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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1996 MTWCC 28
LIBERTY NORTHWEST INSURANCE CORPORATION
STIMSON LUMBER COMPANY
CHAMPION INTERNATIONAL CORPORATION
This is an action between two insurers over liability for Ronald Deschamps' bad back. In 1992 Deschamps injured his back while working at Champion International Corporation's lumber mill in Bonner, Montana. He returned to work. The Bonner mill was then purchased by Stimson Lumber Company. Deschamps went to work for Stimson but his back continued to hurt and he complained to his new employer. Stimson turned the matter over to its insurer, Liberty Northwest Insurance Corporation. Liberty investigated the matter and ultimately accepted Deschamps' condition as compensable under the Montana Occupational Disease Act (MODA). But after paying benefits under MODA, Liberty decided that Deschamps' condition is the result of his 1992 injury and petitioned this Court for indemnification from Champion.
The matter presently before the Court is Champion's Motion for Summary Judgment. Affidavits supporting and opposing the motion have been submitted and the motion briefed.
The facts are set forth in the admitted allegations of the petition, two affidavits of Bradley J. Luck, an affidavit of Cynthia Bean, and the exhibits attached to the affidavits. Each of the Luck affidavits is Entitled Affidavit of Bradley J. Luck, so the affidavit filed February 1, 1996, will be cited as "Luck Affidavit I" while the affidavit filed February 28, 1996, will be cited as "Luck Affidavit II." The Affidavit of Cynthia Bean will be cited as "Bean Affidavit." The Luck exhibits are numerical, with 1 through 5 attached to Luck Affidavit I. Exhibits 6 through 16 are attached to Luck Affidavit II. The Bean exhibits are A through C. The essential facts are not in controversy and for the most part are documentary.
Ronald Deschamps injured his back on March 30, 1992, while working a as millwright at a wood products mill in Bonner, Montana. (Ex. A; Petition ¶1; Response ¶1.(1)) At the time of the injury, the Bonner mill was owned by respondent, Champion International Corporation. (Luck Affidavit I.)
Claimant filed a Claim for Compensation. (Ex. A.) Champion, which was self-insured, accepted the claim and paid benefits. (Petition ¶2; Response ¶1.) The nature and amount of benefits paid are not specified, however, they are not material to the present motion.
Subsequent to Deschamps' injury, Champion sold the Bonner mill to Stimson Lumber Company. Stimson took over the Bonner mill operations in November of 1993. (Luck Affidavit I.) Deschamps applied for a position with the new owner of the mill and underwent a physical examination; he was found fit for employment. (Ex. 2.) He was hired and went to work.
While working for Stimson, Deschamps experienced renewed or continuing back pain. He submitted a claim to Liberty on October 12, 1994. (Bean Affidavit ¶ 2.) In that claim he described an injury as follows:
(Ex. A.) However, he fixed the date of the described injury as March 30, 1992 (id.), which is the date of his injury at Champion. The Court has not been provided with a copy of the 1992 claim or with other information regarding the 1992 accident. Thus, based on the sparse information provided, it can only assume that the accident described in the 1994 claim was the 1992 accident and that the claimant was attributing his back symptoms to the 1992 accident.
In prior decisions this Court has borrowed from the Montana Rules of Civil Procedure, specifically Rule 56, when considering motions for summary judgment. Reference to Rule 56 was necessary because the Workers' Compensation Court had not adopted rules governing such motions. That void was recently filled with the Court's adoption of ARM 24.5.329, effective February 23, 1996. The new rule, with modifications inapplicable for present purposes, tracks Rule 56. Thus, even though it became effective midway through the briefing in this case, it establishes the basic standards applicable to the present motion.
As does Rule 56(c), Mont.R.Civ.P., ARM 24.5.329(2) provides in relevant part:
Champion argues that Liberty accepted liability for Deschamps' subsequent claim and that its acceptance ends the inquiry. Liberty argues that it can "deny liability after liability has been unconditionally accepted if facts after the acceptance of liability indicate liability no longer exists." (Liberty Northwest's Brief in Opposition [To Motion] for Summary Judgment at 7.) The Court declines to adopt either party's analysis.
The January 23rd letter is plain on its face. Liberty, through its adjuster, expressly and unequivocally accepted liability for Deschamps' back condition as an occupational disease. It did so with full knowledge of Deschamps' prior back injury while working for Champion. It did so unequivocally, without reservation of any rights as to either Deschamps or Champion. Its later June 22nd letter, which attempts to condition its liability by invoking section 39-71-608, MCA, is a nullity. Cf. Haag v. Montana Schools Ins. Authority, 906 P.2d 693 (Mont. 1995).
The issue is not whether Liberty can repudiate its acceptance of Deschamps' occupational disease claim, for plainly it cannot, or whether such acceptance is binding, for plainly it is, but whether its acceptance of liability bars Liberty from seeking indemnification from Champion for the benefits it has paid to Deschamps.
In the context of workers' compensation, indemnification may arise in subsequent injury cases. Where a worker suffers an industrial injury, reaches maximum medical healing, and then suffers a subsequent injury on another insurer's watch, the subsequent insurer is liable for the worker's medical condition even though the prior injury substantially contributed to the condition. EBI/Orion Group v. State Compensation Insurance Fund, 240 Mont. 99, 104, 782 P.2d 1276, 1279; Belton v. Carlson Transport, 202 Mont. 384, 387-391, 658 P.2d 405, 407-409 (1983). Obversely, where an injured worker reaches maximum medical healing after an industrial injury, the insurer liable for that injury is not liable for "subsequent injuries or conditions." Caekaert v. State Compensation Ins. Fund, 268 Mont. 105, 111, 885 P.2d 495, 499 (1994). The same rules apply where a subsequent occupational disease "materially or substantially" contributes to the claimant's condition. Id. at 112, 885 P.2d at 499.
Since disputes may arise as to whether a worker has reached maximum healing or has suffered a subsequent injury, the burden of initially paying benefits as between two insurers falls on the insurer which is at risk at the time of the accident for which a compensable injury is claimed, which is generally the subsequent insurer. Language from Belton v. Carlson Transport, 202 Mont. 384, 409-410, 658 P.2d 405, 409 (1983), suggests that the second insurer has little choice but to pay benefits, at least where the fact of the accident is reasonably clear:
In light of the duty placed on the insurer at risk, the Court in Belton went on to finish the foregoing paragraph by addressing the right to indemnification:
Indemnification is an equitable principle. "The right of 'indemnity' is that where one is compelled to pay money which, in justice, another ought to pay, the former may receive from the latter the sums so paid . . . ." EBI/Orion, 240 Mont. at 104, 782 P.2d at 1279 (1989).
Although not specifically denominated as such, EBI/Orion lays out four elements which must be proved to establish a right to indemnity in a workers' compensation case. First, the insurer must establish that it has in fact made payments to the claimant. Id. at 104, 1782 P.2d at 1279. Second, it must show that when it made the payments it had "potential liability" for such payment. Id. Third, it must prove that the payment was reasonable. Id. Finally, it must show that in fact the other insurer is liable to claimant. Id.
I have searched Supreme Court decisions concerning indemnification and have been unable to find any fifth element which requires an insurer seeking indemnification to expressly invoke section 39-71-608, MCA, or give notice that it is paying benefits under a reservation of rights. If such a requirement is to be added, it is more appropriately inserted by the Supreme Court. I therefore conclude that the January 23, 1995 acceptance without reservation does not bar the present claim for indemnification.
IT IS HEREBY ORDERED that the Motion for Summary Judgment is denied.
Dated in Helena, Montana, this 27th day of March, 1996.
c: Mr. Larry W. Jones
1. The response states that the industrial accident occurred March 2, 1992, while both the petition and the claim state that it occurred March 30, 1992. The discrepancy is not material to the present motion. We use the date stated on the claim.
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