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Chandler v. Bituminous Insurance Co.

Court of Workers Compensation of Montana

February 12, 1996

GARY CHANDLER Petitioner
v.
BITUMINOUS INSURANCE COMPANY Respondent/Insurer for PROFESSIONAL DRIVERS RESOURCE Employer.

          Submitted: February 9, 1996

          ORDER AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Following settlement of dispute over domiciliary care benefits, claimant and insurer disagreed as to whom should receive the checks for domiciliary care.

         Held: Settlement agreement provided that insurer would "pay for 111/2 hours of domiciliary care per day at the rate of $7.00 per hour to Gary Chandler. . . ." This language is plain and clear and speaks for itself: payments must be made to claimant Gary Chandler, not to his wife. WCC order includes $2, 500 attorneys fees to claimant's counsel given the plain language of the agreement.

         Topics:

Settlements: Interpretation of.

Settlement agreement provided that insurer would "pay for 111/2 hours of domiciliary care per day at the rate of $7.00 per hour to Gary Chandler...." This language is plain and clear and speaks for itself: payments must be made to claimant Gary Chandler, not to his wife. WCC order includes $2, 500 attorneys fees to claimant's counsel given the plain language of the agreement.

         This matter came on for a conference before the Court. Petitioner, Gary Chandler, and his wife, Vicki Chandler, were present and participated in the conference. Mr. Chandler was represented by Ms. Kristi Blazer. The respondent, Bituminous Insurance Company, was represented by Mr. Alan L. Joscelyn.

         The parties presented their positions informally. After their presentation and further discussion, both parties agreed and stipulated that informal disposition of the case under Court rule ARM 24.5.333 is appropriate.

         Nature of the Dispute

         Petitioner in this case was injured in an industrial accident on October 2, 1987. His injuries were severe. A controversy thereafter arose concerning the amount of benefits due claimant. Following the filing of a petition with the Court, the parties agreed to a settlement conference with the Court's hearing examiner, Ms. Clarice V. Beck. Following that conference they entered into a Full and Final Compromise Settlement, which was thereafter approved by the Department of Labor and Industry. The agreement included a provision for payment of domiciliary care.

         A controversy then arose as to whom the domiciliary care payments should be made. Bituminous took the position, as it does in this proceeding, that payments are to the care giver, which at present is the petitioner's wife, Vicki Chandler. In fact, Bituminous has made all payments except one to her. Petitioner, on his part, argues that the agreement specifically provides that payments are to be made to him, and that he is then responsible for payment for his actual care. In addition to seeking an order construing the agreement and directing that future payments be made to him, petitioner requests attorney fees.

         The other matter set forth in the petition __ payment for a recliner __ has been resolved and need not be addressed.

         Resolution

         Regarding payment for domiciliary care, ...


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