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Olin Jensen v. Uninsured Employers' Fund and Montana State Fund

IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA


February 7, 2013

OLIN JENSEN PETITIONER
v.
UNINSURED EMPLOYERS' FUND AND MONTANA STATE FUND
RESPONDENTS
AND UNINSURED EMPLOYERS' FUND
THIRD-PARTY PETITIONER
v.
PAUL KESSLER, STEVEN KESSLER, AND JEFF HUNTER, D/B/A/ ARTISTIC EXTERIORS, JOINTLY AND SEVERALLY, AND DANIEL CHRISTIANSON, INDIVIDUALLY AND/OR SOLE PROPRIETOR THIRD-PARTY RESPONDENTS

The opinion of the court was delivered by: James Jeremiah Shea Judge

ORDER DENYING THIRD-PARTY RESPONDENT'S MOTION FOR LEAVE TO RE- FILE MOTION FOR SUMMARY JUDGMENT AND REQUIRING PARTIES TO STIPULATE TO AGREED FACTS OR AGREED RECORD TO FACILITATE SUBMISSION OF THIS MATTER ON BRIEFS

Summary: Third-Party Respondent Daniel Christianson moved for leave to re-file his motion for summary judgment, after his initial summary judgment motion was denied on grounds that further discovery was warranted. The parties now wish to submit this matter on briefs and stipulated facts regardless of whether Christianson's motion for leave is granted.

Held: The parties having contacted the Court and indicated their desire to submit this matter on briefs and stipulated facts, judicial economy dictates that Christianson's motion be denied and this matter now be submitted on briefs for full resolution of all issues, based upon a stipulated record or stipulated facts agreed to by all parties.

¶ 1 On April 3, 2012, Third-Party Respondent Daniel Christianson filed a motion for summary judgment*fn1 with supporting brief*fn2 and affidavits,*fn3 arguing that he had no profit motive in purchasing the property where Petitioner Olin Jensen was injured. The house was therefore not a "business" and he was not responsible for Jensen's injuries in accordance with Weidow v. Uninsured Employers' Fund.*fn4

¶ 2 Following the filing of response briefs by Jensen*fn5 and Respondents Uninsured Employers' Fund (UEF)*fn6 and Montana State Fund (State Fund),*fn7 Christianson filed a reply brief in support of his motion.*fn8

¶ 3 On July 10, 2012, oral argument was had on Christianson's motion, and on July 26, 2012, I issued my formal ruling denying Christianson's motion for summary judgment.*fn9 I was not persuaded that all material facts and circumstances had been brought to light and agreed to by all parties at that juncture. I ordered the parties to adhere to the Order Resetting Scheduling Order, and provided that, upon completion of further discovery, Christianson may seek leave to re-file his motion for summary judgment.

¶ 4 On December 12, 2012, Christianson filed his Motion for Leave to Re-File Motion for Summary Judgment, attaching to it a copy of his deposition taken November 29, 2012, maintaining that "[i]t is clear from the deposition that Mr. Christianson never had a profit motive for his Anaconda, Montana home or any other property he owned."*fn10

¶ 5 UEF responded to Christianson's motion, with a supporting affidavit,*fn11 asserting Christianson's deposition "led to further discovery requests" by UEF and Jensen, and that those discovery requests were still outstanding.*fn12

¶ 6 Jensen responded to Christianson's motion by asserting no objection.*fn13

¶ 7 In Christianson's reply to UEF's response, he agrees there are still outstanding discovery requests, but maintains the issues raised in UEF's response brief were not genuine issues of material fact.*fn14

¶ 8 On December 12, 2012, UEF's counsel contacted the Clerk of Court and advised that the parties were in agreement to submit this matter on briefs but had not yet agreed to a briefing schedule or a date for submission of an agreed statement of facts. The clerk then vacated the pretrial conference and trial date.*fn15

¶ 9 On January 14, 2013, Jensen's counsel sent an e-mail to the Clerk of Court with copies to all parties, advising that the parties were in agreement to await the Court's decision on Christianson's Motion for Leave to Re-File Motion for Summary Judgment before discussing a briefing schedule.*fn16

¶ 10 By Court rule, summary judgment motions are disfavored and this Court will decline to rule on such motions where it appears the issues would be more easily resolved by trial.*fn17 As the parties have agreed to submit this matter upon briefs and agreed facts, to permit Christianson's motion to proceed at this juncture, following one briefing schedule with another, would be redundant and a waste of time and resources for both the parties and the Court.

¶ 11 Third-Party Respondent Christianson's Motion for Leave to Re-File Motion for Summary Judgment is denied.

¶ 12 Within thirty (30) days from the date of this Order, the parties shall submit to the Court an agreed statement of facts or an agreed stipulated record, followed by an agreed briefing schedule, to facilitate the submission of this matter on briefs.

SO ORDERED.

(SEAL)

c:

Eric Rasmusson Leanora O. Coles William Dean Blackaby Jeffrey W. Dahood Paul Kessler, Steven Kessler, and Jeff Hunter, d/b/a Artistic Exteriors

Submitted: December 28, 2012


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