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.

Lumbermens Mutual Casualty Co. v. Mares

Court of Workers Compensation of Montana

September 19, 1997

LUMBERMENS MUTUAL CASUALTY COMPANY Petitioner/Insurer for BUTTREY FOOD & DRUG Employer
v.
CHARLES E. MARES Respondent.

          September 16, 1997

          ORDER DISMISSING PETITION

          Mike McCarter JUDGE

         Summary: Insurer filed petition seeking determination that claimant's current medical and psychological conditions are not related to a work injury and that the insurer's liability for that work injury has ended. It also sought judgment that claimant reimburse it for medical and psychological benefits paid under a reservation of rights. Citing Champion International Corp. v. Brennan, WCC No. 9504-7269 (1995), claimant moved to dismiss the petition as an improper preemptive strike by the insurer and for failure to mediate the third issue.

         Held: Claimant's motion to dismiss is granted. As established in State ex rel. Industrial Ind. Co. v. District Court, 169 Mont. 10, 14, 544 P.2d 438 (1975), "ordinarily a court will refuse a declaratory judgment action which can be made only after a judicial investigation of disputed facts, especially where the disputed questions of fact will be the subject of judicial investigation in a regular action." Here, as in Champion, the insurer is no longer paying benefits, the claimant has not petitioned the Court, and he may never do so. In those circumstances, where the matter involves a factual dispute, the Court will not force a claimant to settle or litigate at the direction of the insurer. The third claim is dismissed for failure to mediate the particular issue of reimbursement.

         Topics:

Declaratory Judgment: Pre-emptive Strikes. Insurer's petition for declaratory judgment on claimant's entitlement to continued benefits for conditions insurer alleged were not related to work injury was dismissed as improper preemptive strike. As established in State ex rel. Industrial Ind. Co. v. District Court, 169 Mont. 10, 14, 544 P.2d 438 (1975), "ordinarily a court will refuse a declaratory judgment action which can be made only after a judicial investigation of disputed facts, especially where the disputed questions of fact will be the subject of judicial investigation in a regular action." Here, as in Champion International Corp. v. Brennan, WCC No. 9504-7269 (1995), the insurer is no longer paying benefits, the claimant has not petitioned the Court and may never do so, and the underlying dispute involves factual matters.
Mediation. Claim for reimbursement contained within insurer's petition for declaratory judgment dismissed for failure to mediate that particular issue.

         The petition in this matter was filed by the insurer, Lumbermens Mutual Casualty Company (Lumbermens). According to the petition, the respondent/claimant (claimant) was injured in a motor vehicle accident on November 5, 1991, while working for Buttrey Food and Drug Company, which Lumbermens insured. (Petition for Trial, ¶ A.) The accident occurred in Billings. (Id. ¶ B.) Lumbermens accepted liability for the accident, but it now seeks to limit seeks to limit its liability. Specifically, it seeks the following relief:

(1) A judgment determining that claimant's "current medical and psychological conditions are not related to his injury on November 5, 1991."
(2) A declaratory judgment determining that its "liability for any benefits as a result of the November 5, 1991 injury has ended."
(3) A judgment ordering claimant to reimburse it for medical and psychological benefits it has paid under a reservation of rights.

(Id. at 2.)

         Claimant has responded to the petition with various motions. Initially, he moves to dismiss the petition. (Respondent's Motion to Dismiss, to Change Venue, and for Attorneys Fees; Or, in the Alternative, to Join Additional Parties.) In the event his motion to dismiss is denied, he moves for a change of venue and to join additional parties. (Id.) He supplements the foregoing motions with a motion for a protective order staying discovery until his substantive motions are decided and, in the event the Court denies his motion to dismiss, then for a new scheduling order. (Respondent's Motion to Vacate Scheduling Order and Motion for Protective Order.)

         Discussion ...


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.