No. 86-508 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

SUSAN M. HUNNEWELL, 

Plaintiff and Appellant, 

-vsRICK SYME, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. Charles Stahmer, Rozeman, Montana 

For Respondent : 

Robert T. Curnmins, Helena, Montana 

-- 

Submitted on Briefs: Sept. 10, 1987 

Decided: December 31, 1987 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

The plaintiff appeals the District Court's order 

granting the defendant's motion for summary judgment. The 

issue raised on appeal is whether an employee can recover 

bodily injury damages when the only negligence alleged by the 

employee in the court below was the employer's failure to 

carry workers' compensation insurance. We affirm. 

In May 1981, Susan Hunnewell started working for Mr. 

Syme. In July 1981, Ms. Hunnewell attended a roping clinic 

in Conrad, Montana at the direction of Mr. Syme. Mr. Syme 

was paying her and she was in Conrad for his benefit. While 

there, the horse she was roping on was undercut by a steer. 

Ms. Hunnewell and the horse both tumbled, injuring Ms. 

Hunnewell. After the accident Mr. Syme notified Ms. Hunnewell 

that he did not carry workers' compensation insurance. There 

is a question of fact as to whether the parties were involved 

in an employment relationship. For the purposes of reviewing 

the motion for summary judgment Ms. Hunnewell's allegations 

that it was an employment relationship will be presumed true. 

In June 1984, Ms. Hunnewell filed a complaint alleging: 

I. 

That the Defendant, RICK SYME, employed the 

Plaintiff, SUSAN M. HUNNEWELL, as a horse trainer. 

11. 

Plaintiff was employed for the Defendant from 

May 1, 1981 to July I?, 1981. 
111. 

On the 17th of July, 1981, the Plaintiff, 

while engaged in the course of her employment, 

received severe bodily injuries. 

IV. 

The Plaintiff was uninsured as provided by the 

Workman's Compensation Act of the State of Montana, 

M.C.A. 39-71-509, said Plaintiff was electing to 

pursue damage action against the Defendant as her 

employer. 

The District Court granted Mr. Syme's motion for summary 

judgment holding that Ms. Hunnewell failed to present a prima 

facie case of negligence. Employees electing to sue 

employers under § 39-71-509, MCA (1981), rather than initiate 

proceedings against the uninsured employers' fund, 5 

39-71-502, MCA, must present a prima facie case of negligence 

to maintain an action for damages against an employer. The 

District Court cited Chancellor v. Hines Motor Supply (1937), 

104 Mont. 603, 69 P.2d 764, as authority. 

Ms. Hunnewell argues that she did allege negligence on 

the defendant's part, even though he had no part in causing 

her physical injuries. Ms. Hunnewell contends: 1) that $ 

39-71-401 (1) , MCA, requiring employers to carry workers' 

compensation insurance, establishes a standard of care owed 

to employees to carry workers' compensation insurance; 2) 

that Mr. Syme failed to carry workers' compensation 

insurance; 3) that a violation of this statutory duty 

constitutes negligence per se; and 4) that she suffered 

financial damage because she was deprived of the compensation 

she would have received had Mr. Syme been covered by workers' 

compensation insurance. Mr. Syme asserts that a damage 
action under 5 39-71-509, MCA, requires proof of negligence 

that results in physical injury only. 

In Boehm v. Alanon Club (Mont. 19861, 722 P.2d 1160, 43 

St.Rep. 1341, this Court reaffirmed the holding in Chancellor 

that an action for damages against an employer requires the 

employee to present a prima facie case of negligence. 

Chancellor stated "An injured employee, who avails himself of 

the right given to him by the statute in question, is 

nevertheless bound to prove that the injury for which he sues 

was caused by the employer's negligence." Chancellor, 69 

P.2d at 767. Although Ms. Hunnewell admits that Mr. Syme had 

no part in causing her physical injuries, she asserts she has 

alleged the negligence necessary to pursue a damage claim 

pursuant to 5 39-71-509, MCA, by simply asserting that Mr. 

Syme did not have workers' compensation insurance. 

This contention is incorrect for several reasons. 

First, even if Mr. Syme was negligent by not carrying 

workers' compensation insurance, his negligence was not the 

proximate cause of Ms. Hunnewellls injuries. The Workers1 

Compensation Act defines injury as: 

(a) internal or external physical harm to the 

body; 

(b) damage to prosthetic devices or 

appliances, except for damage to eyeglasses, 

contact lenses, dentures, or hearing aids; or 

(c) death. 

Section 39-71-119, MCA. Financial injury, such as Ms. 

Hunnewell alleges, is not the sort of injury contemplated as 

compensable by way of a tort claim under S 39-71-509, MCA. 

Although Ms. Hunnewell suffered physical injury, Mr. Syme's 
failure to carry insurance was in no way the proximate cause 

of her physical injuries. 

Second, Mr. Syme's failure to comply with 5 39-71-401, 

MCA, does not constitute negligence per se. Workers ' 

compensation statutes were enacted as social insurance rather 

than to provide for damages in tort-connected liability 

cases. Mahlum v. Broeder (1966), 147 Mont. 386, 394, 412 

P.2d 572, 576. Mr. Syme's failure to comply with 5 39-71-401 

is not the proximate cause of Ms. Hunnewell's injuries 

because: "To constitute negligence per se, a statutory 

violation must also be the proximate cause of the injuries 

sustained." Kudrna v. Comet Corp. (1977), 175 Mont. 29, 39, 

572 P.2d 183, 189. 

Finally, the Workers' Compensation Act has been amended 

since Ms. Hunnewell's accident. Section 39-71-515, MCA, 

gives employees an independent cause of action against 

uninsured employers by imposing liability simply on the basis 

of the employer's failure to be enrolled in a workers' 

compensation plan. This does not help the appellant in this 

case. The cause of action Ms. Hunnewell alleges, imposing 

liability on an employer based solely upon failure to enroll 

in a workers' compensation plan, did not exist at the time of 

her injury. The law at the time of her injury governs 

recovery. lverson v. Argonaut Insurance Company (Mont. 

1982), 645 P.2d 1366, 1367, 39 St.Rep. 1040, 1041. 

Ms. Hunnewe11 also raises the argument that if she is 

not allowed to recover in a damamge action she will be denied 

her constitutional right of full redress pursuant to Art. 11, 

section 16 of the Montana Constitution. This argument has no 

application in this case. A "speedy remedy afforded for 
every injury" does not equate to damages without first 

establishing liability. Thus, the District Court did not err 

when it granted summary judgment in favor of respondent. 

Affirmed. 

We concur: A 

Justice