ORDER GRANTING SUMMARY JUDGMENT
brought this action for payment of the balance of a 22
percent impairment award. The State Fund refuses to pay the
balance because of claimant's incarceration in the
Montana State Prison, citing section 39-71-744, MCA (1989) as
authority for its refusal.
parties seek summary judgment. Neither has presented
affidavits, discovery or other sworn evidence in support of
the motions. However, in its Response to Petition the State
Fund admits the allegations essential to summary judgment.
prior cases, this Court will look to the Montana Rules of
Civil Procedure for guidance in procedural matters when the
Court's own rules are silent. Murer v. Montana State
Compensation Mutual Ins. Fund, 257 Mont. 434, 436, 849
P.2d 1036 (1993). This Court's procedural rules
recognize motions "for summary ruling" but provide
no additional guidance. ARM 24.5.316 (1). In previous cases
we have applied Rule 56, Mont.R.Civ.P, to motions for summary
judgment, and we will do so in this case.
(a), Mont.R.Civ.P. provides that summary judgment may be
entered with or without supporting affidavits. Subsection (c)
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, 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.
if the pleadings establish uncontroverted facts which entitle
the moving party to judgment as a matter of law, summary
judgment is appropriate.
the pleadings, the following facts are established:
1)On July 28, 1989, the claimant injured his back in the
course and scope of his employment with Super 1 Foods.
2)The State Fund insured Super 1 Foods at the time of the
injury and accepted liability for the injury.
3)As a result of his injury claimant underwent back surgery.
4)On February 14, 1990, claimant's treating physician
gave claimant a 22% impairment rating.
5)On August 24, 1990, the claimant was incarcerated at the
Montana State Prison, where he remained until his release
from prison on March 24, 1993.
6)On April 22, 1992, while claimant was still incarcerated, a
claims examiner for the State Fund wrote to claimant,
advising him that he was entitled to an impairment award of
$3, 874.49, representing accrued impairment benefits from
February 14, 1990 until August 24, 1990. A draft for the
amount of the accrued benefits was enclosed. The letter
further advised claimant that the "remainder of your
impairment benefits will be payable either on a bi-weekly
basis or in a lump sum once you are no longer
7)Shortly after claimant's release from prison he
retained an attorney who wrote to the State Fund and demanded