No. 00-583
IN THE SUPREME COURT
OF THE STATE OF MONTANA
2001 MT 280
ARTHUR SCHIMMEL,
Petitioner and Appellant,
v.
MONTANA UNINSURED
EMPLOYERS FUND,
Respondent,
JASPER EXPRESS, INC.,
Employer.
APPEAL FROM: Montana
Workers' Compensation Court
The Honorable Mike
McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Norman H. Grosfield,
Attorney at Law, Helena, Montana
For Respondent:
Kevin Braun, Uninsured
Employers Fund, ERD, Helena, Montana
For Employer:
Dean K. Knapton,
Attorney at Law, Kalispell, Montana
Submitted on Briefs:
January 18, 2001
Decided: December 19, 2001
Filed:
__________________________________________
Clerk
Justice Jim
Regnier delivered the Opinion of the Court.
¶1 Arthur Schimmel
appeals from the Findings of Fact, Conclusions of Law and Judgment issued
by the Workers' Compensation Court dismissing his petition for workers'
compensation benefits. The following issue is dispositive of Schimmel's
appeal: whether the Workers' Compensation Court erred when it determined
that Schimmel's employer, Jasper Express, Inc., was not required to provide
Schimmel with workers' compensation coverage. We reverse and remand for
proceedings consistent with this opinion.
BACKGROUND
¶2 Arthur Schimmel
was injured on November 18, 1998, while loading posts onto a trailer in
Missoula County, Montana. At the time of the accident, Schimmel was employed
by Jasper Express as a long-haul truck driver and resided in Trout Creek,
Montana. Jasper Express operates a long-haul trucking business and is
incorporated and maintains its place of business in the State of Washington.
¶3 Jasper Express
did not have Schimmel covered under a Montana workers' compensation insurance
plan. Schimmel filed a claim for benefits with the Uninsured Employers'
Fund ("Fund") which denied his claim. Schimmel then filed a petition for
benefits against Jasper Express and the Fund in the Workers' Compensation
Court seeking a determination that Jasper Express should have provided
him with workers' compensation insurance coverage. Jasper Express moved
to dismiss, arguing, among other things, that Schimmel was not an employee
pursuant to the Act because his employment duties were neither primarily
carried out in Montana nor controlled within Montana. The Workers' Compensation
Court denied Jasper Express's motion to dismiss. The court observed that
the evidence did not "establish whether claimant spent more time in any
state other than Montana, only that he drove less that 50% of his total
miles in Montana."
¶4 Trial was held
on April 10, 2000. On June 28, 2000, the Workers' Compensation Court issued
its Findings of Fact, Conclusions of Law and Judgment. The court concluded
that Jasper Express was not required to maintain workers' compensation
insurance coverage for Schimmel because Schimmel was not an "employee"
as defined by the Act. Correspondingly, the court also held that the Uninsured
Employers Fund was not liable for Schimmel's claim. Schimmel appeals.
STANDARD OF REVIEW
¶5 We review the
Workers' Compensation Court's findings of fact to determine whether they
are supported by substantial credible evidence. Matthews v. State Compensation
Ins. Fund, 1999 MT 225, ¶ 5, 296 Mont. 76, ¶ 5, 985 P.2d 741, ¶ 5.
We review the Workers' Compensation Court's conclusions of law to determine
whether they are correct. Matthews, ¶ 5.
DISCUSSION
¶6 Did the Workers'
Compensation Court erred when it determined that Jasper Express was not
required to provide Schimmel with workers' compensation coverage?
¶7 The Workers' Compensation
Court concluded that Jasper Express was not required to insure Schimmel
because Schimmel was not an "employee" as defined by § 39-71-118, MCA.
In so deciding, the court relied on § 39-71-118(10)(a), MCA, which provides
that an "employee or worker in this state" is defined as "a resident of
Montana who is employed by an employer and whose employment duties are
primarily carried out or controlled within this state." The court found
that Schimmel was not an "employee" for purposes of workers' compensation
coverage because his employment duties were neither primarily carried
nor controlled within Montana.
¶8 We conclude the
Workers' Compensation Court erred when it relied on § 39-71-118(10)(a),
MCA, to exclude Schimmel from the statutory definition of "employee."
Section 39-71-401(1), MCA,(1) provides that "the Workers' Compensation
Act applies to all employers, as defined in 39-71-117, and to all employees,
as defined in 39-71-118." (Emphasis added.) Section 39-71-118(1)(a),
MCA, provides in relevant part that the term "employee" means "each person
in this state, including a contractor other than an independent contractor,
who is in the service of an employer, as defined by 39-71-117, under any
appointment or contract of hire, express or implied, oral or written."
The court needed go no further; Schimmel's status should have been determined
with regard to this provision.
¶9 The provision
relied upon by the court to exclude Schimmel from the definition of "employee,"
§ 39-71-118(10)(a), MCA, does not purport to define "employee," but rather
expressly defines the phrase "'employee or worker in this state." It provides:
For purposes of this
section, an "employee or worker in this state" means:
(a) a resident
of Montana who is employed by an employer and whose employment duties
are primarily carried out or controlled within this state.
Given the quotations
surrounding the phrase "employer or worker in this state," we can only
conclude that subsection 10 means exactly what it says, defining the phrase
"employee or worker in this state" where that phrase occurs in § 39-71-118,
MCA. Turning our attention to the other provisions of § 39-71-118, MCA,
we find that this very same phrase is used in subsection 8, which provides:
(8) Except as provided
in chapter 8 of this title, an employee or worker in this state
whose services are furnished by a person, association, contractor, firm,
limited liability company, limited liability partnership, or corporation,
other than a temporary service contractor, to an employer, as defined
in 39-71-117, is presumed to be under the control and employment of
the employer. This presumption may be rebutted as provided in 39-71-117(3).
(Emphasis added.)
Subsections 8 and 10 clearly must be read together. This conclusion is
further supported by the fact that both subsections 8 and 10 were enacted
together as part of Senate Bill 383. Subsections 8 and 10, in conjunction
with § 39-71-117(3), MCA, serve to identify the employer responsible for
workers' compensation coverage in those situations when an employee is
furnished by one business to another. See § 39-71-118(8), MCA, (provides
that an employer or worker in this state whose services are provided by
an entity to an "employer" is presumed to be under the employment of the
employer). See § 39-71-118(8), MCA (providing that an employee
or worker in this state whose services are provided by one entity to another
entity which fits the statutory definition of "employer" is presumed to
be under the employment of the "employer"). Schimmel was not furnished
to Jasper Express by another business. Therefore, we conclude that subsection
10 is not relevant to a determination of whether Schimmel was an "employee."
Schimmel's status must be determined pursuant to § 39-71-118(1)(a), MCA.
¶10 As the Workers'
Compensation Court correctly determined, there must be both a covered
employee and a covered employer before the provisions of the Workers'
Compensation Act apply. See § 39-71-401(1), MCA. A motor carrier
"doing business in this state who uses drivers in this state is considered
the employer [and] is liable for workers' compensation premiums." Section
39-71-117(4), MCA. Both Jasper Express and the Fund urge us to conclude
that this provision was only meant to apply to Montana-based motor carriers.
We decline to do so. Although the legislature could have easily done so,
the statute is not limited on its face to Montana-based motor carriers.
Rather, it refers to a motor carrier "doing business in this state who
uses drivers in this state." It certainly takes no stretch of the statutory
language to fit it around Jasper Express. Jasper Express used a Montana
resident driver to pick up and drop off numerous loads in Montana. Nothing
more is required.
¶11 We note that,
as urged by all the parties, we have plumbed the depths of legislative
history with regard to §§ 39-71-117 and -118, MCA. However, our search
has borne no fruit. If the legislature had different intentions than those
we have discerned above, we are at a loss to determine exactly what those
intentions were.
¶12 Reversed and
remanded.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM
LEAPHART
1. Because
Schimmel's accident occurred in 1998, the 1997 version of the Workers'
Compensation Act applies. See Buckman v. Montana Deaconess Hosp.
(1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Therefore, all statutory
references will be to the 1997 version of the Act.
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