NO. 95-106 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

INTHEMATTEROF DAVID CLARKE,

Petitioner/Appellant,

-vSCOTTMASSEY, d/b/a ALL SEASONSCONSTRUCTION,

Respondent/Respondent. 

## JUN271995

APPEAL FROM: Workers' Compensation Court

The Honorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Mark E. Jones, Missoula, Montana For Respondent: Kristine L. Foot, Missoula, Montana

Submitted onBriefs: 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 andjudgment dated January 27, 1995, dismissing with prejudice his petition for attorney fees under §39-71-611, MCA. Weaffirm. 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 bythe Uninsured Employers' Fund (Fund), which, in turn, assessed apenalty 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 whenhewasinjured. OnNovember 12, 1991, the Workers' Compensation Court issued its decision finding that Clarke was Massey's employee anddirecting that Massey reimburse the Fund for all amounts expended onClarke's claim subject to the limitations prescribed by §39-71-504, MCA. The Workers' Compensation Court denied Clarke's claim for attorney fees ashaving been madefor the first time in proposed findings filed after trial. Prior tothat 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 2516, MCA. In that action, Clarke contended, among other things,

that hewas entitled to anaward of attorney fees against Massey incurred in both the Workers' Compensation Court andDistrict Court proceedings. The District Court awarded Clarke damages against Massey for lost wages andmedical expenses (subject to the §39-71- 518, MCA,offset andthe 539-71-511, MCA,reimbursement obligation for benefits paid) andfor attorney fees andcosts in the District Court action. It denied Clarke's claim for attorney fees in the Workers' Compensation Court proceedings, however, onthe 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, onMarch 9, 1994, Clarke filed amotion 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 anorder denying, without prejudice, Clarke's motion andpermitting the filing of anewpetition. 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 onprocedural, as opposed to substantive, grounds, the filing of anewpetition for attorney fees was not precluded. OnJuly 14, 1994, the court again closed the Workers' Compensation Court's file. Clarke filed his petition requesting attorney fees onAugust 25, 1994. Following the filing of Massey's response, both parties

3filed cross motions for summary judgment supported bybriefs, Cn

January 27, 1995, the Workers' Compensation Court issued its final order andjudgment 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 andindismissing 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 anabsence of genuine issues ofmaterial 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 nomaterial facts in dispute, andthe resolution of the issue presented hinges upon the Workers' Compensation Court's interpretation of §39-71-611, MCA(1989). Discussion Clarke presents two arguments onappeal. First hecontends

4that reading §§39-71-117, MCA,39-71-401, MCA,and39-71-611, MCA,

together leads to the conclusion that Massey wasan employer; that hewas, 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 aprivate insurer, Ithe 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, andweconclude that it is without merit. Commonsense andthe plain language of the statutes at issue dictate that anemployer cannot, at once, beboth insured and uninsured for the sameworkers' compensation claim. Secondly, Clarke argues that weshould 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 anindividual whoviolates one law should benefit bysuch aviolation." 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, wenote that the 1989 codes apply to Clarke's 1990 injury. Buckman v. Montana Deaconess Hosp. (X986), 224Mont. 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 aclaimant. That section provides:

5uninsured employers, nor is there any indication whatsoever from

that language of any legislative intent that the statute be so applied. Thestatute refers to insurers andto nooneelse. Under 39-71-116(E), MCA(1989), an " [iInsurer' means anemployer 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 5of 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 539-71-611, MCA(1989), in this case and, in doing so, properly granted Massey's motion for summary judgment anddismissed with prejudice Clarke's petition for attorney fees. AFFIRMED. 

# YTazLA .,, Chief Justice

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