No. 86-508


### IN THE SUPREME COURT OF THE STATEOF MONTANA 

### 1987

SUSANM. HUNNEWELL, Plaintiffand Appellant,-vsRICK SYME, Defendantand Respondent.

APPEAL FROM: District Court of the Ninth JudicialDistrict, In and for the County of Pondera, TheHonorableR. D. McPhillips,Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
H. Charles Stahmer,Rozeman, Montana For Respondent: Robert T. Curnmins, Helena,Montana



### -- Submitted on Briefs: Sept. 10, 1987 Decided: December 31, 1987

ClerkMr. 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 damageswhen 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 shewas 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 accidentMr. Syme notified Ms. Hunnewell thathe did not carryworkers' compensation insurance. There is a questionof fact as towhether theparties were involved in an employmentrelationship. For thepurposes of reviewing the motion for summary judgment Ms. Hunnewell's allegations that it was an employment relationshipwill 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 severebodily injuries.
IV. The Plaintiffwas 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 judgmentholding thatMs. Hunnewell failed topresent aprima facie case of negligence. Employees electing to sue employersunder § 39-71-509,MCA (1981),rather than initiate proceedings against the uninsured employers' fund, 5 39-71-502, MCA,must present aprima facie case of negligence to maintain an action for damages against an employer. The DistrictCourt cited Chancellorv. HinesMotor Supply (1937), 104Mont. 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 shewould have receivedhad Mr. Symebeen covered by workers' compensation insurance. Mr. Syme asserts that a damageaction under 

### 5 39-71-509, MCA, requires proof of negligence that results inphysical 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 neverthelessbound to prove that the injury forwhich he sues
was caused by the employer's negligence." Chancellor, 69 P.2d at 767. Although Ms. Hunnewell admits thatMr. Symehad
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. Symedid nothave 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. Hunnewelllsinjuries. The Workers1 CompensationAct defines injury as: (a) internal or external physicalharm 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'sfailure to carry insurancewas in no way the proximate cause ofher physical injuries. Second, Mr. Syme's failure to comply with 

### 5 39-71-401, MCA, does not constitute negligence per se. Workers

### ' compensation statuteswere 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 complywith 

### 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 employersby imposing liability simply on thebasis 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 aworkers' 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 redresspursuant toArt. 11, section 16 of the Montana Constitution. This argumenthas no application in this case. A "speedy remedy afforded forevery 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