FRANK DeGREGORY

Petitioner

vs.

STATE COMPENSATION INSURANCE FUND

Respondent/Insurer for

EASTGATE TRUSTWORTHY HARDWARE,

Employer.

Respondent has filed a Motion for Summary Judgment supported by an Affidavit of Bill Hanson. In his response to the motion, the petitioner recites numerous facts and attaches several exhibits, none of which are verified by affidavit, deposition, written discovery, or the equivalent.

While this Court has not adopted a specific rule governing summary judgment practice, it has on previous occasions stated that, where appropriate, it will borrow from Rule 56, Mont.R.Civ.P. See e.g., State Compensation Ins. Fund. v. Frank C. Richter, WCC No. 9308-6867, Order Denying Motion for Summary Judgment (March 4, 1994). In Richter the Court adopted the Rule 56 requirement that motions for summary judgment, and any opposition to those motions, must be based on sworn, admissible evidence, which is usually presented by way of affidavit, deposition and answers to written discovery. The Court cannot consider representations of the parties which are not founded on sworn evidence. B.M. by Berger v. State, 215 Mont. 175, 179, 698 P.2d 399 (1985); Prairie State Bank v. IRS of Treasury Dept., 745 P.2d 966 (Ariz. 1990).

However, the Court has not formally adopted Rule 56 and has modified its application to conform to the nature of the proceedings in this Court. In ANR Freight Systems, Inc. v. Farmers Ins. Group, WCC No. 9411-7182, Order Denying Motion for Summary Judgment (January 26, 1995) at page 2, this Court said:

While the Workers' Compensation Court has generally applied the summary judgment procedures specified by the Montana Rules of Civil Procedure, application of those procedures may in some cases be inappropriate. One of the primary purposes of summary judgment motions is to "encourage judicial economy through the elimination of any unnecessary trial." Payne Realty v. First Security Bank, 256 Mont. 19, 24, 844 P.2d 90 (1993). Cases in the Workers' Compensation Court are heard on an expedited basis. Discovery is conducted on an expedited basis. Ordinarily, trials are held within seventy-five days of the filing deadline and are completed in less than a day. Motions for summary judgment may delay trial without any corresponding economies. The time and effort involved in preparing briefs and resolving motions for summary judgment may be as great or greater than that expended in resolving the issues by trial. Therefore, the Court may decline to consider individual summary judgment motions where the issues may be resolved just as expeditiously by trial as by motion.

In Industrial Indemnity Ins. Co. v. Roberta C. Ryan, WCC No. 9305-6795, Order Denying All Outstanding Motions (January 4, 1994) at page 3, the Court considered an insurer's motion that the Court enter summary judgment finding that claimant suffered a subsequent work-related injury to the same part of her body, thereby cutting off the insurer's liability. Characterizing the evidentiary basis for the motion as "skimpy", this Court went on to say:

Motions for summary judgment are especially disfavored in the Workers' Compensation Court. In a case such as this, unless the Court is satisfied that a sufficiently complete factual basis has been established, and it reaches a firm conviction that further factual inquiry would be unproductive, it will not grant a motion for summary judgment. No medical depositions have been offered in this case. The only medical records submitted by Industrial are four short letters from Dr. Ellis. The Court is not convinced that the medical information is adequate to render a summary decision.

(Id. at 4.)

That summary judgment may be inappropriate in some cases does not relieve the responding party from complying with Rule 56 when replying to a motion for summary judgment. On the other hand, the Court does not intend its selective application of Rule 56 to become a trap for the unwary, especially since the Court has not adopted its own rule with regard to summary judgment. Therefore, where the response to a motion for summary judgment sets forth facts, and it is not apparent that counsel for the responding party is familiar with the requirement that the facts be verified, the Court may grant the responding party an opportunity to file affidavits and discovery materials to cure the oversight.

In this case, the facts and documents identified in the responsive brief may raise material issues of fact. I have reached, and express, no opinion as to whether or not they in fact do so, only that the petitioner should be given an opportunity to verify them in compliance with Rule 56.

This case is set for trial in Missoula during the week of July 11, 1995. The motion was not submitted for decision until today, July 3, 1995. The reply brief, which was filed on July 3rd, contains a request for oral argument. Thus, even without granting petitioner an opportunity to submit verification of his factual allegations, there is insufficient time to consider and rule on the motion prior to trial. Based on the considerations I expressed in Ryan and ANR, I conclude that the motion for summary judgment should be denied and this case should proceed to trial as scheduled.

Dated in Helena, Montana, this 3rd day of July, 1995.

(SEAL)

/S/ Mike McCarter
JUDGE

c: Mr. Steve Fletcher
Mr. Charles G. Adams