by Supreme Court Opinion No. 94-423.
ORDER GRANTING NEW TRIAL
matter presently before the Court is the State Compensation
Insurance Fund's (State Fund) motion for a new trial.
Having considered the motion, along with the briefs of both
parties, I conclude that the motion should be granted.
case was tried in Missoula, Montana, on September 20 and 21,
1993. On May 18, 1994, I issued my Findings of Fact,
Conclusions of Law and Judgment,  finding claimant permanently
totally disabled on account of his low-back condition. The
State Fund had argued that claimant's condition is due to
numerous falls he suffered during various sports activities,
especially ski jumping. In view of medical opinions causally
relating claimant's condition to an industrial accident,
I did not find the State Fund's arguments in this regard
persuasive. However, the occurrence of the accident was an
essential foundation for the medical opinions upon which the
Court relied. If the accident did not occur, then the medical
opinions were worthless.
trial the State Fund presented evidence which, if believed,
tended to show that an industrial accident in fact did not
occur. The State Fund argued that this evidence undermined
claimant's credibility and demonstrated that his low-back
condition is unrelated to any industrial accident. While the
State Fund couched its contentions in terms of credibility
and relatedness, I concluded, and reaffirm here, that the
essence of its defense was fraud. Since fraud was not listed
as an issue or defense in the pretrial order, I
"disregarded all evidence offered to prove fraud"
and accepted claimant's account of the industrial
for new trials are governed by ARM 24.5.344. That rule
provides inter alia that any party "may petition for a
new trial or request amendment to the court's findings of
fact and conclusions of law within 20 days after the order or
judgment is served."
initial matter the claimant argues that the State Fund's
motion is untimely since it was mailed rather than filed on
the 20th day. That argument, however, overlooks ARM 24.5.303
(5), which provides:
Unless the court specifically orders otherwise, filing with
the court may be accomplished by mail addressed to the clerk,
and such filing will be deemed complete on the date shown on
the certificate of mailing.
this rule the date of mailing is also deemed the date of
filing. The motion was timely filed. Therefore, the Court
will consider the merits of the motion.
grounds for granting a new trial are enumerated in section
25-11-102, MCA. In cases tried to a court without a jury
there are three grounds for granting a new trial. Section
25-11-103, MCA. Those grounds, as set forth in section
25-11-102, MCA, are:
(1) irregularity in the proceedings of the court, jury, or
adverse party or any order of the court or abuse of
discretion by which either party was prevented from having a
(3) accident or surprise which ordinary prudence could not
have guarded against;
(4) newly discovered evidence material for the party making
the application which he could not, with reasonable
diligence, have discovered and produced at the trial;
addition to demonstrating the existence of at least one of
these grounds, the moving party must also show that his or
her rights were materially affected. Id.
present case only the first two grounds are implicated by the
State Fund's motion. In its motion the State Fund
contends that the Court improperly ignored its evidence
concerning the occurrence of the accident. It argues that
claimant did not object to much of the evidence and that the