No. 12254 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

PETER DewINTER, Plaintiff and Appellant,

-VS

# - CAPP HOMES

## , INC

# ., Defendant and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes

## ,Judge presiding. Counsel of Record: For Appellant: McGarvey, Morrison and Hedman, Whitefish, Montana James D. Moore argued, Whitefish, Montana For Respondent: Murphy, Robinson, Heckathorn and Phillips, Kalispell

## ,

Montana I. James Heckathorn argued, Kalispell, Montana

Submitted: February 27, 1973 Decided: 

## MAR

## 28

## 19n Filed: 

## MAR 2

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This action came before the district court of the eleventh judicial district, Lincoln County, on the complaint of the plaintiff, Peter Dewinter, for personal injuries sustained in a fall from the roof of a house on which he was working 

### on November 2, 1966. Defendant, Capp Homes, Inc., is in the business of selling precut and prefabricated homes, and as a part of the price, sets up the framing of the house. All inside work and shingling was to be done by the purchaser. In this case, Capp Homes had sold one of itsunits to a purchaser in Fortine, Montana. Plaintiff had been contacted by telephone two weeks prior to the date of the accident by 

### Mr. Bruce Ward, a field representative for Capp Homes, who asked the plaintiff if he would build a house for the defendant. Plaintiff went to the building site

### toconsider the proposition and was persuaded by the purchaser to begin work. Supposedly, two other carpenters

were 

### tohelp the plaintiff but they did not appear until after the plaintiff had been injured. There was no written contract between the plaintiff and the defendant. Plaintiff was to receive compensation atthe rate of 50t per square foot, payable upon completion of thejob. Plaintiff could, however, draw upon the amount if he needed the money. Plaintiff never met 

### Mr. Ward, nor did he atany time ever personally see a Capp Homes'representative. Plaintiff 

### was not supervised while 

### on thisjob. After plaintiff began construction, he noticed some of the plywood had deteriorated because of weathering to the point where ithad become warped and moldy. The purchaser, desirous of having 

### his house completed, directed the plaintiff to continue construction. As plaintiff was moving across the roof of the building, he tripped over a split in the bad lumber, tumbled to the ground and suffered a fractured right ankle and three vertebrae as a result of the fall. Plaintiff contends that while he was hospitalized, his wife was told by 

### Mr. Ward that Capp Homes had no industrial accident coverage in the State

### ofMontana. It was laterdetermined that Aetna Life and Casualty was in fact the industrial accident insurance carrier for Capp Homes and that Capp Homes was a subsidiary of Evans ProductsCompany under which name the Industrial Accident Board had Workmen'sCompensation coverage filed. However,plaintiff admitted that no notice of claim for injurieswas made within the sixty day limit established by section 92-807,R.C.M. 1947. Plaintiff's first counsel wrote a letter to Capp Homes,putting defendant on notice of plaintiff's claim. Counsel wrote in the letter that: "His [plaintiffIs] immediate concern is whether or not he is covered under the Montana Workman's [sic] Compensation Act." In the reply brief filed by plaintiff in the district court in February, 1970, 

### directed toward the question of the applicabi

### 1i

### ty of Workmen's Compensation, plaintiff said that he 

### " 

## * * * relies upon the Defendant'sallegations that Plaintiff was not covered regardless of whether or not Plaintiff was in fact

an employee.

### " A1though plaintiff'sWorkmen's Compensation coveragewas an "immediate concern", it does not appear from the record that plaintiff investigated any further within the time limit established by the statute. Rather, he merely relied on Mr. Ward's alleged statement to the plaintiff's wife. Four pretrial conferences were held in this caseand a number of briefs were filed. Finally, 

### in February 1972, the courtgranted the defendant'smotion for summary judgment after determining that plaintiff was an independentcontractor,not an employee. From the judgmententered pursuant to the granting ofdefendant'smotion, plaintiff appeals. Plaintiffpresents two issues to this Court on appeal: 

### (1) whether the record sustains the proposition that there existed no genuine issue as to anymaterial fact;and (2) whether a determination of plaintiff's status, regarding independent contractoras opposed to employee,could be made without firstdeciding upon the applicability of the Montana Workmen's Compensation Act.

### Rule 56(c), M.R.Civ.P., relating to summary judgment,reads: 

### " 

## * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,and admissions on file show that there is no genuine issue as to anymaterial factand that themoving party is entitled to a judgment as amatter of law" Plaintiff relies heavily on the fact that,almost a year prior to rendering judgment, the trial court issued amemorandum and pretrial decision in which the court said: "(1 ) 

### That if Defendant employerdid in facthave an insurance policy for employees engaged in work under the same or similar circumstanceas that of the Plaintiff, then the question as to whether or not Plaintiff was an employee or an independent contractor was one for determinationunder and by the provisions of theWorkmen's Compensation Act of Montana. "(2) The pleadings at this time are not sufficiently definitive on this question to support any ruling prior to trial .I' 

### Plaintiff contends that because of the judge'sdecision he could not at a laterdate determine that there was no longer any genuine issue concerninganymaterial factand make the determination of plaintiff'sstatus without reference to the Workmen's CompensationAct. Plaintiff's contention simply has no merit. The court file clearly reflects that between the date of filing of the memorandum and pretrial decision and the date of the final order, a number of additional documents were filed,among which were the following: 

### (1) Request for admissions, filed by defendant, and a reply to request for admissions; (2) 

### The deposition of the plaintiff; and (3) 

### Request foradmissions,filed by plaintiff,and answers to requests for admissions. Clearly, it was with these additional documents that the court reached its decision.In essence, plaintiff asserts that whether plaintiff was an independent contractor or an employee cannotbe decided prior to a determination of the applicability ofWorkmen'sCompensation. This is so,maintains the plaintiff,because the standards for the employer-employee relationship under Workmen's Compensation aremore 1i

### beral than under traditional common law rules. While a person may be an independent contractor by stringent commonlaw standards, he may be an employee under the Workmen's Compensation Act, citing Grief v. Industrial Acc. Fund, 108 Mont. 519, 93 P.2d 961. Plaintiff, however, ignores one simple fact. When itappears from the record that plaintiffwas an independent contractor by any standards, there could no longer be a genuine issue as to any material fact. Plaintiff suggests that to permit this decision to stand, without a determination of whether the common law orWorkmen's Compensation standard isapplicable, would be toa1low the judgment to be made without a "frame of reference". The frame of reference here isthe plaintiffIsown deposition,which does not suggest that the plaintiffwas anything but an independent contractor. The trial court's determination ofthe plaintiff'sstatus isnot

as significant as the plaintiff would have this Court believe. If plaintiff

was an independent contractor he had no basis for recovery under his complaint; if he was an employee he should have sought recovery under the Workmen's Compensation Act. Plaintiff's original complaint was for negligence and for common law action against defendant due tothe fact he was not covered by Workmen's Compensation. An amended complaint was filed a year lateramending as to total damages. Indefendant's answer the defendant raises as a defense the argument that ifplaintiff isnot an independent contractor, as alleged in the thirddefense, then ifhe were an employee, which defendant denies, the actionwas barred bysection 92-203, R.C.M. 1947. Accepting the pleadingat this stage, and trying to 1i berallyconstrue the Workmen's Compensation Act, could the trial court/have found that the only saving fact helpful to plaintiff
warsthe alleged reliance upon Mr. Ward's statement to plaintiff's wife that Capp Homes had no Workmen's Compensation coverage inMontana. Ifthis re1iance worked some sort of estoppel upon defendant, plaintiffmight still obtain relief under his complaint. However, the alleged reliance as estoppel is, at best, fragile. The trialjudge obviously did not believe that the reliancewas sufficientand inabsence of a showing of an abuse ofdiscretion, his decisionwill not be overturned.The trial judge was faced with a set of facts that could only produce one conclusion. Initially, the burden was on defendant to show

an absence of any issue of material fact. When defendant met the burden, itwas incumbent upon the plaintiff topresent evidence toraise a genuine issue. 

### As we recently said inRoope:~. The Anaconda Company, 159Mont.

"The burden of establishing the absence of any issue of material fact ison the party seeking summary judgment. Byrne 

### v. Plante, 154 Mont. 6, 459 P.2d 266, and citations therein. 

### Butwhere, as here, the record discloses no genuine issue as to any material fact, the burden 

### is upon the party opposing the motion to present evidence of a material and substantial nature raising 

### a qenuine issue of fact. Flansberg v. 

### Mont. Power Co., 154 Mont. 53, 460 P.2d 263, and authorities cited therein.

## " (Emphasis added.) In Stateex rel. Burlington Northern 

### v. District Court, 159 Mont. 295, 496 P.2d 1152, 29 St.Rep. 380, we affirmed that rule: "Failure of the party opposing the

### motion to either raise or demonstrate the existence of a genuine issue of material fact, or to demonstrate that the legal issue should not be determined in favor of themovant, isevidence that the party's burden was not carried. Summaryjudgment 

### is then proper, the court being under no duty to anticipate proof to establish a material and substantial issue of fact." If, infact, the plaintiff had evidence antithetical to the proposition that plaintiff was an independent contractor, as he contends, the record is void of such evidence. Allegations of "unorthodox and ad hoc business practices" of Capp Homes add no weight whatsoever tothe plaintiff's case. The judge virtually nad 

### no other choice; the plaintiff failed tocarry his burden of proof, although he was afforded every opportunity 

### todo so. In Calkins 

### v. Oxbow Ranch, Inc., 159 Mont. 120, 495 P.2d 1124, 29 St.Rep. 244,

we said: "In discussing a motion for summary judgment in Gallatin Tr. & Sav. Bk. v. Henke, 154 Mont. 170, 172, 461 P.2d 448, this Court citing from Silloway 

### v. Jorgenson, 146 Mont. 307, 406 P.2d 167, said:

""I 

## * * * the party opposing motion [for sumary judgment] must present facts in proper form

# -- conclusions of law will not suffice; and the opposing party's factsmust be material and of a

### Substantive nature, not fanciful, frivolous

### , gauzy, nor merely suspicions.I' 

### 6 Moore's Federal Practice 2d, $ 56.I

### 5[3]

## ,pp. 2346, 2347; Hager v. 

### Tandy, 146 Mont. 531, 410 P.2d 447.

### "' The decision of the trial judge granting defendant's motion for summary judgmentwas proper. Judgment is affirmed. A