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RANDELL JAMES SIMONS-TOLLEFSON,
a minor child
STATE COMPENSATION INSURANCE FUND
BIG Z TRUCKING
GUARDIAN AD LITEM AND
Summary: Insurer moved to dismiss petition for benefits filed on behalf of minor child of deceased worker on ground that 39-71-601, MCA (1991) requires written claim "within 12 months...either by the claimant or someone legally authorized to act for him in his behalf."
Held: Against the background of case law and other statutes, WCC held no one was legally authorized to act for the minor until a guardian or guardian ad litem had been appointed for the purpose of seeking workers' compensation benefits, even though the minor's mother was authorized to act on his behalf in other contexts. Where a guardian had not yet been appointed, the statute had not yet commenced and the motion to dismiss was denied.
¶1 The petitioner in this case is Randell James Simons-Tollefson (Randell), the minor son of Randell James Tollefson (Tollefson).(1) Tollefson was killed August 2, 1992, in a trucking accident. At the time of his death he was living with, but not married to Shelly Simons (Shelly), who is Randell's mother. Randell was born posthumously, approximately four months after the accident.
¶2 The Petition for Trial alleges Tollefson died within the course and scope of employment with Big Z Trucking. The State Fund denies liability. Among other defenses, it argues that the claim is barred by section 39-71-601, MCA, which requires that a claim be filed within one year of the accident. Both parties agree that no claim was filed within the one-year limitations period, and the State Fund moved to dismiss.(2) The motion was briefed and orally argued. During oral argument the Court questioned counsel whether Shelly has legal standing to pursue the claim on behalf of her son lacking her appointment as his general guardian or his guardian ad litem. At the Court's request, the parties filed supplemental briefs addressing the question, and the matter is now deemed submitted for decision.
¶3 Under section 39-71-721, MCA (1991), the "beneficiaries" of a worker who dies as a result of a work-related injury are entitled to benefits. The section provides in relevant part:
Section 39-71-116(3)(b), MCA, provides that a minor child of a deceased worker is a beneficiary, thus Randell's entitlement to benefits is governed by subsection (2) of section 39-71-721, MCA.
¶4 Randell's claim is also governed by sections 39-71-604 and -601, MCA. Section 39-71-604, MCA, requires that a beneficiary seeking death benefits must file a written claim.(3) Since Randell must file a claim, he is a "claimant" and therefore subject to section 39-71-601, MCA, which provides:
¶5 As a general rule, albeit one with exceptions, parents do not have standing to enforce the rights of their children. Section 40-6-232, MCA, provides, "The parent, as such, has no control over the property of the child." A claim for benefits is a property right. Further, section 27-1-511, MCA, provides:
A guardian becomes such "by acceptance of a testamentary appointment or upon appointment by the court." § 72-5-201, MCA. Thus, while parents may be "guardians" of their children in a general and loose sense, absent "appointment by the court" they are not guardians as defined in Montana statutes.
¶6 At least three Montana cases have addressed the status of a parent to act on behalf of a child in absence of the parent's appointment as a guardian or a specific statute authorizing the parent to act without appointment. In Maloney v. Schandelmier, 65 Mont. 531, 212 P.2d 493 (1923), a minor child was named a defendant in a lawsuit and served with a summons. He gave the summons to his father shortly after service but failed to appear, leading to the entry of a default against him. The trial court set aside the default and appointed the father guardian ad litem for purposes of defending the case. The Supreme Court affirmed, holding that prior to appointment of the guardian ad litem the "defendant [minor] could not have appeared, had he so desired." 65 Mont. at 535, 212 P.2d at 494. According to the Court, "the rule . . . seems well established that no legal right of parentage or of natural guardianship will enable one to act for an infant without an appointment as guardian . . . ." Id. The Court also noted: "It is the well-established policy of the law to protect the rights of minors, and in this respect the courts are charged with vigilance." 65 Mont. at 536, 212 P.2d at 494.
¶7 Lazich v. Belanger, 111 Mont. 48, 105 P.2d 738 (1940), is even closer on point. In that case, a minor child had a personal injury claim against the city of Butte. Under statutes governing claims against the city, claimants were required to provide written notice of their claims within 60 days of injury. Neither the injured child nor his parents gave the required notice, however, thereafter the child's mother was appointed his guardian, promptly gave notice to the city, and then filed a personal injury action on behalf of her son. Upon demurrer invoking the 60-day notice requirement, the District Court dismissed the complaint. The Supreme Court reversed, holding that, even though the notice statute was applicable to a minor, the rights of the minor should not "be prejudiced by the omission of the parents to give the notice." 111 Mont. at 53, 105 P.2d at 739. Noting the minor was not able to act on his own, the Court stated:
¶8 The third case is a workers' compensation case involving death benefits. In Davis v. Industrial Accident Board, 92 Mont. 503, 15 P.2d 919 (1932), the father of two children died as a result of an industrial accident. The children's mother filed a claim for death benefits on her and the children's behalf. The claim was accepted. Thereafter, the mother petitioned for a lump-sum conversion which encompassed both her and the children's future benefits. The Industrial Accident Board approved the settlement and the lump sum was paid. The mother then died and a guardian was appointed for the children. The guardian sought reinstatement of death benefits, arguing that the mother had no authority to bind the children since she had not been appointed the children's legal guardian. The Supreme Court agreed:
92 Mont. at 510, 15 P.2d at 921 (emphasis added; citations omitted). Since the mother had not been appointed legal guardian for the children, the Court held, "The order of the board allowing the full lump sum settlement was and is null and void because no application therefor was filed as provided by law or at all." 92 Mont. at 511, 15 P.2d at 922.
¶9 There are currently a number of statutory exceptions to the general, well-established rule laid down in the cited cases. Section 27-1-512, MCA, provides:
On its face, the section authorizes the parent, without resort to appointment as a guardian, to bring a personal injury action on behalf of a minor child. The section is further reflected in Rule 17(c), Mont.R.Civ.P., which authorizes a civil action to be commenced on behalf of a minor by the minor's "next friend," a term which means "[o]ne acting for benefit of infant, or other person not sui juris (person unable to look after his or her own interests or manage his or her own lawsuit), without being regularly appointed guardian." Westlaw Edition of Blacks Law Dictionary (emphasis added). But the statute applies only to personal injury actions, not to workers' compensation claims.
¶10 Section 39-71-602, MCA, also sets an exception in certain workers' compensation cases, providing:
As the bolded language states, the section extends to "injured workers", including minors. It tolls the limitations period specified in section 39-71-601, MCA, during minority but only if the minor has neither guardian nor parent. By necessary implication, cf. Montana State University v. Ransier, 167 Mont. 149, 152, 536 P.2d 187, 189 (1975) ("When a statute grants power in general terms, it includes, by implication, a grant of all powers incidental and necessary to make the general grant effective"), both a guardian and a parent not appointed guardian are authorized to file a claim on behalf of a minor who is injured in a work-related accident. But the section says nothing about the parent of a beneficiary of an injured worker. It does not authorize the parent of a beneficiary to execute a claim on the minor's behalf, although as a practical matter the parent's filing of a claim on his or own behalf, as a beneficiary spouse, may trigger benefits allocable to the minor, section 39-71-723, MCA.(4) In this case, Shelly concedes she is not the spouse of Tollefson and failed to file any claim, either on her own behalf or on Randell's behalf, within the time permitted under section 39-71-601, MCA.
¶11 Finally, I consider the effect of section 39-71-604(2), MCA, which requires that a claim be filed for death benefits. It provides:
The section does not define "someone on their behalf," however, under existing statutes and precedents, the only person authorized to act on behalf of the beneficiary-minor is a guardian.
¶12 In light of the case law cited above, and the lack of an express statutory exception to that law, I conclude that Shelly is not authorized to file and pursue a claim on Randell's behalf until and unless she is appointed his guardian or guardian ad litem.
¶13 The Supreme Court has previously held that the Workers' Compensation Court has jurisdiction to appoint a guardian ad litem for the beneficiary of a deceased worker. Hock v. Lienco Cedar Products, 194 Mont. 131, 137, 634 P.2d 1174, 1177-78 (1981). The petition expressly requests this Court to appoint Shelly guardian ad litem for Randell. (Prayer for relief.) State Fund does not challenge her qualifications to serve as guardian and she has no conflict of interest, compare with Hock. Therefore, before considering the merits of the Motion to Dismiss, the Court appoints Shelly as guardian ad litem for Randell.
¶14 The discussion of Shelly's standing is dispositive of the Motion to Dismiss. As that discussion shows, until appointment of Shelly by this Order, no one was authorized to act for Randell. The limitations period prescribed in section 39-71-601, MCA, is inapplicable until the appointment of a guardian or guardian ad litem. Lazich v. Belanger, supra. Since no guardian was appointed until now, the limitations period commences running as of the date of this Order. The Motion to Dismiss must therefore be denied.
¶15 For the reasons set forth in the foregoing memorandum,
IT IS HEREBY ORDERED that:
¶16 1. Shelly Simons, who is the natural mother of the petitioner, Randell James Simons-Tollefson, is appointed to act as petitioner's guardian ad litem with all the powers and responsibilities of such office.
¶17 2. The Motion to Dismiss is denied.
¶18 3. This matter shall be set for trial with regard to all remaining issues.
DATED in Helena, Montana, this 16th day of February, 2000.
c: Mr. Richard J. Martin
1. The State Fund does not dispute that Tollefson was Randell's father.
2. Motions to dismiss attack the facial sufficiency of the initial pleading. See Rule 12(b), Mont.R.Civ.P. The petition in this case lists a June 11, 1998 Claim for Compensation as an exhibit. Since the parties agree that no claim was filed within the one-year limitations period, the Court need not be overtechnical in construing the petition and will address the issue pursuant to the motion to dismiss.
3. The pertinent part of the section 39-71-604, MCA, is set out in paragraph 11 below.
4. Section 39-71-723, MCA, (1991) provides:
Since the section requires payment to the spouse even where there are other beneficiaries, such payment discharges the insurer's obligation to other beneficiaries.
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