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Blowers v. Montana Insurance Guaranty Association

Court of Workers Compensation of Montana

May 19, 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.

          ORDER AMENDING FINDINGS OF FACT

          Mike McCarter JUDGE

         Summary: Following decision expressing Workers' Compensation Court's concern that testimony of claimant and her father did not disclose that claimant was joint tenant on land with her parents, claimant moved to amend decision, pointing out that the title was in evidence and Proposed Findings disclosed her joint tenancy.

         Held: Court reiterated it's concern and, while praising claimant's counsel's competence and candor, admonished attorneys to take care not to present testimony leaving a false impression on significant matters.

         Topics:

Witnesses: Credibility. Claimant's credibility was undermined where she did not state in deposition and trial testimony that she was joint tenant on property with her parents, which was material to Court's inquiry whether claimant was entitled to lump sum advance of death benefits.
Benefits: Lump Sums: Generally. Claimant's credibility was undermined where she did not state in deposition and trial testimony that she was joint tenant on property with her parents, which was material to Court's inquiry whether claimant was entitled to lump sum advance of death benefits.

         On May 12, 1997, the Court received a letter from petitioner's counsel concerning Finding of Fact 12, which concerned ownership of the land for which the petitioner sought a lump sum to enable her to purchase. In that finding, I noted deposition testimony by petitioner and her father, and initial trial testimony by petitioner, to the effect that petitioner's father and mother owned the land in question. In fact, petitioner is a joint owner of the land with a right of survivorship.

         The finding of fact in question states, in full:

12. Petitioner resides in a mobile home which is located on a 6.3 acre lot. Petitioner owns the lot in joint tenancy with her father and mother, who also have a trailer on the land. (Ex. 14; Trial Test. of Petitioner and Max Hansonl.) The Court notes that neither the petitioner nor her father disclosed petitioner's interest in the land during their depositions. Both testified that the land is owned by petitioner's parents. (Petitioner's Dep. at 25-26; Hansonl Dep. at 12.) Petitioner's father responded "yes" when specifically asked to confirm "that [the] land is presently in your name and your wife's name." (Hansonl Dep. at 15.) When petitioner was first asked at trial about where she lived, she replied, "I live in a mobile home right now on my mom and dad's land." (Trial Test.) It was at that point that I interrupted her and stated my understanding, which I believed at the time came from my reading of Hansonl's deposition, that her name was on the title of the land as a joint tenant. The petitioner confirmed my understanding. Upon reviewing the depositions and exhibits I have found that the information concerning the joint tenancy was contained in Exhibit 14, which is a copy of a portion of the title insurance policy for the land, and not in Hansonl's deposition.
I find the omission of this information by petitioner in both her deposition and her initial trial testimony, and by Hansonl in his deposition, very disturbing in light of the fact that part of petitioner's lump-sum request is for money to pay her parents for the land. While her parents may have given her the interest in the land, that does not change the fact that she has an ownership interest in the very land for which she asks the Court to advance her money to purchase. Petitioner's counsel surely knew of petitioner's interest in the property, if not at the time of the deposition, then at least by trial since it is disclosed in Exhibit 14. Counsel surely understood that the fact of her ownership interest in the land is a fact of consequence to her request. I am disturbed that he did not point out the fact and that he left me to ferret it out for myself.

(Finding of Facts, Conclusions of Law and Judgment at 4.)

         The petitioner's counsel takes issue with the Court's last two sentences. He points out that not only was petitioner's ownership interest disclosed by the title policy but that a week prior to trial he also submitted proposed findings of fact which disclosed her ownership interest. That disclosure is contained in proposed Finding of Fact 14 of Claimant's Proposed Findings of Fact and Conclusions of Law, which reads:

14. Claimant and her son reside on approximately 6 acres of land in a 1988 16x80 mobile home. Also on this land is a mobile home owned and occupied by Claimant's parents; Max and Lyla Hansonl. There are two well, two septic systems, and two electrical services already on the property which has been developed for residential use. The 6 acres are titled in the names of Max Hansonl, Lyla Hansonl, and Daniela Blowers as Joint Tenants with the Right of Survivorship. Daniela Blowers did not pay any money for her name to be put on this property, which was done by her parents as a convenience and estate planning tool, rather than an outright gift. Max and Lyla Hansonl have agreed to sell 3 acres of this land outright to Claimant Daniela Blowers for the sum of $26, 500.00, which the Court finds to be a fair market value for this property.

         The Court did not mention the proposed finding and did in fact overlook it. Petitioner's counsel also points out that at trial the Court interrogated petitioner regarding the ownership of the land before counsel had an opportunity to clear up the matter. He ...


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