JACK MURER, et al. Petitioners
MONTANA STATE COMPENSATION INSURANCE FUND, et al. Defendants.
ORDER DENYING RENEWED MOTION FOR CLASS
In case with long and complex history, claimants sought class
Court finds class action certification neither necessary nor
appropriate. Note that Supreme Court found common
fund doctrine applicable, which shares some properties with
case has a long history. It involves an issue of statutory
interpretation, viz. whether the freeze on benefits imposed
by the legislature (between 1987 and 1991) applies to
benefits payable after 1991 on account of injuries occurring
during the freeze. Insurers interpreted the freeze as
extending to all benefits payable for
injuries occurring during the period; claimants contended
that the freeze applied only to benefits between 1987 and
parties have made two trips to the Supreme Court. In their
first trip, class certification was at issue. This Court
denied certification; the claimants appealed from that ruling
and the Supreme Court affirmed this Court's decision.
Murer v. State Compensation Ins. Fund, 257 Mont.
434, 849 P.2d 1036 (1993) (hereinafter Murer I).
During the second trip the Supreme Court adopted
claimants' interpretation of the freeze and remanded the
case with instructions that this Court determine the amounts
due the individual claimants. Murer v. State Compensation
Ins. Fund, 51 St. Rptr. 1145 (1994) (hereinafter
Murer II). On remand the claimants have renewed their
motion for class certification. The motion is
claimants' renewed attempt to expand this action into a
class action is barred by the "law of the case
The rule of law of the case provides that in deciding a case
upon appeal, when the Supreme Court states in its opinion a
principle or rule of law necessary to the decision, such
pronouncement becomes the law of the case, and must be
adhered to throughout its subsequent proceedings, both in the
trial court and upon subsequent appeal.
Haines Pipeline Construction, Inc. v. Montana Power
Co., 265 Mont. 282, 289, 876 P.2d 632 (1994).
In Murer I the Supreme Court held that the
typicality requirement was not met. In part it said:
There would be many different situations among the estimated
two thousand claimants who would be included within this
class action so that the typicality of the Rule requirement
could not be met. Claimants would include unrepresented
claimants and those who are already represented by other
attorneys, who are suffering either from an industrial injury
or occupational disease; claimants whose cases are either
open or have been settled; claimants who may be entitled to
either a temporary total or permanent total wage supplement
impairment, rehabilitation, or death benefit; and different
rates for various claimants, depending on whether they were
injured or were disabled by an occupational disease. . . .
Murer I at 437-438. It is thus clear that the
differences among claimants was one of the Court's
reasons for affirming the denial of certification.
Reconsideration of the matter is, therefore, precluded.
the numerous distinctions among claimants which was pointed
out by the Supreme Court in Murer I have not
changed. Thus, even if Murer I did not preclude the
renewed motion, the present claimants have still failed to
meet the typicality requirement.
I am not persuaded that a class action is either necessary or
appropriate. The State Fund is obligated to comply with the
decision in Murer II. In conferences with the
parties' attorneys, the State Fund has informed the Court
and claimants' attorneys that it is in the process of
identifying those claimants who may be entitled to increased
benefits based on Murer II. It has completed that
identification process and substantially completed its effort
to notify those claimants of their potential entitlement.
Where no affirmative defenses, offsets, or legal issues
exist, the State Fund intends to pay the additional benefits,
less the twenty (20%) percent lien claimed by claimants'
are, however, remaining legal and factual issues with respect
to some claims, and the parties agree that those issues will
have to be adjudicated. Those issues include the
applicability of Murer II to impairment awards paid
prior to July 1, 1991, and whether settlements foreclose
additional benefits. Those issues can be adjudicated in cases
involving individual claimants. Presumably the State Fund
will comply with the precedents established in those cases.
Should it fail to do so, it may be subject to imposition of
penalties and attorney fees. It may also be subject to
penalties and attorney fees if the issues it raises to avoid
payment are frivolous. Thus, there should be enough ...