N O. 91

-100 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

SAMUEL J. GRENZ, Plaintiff and Appellant,
V. MEDICAL MANAGEMENT NORTHWEST, INC., ROBERT D. SCHIMPFF,M.D., JOHN V. STEPHENS,M.D., JOHNW. HILLEBOE, M.D., and EDWARD H. TRONTEL, Ph.D., Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Robert S. Keller, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Samuel J. Grenz, Pro Se, Whitefish,Montana For Respondents: James R. Halverson,Herndon, Hartman, Sweeney & Halverson,Billings,Montana; Leonard L. Kaufman, Murray & Kaufman, Kalispell, Montana; James E. Aiken, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana; Todd A. Hammer, Warden, Christiansen,Johnson & Berg, Kalispell, Montana

Filed: Submitted on Briefs: June 6, 1991 Decided: September 18, 1991

I Cle'rkJustice William E. Hunt, SI., delivered the opinion of the Court. Samuel 3. Grenz, pro se,brought suit against the defendants in the District Court for the EleventhJudicial District, Flathead County, alleging fraud, professional negligence, conspiracy, and bad faith against the defendants. The defendants' motions for dismissal,whichwere treatedasmotions for summary judgment,were granted by the District Court. Grenz appealed. We affirm. The issues on appeal are: 1. Did the District Court err in granting summary judgment for the defendants? 2. Should this Court assess sanctions/damages against the appellant? On August 22, 1984, appellant injured his right elbow while working for theAmerican Stud Company in Flathead County,Montana. This accident and subsequent disputes over the compensation benefits to which appellant is entitled, have been the source of
a flood of litigation instituted by appellant. The various defendants in these suits have included essentially everyone even peripherally involved with appellant's claim of entitlement to benefits. Appellanthasmade numerousappearances inbothDistrict Court and the Workers' Compensation Court in furtherance of his claim to benefits. Additionally, excluding the present appeal, appellant has appealed to this Court on five other occasions, all involving issuesarising fromthe sameaccident. Grenzv. American Stud Companyand EBI/Orion Group (appealdismissed Sept. 27, 1989);
2Grenz

### v. Orion Group (1990), 243 Mont. 486, 795 P.2d 444 (District Court's dismissal of appellant's complaint affirmed); Grenz 

### v. Prezeau (1990), 244 Mont. 419, 798 P.2d 112 (District Court's granting of defendant's summary judgment motion affirmed); Grenz
v. Stangle and Vocational Resources Inc., pending Supreme Court Cause No. 91-195; and Grenz v. Fire and Casualty Ins. Co. of Connecticut, pending Supreme Court Cause No. 91

-221. The factspertinent to a determination of the present appeal
are similar to those set out in Orion and Prezeau. At the time of appellant's injury, his employer was enrolled under Workers' CompensationPlan 11. The insurer assumed liability forthe injury and paid compensation and medical benefits to and for the appellant. Appellant receivedtemporarytotaldisabilitybenefits. In June 1987, the law firm of Garlington, Lohn and Robinson (GLR) was hired by the insurer to review appellant's claim. Mr. Daue, a partner in GLR assumed responsibility for the file. On January 19, 1988,Mr. Daue,pursuant to § 39-71-605,MCA, requested appellant undergo a physical examination for the purpose of evaluating his disability and the feasibility of his returning to work. Appellant did not contest the insurer's right to requirehim to submit to such an evaluation. Mr. Dauemade arrangementswith Medical ManagementNorthwest, Inc. 

### (MMN) toassembleand coordinate
apanel of physicians andmedical care specialists to carry out the examination. 

### MMN is designed to provide parties involved with medical or legal issues a source of expert, impartial evaluations
3of medical conditions. MMN accomplishes this task by assembling
amulti

-specialty panel of physicians to examine the individual in question. In February 1988, defendant doctors Schimpff

(neurologist), Stephens (physical medicine and rehabilitation), Hilleboe (orthopedicsurgeon) and Trontel (clinicalpsychologist), all participated in the examination/evaluation of appellant at the request of MMN. A panel report,written primarily by Dr. Stephens, summarized and consolidated the results of the various examinations. The panel made several findings concerning appellant's physical condition and the feasibility of future employment. Following the panel's written report appellant sent a letter to the insurer detailing numerous objections, including: (1) the Panel'sdiagnosisoverlookedmany ofhiswork

-related injuries; (2) the examination did not properly address his mental and emotional state; (3) he was not informed by his attorney of the need for obtainingvarious recordsand x-rays;and (4) one of thephysicians had consulted records of appellant obtained from his associate without appellant's consent. On the basis of extensive medical, psychological, and vocational data thathad been received,Mr. Daue recommended to the insurer that appellant's benefits be reduced from temporary total disability to permanent partial disability. On August 24, 1988, appellant's benefits were reduced as recommended.

4Subsequent to the reduction in his benefits, appellant requested a mediation of his claim. The mediation was held and ultimately appellant's temporary total disability benefits were reinstated on December 15, 1988, retroactive to August 24, 1988. Appellant filed a complaint on January 29, 1990, in which he made the following allegations against the defendants: [Dlefendants, [members of the panel] individuallyand/or collectively,limitedthere (sic)evaluation/examination of the plaintiff to such an extent as to deny him the



# .

# . . [benefits to which he was entitled]. Defendants,individuallyand/orcollectively,duringsuch time as before mentioned, with actual fraud and/or malice, conspired and/or neglected there (sic) legal and/or moral and/or professional responsibility,within the scope of there (sic)profession to the Plaintiff.



# . . .

# . Defendants, knowingly and willingly, partook in and/or contributed to such activities as to endanger the Plaintiff and/or his interest. Furthermore, such bad faith and/or tortious conduct contributed to Plaintiffs' present condition of Permanent Total Disability. I. Did the DistrictCourt err ingrantingdefendants'motions for summary judgment? Initially all defendants made motions to dismiss the complaint. DefendantTrontel thenmoved for summary judgment. The District Court heard oral argument on the motions and also considered additional matters outside of the pleadings. Inasmuch, the motions to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., were treated as motions for summary judgment under Rule 56,M.R.Civ.P.

5The District Court granted defendants' motions for summary judgment. Summary judgement isproperwhen nogenuine issuesofmaterial fact exist and themoving party isentitled to judgmentas amatter of law. Rule 56(c), M.R.Civ.P. Initially, the moving party must show the absence of genuine factual issues. To prevail, the nonmoving party must set forth facts demonstrating that a genuine issue exists. O'Bagy 

### v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. The Court is under no duty to anticipate proof to establish a material or substantial issue of fact. Tuckerv. Trotter Treadmills: Inc. (1989), 239Mont. 233, 235, 779 P.2d 524, 525. The standard that this Court applies in reviewingagrant of summary judgment is the sameas that initially utilized by the trial court under Rule 56, M.R.Civ.P. McCracken
v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Appellant alleges in his complaint conspiracy by the defendants: committed during their panel examination. To prove civil conspiracy in Montana the following elements are required:

(1)Two or more persons, and for this purpose, a corporation is a person: (2) an object to be accomplished: (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts;and (5)damages as theproximate resultthereof. Duffy
v. Butte Teachers' Union 

### No. 332 (1975), 168 Mont. 246, 251, 541 P.2d 1199, 1202. Additionally, this Court stated in Duffy "that it is not really the conspiracy which gives rise to a right of
6action, but the torts which may be committed in furtherance thereof." Duffv, 541 P.2d at 1202. Appellant contends the respondentsagreed prior to the evaluation to act 

### so as to deprive him of the benefits he was receiving at the time. Aside from his naked allegations there is absolutely no evidence of any conspiracy. The record is barren of any evidence of either an unlawful act or object by the respondents, or of any damages to appellant. The evidence merely indicates that the respondents examined appellant at the request of the insurer pursuant to 5 39- 71

-605,MCA. The DistrictCourt found appellant failed to showthe existence of any tort or conspiracy. We agree. In his complaint, appellant alleges fraud on the part of the respondents, without setting forth any factual allegations with respect to the nine elements this Court has indicated are required to prove fraud. Lee v. Armstrong (1990), 244 Mont. 289, 293, 798 P.2d 84, 87. More important than the technical inadequacy of the pleading is the findingby theDistrictCourt thatappellant failed to produce any evidence supportinghis claim for fraud. We agree. The record is completely devoid of any evidence concerning fraud. Appellant also claimed a cause of actionbased on the tort of bad faith. As this Court has previously stated, the tort of bad faith applies only in exceptional circumstances. Story

### v. City of Bozeman (1990), 242 Mont. 436, 451, 791 P.2d 767, 776. Absent a specific statutory provision providing for a bad faith claim, or a contractbetween the parties involving a special relationshipas 7described 

### in Storv, no cause of action will lie. There is no specific statutory basis for the claim in this instance. Additionally, there was no special relationship between the parties. In fact, there was not even a contract. We affirm the District Court's grant of summary judgment on this issue. Finally, appellant's claims of professional negligence must also fail. There is no evidence of negligence anywhere in the record. The proper course of action for an aggrieved worker in these circumstanceswas set forth by this court in Grenz, 798 P.2d 112, 115. There we indicated that "[slhould a medical examination result in denial or reduction of benefits, the claimant can challenge the insurer's action through amediation procedure or in
a hearing before the workers' compensation judge." Appellant followed this procedure and his benefits were retroactively restored in full. Therestoration ofhis benefits shouldhave been the end 

### of litigation over thismatter. 11. Should this Court assess damages/sanctions against the appellant? The issue of sanctionshas been raised on appeal. A request for damages for having to defend against an appeal without merit is governed by Rule 32, M.R.App.P., which states: If the supremecourt is satisfied fromthe record and the presentation of the appeal in a civil case that the same wastakenwithout substantialorreasonablegrounds,such
8damagesmay be assessed ondeterminationthereofasunder the circumstances are deemed proper. It is clear the appellant is frustrated at not obtaining all the benefits to which he feels entitled. It is also true, as the appellant's brief argues, that the courts of this state should be freely open to citizens of the state who seek determination 

### or enforcement of their legal rights. However, this access to the courts is not without limits. The judicial resources of the state are finiteandmust by used efficiently. Additionally, individuals must be protected from having to spend their time, energy, and money defending themselves against claims without merit. AS discussedabove,theappellanthas instituted litigationconcerning his claim for benefits against nearly every conceivable party involved. His claimshave been summarilyrejected at the District Court level and he has appealed in every instance. We find the present appeal tohavebeen takenwithout substantial or reasonable grounds. Further appeals to this court regarding these settled matters will result in an award of damages against appellant. The District Court's grant of summary judgment to the respondents is affirmed.

Jus

9

## /9 We 

### concur:

Justices

10Justice John Conway Harrison concurring in part and dissenting in part.


### I concur 

### in the majority's opinion affirming the District Court's grant of summary judgment to the defendants; however, I dissent to this Court'sholding of not assessing sanctions/damages against the appellant, Samuel J. Grenz. Samuel 3. Grenz is not an unfamiliar litigant to this Court
or to the District Court of the Eleventh Judicial District, Flathead County. At thepresent time, this Courthas four current or "open" cases pending our decision involving Samuel J. Grenz as the appellant;and fourdecided or Itclosed"cases involving Samuel J. Grenz as the appellant. The respondents in these appeals brought by Samuel J. Grenz have been required to hire counsel and go throughthepainfulprocedure required inthe appeal's process. Rule 32,M.R.App.P., as stated in themajority opinion,notes that "If the supreme court is satisfied from the record and the presentation of the appeal in a civil casethat the samewas taken without substantial or reasonable grounds, such damages may be assessed

# . .. . It After reviewing the record concerning Samuel J. Grenz, 

### I am certainly satisfied and find it proper to assess sanctions/damages against SamuelJ. Grenz inthe amountof $250 and would so hold.

11September 18,1991 CERTIFICATE OF SERVICE Ihereby certifythat the followingorder was sent byUnited States mail, prepaid, to the followingnamed:
Samuel 

### I. Grenz 104Colorado Ave. Whitefish, MT 59937
Leonard L.Kaufman Murray &Kaufman P.O.Box 728 Kalispell,MT 59903 James E. Aiken Jardine, Stephenson, Blewett &Weaver P.O. Box 2269 Great Falls,MT 59403 James R. Halverson Hemdon, Hartman, Sweeney &Halverson P.O.Box 20697 Billings,MT 59104
Todd A. Hammer Warden, Christiansen, Johnson &Berg P.O.Box 3038 Kalispell, MT 59903-3038 ED SMITH CLERK OFTHE SUPREME COURT STATE OF MONTAN BY: Depud 

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