Hearing No. 3403
Helena, Montana
January 14, 2004




WCC No. 2000-0222

Rex Palmer
Bradley J. Luck




WCC No. 2003-0771

Rex Palmer
Thomas E. Martello

The Court held a telephone conference with the above counsel to discuss a proposed settlement the parties have hammered out with respect to common-fund fee claims that follow the Supreme Court's decision on the merits of this case, Flynn v. State Compensation Ins. Fund, 2002 MT 279, 312 Mont. 410, 60 P. 3rd 397. The State Fund has appealed post-remand orders previously entered by this Court based on the possibility that those orders might be considered final, appealable orders, and to protect its right of appeal. However, all parties and myself do not believe the orders were final and appealable, only that they are possibly so and that it was necessary to take an appeal to guarantee appeal rights were not lost.

Since the appeal, and with this Court's encouragement, the parties have continued to negotiate the post-remand issues and have reached a settlement agreement with respect to identification and payment of other claimants benefitted by the decision in Flynn and the payment of common fund attorney fees with regard to those claimants. The parties wish to submit the agreement to this Court for its consideration and approval, and, if approved, for oversight as needed over its implementation. The State Fund is concerned, however, about preserving a right to appeal in the event the agreement is disapproved or a controversy over its implementation arisess.

I suggested that the parties move to dismiss the present, pending appeal, outlining in their motion the circumstances of the appeal; the belief by all parties and this Court that the orders from which the appeal were taken were not final, appealable orders, but also their recognition that it is possible they might be considered final; the continuing settlement negotiations and resulting agreement; and their desire to submit the settlement agreement for approval to this Court. I suggested that they request the Supreme Court to dismiss the present appeal as premature and without prejudice, and remand the case to this Court for further proceedings regarding the proposed settlement. All counsel were in agreement with my suggestion and a joint motion will be drafted and submitted to the Supreme Court.