No. 87-203
INTHE SUPREME COURT OF THE STATEOF MONTANA
1987

DAVID L. CALDWELL, Claimant and Appellant,-vsGREATWESTERN SUGAR CO., and HUNT INTERNATIONALRESOURCES CORPORATION, Employer, and UNINSURED EMPLOYERS' FUND, Defendant,and STATECOMPENSATION INSURANCEFUND, Defendant and Respondent.

APPEAL FROM: TheWorkers' Compensation Court, The Honorable Timothy Reardon,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Whalen & Whalen; Timothy J. Whalen, Billings, Montana
For Respondent: Allen B. Chronister,Agency Legal Services, Helena, Montana

Submitted on Briefs: Aug. 13, 1987 Decided: December 10, 1987 Filed: ; 

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pClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

Claimant Caldwell appeals the Workers' Compensation Court's order dismissing his claim for benefits from the Uninsured Employer's Fund. We affirm. On May 5, 1983, Caldwell suffered an industrial injury while working at Great Western Sugar in Billings, Montana. Great Western, a self-insured employer, accepted liability for Caldwell's injury and paid temporary total benefits until February 23, 1985. Subsequently, Great Western Sugar went bankrupt and benefits ceased. After benefits ceased, Caldwell petitioned for coverage from the Uninsured Employers' Fund. The Workers' Compensation Court denied coverage holding that at the time of the injury and thereafter, the claimant's employer was not an uninsured employer. The issue on appeal is whether the court properly dismissed the Uninsured Employers' Fund. Thematter presented by this appeal concerns the court's conclusion of law defining who is and when an employer is an uninsured employer within the meaning 

### of the Uninsured Employers' statute as applied to the Uninsured Employers' Fund. We will decide this issue accordingly. Statutory construction must give proper effect to legislative intent. Here, the question concerns the purpose and function of the Uninsured Employers' Fund. Hendy v. Industrial Accident Board (1944), 115 Mont. 516, 146 P.2d 324. At the time of the injury, the law called for liberal construction of the Workers' Compensation statutes, § 39-71-104, MCA (1981), however, this does not mean that the clear meaning of the statute can be ignored, Olson v. Manion's Inc. (1973), 162 Mont. 197,510 P.2d 6.Section 39-71-508, MCA, provides that an employee is entitled to a claim against the Uninsured EmployerstFund if he "suffers

## - an injury out of and in the course of employment while working 

### - for 

### - an uninsured employer as defined in 39-71-501.

### " (Emphasisadded)

# . Uninsured employer is defined by $ 39-71-501, MCA, as "an employer who has not properly complied with the provisions of 39-71-401." Section 39-71-401 requires that employers "shallelect to be bound by the provisions of compensation plan No. 1, 2 or 3." When Caldwell was injured, Great Western Sugar was not an uninsured employer, itwasproperly enrolled under planNo. 1 and paid benefits for approximately two years. Clearly, Caldwell was not injured while working for an uninsured employer. Therefore, Caldwell is not eligible to have a claimagainst theUninsured EmployerstFund. We hold that the Workerst Compensation Court properly interpreted the statutory law. Affirmed. l'

We Concur:

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JusticesMr. Justice John C. Sheehy,dissenting:

The majority have selectively interpreted $ 39-71-401, MCA, regarding that portion of the statute which accords with their view of the case, and disregarding an equally applicable portion of the statutebecause it is troublesome. Under § 39-71-501,MCA,an "uninsured employer"means an employerwhohas notproperly complied with the provisions of S 39-71-401, MCA. Note that the definition refers to the whole of S 39-71-401, and not merely to subdivision (1) thereof. The majority have relied on subdivision (1) of S 39-71-401, which provides inpart: An employer who has any employee in service under any appointment or contract of hire, express or implied, oral or written, shall elect to be bound by the provisions of compensationplan number 1, 2 or 3.. 

# .. However that is not the only duty placed upon employers under $ 39-71-401. It is provided in subdivison (4) (a)of that statuteas follows: (4) (a) A rivate corporation shall rovide coverage fzr 5s officersand other employee: under the provisions of compensationplan number 1 [self insurance], 2 [private insurer] or 3 [state fund insurance]

# .. . (Emphasisadded.)
Great Western Sugar Company enrolled under plan number 1, a self insurer. It is a private corporation and so is bound by subdivision (4)of S 39-71-401. Ithas notprovided coverage for its "otheremployees"as a self insurer as it is required to do under that subdivision. Thus under S 39-71-501, Great Western Sugar Company is an "uninsured employer" because it has not properly complied with the provisions of 39-71-401.In § 39-71-505,MCA, it is provided that with respect to uninsured employers, all appropriate provisions in the Workers' Compensation Act apply to the fund in the same
manner as they apply to compensationplan number 1, 2 and 3. Included in that command is the statute requiring liberal constructionof the Workers' Compensation Act in favorof the employee, a statute which was in effect at the time of this loss.In Gidley v. W. R. Grace and Company (1986), 717 P.2d 21, 43 St.Rep. 616,we had before us theMontana Occupational Disease Act (MODA)

# . In that case, we determined that the rationale that applies toWorkers' Compensation cases applied to MODA,because bothActs involve the sameemployer/employee relationship and the same rules of liberal construction should apply. We should apply the same rules of liberal construction to this case and determineCaldwell in effect is in fact an employee of a "insured employer" because his employer has not provided coverage to him to the extent that he is entitled. Liberal construction is not required in this case; literal construction is. Under 39-71-401(4)(a), MCA, a private corporation such as Great Western is required to provide coverage for its employees under some compensation plan. It has not complied with that provision. It is an "uninsuredemployer"under B 39-71-501,MCA. It is mere babble in this case to talk about the clear meaning of the statute, where literally and clearly Great Western is an uninsured employer. In the construction of a statute, the office of the Court is simply to ascertain and declare what is in terms or is substance contained therein, not to insertwhat has been omitted or to omitwhat has been inserted;where there are several provisions or particulars,such a construction is, if possible, to be adopted as will give effect toall. Section 1-2-201, MCA. This Court is conunitting a grave error in denying this worker access to such benefits as may he available from the uninsured employer's fund. 

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Mr. JusticeWilliam E. Hunt, Sr:

I concur in the foregoing dis