Procedure: Pretrial Order

Heisler v. State Compensation Insurance Fund, 282 Mont. 270, 937 P.2d 45 (1997) A pretrial order serves to prevent surprise, simply the issues, and permit counsel to prepare their case for trial. It lists such facts as are uncontested, and if a party admits to a fact by allowing its inclusion as uncontested in a pretrial order, the party will not be allowed to raise that particular factual issue on appeal. The pretrial order, however, includes only such facts as are uncontested; it does not preclude a party from attempting to prove additional facts which remain in dispute. Nor does the pretrial order in and of itself limit the scope of appellate review.
Ingebretson v. Louisiana-Pacific Corp., 272 Mont. 294 (1995) (No. 94-622) Pretrial orders should be liberally construed to permit any issues at trial that are embraced within its language.
Ingebretson v. Louisiana-Pacific Corp., 272 Mont. 294 (1995) (No. 94-622) Although self-insured employer contended on appeal that Workers’ Compensation Court abused its discretion by concluding claimant had been wrongfully terminated, that contention was disingenuous where the Pretrial Order contained the employer’s defense that it did not owe claimant temporary total disability benefits because he was discharged for cause.

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 Where the issue as presented in the Pretrial Order was “Which, if either” insurer was liable for Petitioner’s claim, but no evidence or arguments were brought before the Court that suggested that neither insurer was liable for Petitioner’s condition, the Court did not err in holding, “No one has argued that [the] condition is not work-related.”  Simply suggesting in the agreed-upon issue that the possibility that Petitioner’s condition was not work-related is not the same as actually arguing so at trial.

Morse v. Liberty Northwest Ins. Corp. [07/10/12] 2012 MTWCC 24 The Pretrial Order supersedes the pleadings and governs the course of trial.  Where the parties presented the issue to be determined as whether Respondent was liable, and specifically asked the Court not to make rulings on the nature and extent of Respondent’s liability, the Court denied Respondent’s motion for reconsideration in which it argued that the Court’s conclusion that Respondent was liable for Petitioner’s workers’ compensation claim did not correlate with the issue the parties presented in the Pretrial Order.

Hopkins v. Uninsured Employers' Fund [06/25/10] 2010 MTWCC 9A Where the UEF failed to list its claim for indemnification in the disputed issues section of the final pretrial order, but listed the indemnification issue in its contentions, the employer had no basis to claim surprise and the Court may consider the indemnification issue.
Hopkins v. Uninsured Employers' Fund [05/24/10] 2010 MTWCC 12 Where the UEF failed to list the indemnification issue as a disputed issue in the final pretrial order, the Court’s omission of whether the employer is obligated to indemnify the UEF was not a “clerical mistake.”  It is not the Court’s prerogative to sua sponte resolve an issue that was not presented for resolution in the final pretrial order.
Montana State Fund v. Zurich American (In Re Golt) [01/21/09] 2009 MTWCC 3 In an indemnification dispute, Claimant had contentions in the Pretrial Order and signed it along with counsel for Petitioner/Insurer and Respondent/Insurer. However, Claimant was never made a third-party respondent, and when she signed the Pretrial Order, she did so in her capacity as the claimant whose claims were the subject of the action between insurers and not as a party to the action.
Kilgore v. Transportation Ins. Co. [10/27/08] 2008 MTWCC 47 Where Respondent moved to introduce a proposed exhibit and sought a post-trial deposition for impeachment and/or rebuttal purposes, the Court concluded that Respondent sought to introduce untimely disclosed evidence in order to fundamentally alter the issues that were incorporated into the Pretrial Order as agreed to at the pretrial conference. If the Court allowed the admission of such evidence under the guise of impeachment or rebuttal evidence, it would effectively negate the fundamental purpose of a Pretrial Order which is to simplify issues, prevent surprise, and allow the parties to prepare for trial based on the Pretrial Order.
Kilgore v. Transportation Ins. Co. [10/27/08] 2008 MTWCC 47 At the time of the pretrial conference, the parties stipulated that the 1987 statutes applied to Petitioner’s claim, finalized the language in the final Pretrial Order, and agreed on the determinative issues for the Court’s consideration. After the conference, Respondent sought to amend the Pretrial Order and introduce a previously undisclosed exhibit. The Court found no good cause for Respondent’s untimely disclosure of the evidence nor for the requested amendment to the Pretrial Order.
Lanes v. Montana State Fund [09/10/07] 2007 MTWCC 39 Notwithstanding Petitioner’s failure to file a particularization of the grounds upon which he bases his request for attorney fees and a penalty as required by the Court’s Scheduling Order, the issue of whether Petitioner was entitled to attorney fees and a penalty was set forth in the Pre-Trial Order. The Pre-Trial Order supersedes all other pleadings and controls the course of the trial. ARM 24.5.318(6). Therefore, these issues were properly before the Court and determined on their merits.
Feather v. UEF [03/28/05] 2005 MTWCC 15 Even though a party represents herself, the Court cannot inject and consider issues which are not within the scope of even the broadest or most liberal construction of the issues framed in the pleadings and Pretrial Order.
Hand v. UEF [2/13/04] 2003 MTWCC 9 Where the pretrial listed a defense among the respondent's contentions, and the defense was in fact argued in the petitioner's post-trial brief, it was not error for the Court to consider the defense. The purpose of the pretrial order is to assure that the parties have notice of the issues, and the pretrial order in this case, though not perfect, gave petitioner adequate notice of the UEF's defense.
McFerran v. Consolidated Freightways [10/21/99] 1999 MTWCC 63 Trial setting vacated where parties did not comply with discovery deadlines and rules set out in WCC rules and orders. If objecting to late information, claimant should have noted that objection in the Pretrial Order. Litigation in the WCC is not a game of hide the ball.

Fjelstad v. Fireman's Fund [10/15/99] 1999 MTWCC 62 Insurer moved to vacate trial setting because claimant sought to include in Pretrial Order issues not framed by petition and not mediated. Motion granted where claimant has raised new issues, such as that the settlement agreement should be reopened on grounds the insurer caused claimant mental distress, breached a fiduciary duty to him, or engaged in fraud. While newly articulated legal arguments or theories may often lie within the issues alleged in the petition, these new allegations are fact-based contentions not framed by the pleadings or subjected to full discovery. If claimant wants to litigate these issues, they must be mediated and a motion to amend filed in the WCC.

Wall v. National Union Fire Ins. Co. [2/24/98] 1998 MTWCC 11 Where counsel failed to note objections to exhibits in Pretrial Order as required by ARM 24.5.318, exhibits admitted despite objections voiced at trial.