39-71-405, MCA

MONTANA SUPREME COURT DECISIONS
Glaude v. State Compensation Ins. Fund, 271 Mont. 136, 894 P.2d 940 (05/04/95) When reading this section along with section 39-71-117(4), MCA (1993), there is a set of facts under which claimant could recover benefits, requiring the lower court to deny respondent’s motion to dismiss for failure to state a claim on which relief could be granted. If the alleged employer is determined to be an interstate or intrastate common motor carrier and neither of the exceptions in section 39-71-117(4)(a) or (b), MCA (1993) apply, then the alleged employer may be claimant’s statutory employer. If that determination is made, then applying section 39-71-405(1), MCA, the insurance of the contractor above the alleged employer may cover claimant’s alleged injury.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Emanuel v. Montana State Fund [05/01/15] 2015 MTWCC 8 In an action between an injured worker and State Fund under § 39-71-405(1), MCA, the UEF is not a proper third party; if the injured worker prevails, State Fund can only seek indemnification from the uninsured contractor.  Furthermore, the statute of limitations for an appeal of the UEF’s denial of liability has run, and the Court therefore lacks jurisdiction over the UEF.  The UEF consequently has no stake in the outcome of the case.

Jensen v. Uninsured Employers' Fund [02/13/14] 2014 MTWCC 5 A requirement for finding a statutory employer liable for an injured employee of an uninsured contractor is that a contract existed between the employer and the contractor for the work to be performed.  Since the parties agreed that no consideration was exchanged between the Butte pre-release center and the contractor, the pre-release center could not fit the definition of a statutory employer under § 39-71-405(2), MCA, as consideration is an essential element of a contract.

H&D Investments v. Uninsured Employers' Fund [01/13/09] 2009 MTWCC 1 The owner of a commercial condominium who hired a contractor to remodel the unit is not liable under § 39-71-405(3), MCA, to the UEF for an employee of the contractor who was injured within the course and scope of her employment.
H&D Investments v. Uninsured Employers' Fund [01/13/09] 2009 MTWCC 1 Where the UEF concedes that Petitioner is not the “contractor primarily liable,” it cannot pursue reimbursement of benefits paid from Petitioner under § 39-71-405(1), MCA.
Howe v. UEF [07/07/06] 2006 MTWCC 27 Under § 39-71-405(1), MCA, an employer who contracts with an independent contractor to have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under Title 39, chapter 71, if the contractor has not properly complied with the coverage requirements of the Workers’ Compensation Act. In a case in which a real estate broker hired a contractor to complete part of a remodeling project on the broker’s personal residence, when the broker had not done any work in the construction industry since the mid-1990s, and the broker had not hired construction workers for any other projects on other real estate he owns in several years, if ever, the work cannot be considered to be a regular or recurrent part of the broker’s business and he is therefore not liable for workers’ compensation benefits in this instance.

[2001] Door v. State Fund & UEF [5/5/04] 2004 MTWCC 42 An employer who contracts work with an uninsured independent subcontractor is liable for benefits payable to the subcontractors injured employees if the subcontractor was obligated either by statute or contract to provide workers' compensation insurance and irrespective of whether the employer is statutorily required to provide coverage for its own employees.
[1997] Edmunds v. Liberty Northwest Ins. [2/19/04] 2004 MTWCC 11 Reconciliation of section 39-71-405, MCA (1997), which provides that the employer of an uninsured subcontractor is liable for the industrial injuries of the subcontractor’s employees, with section 39-9-207, MCA (1997), which provides that a “person” employing registered contractors is exempt from workers’ compensation liability, presents difficult questions of statutory interpretation. However, those questions need not be addressed where the contractor registration at issue was on its face “invalid.” Section 39-9-207, MCA, therefore did not apply at all and did not shield the general contractor or its insurer from liability.

[1999] Conoco, Inc. v. Williams Insulation Co. [3/5/03] 2003 MTWCC 15 Pursuant to section 39-71-405, MCA (1999), where a subcontractor fails to provide required Montana workers' compensation coverage for its employers, the contractor hiring the subcontractor, or its insurer, is liable for benefits payable to an employee of the subcontractor who is injured in the course and scope of his employment on the project for which the subcontractor was hired.

[1999] Conoco, Inc. v. Williams Insulation Co. [3/5/03] 2003 MTWCC 15 A contractor or its insurer required to pay benefits under section 39-71-405, MCA (1999), because the subcontractor is uninsured is entitled to indemnification from the subcontractor for the benefits paid.
[1999] Glover v. Cranford/St. Paul Guardian/State Fund/UEF [4/12/02] 2002 MTWCC 22 Under section 39-71-405(1), MCA (1999), the insurer for a prime contractor which engages an uninsured independent subcontractor is liable for the work-related injury suffered by an employee of the subcontractor.
[1993] Daenzer v. State Fund/Curtis Bartell [1/29/98] 1998 MTWCC 4 As the logger claimant's employer, petitioner was required to maintain workers' compensation insurance, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). As insurer for the logging company with which petitioner had contracted, State Fund was secondarily liable under section 39-71-405, MCA (1993), but is entitled to indemnification from petitioner.