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Greene v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

November 3, 2003

LYMAN GREENE Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent and ALDER KOA KAMPGROUND d/b/a NANNINI BROTHERS Employer/Respondent.

         Submitted: August 28, 2003

          ORDER AWARDING COSTS AGAINST UNINSURED EMPLOYER

          MIKE McCARTER JUDGE

         Summary: Claimant prevailed in his claim against the Uninsured Employers' Fund (UEF) and the uninsured employer. The present question before the Court is whether costs can be awarded against the uninsured employer.

         Held: Since the workers' compensation statutes are silent concerning an award of costs against an uninsured employer, the Workers' Compensation Court will be guided by Rule 54(d) of the Montana Rules of Civil Procedure. Moen v. Peter Kiewit & Sons, Co., 201 Mont. 425, 434, 655 P.2d 482, 486 (1982). Under that rule, costs are awarded against the uninsured employer.

         Topics:

Costs: Uninsured Employers. Since the workers' compensation statutes are silent concerning an award of costs against an uninsured employer, the Workers' Compensation Court will be guided by Rule 54(d) of the Montana Rules of Civil Procedure. Moen v. Peter Kiewit & Sons, Co., 201 Mont. 425, 434, 655 P.2d 482, 486 (1982). Under that rule, costs are awarded against the uninsured employer.
Costs: Uninsured Employers' Fund. In light of Rule 54(d), Mont.R.Civ.P., the prior ruling of the Workers' Compensation Court imposing costs on the UEF, Pekus v. Uninsured Employers' Fund and Yakos, 2003 MTWCC 33, is called into question and should be revisited in a future case.

         ¶1 The sole remaining issue in this case is whether the Court may award costs against the uninsured employer in this case. I conclude it can and therefore do so.

         Discussion

         ¶2 I have previously held that sections 39-71-611 and -612, MCA, which expressly authorize an award of costs against insurers, do not prohibit an award of costs against the Uninsured Employers' Fund. Pekus v. Uninsured Employers' Fund and Yakos, 2003 MTWCC 33. I found that in light of the statutory silence with respect to imposition of costs other than against insurers, the Court could exercise inherent authority to award costs. I have already applied that ruling in the present case. Order Denying Motion to Amend and Certifying Judgment (May 20, 2003.) In light of the following discussion, however, my specific holding with regard to the UEF being subject to costs may require reconsideration in a future case.

         ¶3 As already noted, Workers' Compensation statutes are silent with respect to imposition of costs other than against insurers. Claimant urges that the starting point for analysis is therefore the Montana Rules of Civil Procedure. I agree. It has long been the rule that where its own rules are silent, the Workers' Compensation Court may look to the Rules of Civil Procedure for guidance. Moen v. Peter Kiewit & Sons, Co., 201 Mont. 425, 434, 655 P.2d 482, 486 (1982).

         ¶4 The guidance provided by Rule 54(d), Mont.R.Civ.P, is in accordance with the general American rule requiring the losing party to pay costs and I find it appropriate to apply the rule here. Rule 54(d) provides:

(d) Costs. Except when express provision therefor is made either in a statute of the state of Montana or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Montana, its officers, agencies, and political subdivisions shall be imposed only to the extent permitted by law.

         There is no express provision governing an award of costs with respect to uninsured employers, therefore, the general rule requiring an award of costs applies. Accordingly, I find and hold that Alder KOA Kampground (Alder KOA) is liable for the costs in this case. Since Alder KOA was not previously provided with an opportunity to ...


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