Submitted: August 2, 2019
ORDER GRANTING SUMMARY JUDGMENT TO
M. SANDLER, JUDGE
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.
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
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
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
6 At the hearing, Hideaway Builders adopted State Fund's
argument, asserting that it timely filed its Petition for
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
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
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
1. The finding that they were the employer on the underlying
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
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
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 ...