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Peters v. American Zurich Ins. Co.

Court of Workers Compensation of Montana

February 11, 2014

PHILLIP PETERS Petitioner
v.
AMERICAN ZURICH INS. COMPANY Respondent/Insurer.

Submitted: August 29, 2013

ORDER DENYING PETITIONER'S MOTIONS TO AMEND AND/OR RECONSIDER

Summary: Petitioner moved for amendment or reconsideration of decisions reached by the Court in two underlying Orders regarding portions of his claims against Respondent. Respondent objected to Petitioner's motions, arguing that the Court correctly resolved the pertinent issues.

Held: Petitioner's motions are denied. In one instance, Petitioner has requested that the Court reach the same result it reached in the underlying decision, and therefore no "reconsideration" is necessary. In the other instance, Petitioner addresses only one of the two reasons as to why the Court reached its decision and fails to support his argument with any citation to case law or statute.

¶1 Petitioner Phillip Peters moves this Court to amend and/or reconsider the Orders this Court issued regarding various summary judgment motions filed by the parties.[1]Respondent American Zurich Ins. Company (Zurich) opposes Peters' motions.[2]Although Peters filed a reply brief, I did not consider it, as reply briefs to motions for reconsideration and motions to amend are not allowed under this Court's rules and Peters did not move for leave to file additional briefing.[3]

Order Regarding Average Weekly Wage

¶ 2 Peters raises two issues pertaining to the Order Regarding Average Weekly Wage. Peters contends that the Court erred in U 14 when it stated, "[T]here is no indication from the evidence presented that the bonus was paid during the four pay periods preceding Peters' industrial injury . . . ." Peters also contends that the Court erred in U 21 where it found that the parties did not present any argument regarding what time period to use in calculating Peters' average weekly wage.[4]

¶ 3 Peters argues that the Court overlooked evidence he presented in support of the motion underlying the Order Regarding Average Weekly Wage. Peters contends that he did present evidence indicating that his bonus was paid during the four pay periods preceding his industrial injury. Specifically, Peters points to an attached affidavit from his counsel which included a statement that Peters had received a bonus "immediately preceding" his industrial injury.[5] Peters further points to an exhibit attached to his counsel's affidavit which he describes as:

Exhibit one to the Affidavit, states the name of Phillip Peters, shows the amount of $2, 000.05, states "Roscoe Steel Department #1" and notes "Current quarter number one." The document notes "Run date 1/11/99" and a "w/e date 1/13/99", with a handwritten notation, "Bonus" and the date (partially obscured by a punch hole) "1/13/99".[6] [sic]

¶ 4 If in fact this exhibit in any way advanced Peters' case, its significance was lost on me. Counsel provided this inscrutable document[7] as an exhibit to an attachment with absolutely no context. I was unable to decipher or find any meaning in this document on its own, and Peters failed to provide any guidance as to the alleged significance of this document in his supporting briefs. Over the years, I have repeatedly reminded counsel who practice in this Court that if they have a critical piece of evidence, it may behoove them to point out to me exactly how this evidence is critical. Counsel may have photos that conclusively prove that his client's metallic mint green 1964 Buick Skylark convertible could not possibly have made the tire marks driving away from the Sac-O-Suds;[8] but if there is an error committed in the Court's failure to appreciate the significance of these photos, the error is counsel's presumption that I am an expert on tire marks.

¶ 5 More to the point, even if this exhibit indeed proves that Peters' bonus was paid during the four pay periods preceding his industrial injury, there is still no relief to grant in response to Peters' motion. In the underlying motions, I ruled in Peters' favor regarding the inclusion of the bonus in his average weekly wage calculation regardless of whether it was paid in the last four pay periods. I therefore am at a loss as to what other relief may be available to Peters, except perhaps to say: "Okay, you really really win on this issue."

¶6 Peters further contends the Court erred in its finding at ¶ 21 of the Order Regarding Average Weekly Wage. Specifically, Peters takes exception to the Court's statement, "with no argument from the parties suggesting the time period to use." Peters alleges that this statement is erroneous and contends that he presented argument regarding the time period to use. Citing to the underlying briefing, Peters offers the following:

At page 2, paragraphs 8 and 10, Petitioner's March 9, 2010 brief stated:
" A $ 2, 000.00 yearly bonus (divided by 52 weeks in a year) would increase the A.w.w. by $ 38.46 per week. (Id., para 10)
From July 22, 1998 through January 18, 1999 (25.57 weeks), Mr. Peters earned 60 hours of vacation pay at $ 10.00 per hour....$ 600.00 divided by 25.57 weeks equals $ 23.46 per week, ...

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