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In re Telles

Court of Workers Compensation of Montana

April 22, 2005

IN THE MATTER OF MOLLIE R. TELLES TRAVELERS PROPERTY & CASUALTY COMPANY OF AMERICA Petitioner/Insurer
v.
ROYAL INSURANCE COMPANY OF AMERICA Respondent/Insurer.

          Submitted: March 29, 2005

          DECISION AND SUMMARY JUDGMENT

          Mike McCarter, Judge.

         Summary: The claimant developed carpal tunnel syndrome as a result of her employment but was not diagnosed with the condition until after her employment had ended. The employer's insurer at the time she was diagnosed accepted liability for her carpal tunnel syndrome claim under a reservation of rights, then petitioned the Court for indemnification from the insurer which insured the employer during the period of the claimant's employment.

         Held: An insurer which insures an employer after the claimant ceased working for the employer is not liable for an occupational disease arising during the employment. Section 39-72-303, MCA (2001-2003), which governs liability as between two insurers insuring a single employer, applies only where both insurers provided coverage while the claimant was actually employed by the employer.

         Topics:

Occupational Disease: Insurer Liable. Section 39-72-303(2), MCA (2001-2003), which governs liability between two insurers for the same employer, is inapplicable to an insurer which did not insure the employer while the claimant was employed. It has application only where the employer was insured by two or more different insurers while the claimant was employed.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-72-303, MCA (2001-2003). Section 39-72-303, MCA (2001-2003), which governs liability between two insurers for the same employer, is inapplicable to an insurer which did not insure the employer while the claimant was employed. It has application only where the employer was insured by two or more different insurers while the claimant was employed.
Summary Judgment: Motion for Summary Judgment. Summary judgment may be granted to a non-moving party where the parties agree on the essential facts and the issue is one of law.

         ¶1 This is a dispute between two insurers - Travelers Property & Casualty Company of America (Travelers) and Royal Insurance Company of America (Royal) - as to which of them is liable for the claimant's occupational disease. Royal moves for summary judgment.

         Undisputed Material Facts

         ¶2 The parties agree on the facts material and essential to Royal's motion for summary judgment. Those undisputed facts are as follows:

¶2a The claimant, Mollie R. Telles, worked at Stream International/Selectron (Stream International) from January 29, 2001, until August 15, 2003.
¶2b On August 15, 2003, and for some time prior to that date, Stream International was insured by Royal.
ΒΆ2c In 2002 the claimant filed a claim with respect to degenerative arthritis of her neck and upper back. Royal, which insured Stream International at the ...

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