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Clarke v. Massey

Court of Workers Compensation of Montana

January 27, 1995

DAVID CLARKE Petitioner
v.
SCOTT MASSEY, d/b/a ALL SEASONS CONSTRUCTION Respondent.

          ORDER AND JUDGMENT DISMISSING PETITION WITH PREJUDICE

          MIKE McCARTER, JUDGE

         Summary: Claimant filed petition asking Workers' Compensation Court to require uninsured employer to pay attorneys fees claimant incurred in case against uninsured employer in the Workers' Compensation Court.

         Held: While section 39-71-515, MCA (1989) provides for attorney fees to a claimant recovering in district court against an uninsured employer, no statute in the 1989 Act allows the Workers' Compensation Court to award fees against an uninsured employer relating to a case in the Workers' Compensation Court. Petition dismissed.

         Topics:

Constitutions, Statutes, Regulations and Rules: section 39-71-611, MCA (1989).

While section 39-71-515, MCA (1989) provides for attorney fees to a claimant recovering in district court against an uninsured employer, no statute in the 1989 Act allows the Workers' Compensation Court to award fees against an uninsured employer relating to a case in the Workers' Compensation Court.

Attorneys Fees: Uninsured Employers.

While section 39-71-515, MCA (1989) provides for attorney fees to a claimant recovering in district court against an uninsured employer, no statute in the 1989 Act allows the Workers' Compensation Court to award fees against an uninsured employer relating to a case in the Workers' Compensation Court.

         Before the Court are cross-motions for summary judgment. Having considered the motions and the parties' arguments, the Court grants respondent Scott Massey's (Massey) motion and dismisses David Clarke's (Clarke) petition.

         Factual Background

         This action is a follow-up to one filed in 1991 by the respondent, Scott Massey. Scott Massey v. Uninsured Employers' Fund and David Clarke, WCC. No. 9106-6160. In the 1991 action, Massey sought a determination that Clarke was either an independent contractor or was acting outside the scope and course of his employment when injured on February 5, 1990. On November 12, 1991, this Court issued Findings of Fact and Conclusions of Law and Judgment, determining that Clarke was an employee of Massey. The decision directed Massey to "reimburse the Uninsured Employers' Fund for all amounts expended on the workers' compensation claim of David Clarke subject only to the limitations of section 39-71-504, MCA."

         In the prior proceeding, Clarke requested an award of attorney fees against Massey. However, the request was made for the first time in proposed findings filed after trial. Massey objected to the request as outside the scope of issues specified by the pretrial order and the Court sustained the objection. (Findings of Fact and Conclusions of Law and Judgment at 3.) Neither party filed a request for a new trial or an appeal, and on February 7, 1992, the Court file in WCC No. 9106-6160 was closed.

         Two years later, on March 9, 1994, the Court received Respondent's Motion for Attorney Fees. The motion requested the Court to award Clarke $3, 922.50 in attorney fees incurred with respect to his defense in WCC No. 9106-6160. The Court reopened the original file.

         On June 8, 1994, the Court entered an Order Denying Motion for Attorney Fees; Order Permitting the Filing of a New Petition. In that Order, the Court concluded that the previous denial of Clarke's request for attorney fees was the law of the case. Since denial of the request was premised on procedural rather than substantive grounds, the Court went on to note that the prior ruling did not necessarily preclude the filing of a new and separate petition for attorney fees. However, it declined to say whether a new petition was viable.

[T]he motion for attorney fees is denied without prejudice. Claimant may revise, recaption and submit the motion in the form of a petition and the Court will accept it for filing and give it a new docket number. In the event the claimant files such a petition, Massey may raise any defenses it may have, including any defenses which present an insuperable bar to the prosecution of the petition.

         Once more, the Court closed the file on WCC No. 9106-6160. (Notice ...


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