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Glaude v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 20, 1994

JOLANDA "SUSIE" GLAUDE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          ORDER DISMISSING PETITION

          Mike McCarter JUDGE

         The matter before the Court is respondent's Motion to Dismiss the petition for failure to state a claim upon which relief can be granted. The single issue presented by the petition and the motion is whether the statutory liability imposed upon the employer of an uninsured contractor, section 39-71-405(1), MCA, applies to the "employer of the employer" where the immediate employer is also uninsured.

         Facts

         The relevant facts alleged by the petitioner are as follows:

1.That on or about November 17, 1993, Petitioner suffered an industrial injury arising out of and in the course of employment as a Pilot Car Driver with Don Ellis. The injury occurred when a tractor-trailer pulled forward and crushed the Petitioner's right thigh and buttock. The Petitioner had been lying under the truck, near the tires while screwing a drain plug onto the mobile home. The accident occurred in Granite County, Montana.
2. Don Ellis was an uninsured independent sub-contractor hired by Transit Homes of America, Inc. Transit Homes of America, Inc. was an uninsured independent contractor hired by Rangitsch Brothers Mobile Homes. At the time of the injury, Rangitsch Brothers was enrolled under Compensation Plan III of the Workers' Compensation Act and its insurer is the State Compensation Insurance Fund.
3.A dispute exists between the parties. The Petitioner believes she is entitled to coverage under the policy owned by Rangitsch Brothers Mobile Homes pursuant to §39-71-405, MCA (1993). The State Fund claims that §39-71-405 does not extend coverage to the Petitioner because she works for a sub-contractor rather than a contractor who contracted directly with Rangitsch Brothers.

         Discussion

         The rules of the Workers' Compensation Court expressly contemplate motions to dismiss. Rule 24.5.316(1) provides in relevant part: "(1) Unless a different time is specified in these rules, the time for filing any motion to amend a pleading, to dismiss . . . shall be fixed by the court in a scheduling or other order." The rule, however, does not provide any further guidance concerning motions to dismiss. Therefore, as it has done in other cases, this Court will look to the Montana Rules of Civil Procedure for guidance when considering such motions. See Murer v. State Fund, 257 Mont. 434, 436, 849 P.2d 1036 (1993).

         Rule 12(b)(6) Mont.R.Civ.P. provides that a defense based on the failure of a complaint "to state a claim upon which relief can be granted" may be raised by a motion to dismiss. For purposes of such a motion, all well pleaded facts are deemed admitted, and the complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief." Farris v. Hutchinson, 254 Mont. 334, 336, 838 P.2d 374 (1992).

         In this case the factual predicate is straightforward. Ms. Glaude (claimant) was employed by Don Ellis (Ellis) and was injured in the course and scope of her employment. Ellis in turn had been hired by Transit Homes of America, (Transit) which in turn had been hired by Rangitsch Brothers Homes of America, Inc. (Rangitsch). Both Transit and Ellis were independent contractors. Ellis and Transit did not have workers' compensation coverage, Rangitsch did. Diagrammatically, the relationship was as follows:

         (Image Omitted.)

         According to the complaint Transit and Ellis were both independent contractors.

         The sole issue presented by the motion to dismiss is whether Rangitsch and its insurer, the State Fund, are liable for claimant's injuries. Resolution of the issue requires the ...


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