NO. 95-106 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF 

DAVID CLARKE, 

Petitioner/Appellant, 

-vSCOTT MASSEY, d/b/a ALL 

SEASONS CONSTRUCTION, 

Respondent/Respondent. 

JUN 27 1995 

APPEAL FROM: Workers' Compensation Court 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark E. Jones, Missoula, Montana 

For Respondent: 

Kristine L. Foot, Missoula, Montana 

Submitted on Briefs: June 1, 1995 

Decided: June 27, 1995 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

David Clarke (Clarke) appeals from the Workers' Compensation 

Court's order and judgment dated January 27, 1995, dismissing with 

prejudice his petition for attorney fees under § 39-71-611, MCA. 

We affirm. 

Background 

This case began with Clarke's claim for compensation for onthe-job injuries sustained in February 1990. As it turned out, 

Clarke's employer, Scott Massey d/b/a All Seasons Construction and 

Truss Fabrication (Massey), did not carry workers' compensation 

insurance. Accordingly, Clarke's workers' compensation benefits 

were paid by the Uninsured Employers' Fund (Fund), which, in turn, 

assessed a penalty against Massey and asserted its right to be 

repaid for benefits it had paid to Clarke. Massey brought suit 

against the Fund and Clarke contending that Clarke was either an 

independent contractor or acting outside the scope of his 

employment when he was injured. On November 12, 1991, the Workers' 

Compensation Court issued its decision finding that Clarke was 

Massey's employee and directing that Massey reimburse the Fund for 

all amounts expended on Clarke's claim subject to the limitations 

prescribed by § 39-71-504, MCA. The Workers' Compensation Court 

denied Clarke's claim for attorney fees as having been made for the 

first time in proposed findings filed after trial. 

Prior to that decision, however, in January 1991, Clarke filed 

an action against Massey in District Court in Missoula County 

seeking damages, attorney fees and costs under §§ 39-71-515 and 

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516, MCA. In that action, Clarke contended, among other things, 

that he was entitled to an award of attorney fees against Massey 

incurred in both the Workers' Compensation Court and District Court 

proceedings. The District Court awarded Clarke damages against 

Massey for lost wages and medical expenses (subject to the § 39-71- 

518, MCA, offset and the 5 39-71-511, MCA, reimbursement obligation 

for benefits paid) and for attorney fees and costs in the District 

Court action. It denied Clarke's claim for attorney fees in the 

Workers' Compensation Court proceedings, however, on the basis that 

the District Court did not have jurisdiction to award fees in those 

proceedings. 

The Workers' Compensation Court file was closed February 7, 

1992. Notwithstanding, on March 9, 1994, Clarke filed a motion in 

that court requesting an award of some $3,900 in attorney fees 

incurred in his defense of the underlying 1991 Workers' 

Compensation Court action. The court reopened the file, and on 

June 8, 1994, entered an order denying, without prejudice, Clarke's 

motion and permitting the filing of a new petition. The Workers' 

Compensation Court concluded that the previous denial of Clarke's 

demand for attorney fees was the law of the case, but since that 

prior ruling had been on procedural, as opposed to substantive, 

grounds, the filing of a new petition for attorney fees was not 

precluded. On July 14, 1994, the court again closed the Workers' 

Compensation Court's file. 

Clarke filed his petition requesting attorney fees on August 

25, 1994. Following the filing of Massey's response, both parties 

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filed cross motions for summary judgment supported by briefs, Cn 

January 27, 1995, the Workers' Compensation Court issued its final 

order and judgment granting Massey's motion for summary judgment, 

denying Clarke's motion and dismissing with prejudice Clarke's 

petition. Clarke appeals. 

Issue 

Did the Workers' Compensation Court err in granting Massey's 

motion for summary judgment and in dismissing Clarke's petition for 

attorney fees? Underlying that question is the issue of whether 

the Workers' Compensation Court properly interpreted the provisions 

of § 39-71-611, MCA (1989), in this case. 

Standard of Review 

The standard of review for an appeal from the Workers' 

Compensation Court's grant or denial of a motion for summary 

judgment is the same as that used by a district court. We 

determine whether there is an absence of genuine issues of material 

fact and whether the moving party is entitled to judgment as a 

matter of law. Our review of the court's conclusions of law is 

plenary; we simply determine whether its legal conclusions are 

correct. Murer v. State Compensation Mut. Ins. (1994), 267 Mont. 

516, 519-20, 885 P.Zd 428, 430. Here, there are no material facts 

in dispute, and the resolution of the issue presented hinges upon 

the Workers' Compensation Court's interpretation of § 39-71-611, 

MCA (1989). 

Discussion 

Clarke presents two arguments on appeal. First he contends 

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that reading §§ 39-71-117, MCA, 39-71-401, MCA, and 39-71-611, MCA, 

together leads to the conclusion that Massey was an employer; that 

he was, therefore, required by law to carry workers' compensation 

insurance under one of three plans; and that, since he did not 

enroll in either the state fund or retain the services of a private 

insurer, It he should be consider [sic] a self-insured for the 

purposes of MCA 39-71-611." While creative, Clarke cites no 

persuasive authority for his position, and we conclude that it is 

without merit. Common sense and the plain language of the statutes 

at issue dictate that an employer cannot, at once, be both insured 

and uninsured for the same workers' compensation claim. 

Secondly, Clarke argues that we should look behind the plain 

language of § 39-71-611, MCA, and somehow glean a legislative 

intent that the statute, nevertheless, applies to uninsured 

employers because, "[iIt stretches credulity that any legislature 

would intend that an individual who violates one law should benefit 

by such a violation." Clarke's references to words of wisdom from 

Justices Holmes and Hand and from Judge Traynor notwithstanding, 

we, similarly, conclude that this argument is without any basis 

whatsoever in law. 

At the outset, we note that the 1989 codes apply to Clarke's 

1990 injury. Buckman v. Montana Deaconess Hosp. (X986), 224 Mont. 

318, 321, 730 P.2d 380, 382. Section 39-71-611, MCA (1989), 

permits the Workers' Compensation Court to award reasonable 

attorney fees against insurers who have unreasonably denied 

benefits due a claimant. That section provides: 

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uninsured employers, nor is there any indication whatsoever from 

that language of any legislative intent that the statute be so 

applied. The statute refers to insurers and to no one else. Under 

39-71-116(E), MCA (1989), an " [iInsurer' means an employer bound 

by compensation plan No. 1, an insurance company transacting 

business under compensation plan No. 2, the state fund under 

compensation plan No. 3, or the uninsured employers' fund provided 

for in part 5 of this chapter." It is undisputed that Massey does 

not fit into any category of that statutory definition. He is 

simply an uninsured employer, and § 39-71-611, MCA (19891, is 

inapplicable to him by its clear and unambiguous terms. 

We hold that the Workers' Compensation Court correctly 

interpreted 5 39-71-611, MCA (1989), in this case and, in doing so, 

properly granted Massey's motion for summary judgment and dismissed 

with prejudice Clarke's petition for attorney fees. 

AFFIRMED. 

YTazLA ., , 

Chief Justice 

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