FRANK V. PISKOLICH

Petitioner

vs.

ESIS, INCORPORATED, A CIGNA CORPORATION

Respondent/Insurer for

ARCO/ANACONDA MINERALS COMPANY

Employer.

The petitioner (claimant) filed a petition seeking compensation for hearing loss and to void a settlement agreement with respect to his claim. Respondent (CIGNA) filed a Motion for Summary Judgment, invoking the settlement agreement as a bar to the claim and requesting that the matter be dismissed with prejudice. The claimant then submitted a request to dismiss his claim with prejudice.

Upon receipt of the claimant's request to dismiss his claim with prejudice a telephone conference was arranged between the Court's hearing examiner, Ms. Clarice V. Beck, the claimant, Mr. Frank V. Piskolich and Mr. Daniel B. Bidegaray, attorney for the insurer, for the purpose of discussing a dismissal with prejudice and a dismissal without prejudice. Claimant and Mr. Bidegaray were advised that generally petitions were dismissed without prejudice in the Workers' Compensation Court. Mr. Piskolich indicated it would be his preference to have the matter dismissed without prejudice and he was advised that he must make his request in writing. Mr. Bidegaray indicated that he would oppose the dismissal without prejudice.

Subsequently claimant's motion to dismiss without prejudice was received and filed. CIGNA objects to dismissal without prejudice. Citing the amount of effort it has already put into the case, CIGNA requests that the Court rule on its Motion for Summary Judgment and Dismiss with Prejudice.

Initially, the Court notes that the claimant is appearing pro se' and that his request for dismissal without prejudice does not threaten any immediate renewal of litigation. It also notes that the amount of effort and legal research put into CIGNA'S opposition to dismissal without prejudice equals that which CIGNA invested in the Motion for Summary Judgment. Finally, it notes that should the Court deny claimant's motion to dismiss without prejudice, claimant would be provided an opportunity to respond to the Motion for Summary Judgment. The Court would then face the task of sorting through the various issues raised by the motion. If the motion were denied, the parties would then be permitted to proceed with discovery and to trial, with the possibility of appeal. The amount of time invested so far by CIGNA is small compared to the time which may be required, not only on the part of CIGNA but on the part of the Court, should the claimant's request for dismissal without prejudice be refused. While claimant initially requested dismissal with prejudice, that request was withdrawn and the Court cannot simply dismiss with prejudice in the face of that withdrawal.

Claimant may never resurrect this litigation. In that light, and balancing the amount of time expended by CIGNA on substantive issues against the amount of prospective time which might be required on the part of both the parties and the Court, I find that claimant's request for dismissal should be granted.

THEREFORE, IT IS HEREBY ORDERED that the petition is dismissed without prejudice.

DATED in Helena, Montana, this 5th day of May, 1994.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Frank V. Piskolich - CERTIFIED
Mr. Daniel B. Bidegaray