No. 85-302 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

BILLINGS DEACONESS HOSPITAL, INC., 

Plaintiff, 

JUDITH K. ANGEL, 

Defendant and Third Party 

Plaintiff and Appellant, 

and 

GARY R. ANGEL, 

Defendant and Third Party 

Plaintiff, 

and 

TRAVELERS INSURANCE COMPANY, 

Third Party Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly & Halverson, P.C.; Bradley J. Finn, Billings, 

Montana (Judith Angel) 

For Respondent: 

Crowley Law Firm; L. Randall Bishop, Billings, 

Montana (Travelers Insurance) 

Submitted on Briefs: Oct. 3, 1985 

Decided: January 21, 1986 

Filed: JaN 2 1 1986 
Mr. Justice Fred 2. Weber delivered the Opinion of the Court. 

In the District Court of Yellowstone County, Billings 

Deaconess Hospital, Inc. brought a collection action against 

Judith K. Angel and her husband for services rendered to Mrs. 

Angel. Mrs. Angel cross-claimed against Travelers Insurance 

Company (Travelers ) claiming that Travelers should have paid 

the medical expenses under workers' compensation coverage. 

The District Court ruled it lacked subject matter 

jurisdiction. Mrs. Angel appeals. We affirm. 

The issues are: 

I.. Did the District Court err in dismissing Mrs. 

Angel's third-party complaint on the ground that exclusive 

jurisdiction to resolve the dispute lies in the Workers' 

Compensation Court? 

2. May Mrs. Angel challenge the constitutionality of 

S 39-71-2905, MCA, for the first time on appeal? 

Billings Deaconess Hospital brought an action against 

Mrs. Angel for services rendered to her in the sum of 

$13,510.23, which included interest up to the date of the 

filing of the complaint. Mrs. Angel filed an answer 

admitting the essential allegations of the complaint. She 

a.lso filed a third-party complaint which alleged that the 

medical care and services rendered to her were required as a 

direct result of an industrial accident and that the employer 

was insured with Travelers. She demanded judgment against 

Travelers for all sums that might be adjudged owing by her to 

Billings Deaconess Hospital. 

The third-party complaint alleged that the indemnity 

liability of Travelers arose because Travelers was the 

workers' compensation carrier for Yellowstone Boys Ranch and 

Mrs. Angel's hospital treatment was related to injuries she 
sustained in the course of and arising out of her employment 

with Yellowstone Boys Ranch. 

Travelers made a motion to dismiss. The affidavit filed 

in support of the motion to dismiss established that the same 

claim for payment of medical expenses was the subject of a 

petition for trial presently pending before the Workers 

Compensation Court. That petition was filed by Mrs. Angel on 

July 13, 1983 and requested payment of disputed medical 

bills. The trial was held before the Workers' Compensation 

Court on September 27, 1983. The case has not been submitted 

to the Workers' Compensation Court due to delays in taking 

post-trial depositions of medical care providers. BY 

stipulation of the parties before the Workers' Compensation 

Court, jurisdiction over Mrs. Angel's claimed entitlement to 

payment for medical bills lies in the Workers' Compensation 

Court. 

Based upon the record established. in Travelers' 

uncontradicted affidavit and following oral argument, the 

District Court entered its order dismissing Mrs. Angel's 

third-party complaint. She appeals. 

I 

Did the District Court err in dismissing Mrs. Angel's 

third-party complaint on the ground that exclusive 

jurisdiction to resolve the dispute lies in the Workers' 

Compensation Court? 

In substance, Mrs. Angel argues that she was entitled to 

the relief claimed in her third-party complaj-nt because of 

the provisions of Rule 14 (a) , M. R.Civ. P., which in pertinent 

part states: 

At any time after commencement of the action a 

defending party, as a third-party plaintiff, ma-y 

cause a summons and complaint to be served upon a 

person not party to the action who is or may be 
liable to him for all or part of the plaintiff's 

claim against him. 

Mrs. Angel argues that there is absolutely no language in 

Rule 14(a) which bars the third-party compla.int. She further 

argues that the District Court has original jurisdiction in 

all civil matters under the Montana Constitution. Mrs. Angel 

concludes that the District Court was required to determine 

that the Workers' Compensation Court had either concurrent or 

exclusive jurisdiction. She contends the District Court 

should have proceeded to hear the merits of the third-party 

complaint or stayed all proceedings in the collection action 

until the issue in the third-party complaint was final3.y 

resolved by the Workers' Compensation Court. 

The District Court dismissed Mrs. Angel's third-party 

complaint on the ground that excl-usive jurisdiction to 

resolve the dispute rested with the Workers' Compensation 

Court. Section 39-71-2905, MCA, states in pertinent part: 

. . . The workers' compensation judge has exclusive 

jurisdiction to make determinations concerning 

disputes under chapter 71, except as provided in 

39-71-516 . . . 

The exception provided in S 39-71-516, MCA, is not relevant 

to the present issue. 

Section 39-71-2905, MCA, was considered at length in 

State, Etc. v. Hunt (Nont. 1981), 625 P.2d 539, 38 St.Rep. 

421. In that case a petition had been filed with the 

Workers' Compensation Court seeking a determination as to 

whether Norman Beebe was an employee of one of several 

employers or an independent contractor. The Uninsured 

Employers Fund sought a writ of prohibition from this Court 

contending that the workers' compensation judge had no 

jurisdiction to determine which party was Mr. Beebe's 

employer. The Uninsured Employers Fund also brought a 

separate action in the Fourth Judicial District Court raising 
similar issues. In its holding, this Court pointed out that 

a claimant or an insurer who has a dispute may petition the 

Workers' Compensation Court for determination of the dispute 

under S. 39-71-2905, MCA. This Court noted that the workers' 

compensation judge has exclusive jurisdiction to make 

determinations concerning disputes regarding workers' 

compensation. We pointed out that cases handled by the 

Workers' Compensation Court had not been limited to disputes 

between insurers and employees. This Court concluded that 

the dispute related to benefits payable to a claimant, and 

under S 39-71-2905, MCA, the Workers' Compensation Court had 

exclusive jurisdiction. 

Although the Workers' Compensation Court is not 

vested with the full powers of a District Court, it 

nevertheless has been given broad powers concerning 

benefits due and payable to claimants under the 

Act. It has the power to determine which of 

several parties are liable to pay the Workers' 

Compensation benefits . . . and other matters that 

go beyond the minimum determination of the benefits 

payable to an employee. 

We determine that the Workers' Compensation Court 

has exclusive jurisdiction of this cause relating 

to the benefits of Beebe. 

Hunt, 625 P.2d at 542, 38 St.Rep. at 425. 

The items in question in the present case are hospital 

services. Section 39-71-704(l) (a), MCA, provides that in 

addition to the compensation provided under chapter 71 and as 

an "additional benefit" separate and apart from compensation, 

the insurer shall furnish reasonable services by a physician 

and surgeon and reasonable hospital services and medicines 

when needed. It is clear that the hospital services here in 

question are benefits under the Workers' Compensation Act. 

We conclude that the third-party complaint filed by Mrs. 

Angel seeks to transfer to a District Court a benefits 

dispute, which is presently pending before the Workers' 
Compensation Court. The Workers' Compensation Court has 

exclusive jurisdiction over that dispute. 

We hold. that the District Court correctly dismissed Mrs. 

Angel's third-party complaint on the grounds that exclusive 

jurisdiction rests in the Workers' Compensation Court. 

May Mrs. Angel challenge the constitutionality of 

5 39-71-2905, MCA, for the first time on appeal? 

Mrs. Angel raised no question as to the 

constitutionality of S 39-71-2905, MCA, before the District 

Court. In the briefs to this Court, Mrs. Angel argues that 

by implication, at least, the grant of exclusive jurisdiction 

to the Workers' Compensation Court in § 39-71-2905, MCA, is 

inconsistent with the provisions of art. VII, sec. 4, Mont. 

Const., which gives the District Court original jurisdiction 

in all civil matters at law and in equity. Apparently, Mrs. 

Angel seeks an opinion of this Court finding that district 

courts have concurrent jurisdiction over industrial accident 

claims. 

Mrs. Angel's challenge to the constitutionality of 

5 39-71-2905, MCA, is not properly before this Court. First, 

Mrs. Angel failed to comply with the mandatory statutory 

requirement of Rule 38, M.R.App.Civ.P., which states in 

pertinent part: 

Cases involving guestions where - the 

state is not a party. 

1tshall-be the duty of counsel who challenges 

the constitutionality of any act of the ~ontana 

legislature in any suit or proceeding in the 

supreme court to which the state of Montana, or any 

agency thereof, or any officer or employee thereof, 

as such officer or employee, is not a party, upon 

the filing of the record to give immediate notice 

in writing to the court of the existence of said 

question, specifying the section of the code or the 

chapter of the session law to be construed. The 

clerk shall thereupon certify such fact to the 

attorney general of the state of Montana. 
"Failure to comply with this rule prevents the notice from 

being given the attorney general and therefore he has no 

opportunity to appear and. defend the acts of the Montana 

legislature. Under these circumstances this Court will not 

proceed to answer the constitutional questions . . . " Grant 

v. Grant (1975), 166 Mont. 229, 232, 531 P.2d 1007, 1009; 

Bradbrook v. City of Billings (1977), 174 Mont. 27, 31, 568 

P.2d 527, 529-30. Mrs. Angel's failure to notify the 

attorney general precludes this Court from ruling on the 

constitutional issue raised. 

Second, as a general rule, constitutional issues must be 

raised at the district court level. 

This Court has consistently ruled that a 

constitutional issue is waived if not presented at 

the earliest opportunity. 

Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 

P.2d 241, 244. -- See also Matter of Auth. to Conduct Sav. & 

Loan Act., Etc. (1979), 182 Mont. 361, 368, 597 ~.2d 84, 88. 

We hold that Mrs. Angel may not challenge the 

constitutionality of 5 39-71-2905, MCA, because she neither 

complied with Rule 38, M.R.App.Civ.P., nor raised this 

constitutional issue at the earliest opportunity. 

We concur: 

:/' t /: [(, (,j 2 i. ' 

Justices