NO. 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., JOHN W. 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, Judge presiding. 

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'rk 
Justice 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 Eleventh Judicial District, Flathead 

County, alleging fraud, professional negligence, conspiracy, and 

bad faith against the defendants. The defendants' motions for 

dismissal, which were treated as motions 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 the American 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. Appellant has made numerous appearances in both District 

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 issues arising fromthe same accident. Grenz v. American 

Stud Company and EBI/Orion Group (appeal dismissed Sept. 27, 1989) ; 

2 
Grenz 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 facts pertinent 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' 

Compensation Plan 11. The insurer assumed liability forthe injury 

and paid compensation and medical benefits to and for the 

appellant. Appellant receivedtemporary total disability benefits. 

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 require him 

to submit to such an evaluation. Mr. Daue made arrangements with 

Medical Management Northwest, Inc. (MMN) to assemble and coordinate 

a panel of physicians and medical 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 

3 
of medical conditions. MMN accomplishes this task by assembling 

a multi-specialty panel of physicians to examine the individual in 

question. In February 1988, defendant doctors Schimpff 

(neurologist), Stephens (physical medicine and rehabilitation), 

Hilleboe (orthopedic surgeon) and Trontel (clinical psychologist), 

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's diagnosis overlooked many of his work-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 

obtaining various records and x-rays; and (4) one of the physicians 

had consulted records of appellant obtained from his associate 

without appellant's consent. 

On the basis of extensive medical, psychological, and 

vocational data that had 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. 

4 
Subsequent 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] individually and/or 

collectively, limited there (sic) evaluation/examination 

of the plaintiff to such an extent as to deny him the . . . [benefits to which he was entitled]. 

Defendants, individually and/orcollectively, during such 

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 District Court err in granting defendants' motions for 

summary judgment? 

Initially all defendants made motions to dismiss the 

complaint. Defendant Trontel then moved 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. 

5 
The District Court granted defendants' motions for summary 

judgment. 

Summary judgement is proper when no genuine issues of material 

fact exist and the moving party is entitled to judgment as a matter 

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. Tucker v. Trotter Treadmills: Inc. (1989), 239 Mont. 233, 

235, 779 P.2d 524, 525. The standard that this Court applies in 

reviewing a grant of summary judgment is the same as 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 the proximate result thereof. 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 

6 
action, but the torts which may be committed in furtherance 

thereof." Duffv, 541 P.2d at 1202. Appellant contends the 

respondents agreed 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 District Court found appellant failed to show the 

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 finding by the District Court that appellant failed 

to produce any evidence supporting his claim for fraud. We agree. 

The record is completely devoid of any evidence concerning fraud. 

Appellant also claimed a cause of action based 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 contract between the parties involving a special relationship as 

7 
described 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 

circumstances was 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 a mediation procedure or in 

a hearing before the workers' compensation judge." Appellant 

followed this procedure and his benefits were retroactively 

restored in full. The restoration of his benefits should have been 

the end of litigation over this matter. 

11. 

Should this Court assess damages/sanctions against the 

appellant? 

The issue of sanctions has 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 supreme court is satisfied from the record and the 

presentation of the appeal in a civil case that the same 

was taken without substantial or reasonable grounds, such 

8 
damages may be assessed on determination thereof as under 

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 finite and must by used efficiently. Additionally, individuals 

must be protected from having to spend their time, energy, and 

money defending themselves against claims without merit. AS 

discussed above, the appellant has instituted litigation concerning 

his claim for benefits against nearly every conceivable party 

involved. His claims have been summarily rejected at the District 

Court level and he has appealed in every instance. We find the 

present appeal to have been taken without 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 

10 
Justice 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's holding 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 the present time, this Court has four current 

or "open" cases pending our decision involving Samuel J. Grenz as 

the appellant; and four decided 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 through the painful procedure required in the appeal's process. 

Rule 32, M.R.App.P., as stated in the majority opinion, notes 

that "If the supreme court is satisfied from the record and the 

presentation of the appeal in a civil case that the same was 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 Samuel J. Grenz in the amount of $250 and 

would so hold. 

11 
September 18, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Samuel I. Grenz 

104 Colorado 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 OF THE SUPREME COURT 

STATE OF MONTAN 

BY: 

Depud Jd