No. 12254 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

PETER Dew INTER, 

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 2 8 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 its units 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 to consider the proposition and was 

persuaded by the purchaser to begin work. Supposedly, two other carpenters 

were to help 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 at the rate of 50t per square 

foot, payable upon completion of the job. Plaintiff could, however, draw 

upon the amount if he needed the money. Plaintiff never met Mr. Ward, nor 

did he at any time ever personally see a Capp Homes'representative. Plaintiff was not supervised while on this job. 

After plaintiff began construction, he noticed some of the plywood 

had deteriorated because of weathering to the point where it had 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 
of Montana. It was later determined 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 Products Company under which name 

the Industrial Accident Board had Workmen 's Compensation coverage filed. 

However, plaintiff admitted that no notice of claim for injuries was 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 [plaintiff Is] 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 appl icabi 1 i ty of Workmen's Compensation, 

plaintiff said that he " * * * relies upon the Defendant's allegations that 

Plaintiff was not covered regardless of whether or not Plaintiff was in fact 

an employee. " A1 though plaintiff's Workmen's Compensation coverage was 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 case and a number of 

briefs were filed. Finally, in February 1972, the court granted the defendant's motion for summary judgment after determining that plaintiff was an 

independent contractor, not an employee. From the judgment entered pursuant 

to the granting of defendant's motion, plaintiff appeals. 

Plaintiff presents two issues to this Court on appeal: (1) whether 

the record sustains the proposition that there existed no genuine issue as 

to any material fact; and (2) whether a determination of plaintiff's status, 

regarding independent contractor as opposed to employee, could be made without 

first deciding 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 any material fact and that the moving party 

is entitled to a judgment as a matter of law" 

Plaintiff relies heavily on the fact that, almost a year prior to rendering judgment, the trial court issued a memorandum and pretrial decision in 

which the court said: 

"(1 ) That if Defendant employer did in fact have an 

insurance policy for employees engaged in work under 

the same or similar circumstance as that of the Plaintiff, then the question as to whether or not Plaintiff 

was an employee or an independent contractor was one for 

determination under and by the provisions of the Workmen'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's decision he could 

not at a later date determine that there was no longer any genuine issue 

concerning any material fact and make the determination of plaintiff 's status 

without reference to the Workmen's Compensation Act. 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 

for admissions, 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 cannot be decided prior to a determination of 

the applicability of Workmen's Compensation. This is so, maintains the plaintiff, because the standards for the employer-employee relationship under 

Workmen's Compensation are more 1 i beral than under traditional common law 

rules. While a person may be an independent contractor by stringent common 
law 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 it appears from 

the record that plaintiff was 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 or Workmen's Compensation standard is appl icable, would 

be to a1 low the judgment to be made without a "frame of reference". The 

frame of reference here is the plaintiff Is own deposition, which does not 

suggest that the plaintiff was anything but an independent contractor. 

The trial court's determination of the plaintiff's status is not 

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 to the fact he was not covered by Workmen's 

Compensation. An amended complaint was filed a year later amending as to 

total damages. In defendant's answer the defendant raises as a defense the 

argument that if plaintiff is not an independent contractor, as alleged in 

the third defense, then if he were an employee, which defendant denies, the 

action was barred by section 92-203, R.C.M. 1947. Accepting the pleading at 

this stage, and trying to 1 i beral ly construe the Workmen's Compensation Act, 

could 

the trial court/have found that the only saving fact helpful to plaintiff 

wars the alleged reliance upon Mr. Ward's statement to plaintiff's wife that 

Capp Homes had no Workmen's Compensation coverage in Montana. If this re1 iance worked some sort of estoppel upon defendant, plaintiff might still 

obtain relief under his complaint. However, the alleged reliance as estoppel 

is, at best, fragile. The trial judge obviously did not believe that the 

reliance was sufficient and in absence of a showing of an abuse of discretion, 

his decision will 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, 

it was incumbent upon the plaintiff to present evidence to raise a genuine 

issue. As we recently said in Roope:~. The Anaconda Company, 159 Mont. 

"The burden of establishing the absence of any issue 

of material fact is on the party seeking summary 

judgment. Byrne v. Plante, 154 Mont. 6, 459 P.2d 266, 

and citations therein. But where, 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 State ex 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 the movant, 

is evidence that the party's burden was not carried. 

Summary judgment is then proper, the court being under 

no duty to anticipate proof to establish a material 

and substantial issue of fact." 

If, in fact, 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 to the plaintiff's case. 

The judge virtually nad no other choice; the plaintiff failed to carry his 

burden of proof, although he was afforded every opportunity to do 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 facts must 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 judgment was proper. 

Judgment is affirmed. 

A