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Blowers v. Montana Insurance Guaranty Association

Court of Workers Compensation of Montana

April 25, 1997

DANIELA BLOWERS, individually and on behalf of GALEN LEE BLOWERS, II, a minor Petitioner
v.
MONTANA INSURANCE GUARANTY ASSOCIATION Respondent/Insurer for POOL WELL SERVICING COMPANY Employer.

          Submitted: January 2, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: 34-year old widow sought lump-sum advance of death benefits in the amount of $655, 000 on behalf of herself and her 11 year old son, to pay for a new mobile home, garage, breezeway, furniture, a business, further education for herself, tutors for her son, to pay down the loan on a van, attorneys fees, and other items. The requested amount was modified at trial to $158, 436.71, which represents approximately ten years of benefits. She argued the advance would improve living conditions for herself and her son.

         Held: Under Willoughby v. Arthur G. McKee & Co., 187 Mont. 253, 257, 609 P.2d 700, 702 (1980), lump-sum settlements may be granted in cases of outstanding indebtedness or pressing need, or where the best interests of petitioner, her family, and the general public will be served. The best interest component is the "primary criterion." Sullivan. V. Aetna Life & Cas., 271 Mont. 12, 16, 894 P.2d 278, 280 (1995). While the best interests of a claimant are ordinarily served by regular periodic installments, making lump-sums the exception rather than the rule, lump-sum advances are not looked upon with disfavor and will be awarded without hesitancy in appropriate cases. In this case, while the Court has approved the modest advance to which the employer/insurer has already agreed, claimant has not convinced the Court that an additional lump-sum is warranted. Claimant justified her request in part by a desire to purchase the land on which she lives from her parents, but she is already a joint tenant of the property, with rights of survivorship and an equal right to occupy the land. While she argues her present income ($39, 947.10, net, after-tax) is less than if her husband has survived, calculation accounting for inflation indicates her present income is greater than if her husband had continued in his position (take home of $33, 306.18). More generally, claimant has not shown that her present situation is not adequate or that the problems of which she complains would be best served by the requested lump-sum advance.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-721(5), MCA (1983). Under section 39-71-721(5), MCA (1983) death benefits must be paid to a widow or widower for life or until remarriage, and in the event of remarriage, two years of benefits must be paid in a lump sum. In case where widow requested lump sum of what would amount to ten years of benefits, WCC held that lump sum, if otherwise appropriate, was not necessarily limited to two years of benefits, though the possibility that claimant might remarry is a significant factor that would be taken into consideration when determining if an advance of more than two years' benefits was justified.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-741, MCA (1985). Under Willoughby v. Arthur G. McKee & Co., 187 Mont. 253, 257, 609 P.2d 700, 702 (1980), lump-sum settlements may be granted in cases of outstanding indebtedness or pressing need, or where the best interests of petitioner, her family, and the general public will be served. The best interest component is the "primary criterion." Sullivan. V. Aetna Life & Cas., 271 Mont. 12, 16, 894 P.2d 278, 280 (1995). While the best interests of a claimant are ordinarily served by regular periodic installments, making lump-sums the exception rather than the rule, lump-sum advances are not looked upon with disfavor and will be awarded without hesitancy in appropriate cases. In this case, while the Court has approved the modest advance to which the employer/insurer has already agreed, widow with 11-year old child did not convince the Court that an additional lump-sum is warranted where her income is presently more than her family would be receiving if her husband had not been killed and had continued in his same job and where she has not shown that her present situation is not adequate or that the problems of which she complains would be best served by the requested lump-sum advance.
Benefits: Death Benefits: Remarriage. Under section 39-71-721(5), MCA (1983) death benefits must be paid to a widow or widower for life or until remarriage, and in the event of remarriage, two years of benefits must be paid in a lump sum. In case where widow requested lump sum of what would amount to ten years of benefits, WCC held that lump sum, if otherwise appropriate, was not necessarily limited to two years of benefits, though the possibility that claimant might remarry is a significant factor that would be taken into consideration when determining if an advance of more than two years' benefits was justified.
Benefits: Death Benefits. Under Willoughby v. Arthur G. McKee & Co., 187 Mont. 253, 257, 609 P.2d 700, 702 (1980), lump-sum settlements may be granted in cases of outstanding indebtedness or pressing need, or where the best interests of petitioner, her family, and the general public will be served. The best interest component is the "primary criterion." Sullivan. V. Aetna Life & Cas., 271 Mont. 12, 16, 894 P.2d 278, 280 (1995). While the best interests of a claimant are ordinarily served by regular periodic installments, making lump-sums the exception rather than the rule, lump-sum advances are not looked upon with disfavor and will be awarded without hesitancy in appropriate cases. In this case, while the Court has approved the modest advance to which the employer/insurer has already agreed, widow with 11-year old child did not convince the Court that an additional lump-sum is warranted where her income is presently more than her family would be receiving if her husband had not been killed and had continued in his same job and where she has not shown that her present situation is not adequate or that the problems of which she complains would be best served by the requested lump-sum advance.
Benefits: Lump Sums: Generally. The petitioner bears the burden of proving that a lump sum is in her best interests. Phelps v. Hillhaven Corp., 231 Mont. 245, 252, 752 P.2d 737, 742 (1988).
Benefits: Lump Sums: Best Interests. Under Willoughby v. Arthur G. McKee & Co., 187 Mont. 253, 257, 609 P.2d 700, 702 (1980), lump-sum settlements may be granted in cases of outstanding indebtedness or pressing need, or where the best interests of petitioner, her family, and the general public will be served. The best interest component is the "primary criterion." Sullivan. V. Aetna Life & Cas., 271 Mont. 12, 16, 894 P.2d 278, 280 (1995). While the best interests of a claimant are ordinarily served by regular periodic installments, making lump-sums the exception rather than the rule, lump-sum advances are not looked upon with disfavor and will be awarded without hesitancy in appropriate cases. In this case, while the Court has approved the modest advance to which the employer/insurer has already agreed, widow with 11-year old child did not convince the Court that an additional lump-sum is warranted where her income is presently more than her family would be receiving if her husband had not been killed and had continued in his same job and where she has not shown that her present situation is not adequate or that the problems of which she complains would be best served by the requested lump-sum advance.

         The trial in this matter was held on November 7 and November 8, 1996, in Billings, Montana. Petitioner, Daniela Blowers (petitioner), was present and represented by Mr. Richard R. Martin. Galen Lee Blowers, II, (Galen Jr.) was represented by Mr. Donald D. Sommerfeld, guardian ad litem. Pool Well Servicing Company (Pool Well) was represented by Mr. Geoffrey R. Keller. Respondent, Montana Insurance Guaranty Association (MIGA), was represented by Mr. Barry G. O'Connell. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1-3, 6-17, and 19-21 were admitted without objection. Exhibits 4 and 5 were admitted over Pool Well's objection. Exhibit 18 was withdrawn.

         Witnesses and Depositions: Petitioner, Lee Oldenburg, Esther G. Bangston, Max Hansonl, and Juanita Hooper were sworn and testified. In addition, the parties submitted the depositions of petitioner and Max Hansonl for the Court's consideration.

         Issues Presented: The following issues are presented for resolution by the Court:

(1)Whether petitioner is entitled to a lump-sum advance of death benefits in addition to the lump sum Pool Well has agreed to pay, and, if so, what amount.
(2)Whether petitioner is entitled to attorney fees and costs.
(3)Whether Pool Well should pay the fees and costs of the guardian ad litem.

         Bench Ruling: At the close of trial the Court issued a bench ruling denying all of petitioner's lump-sum request except for the amount which Pool Well agreed to advance. The findings and conclusions announced in the bench ruling, as set forth in the relevant portion of the trial transcript on file with the Court, are reaffirmed and adopted. The written findings that follow provide additional details and facts relevant to the decision in this case.

         Amended Request: At the time of the bench ruling, I indicated that I would consider a more modest request for an advance if petitioner wished to pursue such request. Counsel for petitioner submitted a Modified Request on November 22, 1996. (Court File.) The request was for far more than anticipated by the Court and would require another trial. Thus, after a telephone conference on January 2, 1997, the Court determined that should petitioner wish to pursue her modified request, such request must be refiled as a new petition. Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Petitioner is presently 34 years old and in good health.

         2. Petitioner married Galen Lee Blowers (Galen Sr.) in 1982.

         3. On May 8, 1985, Galen Sr. was killed in an industrial accident arising out of and in the course of his employment with Pool Well while working on an oil rig in North Dakota. At the time of Galen Sr.'s death, petitioner was pregnant. Galen Jr. was born October 31, 1985. He is presently 11 years old.

         4. Petitioner and Galen Jr., reside in Shepherd, Montana, next door to petitioner's parents, Max and Lila Hansonl.

         5. Pool Well's insurer, Employers' Casualty Company (Employers' Casualty), accepted liability for the accident and initiated death benefits to petitioner. However, Employers' Casualty subsequently became insolvent and Pool Well assumed liability for further benefits.

         6. Petitioner graduated from high school in Sidney, Montana, in 1982. She did not work while her husband was alive.

         7. Petitioner moved to Billings in 1990. She attended the Billings College of Coiffure Arts and ...


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