Submitted: March 3, 2005
ORDER DENYING MOTION TO SUPPLEMENT; DECISION AND
The widow of a deceased Libby mine worker who suffered from
asbestosis brought a claim for death benefits. The worker
retired in 1983. His asbestosis was not diagnosed until 2002
and a claim was not filed until 2003. The respondent insurer
moved for summary judgment based on section 39-72-403(3), MCA
(1983), which was in effect at the time of the claimant's
retirement in this case and bars claims filed more than three
years after retirement.
The claim is barred by section 39-72-403(3), MCA (1983),
which is a statute of repose and not subject to tolling. The
petitioner's constitutional challenge to the statute was
recently rejected in Hardgrove v. Transportation Ins.
Co., 2004 MT 340, 324 Mont. 238. Her request to
supplement the record with facts she believes might lead to
an overruling of Hardgrove is without legal support
as well as late, and is denied.
Limitations Periods: Claim Filing: Occupational
Disease. Under section 39-72-403(3), MCA (1983), an
occupational disease claim for asbestosis is barred unless a
claim is filed within three years after the worker retired
and ceased working for the employer. The section is a statute
of repose and cannot be tolled for any reason. Hardgrove
v. Transportation Ins. Co., 2004 MT 340, 324 Mont. 238.
Constitutions, Statutes, Rules, and Regulations:
Montana Code Annotated: 39-72-403(3), MCA (1983).
Under section 39-72-403(3), MCA (1983), an occupational
disease claim for asbestosis is barred unless a claim is
filed within three years after the worker retired and ceased
working for the employer. The section is a statute of repose
and cannot be tolled for any reason. Hardgrove v.
Transportation Ins. Co., 2004 MT 340, 324 Mont. 238.
Constitutional Challenges: Equal Protection.
Equal protection analysis does not encompass an evidentiary
trial or fact-finding by a judge or jury. Accordingly, a late
proffer of evidence to support an argument attacking the
constitutionality of a statute recently held constitutional
by the Supreme Court is rejected.
This is another Libby asbestosis case, this one involving Al
Dickerman (Dickerman), who worked at the W.R. Grace & Co.
Libby mine from 1968 to October 3, 1983. (Petition for Trial,
¶ 1.) He was diagnosed with asbestosis in April 2002 and
died on September 8, 2003, his death hastened by
asbestos-related lung cancer. (Id., ¶ 2 and
Pretrial Order, Stipulated Fact ¶ 4.) Following his
death, on September 16, 2003, Dickerman's widow filed a
claim for occupational disease benefits. (Id.,
¶ 7.) A month later, on October 16, 2003,
Dickerman's widow filed her Petition for Trial with this
Court, requesting death benefits and naming Transportation
Insurance Company, (Transportation) as the respondent. In its
response to the petition, Transportation admits it is the
insurer at risk for the claim. (Response to Petition for
Trial of Transportation Insurance Company, ¶ 1.)
On December 30, 2003, Transportation filed Respondent's
Motion for Summary Judgment, urging that the petitioner's
claim is barred by section 39-72-403, MCA (1983), which,
prior to October 1, 1985,  barred any occupational disease claim
not filed within three years after the claimant ceased
working for the employer against whom the claim is made. The
petitioner filed an answer brief, styled Provisional
Opposition to Motion for Summary Judgment. In that brief,
which is lengthy and detailed, she argued that the three-year
limitations period set out in section 39-72-403(3), MCA
(1983), was equitably tolled; that Transportation is
equitably estopped from raising the limitations defense; and
that if the statute barred her claim then it is
unconstitutional under the equal protection and full legal
redress clauses of the Montana Constitution.
On February 18, 2004, I held a telephone conference with
counsel to discuss the motion for summary judgment and other
pending motions. At that time I indicated to counsel that the
issues presented by the motion were the same as in Baker
v. Transportation Ins. Co., WCC No. 2003-0839, which is
another Libby asbestosis case involving, except for a
co-counsel for petitioner in Baker, the same
attorneys as in this case. I further indicated that the same
ruling as made in Baker would ensue in this case.
The ruling in question was my determination in Baker
that section 39-72-403(3), MCA (1983), is a statute of repose
barring any claim not filed within three years of an
employee's retirement, that the three-year limitations
period cannot be equitably tolled, and that the statute does
not violate either equal protection guarantees or the
constitutional right to full redress. Baker v.
Transportation Ins. Co., Decision and Order Regarding
Pending Motions, 2004 MTWCC 5. Baker, in turn,
simply reiterated and applied my holdings in another case -
Hardgrove v. Transportation Ins. Co., 2003 MTWCC 57.
My decision in Hardgrove was affirmed by the Montana
Supreme Court on December 1, 2004, however, on February 18,
2004, we did not have the benefit of that appellate decision.
In any event, on February 18, 2004, counsel for
Transportation represented that Transportation agreed that
Dickerman's asbestosis was work related and hastened his
death and that it would be liable for benefits if its legal
defenses were rejected. Both counsel then agreed to a stay of
proceedings and to submit a Pretrial Order setting out the
facts of the case and their stipulations.
On May 3, 2004, the Pretrial Order was filed. The Pretrial
Order set forth a series of agreed facts and stipulated that
the 1983 version of the Occupational Disease Act applies and
that the case "be submitted on the pleadings, the
stipulated facts, and the exhibits." I then entered an
order staying further proceedings "pending the Supreme
Court decision in Hardgrove." (Order Staying
Matter, July 16, 2004.)
Immediately following the Supreme Court decision in this
case, the petitioner herein filed a Motion to Supplement the
Record in which she requested leave to supplement the record
with respect to her equal protection challenge. In a
subsequent letter, the petitioner's counsel requested
that the Court defer final decision in this case if it denies
the motion so he could "bring another case to challenge
the Hardgrove ruling, using a more complete record
including the items sought to be supplemented into the record
in Baker and Dickerman." (March 28, 2005 letter of Jon
L. Heberling to Judge McCarter.)
After reviewing the Motion to Supplement the Record, the
prior motion for summary judgment and supporting briefs, and
the Pretrial Order, I have determined that the motion to
supplement should be denied, that the case is ready and ripe
for decision, and that there ...