, 1979 is intended to preserve the fund and make 

it solvent for accidents happening after January 1, 

1979 and said construction is a valid and correct 

construction of the law." 

The claimant contends on appeal that the date specified 

to commence payouts, i.e. the date on which the fund attains a 

level of $150,000 or January 1, 1979, whichever occurs first, 

merely requires a claimant to wait until this date to secure 

payment but does not preclude recovery for injuries sustained 

prior to the date. This contention is based upon the effective 

date of the statute, July 1, 1977. 

The sole issue on appeal is whether an employee, who was 

injured prior to the effective payout date of section 92-214, 

R.C.M. 1947, may collect benefits from the Uninsured Employers' 

Fund. 

If the statute is plain, unambiguous, direct and certain, 

the statute speaks for itself and there is nothing left for the 

Court to construe. Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 

438 P.2d 660; Doull v. Wohlschlager (1963), 141 Mont. 354, 377 

P.2d 758. If the statute is ambiguous or unclear the intention 

of the legislature is to be pursued if possible. Section 1-2-102, 

MCA. To ascertain the legislative intent, recourse must first be 

had to the language employed and to the apparent purpose to be 

subserved. State ex rel. Krona v. Holmes (1943), 114 Mont. 372, 

136 P.2d 220. 

In order to more plainly determine the legislative intent 

and purpose in passing the Uninsured Employer's Fund, the relevant 

statutes are set out below as they were presented to the legislature, Ch. 550, Laws of Montana (1977), and as contained in R.C.M. 

1947. Section 92-214, R.C.M. 1947, has not been codified in MCA. 

The remaining portion of the Uninsured Employers' Fund has been 

codified in sections 39-71-501, MCA through 39-71-510, MCA. 
"92-213. Election of uninsured em~lovee to take 

under the fund or bring action against employer-- 

limitation on benefit entitlement under the fund. .-. 

(1) An employee who suffers an injury arisinq out 

of and in the course of employment while working 

for an uninsured employer as defined in 92-212(1), 

or an employee's beneficiaries in the injuries 

resulting in death, may elect to either Geceive 

benefits from the uninsured employers fund or pursue 

a damage action against the employer. However, once 

an election has been made to either take from the 

fund or pursue a damage action, the election is 

final and binding on the employee or the employee's 

beneficiaries, heirs, and personal representatives. 

An injured employee or the employee's beneficiaries 

may not receive both benefits from the fund and pursue a damage action. If an injured employee or the 

employee's beneficiaries elect to bring an action 

to recover damages for personal injuries sustained 

or for death resulting from personal injuries so 

sustained, it is not a defense for the employer that 

the : 

"(a) employee was negligent unless such negligence 

was willful: 

"(b) injury was caused by the negligence of a fellow 

employee; or 

"(c) employee had assumed the risks inherent in, 

incident to, or arising out of his employment or 

arising from the failure of the employer to provide 

and maintain a reasonably safe place to work or 

reasonably safe tools or appliances. 

"(2) Notwithstanding the provisions of 92-212 and 

92-614, injured employees or an employee's beneficiaries who elect to receive benefits from the uninsured employers fund are not granted an entitlement by this state for full workers' compensation 

benefits from the fund. Benefits from the fund 

shall be paid in accordance with the sums in the 

fund. If the division determines at any time that 

the sums in the fund are not adequate to fully pay 

all claims, the division may nake appropriate 

proportionate reductions in benefits to all claimants. The reductions do not entitle claimants to 

retroactive reimbursements in the future." (Emphasis 

added. ) 

"92-214. Effective date of uninsured employers' 

- fund. Except as provided in this section, 92-212 

is effective on July 1, 1977. Payouts for benefits 

may not be made from the uninsured employers' fund 

until the fund attains a level of $150,000 or January 1, 1979, whichever occurs first. However, 

until payouts for benefits from the uninsured 

employers' fund begin, an uninsured employer, as 

defined in 92-212(1), is subject to suit by an 

employee who suffers an injury arising out of and 

in the course of employment. In any such action 

to recover damages for personal injuries sustained 

or for death resulting from personal injuries so 
sustained, it is not a defense that the: 

"(1) employee was negligent unless such negligence 

was willful; 

" (2) injury was caused by the negligence of a 

fellow employee; or 

"(3) employee had assumed the risks inherent in, 

incident to, or arising out of his employment or 

arising from the failure of the employer to provide 

and mai?.~t.ain a reasonably safe place to work or 

reasonable safe tools or appliances." 

The ambiguity created under the two preceding statutes is 

the result of the legislative failure to expressly specify that 

causes of action arising prior to the effective payout date may 

only be maintained against the employer. However, this intent is 

readily determinable from the language of the statutes and the apparent underlying purpose. Section 92-214, R.C.M. 1947, states 

that July 1, 1977, is the effective date for section 92-212, R.C.M. 

1947, which creates the Uninsured Employers' Fund and reveals the 

purpose, funding and administration of the fund. Section 92-214, 

R.C.M. 1947, further provides that in the period between July 1, 

1977, and January 1, 1979, an injured employee may initiate an 

action against the uninsured employer who does not have the benefit of certain common law defenses. The purpose of this provision 

is to allow the fund to attain a sufficient level to pay claims 

without a substantial risk of insolvency. This purpose is further 

bolstered by the provision of 92-213(2), R.C.M. 1947, which provides that injured employees are not entitled to retroactive reimbursements if the division determines that there is not sufficient 

funds to pay all benefits. 

We conclude that the legislative intent and purpose for 

including section 92-214, R.C.M. 1947, was to ensure the likelihood of the Fund's solvency by requiring employees injured prior 

to the effective date to seek recovery from the uninsured employer. 

Without this interpretation, the Uninsured Employers' Fund would 
immediately become available to hundreds of claimants injured 

prior to January 1, 1979, which would defeat the purpose of 

the effective date provision contained in section 92-214, R.C.M. 

1947. 

The judgment of the Workers' Compensation Court is 

affirmed. 

Chief Justice