No. 13527 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

MELVIN STANDISH, 

Plaintiff and Respondent, 

BUSINESS MEN'S ASSURANCE COP'IPANY 

OF AMERICA, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Charles F. Angel argued, Bozeman, Montana 

For Respondent : 

Bennett and Bennett, Bozeman, Montana 

Lyman H. Bennett, Jr. argued and Lyman H. Bennett, I11 

argued, Bozeman, Montana 

Filed: WR 2 2 ''7 

Submitted: March 9, 1977 

Decided ';4R 2 0 rgn 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals from denial of a motion for judgment 

notwithstanding the verdict by the district court, Park County. 

The jury returned a verdict in favor of plaintiff Melvin Standish 

in the amount of $7,679.32. The parties agree this amount is 

due, if there was coverage under the group health insurance policy 

purchased by Brand So Lumber Company for its employees from 

defendant, Business Men' s Assurance Company of America. 

On appeal, the standard of review from a denial of a motion 

for judgment notwithstanding the verdict made pursuant to Rule 

50(b), M.R.Civ.P., is the same as that for review of a motion for 

directed verdict. Sheeketski v. Bortoli, 86 Nev. 704, 475 P.2d 

675; 9 Wright & Miller, Federal Practice and Procedure, Civil 

$2524. A directed verdict may be granted only where it appears 

as a matter of law that plaintiff cannot recover upon any view of 

the evidence, including the legitimate inferences to be drawn from 

ic. Parrish v. Witt, Mont . , 555 P.2d 741, 742, 33 St. 

Rep. 999,l,000; Slagsvold v. Johnson, Mont . , 544 P. 2d 

+42, 443, 32 St.Rep. 1273, 1275, and cases cited therein. 

Here, the basic question on appeal is whether plaintiff was 

:overed by the group insurance policy. There are two aspects to 

chis question 1) had plaintiff met the initial eligibility requirements, 2) had he been terminated ending policy coverage prior 

to the injury. 

We first note that because there was no employee payment or 

orher ai'firmative act on the part of the employee which initiates 

coverage, the determination of when coverage began or when it ends 

requires inferences from circumstantial evidence. There are a 
number of similarities between the instant case and cases involving 

the question of coverage under the Worker's Compensation Act or 

other social legislation, and while both are for the benefit of 

the employee and paid by the employer, there is a major difference 

between the two. Worker's Compensation coverage is required by 

statute, while the group health insurance policy is not. The 

Worker's Compensation statute is construed to prevent avoidance of 

the statute. Here the provisions of the insurance 

policy which must be interpreted. Those provisions in question 

here are: 

"An Individual in an eligible class of Individuals 

shall be eligible for insurance under this policy as 

follows : 

"(b) on the day following the date the Individual 

completes one calendar month of membership in an eligible 

class .I1 

The termination provision reads: 

"(b) If an Individual's insurance under this policy 

is contingent upon employment, the insurance of such 

Individual shall terminate upon termination of such 

employment. Cessation of active work shall be deemed 

termination of employment, except that while an Individual 

is absent on account of sickness or injury, employment 

shall be deemed to continue until premium payments for such 

Individual's insurance are discontinued. At the option of 

the Policyowner, the insurance of an Individual may be 

continued during a temporary lay-off but not beyond the 

end of the policy month following the policy month in 

which the lay-off starts, or may be continued during an 

authorized leave of absence granted by the policyowner 

for reasons other than sickness or injury, but not beyond 

the period ending three months after such leave of absence 

starts .'I 

The questions to be determined for coverage are (1) when, 

if ever, did coverage begin, (2) was the cessation of active work 

due to injury, and (3) if it was, when were the premiums discontinued? 
There was testimony that plaintiff began work on Brand S 

Lumber Company projects in mid-March, 1974. At that time he 

was paid by Norman Kelly, who was a construction supervisor for 

Brand S. Kelly was a full-time emplcoyee of Brand S and he was 

reimbursed by Brand S for wages he paid to those who worked for 

him. During this initial period no deductions were made for 

social security or taxes from plaintiff's wages. During the 

first weeks of May, while Kelly was on vacation, plaintiff was 

paid directly by Brand S. In late May, prior to going to 

Colorado on a Brand Se project, Kelly had plaintiff placed on the 

company's computerized payroll. The crew returned from Colorado 

on June 26 and both plaintiff and a coworker testified that 

plaintiff worked on June 27. Plaintiff and the coworker testified 

testified they both took that Friday off, and the entire next 

week as well as their July 4 holiday, intending to return to work 

after the vacation. The coworker did return, but plaintiff injured 

his ankle in an automobile accident and he reported that he could 

not return until it had healed. 

On or about July 30, plaintiff was injured when a .41 magnum 

gun he was handling fell to the ground, discharged, and wounded 

plaintiff in both legs. Plaintiff testified he was given notice 

of his termination in August, while he was still in the hospital. 

Defendant presented evidence to the effect that the checks 

paid to plaintiff prior to being put on the Brand S. computer payroll were just reimbursement checks paid indirectly to plaintiff 

instead of directly. A number of business records were introduced 

giving June 26 as the termination date. It is clear most of those 

records were made after the July 30 accident, but there was testimony this was done without any knowledge of the accident. ' , . 
'The insurance 5iil from defendant to Brand S shows that Brand 

S had deleted plaintiff because he had not been employed a sufficlent period of time. This document was also prepared in early 

Xugus t . 

It is clear there were factual disputes to be determined to 

find if there was coverage under the policy. These factual 

questions were decided by the jury in favor of plaintiff. It does 

not appear from the evidence that there was no coverage as a 

matter of law and therefore the motion for a judgment notwithstanding the verdict was properly denied. 

Plaintiff's argument on punitive damages based on an alleged 

violation of the disability sections of the insurance code is 

without merit. Disability insurance was not raised in the pleadings 

and throughout his pretrial memorandum plaintiff speaks only of 

rnedical bills under the health insurance. There was no clear 

showing of the existence of disability insurance, nor is there 

ally showing of the requisite oppression, fraud, or malice to 

bring this case under the rule of State ex rel. Larson v. District 

Court, 149 Mont. 131, 423 P.2d 598. 

The judgment of the district court is affirmed. 

Me Concur; i I