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Hideaway Builders, LLC v. Rasmussen

Court of Workers Compensation of Montana

August 6, 2019

HIDEAWAY BUILDERS, LLC Petitioner
v.
ERIK L. RASMUSSEN Respondent/Claimant UNINSURED EMPLOYERS' FUND Respondent MONTANA STATE FUND Intervenor.

          Submitted: August 2, 2019

          ORDER GRANTING SUMMARY JUDGMENT TO RESPONDENTS

          DAVID M. SANDLER, JUDGE

         Summary: The UEF determined that Claimant was an employee of Petitioner. Petitioner filed this case to appeal the UEF's determination. Claimant moved to dismiss, asserting that Petitioner filed this case after the 60-day statute of limitations in § 39-71-520(2)(b) and (c), MCA, ran. The UEF joined Claimant's motion. Petitioner initially conceded that it filed its Petition for Hearing a day late but argued that this Court should invoke the doctrine of equitable tolling and rule that it was timely. Intervenor argued that the Petition for Hearing was timely, asserting that under this Court's procedural rules, 3 days are added to the statute of limitations because the mediator mailed her Report and Recommendation. For the first time at the hearing, Petitioner argued that its Petition for Hearing was timely under this Court's procedural rules.

         Held: The Court converted the motion and granted summary judgment in favor of Respondents because the Petitioner's Petition for Hearing is time barred and the UEF's determination is final. This Court's rules of procedure state that filing occurs "upon receipt by the court." This Court did not receive the Petition for Hearing until after the limitations period had run. The Montana Supreme Court and this Court have ruled that, as a matter of law, 3 days for mailing are not to be added to the statutes of limitations in § 39-71-520, MCA. The doctrine of equitable tolling does not apply because the current version of § 39-71-520, MCA, is not ambiguous, and this is simply a case of neglect.

         ¶ 1 Petitioner Hideaway Builders, LLC (Hideaway Builders) filed a Petition for Hearing, challenging Respondent Uninsured Employers' Fund's (UEF) determination that Claimant Erik L. Rasmussen was an employee of Hideaway Builders at the time of his industrial injury. Hideaway Builders contends that Rasmussen was an independent contractor and that it is not liable to reimburse the UEF for benefits the UEF has paid on Rasmussen's claim.

         ¶ 2 Rasmussen moved to dismiss Hideaway Builders' Petition for Hearing on the ground that it missed the 60-day statute of limitations to appeal the UEF's determination in § 39-71-520(2)(b) and (c), MCA. Rasmussen asserted that the UEF's determination that he was an employee is now final under § 39-71-520(2)(c), MCA.

         ¶ 3 Hideaway Builders initially conceded that its Petition for Hearing was untimely under § 39-71-520(2)(b) and (c), MCA, but asserted that this Court should apply the doctrine of equitable tolling and rule that its Petition for Hearing was timely.

         ¶ 4 Although Rasmussen moved to dismiss, he attached exhibits to his brief. Hideaway Builders also relied on exhibits. At a hearing on June 25, 2019, the parties stipulated to the authenticity of the exhibits and agreed that they are part of the record. Thus, pursuant to M.R.Civ.P. 12(d), this Court notified the parties that it intended to convert Rasmussen's Motion to Dismiss into a motion for summary judgment and gave them an opportunity to present additional evidence and the opportunity for a hearing. The parties requested a hearing, which was held on Friday, August 2, 2019. Before the hearing, Rasmussen filed the Affidavit of Kendra Sorensen.

         ¶ 5 This Court also allowed Montana State Fund (State Fund) to intervene. State Fund opposed Rasmussen's motion, asserting that, pursuant to ARM 24.5.320 - which provides that when a party is required to act after service by mail during litigation before this Court, this Court adds 3 days to the prescribed period - this Court should add 3 days for mailing to the statute of limitations in § 39-71-520(2)(b) and (c), MCA. Thus, State Fund argued that Hideaway Builders' Petition for Hearing was actually timely.

         ¶ 6 At the hearing, Hideaway Builders adopted State Fund's argument, asserting that it timely filed its Petition for Hearing.

         FACTS

         ¶ 7 Rasmussen suffered an injury on July 5, 2018, when a wood truss fell on him.

         ¶ 8 Rasmussen filed a workers' compensation claim, asserting that he was an employee of Hideaway Builders and in the course of his employment when he was injured.

         ¶ 9 Because Hideaway Builders did not have workers' compensation coverage, Rasmussen's claim was forwarded to the UEF. The UEF determined that Rasmussen was an employee of Hideaway Builders and that Hideaway Builders was an uninsured employer.

         ¶ 10 On November 13, 2018, the UEF sent a letter to Rasmussen, with a copy to Hideaway Builders, stating in relevant part:

The Uninsured Employers' Fund (UEF) will pay benefits relative to the above-referenced Industrial Injury in accordance with the provisions of the Montana Workers' Compensation Act and Administrative Rules of Montana. Pursuant to section 39-71-520, MCA, this determination is not considered final until ninety (90) days has passed and if an appeal is not filed. All benefits are being paid under a full reservation of rights until such time this determination becomes final.

         ¶ 11 Also on November 13, 2018, the UEF sent a letter to Hideaway Builders, informing it, inter alia, that under § 39-71-504, MCA, Hideaway Builders had a legal obligation to reimburse the UEF for all benefits paid to Rasmussen. The UEF also informed Hideaway Builders that if it disagreed with the UEF's determination, it had 90 days under § 39-71-520, MCA, to appeal to mediation. The UEF's letter also informed Hideaway Builders that if it did not petition for mediation within 90 days, "the determination will be considered final."

         ¶ 12 On February 8, 2019, Hideaway Builders filed a Petition for Mediation. Hideaway Builders requested mediation on three issues:

1. The finding that they were the employer on the underlying claim.
2. If they are found to be the employer that a credit should be provided as Hideaway LLC has already paid a substantial amount for the Claimant's injuries. Evidence for this information is being supplemented to all parties.
3. Any issues raised by the Claimant in their recent request for mediation.

         ¶ 13 On March 4, 2019, Kristie Wolter, a Workers' Compensation Mediator with the Department of Labor & Industry (DLI), conducted the mediation conference.

         ¶ 14 On March 12, 2019, Wolter mailed her Report and Recommendation to the parties. The Report and Recommendation recounts:

The issues mediated were whether Hideaway Builders was Mr. Rasmussen's employer; if Hideaway Builders was found to be the employer, that a credit be provided as they have already paid a substantial amount for Mr. Rasmussen's injuries; and to address any ...

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