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Lanz v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

August 3, 2005

KAREN LANZ Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer and BOZEMAN DEACONESS HEALTH SERVICES Employer.

          Submitted: June 14, 2005

          DECISION AND JUDGMENT DISMISSING BOZEMAN DEACONESS HEALTH SERVICES

          MIKE MCCARTER JUDGE

         Summary: Pursuant to the employment preference provision of the Workers' Compensation Act, § 39-71-317, MCA (1999), the petitioner brought an action for reinstatement of employment and back pay, naming her employer's workers' compensation insurer as the sole respondent to her claim. Thereafter, with leave of Court, she filed an amended petition naming her employer. The employer moved to dismiss on the ground that the amended petition is time barred.

         Held: The amended petition is time barred under § 27-2-211(1)(c), MCA (1999), which requires that any action based on a liability created by statute be commenced within two years. The amended petition was filed more than two years after the preference period had ended. The amended petition does not relate back to the filing date for the original petition since no fictitious respondents were named and the claimant proffers no evidence satisfying the criteria of Rule 15(c), Mont. R. Civ. P.

         Topics:

Limitations Periods: Employment Preference. The two-year limitations period for actions based on liability created by statute, § 27-2-211(1)(c), MCA (1999), applies to actions under the employment preference provision of the Workers' Compensation Act, § 39-71-317, MCA (1999).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 27-2-211(1)(c), MCA (1999). The two-year limitations period for actions based on liability created by statute, § 27-2-211(1)(c), MCA (1999), applies to actions under the employment preference provision of the Workers' Compensation Act, § 39-71-317, MCA (1999).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-317, MCA (1999). The two-year limitations period for actions based on liability created by statute, § 27-2-211(1)(c), MCA (1999), applies to actions under the employment preference provision of the Workers' Compensation Act, § 39-71-317, MCA (1999).
Pleading: Amendments. An amended petition adding a new party does not relate back to the original petition for statute of limitations purposes where there is no showing that the new party was, within the limitations period, aware of the filing of the petition and knew, or should have known, that the petitioner had made a mistake concerning its identity, or where the petition failed to name fictitious respondents whose true identities were unknown. Rule 15(c), Mont. R. Civ. P. and § 25-5-103, MCA (1999).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 25-5-103, MCA (1999). An amended petition adding a new party does not relate back to the original petition for statute of limitations purposes where there is no showing that the new party was, within the limitations period, aware of the filing of the petition and knew, or should have known, that the petitioner had made a mistake concerning its identity, or where the petition failed to name fictitious respondents whose true identities were unknown. Rule15(c), Mont. R. Civ. P. and § 25-5-103, MCA (1999).
Procedure: Rules of Procedure. Where the rules of the Workers' Compensation Court are silent, the Court may look to the Montana Rules of Civil Procedure for guidance. ARM 24.5.352.
Constitutions, Statutes, Rules, and Regulations: Workers' Compensation Court Rules: ARM 24.5.352. Where the rules of the Workers' Compensation Court are silent, the Court may look to the Montana Rules of Civil Procedure for guidance. ARM 24.5.352.
Constitutions, Statutes, Rules, and Regulations: Rules of Civil Procedure: Rule 15(c), Mont. R. Civ. P. An amended petition adding a new party does not relate back to the original petition for statute of limitations purposes where there is no showing that the new party was, within the limitations period, aware of the filing of the petition and knew, or should have known, that the petitioner had made a mistake concerning its identity, or where the petition failed to name fictitious respondents whose true identities were unknown. Rule 15(c), Mont. R. Civ. P. and § 25-5-103, MCA (1999).

         ¶1 The matter before the Court is a motion filed by Bozeman Deaconess Health Services requesting the Court to reconsider its order denying its motion to dismiss. Finding ...


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