¶2 The State Fund insures all or some of the Skinner companies. Through its petition, the State Fund seeks a determination that Daniel Glover (claimant), who was injured August 21, 1998, was not an employee of its insureds. In their motion for summary judgment, the Skinner companies argue that Glover was an independent contractor, hence they have no interest in this litigation and should be dismissed. The problem with their argument is that it is contrary to their own admission, set out in their answer to petition, that claimant was in fact an employee of one of the Skinner companies (Skinner Enterprises, Inc.). Their answer has not been amended and the Court cannot consider arguments contrary to their own admissions and allegations in that answer. Thus, their motion cannot be considered unless and until their answer is amended.

¶3 Moreover, the facts set forth in support of their motion are insufficient to establish, as an uncontroverted matter, that claimant was an independent contractor at the time of his accident. Their reliance on the Independent Contractor Exemption, without more, is misplaced. The exemption is for KRD Builders and the facts tendered to the Court fail to establish that KRD is a sole proprietorship of claimant, or even a partnership between claimant and others. Evidence referred to by the parties indicate KRD is, or at least may be, a sole proprietorship of claimant's wife. The Skinner companies' further argue that the parties' agreed claimant was an independent contractor. The agreement is not conclusive. The Montana Supreme Court has consistently held that the designation of an individual as an independent contractor is not decisive, rather the courts must look at all statutory factors, including right of control, § 39-71-120, MCA, in determining whether the claimant was an employee in fact. Schrock v. Evans Transfer and Storage, 225 Mont. 348, 351, 732 P.2d 848, 850 (1987); and see Walling v. Hardy Const., 247 Mont. 441, 451, 807 P.2d 1335, 1341 (1991).

¶4 During oral argument, questions were raised whether the Skinner companies have a stake in the outcome of this case and therefore whether they are proper parties. That issue is not before the Court and I make no determination. In light of incomplete status of discovery, and the agreement of the parties, the April trial date was vacated and has been reset in July, therefore, the parties will have time to present any motions they wish regarding parties and other matters.

DATED in Helena, Montana, this 4^th day of April, 2000.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Thomas E. Martello
Mr. Robert T. Cummins
Mr. Norman H. Grosfield