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IN THE
WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1998 MTWCC 50
WCC No. 9802-7926
TERRANCE
M. JOHNSON
Petitioner
vs.
MONTANA
MUNICIPAL INSURANCE AUTHORITY and
UNINSURED
EMPLOYERS' FUND
Respondent/Insurer
for
CORCON
CONSTRUCTION
Employer.
ORDER PERMITTING
THIRD-PARTY PETITION AND VACATING TRIAL SETTING
Summary:
The Uninsured Employers' Fund requested that the alleged uninsured employer
be formally joined as a party to this action, which involves a claim
against it by a petitioner alleging injury while working for an allegedly
uninsured employer. Although the employer was named on the caption to
the case as the employer, it was not named as a respondent and has not
appeared in the case.
Held:
In effect, the UEF's request for joinder is a request that it be permitted
to file a third-party petition for indemnification. Although the Court
did not at the time of this action have a rule for third-party petitions,
the WCC follows where appropriate the Montana Rules of Civil Procedure.
Applying the principles behind Mont.R.Civ.P. 14(a), the UEF will be
permitted to join the employer as resolving issues with participation
of the employer will reduce the possibility of multiple actions and
potentially inconsistent adjudications.
Topics:
Procedure: Joining Third
Parties. The UEF requested that an allegedly uninsured employer
be formally joined as a party to an action brought by a worker alleging
injury. In effect, the UEF's request for joinder is a request that it
be permitted to file a third-party petition for indemnification. Although
the Court did not at the time of this action have a rule for third-party
petitions, the WCC follows where appropriate the Montana Rules of Civil
Procedure. Applying the principles behind Mont.R.Civ.P. 14(a), the UEF
will be permitted to join the employer as resolving issues with participation
of the employer will reduce the possibility of multiple actions and
potentially inconsistent adjudications. (Following this decision, ARM
section 24.5.307A was adopted, which specifies that in any case involving
entitlement to benefits from the uninsured employers' fund, the alleged
uninsured employer shall be deemed a party to the action.)
Uninsured Employers'
Fund: Indemnification. The UEF requested that an allegedly uninsured
employer be formally joined as a party to an action brought by a worker
alleging injury. In effect, the UEF's request for joinder is a request
that it be permitted to file a third-party petition for indemnification.
Although the Court did not at the time of this action have a rule for
third-party petitions, the WCC follows where appropriate the Montana
Rules of Civil Procedure. Applying the principles behind Mont.R.Civ.P.
14(a), the UEF will be permitted to join the employer as resolving issues
with participation of the employer will reduce the possibility of multiple
actions and potentially inconsistent adjudications. (Following this
decision, ARM section 24.5.307A was adopted, which specifies that in
any case involving entitlement to benefits from the uninsured employers'
fund, the alleged uninsured employer shall be deemed a party to the
action.)
¶1 At the request
of respondent Uninsured Employers' Fund (UEF), the Court held a telephonic
conference on June 3, 1998, with Mr. Kevin Braun, attorney for the UEF,
Mr. Richard J. Martin, attorney for the petitioner/claimant, and Mr.
Oliver H. Goe, attorney for respondent Montana Municipal Insurance Authority
(MMIA).
¶2 Mr. Braun
requested that the claimant's employer be formally joined as a party.
The request is granted.
¶3 The petitioner
alleges that he suffered an industrial injury and an occupational disease
while working for CorCon Construction (CorCon), which was uninsured.
The City of Great Falls, which is insured by MMIA, allegedly hired CorCon
for the project on which petitioner was injured. Both the UEF and MMIA
have denied liability for petitioner's claims.
¶4 In its response
to the Petition for Hearing, the UEF requests this Court to order CorCon
to indemnity it should it be held liable for petitioner's claims. Mr.
Braun informed the Court that the UEF has served CorCon, which has not
filed an appearance in this case, with its pleadings, notices, and other
documents. Mr. Braun assumed CorCon was a party. The other two attorneys
have not served their documents on CorCon.
¶5 CorCon was
named in the Petition for Hearing as the "employer;" however, it was
not specifically named as a "respondent."
¶6 Petitioner
does not seek any relief against CorCon. In any event the Court would
not have jurisdiction over such request. § 39-71-516, MCA. However,
this Court has jurisdiction over indemnity disputes. Cf. EBI/Orion
Group v. State Compensation Ins. Fund, 240 Mont. 99, 782 P.2d.
1276 (1989).
¶7 UEF's request
for joinder is in effect a request that it be permitted to file a third-party
petition for indemnification. The Court has no rule for third-party
complaints. However, lacking a rule, the Court has in the past followed
the Montana Rules of Civil Procedures. Murer v. Montana State Compensation
Mut. Ins. Fund, 257 Mont. 434, 849 P.2d 1036 (1993).
¶8 Rule 14(a),
Mont.R.Civ.P. permits a defendant to summon in a third party who it
alleges is liable for all or part of the claim against it. The rule
provides:
(a) When Defendant
May Bring in Third Party. At any time after commencement of
the action a defending party, as a third-party plaintiff, may cause
a summons and complaint to be served upon a person not a party to the
action who is or may be liable to the third-party plaintiff for all
or part of the plaintiff's claim against the third-party plaintiff.
The third-party plaintiff need not obtain leave to make the service
if the third-party plaintiff files the third-party complaint not later
than 30 days after serving the original answer. Otherwise the third-party
plaintiff must obtain leave on motion upon notice to all parties to
the action. The person served with the summons and third-party complaint,
hereinafter called the third-party defendant, shall make any defenses
to the third-party plaintiff's claim as provided in Rule 12 and any
counterclaims against the third-party plaintiff and cross-claims against
other third-party defendants as provided in Rule 13. The third-party
defendant may assert against the plaintiff any defenses which the third-party
plaintiff has to the plaintiff's claim. The third-party defendant may
also assert any claim against the plaintiff arising out of the transaction
or occurrence that is the subject matter of the plaintiff's claim against
the third-party plaintiff. The plaintiff may assert any claim against
the third-party defendant arising out of the transaction or occurrence
that is the subject matter of the plaintiff's claim against the third-party
plaintiff, and the third-party defendant thereupon shall assert any
defenses as provided in Rule 12 and any counterclaims and cross-claims
as provided in Rule 13. Any party may move to strike the third-party
claim, or for its severance or separate trial; the court may direct
a final judgment upon either the original claim or the third-party claim
alone in accordance with the provisions of Rule 54(b). A third-party
defendant may proceed under this rule against any person not a party
to the action who is or may be liable to the third-party defendant for
all or part of the claim made in the action against the third-party
defendant.
The rule serves
salutary purposes. It promotes judicial economy by reducing the possibility
of multiple actions. It promotes justice by reducing the possibility
of inconsistent adjudications. Where indemnification is sought, joining
the alleged indemnitor prevents the possibility of inconsistent decisions
in the underlying liability action and the indemnity action. I find
good cause to follow Rule 14 where indemnification is sought by the
UEF or an insurer allegedly liable under section 39-71-405, MCA.
¶9 Finding good
cause, IT IS HEREBY ORDERED that:
1. The trial
setting of this matter for the week of June 8, 1998, is vacated
and reset for the next Great Falls term of court.
2. Within
10 days of this Order, the UEF and MMIA may file third-party petitions
with respect to any claims they have for indemnification arising as
a result of the Court finding either of them liable for petitioner's
claims.
3. Upon filing
of any third-party petition, the Court will order CorCon to respond
within 20 days.
DATED in Helena,
Montana, this 11th day of June, 1998.
(SEAL)
/s/ Mike
McCarter
JUDGE
c: Mr. Richard
J. Martin
Mr. Kevin Braun
Mr. Oliver H. Goe
Ms. Dee Ann Jellesed
Submitted: June 3, 1998
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