No. 87-203 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DAVID L. CALDWELL, 

Claimant and Appellant, 

-vsGREAT WESTERN SUGAR CO., and HUNT 

INTERNATIONAL RESOURCES CORPORATION, 

Employer, and UNINSURED EMPLOYERS' 

FUND, Defendant, and STATE COMPENSATION 

INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: ; i'agE(7' 

pClerk 
Mr. 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. 

The matter 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 Employerst Fund 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. " (Emphasis added) . 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 "shall elect 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, it was properly enrolled under plan No. 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 

claim against the Uninsured Employerst Fund. We hold that the 

Workerst Compensation Court properly interpreted the 

statutory law. Affirmed. l' 

We Concur: , 

& Ct &P+ ice 

Justices 
Mr. 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 statute because it is troublesome. 

Under § 39-71-501, MCA, an "uninsured employer" means an 

employer who has not properly 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 in part: 

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 compensation plan 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 statute as follows: 

(4) (a) A rivate corporation shall rovide 

coverage fzr 5s officers and other employee: under 

the provisions of compensation plan number 1 [self 

insurance], 2 [private insurer] or 3 [state fund 

insurance] . . . (Emphasis added. ) 

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. It has not provided 

coverage for its "other employees" 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 compensation plan number 1, 2 and 3. 

Included in that command is the statute requiring liberal 

construction of the Workers' Compensation Act in favor of 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 the Montana Occupational 

Disease Act (MODA) . In that case, we determined that the 

rationale that applies to Workers' Compensation cases applied 

to MODA, because both Acts involve the same employer/employee 

relationship and the same rules of liberal construction 

should apply. We should apply the same rules of liberal 

construction to this case and determine Caldwell 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 

"uninsured employer" 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 insert what has been omitted or to omit what has been 

inserted; where there are several provisions or particulars, 
such a construction is, if possible, to be adopted as will 

give effect to all. 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 

Mr. Justice 

employer's fund. 

William E. Hunt, Sr: 

{ 

I concur in the foregoing dis