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Thayer v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

January 27, 1995

GERALD L. THAYER (Deceased) PHYLLIS THAYER Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent/Insurer for RICHARD SMITH, d/b/a RRS, INCORPORATED Employer.

          ORDER DENYING PETITION FOR A NEW TRIAL

          Mike McCarter JUDGE

         Summary: Uninsured employer filed petition for new trial arguing that he was unfairly surprised by evidence admitted at trial.

         Held: Under ARM 24.5.344, 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." The grounds for granting a new trial are enumerated in section 25-11-102, MCA, and include irregularity in the earlier proceeding preventing a fair trial and accident or surprise which ordinary prudence could not have guarded against. Smith's claim of surprise by admission of evidence concerning the scope of control he exercised over a worker was unconvincing. The individuals involved were all listed as witnesses. Evidence of scope of control was relevant to employment status and contemplated by the issues stated in the pretrial order.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 25-11-102, MCA. Under ARM 24.5.344, 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." The grounds for granting a new trial are enumerated in section 25-11-102, MCA, and include irregularity in the earlier proceeding preventing a fair trial and accident or surprise which ordinary prudence could not have guarded against. Smith's claim of surprise by admission of evidence concerning the scope of control he exercised over a worker was unconvincing. The individuals involved were all listed as witnesses. Evidence of scope of control was relevant to employment status and contemplated by the issues stated in the pretrial order.
Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.344. Under ARM 24.5.344, 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." The grounds for granting a new trial are enumerated in section 25-11-102, MCA, and include irregularity in the earlier proceeding preventing a fair trial and accident or surprise which ordinary prudence could not have guarded against. Smith's claim of surprise by admission of evidence concerning the scope of control he exercised over a worker was unconvincing. The individuals involved were all listed as witnesses. Evidence of scope of control was relevant to employment status and contemplated by the issues stated in the pretrial order.
Procedure: Post-Trial Proceedings: New Trial. Under ARM 24.5.344, 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." The grounds for granting a new trial are enumerated in section 25-11-102, MCA, and include irregularity in the earlier proceeding preventing a fair trial and accident or surprise which ordinary prudence could not have guarded against. Smith's claim of surprise by admission of evidence concerning the scope of control he exercised over a worker was unconvincing. The individuals involved were all listed as witnesses. Evidence of scope of control was relevant to employment status and contemplated by the issues stated in the pretrial order.

         The employer in this matter, Richard Smith (Smith), has filed a petition for a new trial. In his supporting brief he argues that he was unfairly surprised by the Court's admission of evidence pertaining to the relationship among Smith and Gary Thompson and Jerry Ruth. He contends that petitioner should have specifically made that relationship an issue in the Pretrial Order, citing a prior order of this Court, Rasmussen v. State Compensation Insurance Fund, No. 9212-6647 (July 28, 1994 Order Granting New Trial).He further contends that the Court abused its discretion in admitting and considering evidence of the relationship.

         Petitions for new trials are governed by ARM 24.5.344, which 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 judgement is served." The grounds for granting a new trial are enumerated in section 25-11-102, MCA. There are three grounds applicable to cases tried without jury. They 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 fair trial;
. . .
(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.

         Smith's arguments fall under grounds (1) and (3); he does not offer ...


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