Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Connery v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

September 4, 1997

COLLEEN CONNERY Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for WINTER SPORTS, INCORPORATED Employer.

          Submitted: July 14, 1997

          DECISION AND JUDGMENT

          Mike McCarter Judge

         Summary: Employee injured at ski resort had a 7% impairment rating, entitling her to a permanent total disability award under section 39-71-703, MCA (1995). Insurer refused to pay the award, contending that it was entitled to an offset based on section 39-71-416, MCA (1995), which provides that where a claimant collects damages against a third-party tortfeasor, either by way of judgment or settlement, the workers' compensation insurer may reduce claimant's benefits by up to 30%.

         Held: The insurer is not entitled to the offset because section 39-71-416, MCA (1995) is unconstitutional. The statute violates the full redress provision of Article II, section 16 of the Montana Constitution. (Note: affirmed in Colleen Connery v. Liberty Northwest Insurance Corporation, 1998 MT 125.)

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Constitution: Article II, section 16. An insurer is not allowed to reduce benefits under section 39-71-416, MCA (1995) because that statute, which authorizes an insurer to reduce benefits by up to 30% when a claimant recovers against a third-party tortfeasor, violates the full redress provision of Article II, section 16 of the Montana Constitution. (Note: affirmed in Colleen Connery v. Liberty Northwest Insurance Corporation, 1998 MT 125.)
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-416(1), MCA (1995). An insurer is not allowed to reduce benefits under section 39-71-416, MCA (1995) because that statute, which authorizes an insurer to reduce benefits by up to 30% when a claimant recovers against a third-party tortfeasor, violates the full redress provision of Article II, section 16 of the Montana Constitution. (Note: affirmed in Colleen Connery v. Liberty Northwest Insurance Corporation, 1998 MT 125.)
Constitutional Law: Full Redress. An insurer is not allowed to reduce benefits under section 39-71-416, MCA (1995) because that statute, which authorizes an insurer to reduce benefits by up to 30% when a claimant recovers against a third-party tortfeasor, violates the full redress provision of Article II, section 16 of the Montana Constitution. (Note: affirmed in Colleen Connery v. Liberty Northwest Insurance Corporation, 1998 MT 125.)

         Introduction

         This is the second proceeding involving a dispute arising out of a serious leg injury that claimant, Colleen Connery (Connery), suffered in a skiing accident on December 10, 1995. At the time of the accident, Connery was employed as a ski instructor for Winter Sports, Inc. (Winter Sports) at its Big Mountain ski area in Whitefish, Montana. In the previous case, Colleen Connery v. Liberty Northwest Ins. Corp., WCC No. 9602-7507 (Connery I), this Court determined that claimant's injury occurred in the course and scope of her employment as a ski instructor and is therefore compensable. That decision was affirmed upon appeal to the Montana Supreme Court. Connery v. Liberty Northwest Ins. Corp., 929 P.2d 222, 53 St.Rep. 1324 (Mont. 1996).

         This present case concerns Connery's entitlement to an impairment award. The parties agree that claimant has a 7% impairment rating as a result of her industrial injury, which entitles her to a permanent partial disability award of $1, 354.12. § 39-71-703, MCA (1995); Pretrial Order, Statement of Uncontested Facts No. 9. However, the respondent/insurer, Liberty Northwest Insurance Corporation (Liberty), claims an offset against that amount and has refused to pay it. The offset is based on section 39-71-416, MCA (1995), which provides that where a claimant collects damages against a third-party tortfeasor, either by way of judgment or settlement, the workers' compensation insurer may reduce the claimant's benefits by up to 30%. Connery settled her third-party claim against the skier who ran into her, and this settlement is the basis of the offset. Through her petition, Connery asserts that the statutory reduction is unconstitutional and that she is entitled to an impairment award. This Court agrees.

         Facts

         This case was originally scheduled for trial during the week of June 2, 1997, in Kalispell, Montana. However, by letter dated May 21, 1997, claimant's counsel advised the Court that Liberty had withdrawn its subrogation claim and that the only issue remaining to be resolved was Liberty's statutory entitlement to a 30% reduction of benefits. (Order Vacating Trial Date; Order Setting Briefing Schedule, May 23, 1997). Counsel agreed to present that issue to the Court upon the statement of uncontested facts.

         Thereafter, the parties filed a Pretrial Order wherein they set out an agreed statement of facts. The agreed facts are as follows:

         1. On December 10, 1995, Petitioner was injured in the course and scope of her employment as found by the Montana Supreme Court in Connery v. Liberty Northwest, __ Mont.__, __ P.2d__, 53 St. Rep. 1324 (Dec. 10, 1996). The claimant was injured when a co-employee, Mark Roy, collided with her on the Big Mountain Ski Hill.

         2. At the time of the injury, the employer was enrolled under Compensation Plan No. 2 of the Workers' Compensation Act, and its insurer is Liberty Northwest Insurance Corp.

         3. The Petitioner filed a claim against Mark Roy's homeowner's insurance carrier, Farmers Insurance Group, based on his negligence.

         4. The elements of damages Petitioner claimed against Farmers Insurance Group resulted from her injury were: past medical expenses of $3, 451.27, future medical expenses of $500.00, past wage loss of $2, 280.00, pain and suffering of $25, 255.00, and loss of enjoyment of an established course of life of $25, 255.00.

         5. On or about February 10, 1997, the claim was settled with Farmers Insurance Group for $27, 500.00, from which attorney fees totaling $9, 166.67 and costs totaling $244.08 were taken.

         6. The Respondent paid to Petitioner wage loss benefits (TTD and TPD) in the amount of $1, 352.34 on February 18, 1997, medical benefits in the amount of $2, 570.95 on or about February 17, 1997, and medical benefits in the amount of $376.57 thereafter.

         7. Respondent is not claiming a subrogation interest in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.