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Ranger Insurance Co. v. Bates

Court of Workers Compensation of Montana

December 30, 1997

RANGER INSURANCE COMPANY Appellant
v.
VELLEDA BATES Respondent.

          Submitted: December 24, 1997

          ORDER GRANTING MOTION TO STRIKE CROSS APPEAL

          Mike McCarter, Judge

         Summary: Insurer appealed from decision of Department of Labor and Industry. Claimant, respondent on the appeal, then filed a cross-appeal. The insurer filed a motion to dismiss the cross-appeal, arguing it was not timely under section 2-4-702, MCA.

         Held: A cross-appeal refers to an appeal filed after another party in the case has already appealed. It is, however, simply an appeal that must comply with statutory timeliness requirements. Section 2-4-702, MCA, contains no separate time line for a cross-appeal. Claimant's cross-appeal was not filed within the 30 days allowed by the statute and must be dismissed.

         Topics:

Appeals (To Workers' Compensation Court): Timeliness. A cross-appeal refers to an appeal filed after another party in the case has already appealed. It is, however, simply an appeal that must comply with statutory timeliness requirements. Section 2-4-702, MCA, contains no separate time line for a cross-appeal. Claimant's cross-appeal was not filed within the 30 days allowed by the statute and must be dismissed.

         This matter is an appeal from a decision of the Department of Labor and Industry. The decision was issued on August 1, 1997. The Court received a notice of appeal from Ranger Insurance Company (Ranger) on September 2, 1997. Thereafter, on December 5, 1997, it received a notice of cross appeal from Velleda Bates (Bates). Ranger moves to strike Bates' cross appeal as untimely.

         Section 2-4-702(2), MCA, fixes the time for the filing of a petition for judicial review (appeal) of an agency decision, providing:

2-4-702. Initiating judicial review of contested cases.
(1) (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute.
(2) (a) Except as provided in subsection (2)(c), proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision is rendered. Except as otherwise provided by statute, the petition must be filed in the district court for the county where the petitioner resides or has the petitioner's principal place of business or where the agency maintains its principal office. Copies of the petition must be promptly served upon the agency and all parties of record.
(b) The petition must include a concise statement of the facts upon which jurisdiction and venue are based, a statement of the manner in which the petitioner is aggrieved, and the ground or grounds specified in 2-4-704(2) upon which the petitioner contends he is entitled to relief. The petition must demand the relief to which the petitioner believes the petitioner is entitled, and the demand for relief may be in the alternative.
(c) If a petition for review is filed pursuant to 33-16-1012(2)(c), the workers' compensation court, rather than the district court, has jurisdiction and the provisions of this part apply to the workers' compensation court in the same manner as the provisions of this part apply to the district court. [Emphasis added.]

         On its face, the section applies to judicial review of any contested case matter. § 39-71-702(1)(a), MCA. Subsection (2) ...


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