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Z Works, Inc v. Gwyn Barnaby/Uninsured Employers' Fund

Court of Workers Compensation of Montana

March 3, 1998

Z WORKS, INCORPORATED Petitioner
v.
GWYN BARNABY/UNINSURED EMPLOYERS' FUND Respondents.

          Submitted: February 23, 1998

          ORDER GRANTING SUMMARY JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: UEF filed motion for summary judgment arguing that, as a matter of law, painter was an employee and not an independent contractor where she had not been granted an independent contractor exemption under section 39-71-120, MCA (1995.) The alleged employer responded that the painter had also been hired to provide bookkeeping services and represented workers' compensation insurance was not necessary for her.

         Held: Summary judgment granted to UEF where undisputed affidavit proves claimant had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-120, MCA (1995). Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.
Employers: Insurance. Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.
Employment: Employee. Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.
Independent Contractor: Generally. Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.
Independent Contractor: Independent Contractor Exemption. Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.

         ¶1 This case involves the interpretation and application of 1995 statutes concerning independent contractors. The petition is brought by a putative employer, Z Works, Incorporated (Z Works). Z Works alleges that claimant, Gwyn Barnaby (Barnaby), was injured on October 4, 1996, while painting for it, however, it urges that it is not liable for workers' compensation benefits because (1) Barnaby was an independent contractor and (2) she expressly advised Z Works not to provide workers' compensation coverage. In its response, the Uninsured Employers' Fund (UEF) asserts that Barnaby was an employee and that UEF is entitled to reimbursement from Z Works for the benefits it has paid on account of Barnaby's October 1996 injury.

         ¶2 Based on the pleadings and a single affidavit, the UEF moves for summary judgment. It urges that, as a matter of law, Barnaby was not an independent contractor and that her advice to Z Works does not relieve the company of liability for her injury. The UEF's motion is meritorious and is granted.

         Undisputed facts

         ¶3 The undisputed facts as derived from the pleadings and an uncontradicted Affidavit of Mary Buswell, who is an employee with the Independent Contractor Central Unit of ...


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