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IN
THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2000
MTWCC 63
WCC
No. 9801-7900
KRISTOPHER
MILLER
Petitioner
vs.
STATE
COMPENSATION INSURANCE FUND
SELF-EMPLOYED
DOCTOR OF CHIROPRACTIC
Employer.
ORDER DENYING MOTION IN LIMINE
Summary
of Case: Claimant was criminally charged with workers'
compensation fraud. Following dismissal of the charges by the State,
he filed a motion in limine to exclude any evidence of fraud at a trial
on his petition for benefits. The motion was based on correspondence
between his attorney and the Clerk of the WCC, and correspondence between
the State Compensation Insurance Fund's attorney and the Clerk.
Held:
The motion is denied. (1) The motion in limine is improper. (2)
There is no binding stipulation or agreement. (3) The State Fund's agreement,
if any, concerned an acquittal after trial, not a dismissal.
Topics:
Attorneys:
Correspondence. Letter from insurer's counsel to Clerk of
Workers' Compensation Court agreeing with statements in letter from
claimant's counsel did not create binding agreement for dismissal
of insurer's affirmative defense of fraud. Letter from claimant's
counsel to Clerk had indicated case should settle if claimant was
found not guilty of fraud in pending criminal case. When writing to
the Clerk, insurer's counsel merely concurred with logic of earlier
letter. Claimant, in any event, was not actually found "not guilty"
when charges were dismissed.
Criminal
Prosecution. Claimant's counsel wrote to Clerk of Workers'
Compensation Court asserting that case should settle if claimant was
found not guilty of fraud in pending criminal case. Insurance counsel's
agreement in his letter to Clerk did not create binding agreement
to dismiss affirmative defense of fraud. Criminal case, in any event,
was dismissed and claimant was never found "not guilty" of fraud.
Defenses:
Fraud. Claimant's motion in limine to exclude evidence of
fraud at trial was not proper where claimant, in essence, sought to
strike an affirmative defense but had not moved for partial summary
judgment or to strike. The motion to exclude was also denied because
no agreement to drop fraud defense arose from communications to Clerk
of Court by counsel.
Evidence:
Generally. Claimant's motion in limine to exclude evidence
of fraud at trial was not proper where claimant, in essence, sought
to strike an affirmative defense but had not moved for partial summary
judgment or to strike. The motion to exclude was also denied because
no agreement to drop fraud defense arose from communications to Clerk
of Court by counsel.
Fraud.
Claimant's motion in limine to exclude evidence of fraud at trial
was not proper where claimant, in essence, sought to strike an affirmative
defense but had not moved for partial summary judgment or to strike.
The motion to exclude was also denied because no agreement to drop
fraud defense arose from communications to Clerk of Court by counsel.
Pleading:
Affirmative Defenses. Claimant's motion in limine to exclude
evidence of fraud at trial was not proper where claimant, in essence,
sought to strike an affirmative defense but had not moved for partial
summary judgment or to strike. The motion to exclude was also denied
because no agreement to drop fraud defense arose from communications
to Clerk of Court by counsel.
Procedure:
Motion in Limine. Claimant's motion in limine to exclude
evidence of fraud at trial was not proper where claimant, in essence,
sought to strike an affirmative defense but had not moved for partial
summary judgment or to strike. The motion to exclude was also denied
because no agreement to drop fraud defense arose from communications
to Clerk of Court by counsel.
Procedure:
Motion to Strike. Claimant's motion in limine to exclude
evidence of fraud at trial was not proper where claimant, in essence,
sought to strike an affirmative defense but had not moved for partial
summary judgment or to strike.
Settlement:
Generally. Letter from insurer's counsel to Clerk of Workers'
Compensation Court agreeing with statements in letter from claimant's
counsel did not create binding agreement for dismissal of insurer's
affirmative defense of fraud. Letter from claimant's counsel to Clerk
had indicated case should settle if claimant was found not guilty
of fraud in pending criminal case. When writing to the Clerk, insurer's
counsel merely concurred with logic of earlier letter. Claimant, in
any event, was not actually found "not guilty" when charges were dismissed.
Summary
Judgment: Motion for Summary Judgment. Claimant's motion
in limine to exclude evidence of fraud at trial was not proper where
claimant, in essence, sought to strike an affirmative defense but
had not moved for partial summary judgment or to strike. The motion
to exclude was also denied because no agreement to drop fraud defense
arose from communications to Clerk of Court by counsel.
¶1 The claimant
in this matter is seeking 500 weeks of permanent partial disability
benefits and payment for medical expenses. State Fund alleges his claim
is fraudulent. Through a motion in limine, the claimant now seeks to
strike the fraud defense based on a letter of State Fund's counsel which
claimant construes as indicating an agreement by the State Fund to drop
the defense in the event the criminal case was dropped. In fact, the
criminal case against claimant was dropped and never went to trial.
¶2 Initially,
the motion is improper. What claimant seeks to do is strike an affirmative
defense. A motion for partial summary judgment or to strike should have
been filed.
¶3 Moreover,
the correspondence upon which the motion is based is insufficient to
preclude the defense in any event. First, there is no stipulation or
enforceable written agreement. At best, there is a letter from counsel
for State Fund indicating he agreed with the logic of claimant's analysis.
Second, the correspondence does not address the effect of the State
dismissing the criminal prosecution, only an acquittal. In his letter,
which was addressed to the Clerk of this Court, claimant's attorney
wrote:
In its Complaint,
the State of Montana claims that my client did not suffer an on-the-job
injury, and that he was working and receiving compensation at the
same time he was receiving workers' compensation benefits. I would
think that disposition of these issues in the criminal case would
be dispositive of my client's right to compensation in the workers'
compensation case. In other words, if he is found not guilty in the
criminal case, this should be dispositive of issues currently pending
before the Workers' Compensation Court.
We are set
for trial on December 13, 1999, and there appears to be no question,
at this time, that the case will, in fact, go to trial as scheduled.
I would think that after the trial on the criminal charges,
my client would be in a position to resolve his workers' compensation
case without the necessity of a trial. [Emphasis added.]
(Petitioner's
Memorandum in Support of First Motion in Limine, Ex. A.)
Counsel for
the State Fund, who received a copy of the letter, then wrote the Clerk
of Court, as follows:
I am in receipt
of a copy of the letter to you dated September 22, 1999 from Robert
G. Olson of Frisbee, Moore and Olson. I write to let you know that
I concur with Mr. Olson on the issues addressed in that letter.
(Id., Ex.
B.)
Even if the
correspondence gives rise to a binding agreement, the agreement was
contingent upon claimant going to trial and being acquitted.
¶4 The motion
is denied.
DATED in Helena,
Montana, this 20th day of September, 2000.
(SEAL)
/s/ Mike
McCarter
JUDGE
c: Mr. Robert
G. Olson
Mr. Charles G. Adams
Date Submitted: September 1, 2000
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