*1 508 COMPANY, INSURANCE
ROYAL Respondent, Petitioner and v. DONALD E. ROADARMEL and
EARL W.
WHITE,
Appellants.
Respondents
No. 99-552
March
2000.
on Briefs
Submitted
September
2000.
Decided
Roadarmel, se) (pro Respondent:
For Edmiston, James Schernerhorn, G. Edmiston & Billings
JUSTICE HUNT Opinion delivered the of the Court. The Royal Company (“Royal”) Insurance initiated this against action Earl (“Roadarmel”), W. Roadarmel who injured had been in a workers’ accident in and attorney (‘White”). prosecuted claim, who his Donald E. White (“the The Workers’ Compensation Court, WCC”), State of Montana granted summary judgment Royal to under the subrogation statute Act, Compensation finding the Workers’ (collectively “Appellants”) personally
Roadarmel and White liable for litigation Royal’s third-party proceeds share of received as a result of Corporation and the Great West- against parties, two third Exxon Company. appeal ern Chemical Roadarmel White WCC’s summary judgment Royal. We reverse and remand. grant granting summary that the erred in Appellants contend WCC They raise in judgment Royal. regard: two issues concluding erred I. Whether the WCC in not oflim- two-year action Roadarmel is barred statute 27-2~211(l)(c),MCA, governing upon itations of actions based lia- bility created by statute. concluding by Royal II. erred in Whether the WCC three-year statute of attorney White not barred 72-34-511(l)(a), MCA,
limitations governing upon actions based alleged breach trust. FACTUAL AND PROCEDURAL BACKGROUND suffered injury stemming Roadarmel an industrial from chemi- heavy working equip- as a exposure September cal 1986 while Butte, operator highway project Montana. Roadarmel ment on *3 against his Acme Con- employer, filed a workers’ claim crete, carrier, Royal. White rep- which was defended its insurance WCC,resulting Roadarmel and the case was tried before the resented was this Court judgment judgment upheld in a for Roadarmel. The Concrete in Roadarmel v.Acme Co. by White, Roadarmel, third-party also filed a represented Chemical Corporation the and the Great Western Exxon possible of liability in tort for failure to warn
Company, alleging strict injuries. agent the caused Roadarmel’s effects of chemical which Roadarmel, White, Royal, required by through provided notice 39-71-414, that a subrogation the standard to the being commenced. Pursuant third-party action was portion a statute, Royal pay Roadarmel subrogation requested agreed to in the third-party Royal participate the costs of the action. subrogation rights under rather 50% of its costs than waive $5,000 a check for towards the and tendered action. third-party of the costs in jury the trial federal 10,1992, On March at conclusion court, Royal advising it of Roadarmel’s sent notice to
district White third-party parties successful action and ofthe fact that the third had Appeals. filed an Circuit Court of The Ninth appeal with Ninth February 18, 1994, On subsequently upheld Circuit verdict. Royal it advising White sent another letter to of the resolution of the This letter attached the check third-party appeal. copies of received forms; jury provided from Great Western Chemical and the verdict a third-party action; break-down of the actual costs of the and re- Royal determine in a quested subrogation portion its interest third-party proceeds. Royal then independently computed amount it contended it owed, was and letters dated 7April and October 3 of advised going Roadarmel it was to file an action to its determine subrogation proceeds interest from the action. third-party White, acting Roadarmel, on behalf of respond did not to either of Royal’s However, aforementioned letters. receiving after Roadarmel’s 18,1994 February action, notice ofthe period successful years passed Royal filed, 29,1997, of 3V% before on October a petition hearing to determine subrogation rights its in the third-party pro- ceeds. Through discovery action, in the subrogation Royal learned that
White had disbursed the third-party proceeds to Roadarmel on Feb- ruary 18,1994, the same date that requested White had a computa- Royal’s subrogation White, tion of interest. upon disbursing the money, allegedly instructed Roadarmel to hold the funds pending a Royal determination. petition, amended its on November separate to include a alleged count White for an duty breach of the trust owed as a third-party beneficiary of the trust imposed on the third-party proceeds. The WCC decided this case on for summary judg- cross-motions
ment. The court determined that “subrogation agreement” had been exchange formed in the letters between White and attorney, (Edmiston), James G.Edmiston and that the statute oflimitations on expired. Therefore, contract had not judgment the WCC issued $63,864.79 jointly severally amount of and against Roadarmel breaching White for contract and failing to honor Royal’s “first lien” judgment. on the
DISCUSSION This grant summary Court’s standard ofreview of a or denial of judgment by the by ruling WCC is the same as that used the court in upon the summary judgment. motion for Heath v.Montana Mun. Ins.
512 (cit 463, 9, 959 480, 111, 9, 288 P.2d 9¶ MT Mont. Authority, ¶ 1998 ¶ Motor Co. ing Heisler v. Hines is-, 47). genuine an absence of is, whether there is That we review tojudg-i moving party is entitled fact and whether of material sues Heath, as a matter of law. ¶ ment l plenary; of is we sim-' the WCC’s conclusions law Our review of are correct. legal the court’s conclusions whether ply determine (1997), 282 Mont. Mut. Cas. Co. Heath, (citing Loss v.Lumbermens 9¶ 314). Here, material facts are since the undis-t 80, 81, 936 P.2d Thus, we must determine of law remain. only questions puted, law, Royal’s concluded, a matter of that correctly the WCC whether by the relevant are not barred Roadarmel and White claims time-barred Royal’s that claims are limitations. We hold statutes of in favor of summary judgment and, therefore, entry direct of we and White. Roadarmel
I. concluding Royal’s that err in Did the WCC two-year by the is not barred against Roadarmel action stat? MCA, actions; 27-2-211(l)(c), governing of limitations ute by statute? liability a created upon based action to collect Royal’s s'r and White contend Roadarmel -o, subrogation statute under the third-party proceeds of the portion Act, is Compensation the Workers’ ac-t governs of limitations which two-year statute by time-barred 27-2-211(l)(c),,- statute,” by liability “a created upon tions based subrogatiori, is position Appellants The MCA. basis entirely de-: liability” which is “statutory a constitutes (1985). right- law There no common 39-71-414, upon pendent statute there without here, Appellants, asserts involved received party proceeds the third liability as to be no would limita- statute of two-year Therefore, they argue that Roadarmel. claim for reimburse- 27-2-211(l)(c), MCA, governs tions of § Appellants. agree position with the We against Roadarmel. ment part MCA, pertinent provides Section of an “[wjithin for the commencement prescribed years period is the or penalty than... a other liability statute upon... as- public payment statutory . debt created forfeiture; .or here ‘7-2-211(l)(c)(i)-(ii), It is not contended Section sistance.” ¡ment pur- third-party proceeds portion Royal’s entitJ *5 39-71-414(1), (1985), “penalty lant MCA is in the nature of a or to § jrfeiture” “statutory by payment public or a debt created the of assis- Thus, .ance.” the question obligation becomes whether Roadarmel’s Royal “liability by amounts to a created statute” within the mean- 27-2-211(l)(c), ing of with, begin To there “right is no doubt that the insurer’s
subrogation” for in provided creates a statu- tory liability any recovery by injured employee against as to the a party: third
If a [third-party] prosecuted [by injured action is the employee] provided as for in 39-71-412 [liability party of third other than em- ployer or employee] [liability fellow or 39-71-413 of fellow em- ployee for intentional and malicious acts or and except omissions] section, as provided otherwise this the insurer is entitled to subrogation for all compensation paid paid and benefits or to be under Compensation the Workers’ right Act. The insurer’s claim, is a lien on the judgment, recovery. or [Em- first phasis added.] (1985). lection However, that does not end inquiry. Appellants our As correctly
;ontend, phrase “liability by created statute” has a settled mean ng in the law of Montana as well as other states. This Court has con “ traed phrase to mean ‘a liability which would not exist but for 486, 284 P.
he statute 478, 525, ....’ ” Abell v.Bishop 86 Mont. 123). 528 (quoting 37 C.J. Limitations differently, Actions Put test liability is whether question. would exist absent the statute in State ex rel. County 79, 81, Fallon v.District Court 161 Mont. 120, Therefore, 505 P.2d 121. liability by created statute is one which “establishes a rule private right new unknown to the common law.’’ 247, Butler v. Peters 205 P. 248. (1962) See also 51 Am.Jur. 2d Limitations (“Clearly, Actions 82 action is not upon liability based created if statute is one statute.”). which would exist at common law in the absence of Other states similarly phrase “liability have defined the created statute.” (Okla. See, e.g., 1996), Lincoln Bank and v. App. Trust Neus tadt Ct. (Kan. 1005, 1008; 1994), 917 P.2d Wright v.Kansas W ater Office (Ariz. 567, 572; Vargas Risk Mut. Ins. C o. v. Ct. App. Preferred 1988), Notably, phrase “liability statute” not en- does compass agreement Abell, an action in which the element of enters. 986, 284 Indeed, obligation “[i]t
86 Mont. at P. at 528. is an which the agreement.” Oregon-Washington law creates the absence of an R. (Wash. 1919), v. & Nav. Co. Seattle Grain Co. 178 P. 650. At this juncture, necessary Royal’s contention, it becomes to address as ac WCC, cepted by the correspondence regarding respective attorneys, action between the White and Edmiston, “subrogation agreement” created a to which the statutes of apply. limitations for contract actions As the WCC reasoned: subrogation agreement (acting [T]he between and White agent) [Roadarmel’s] is an enforceable contract. Thus, eight statute of limitations is the or applicable five year period specified by section 27-2-202 for actions on contracts. years after present.petition brought Since the was within five judgment against paid, [Roadarmel’s] Great Western was it is *6 timely Royal and is entitled to enforce its interest. Royal Since the amount is not in is to in dispute, [Roadarmel] liable $63,864.79. the sum of Royal, conceding compensation while that a workers’ insurer’s
subrogation right 39-71-414, (1985), pursuant argues arises to MCA regarding that a contract was indeed formed its interest Thus, third-party proceeds by Royal in the recovered Roadarmel. as- in applies serts that since more than one statute of limitations this case, longer pe- Court limitations application this should favor on our discus- public policy.Royal primarily riod as a matter of relies (1985), 201, 218 Mont. Drilling sion in Thiel v. Taurus Ltd. 1980-11 33, 710 P.2d where we said: oftwo or more question there is a substantial as to which
Where limitations general rule is apply, statutes of should containing ofthe the lon- doubt should be resolved favor statute gest limitations... [general legislative protecting rule]
“This intent of serves claims, yet provides approach from stale of liberal- defendants maximum free access to ity plaintiff party-litigant which affords system....” our court omitted). (citations 212-13,
Thiel,
Ritland, Kearney, this is not a case where there is a substantial question as to which of two statutes of limitations should apply. As Appellants argue, no contract was formed concerning Royal’s subrogation interest in the third-party proceeds because all of the correspondence allegedly giving rise to the “subrogation agreement” took place in the context of mandatory and self-executing right of subrogation provided 39-71-414, for in and, therefore, lacked the essential element of free and mutual consent. (1) Montana, In the essential elements of a contract are: identi- (2) (3)
fiable parties capable of contracting; consent; their a lawful ob- (4) ject; and sufficient cause or 28-2-102, consideration. Section And, as we have said consent, of the element free, “it must be mu- tual, and communicated party each to the other.” Interstate Pro- duction Credit Ass’n v. Abbott
824, 826. Appellants argue, agree, find, and we that to as did the WCC, that a contract here, was formed between the parties there must be as a beginning premise the freedom of both parties negoti- ate and mutually consent to a “subrogation agreement.” However, workers’ subrogation statute, § creates what Appellants properly character- “tight ize as a liability scheme” injured in which the employee has no ability or bargain or away contract the rights ofthe insurer to be subrogated to third-party proceeds recovered the employee.The statute provides for the following mandatory procedure respect with to third-party actions injured instituted employee:
(2) (a) injured If the employee intends to institute the third *7 party action, [or he give she] shall the insurer reasonable notice of [or his her] intention to institute the action.
(b) injured employee The may request that pay the insurer proportionate share of the action, reasonable cost of the including attorneys’ fees.
(c)The may insurer elect not participate to in the cost of the ac- tion. If this made, election is the insurer waives 50% of its subrogation rights granted by this section. (1985).
Section MCA As we have said of the statute: in the 39-71-414, MCA, for the insurer’s role provides [Section] to that the insurer is entitled provides action. It [third-party] If claimant paid. and the for benefits subrogation claimant is to inform the party, the third brings an action It also states insurer, to in the action. may participate who decide if the claimant does not may bring an action itself that the insurer the injury and that bring year an action within a of the date subrogation. for The statute may insurer enter its own settlement rights. more than these provides for no 1022, 1024 354, 357, 846 (1993), Mont. Co. Wildin v.CNA Ins. original). (emphasis initiate a Where, here, chooses to injured employee as the to the insurer of action, provide
. must notice employee the third-party in the costs of that the insurer share may request and also the action (1985). That 39-71-414(2)(a)-(b), precisely MCA the action. Section Roadarmel, White, provided here on behalf happened what when Exxon Royal ofthe mandatory third-party notice to the Royal agree Chemical, requested further and Great Western Royal agreed to ad- for the action. “$5,000 cost advancement” to a advancements $5,000, “[n]o other cost provided vance interest in the “fully” subrogation its required” protect to w[ould] be third-party action. “was not entitled agree the WCC that Roadarmel While we with scheme, statutory $5,000 money” front under up
to “bargained for” the he therefore the WCC that disagree we with The in- agreement.” for $5,000 constituted “consideration which participate to choose to right by statute retains the absolute surer to action, Royal, as did or waive third-party the reasonable costs of (1985). The in- rights under ofits 50% power, Appellants as essentially bargaining no employee has jured reason- in the that the insurer share request to argue, save then, action; even but fees ofthe attorney’s costs and able in the participate or not alone determines whether the insurer action. costs of said $5,000 does not answer Royal agreed to advance the That parties; formed between a valid contract was
question ofwhether specific statutory right to decline Roadarmel’s retained “proportionate constitute a $5,000 failing up front request for 39-71-414(2)(b), action....” Section cost of the ofthe reasonable share (1985). protracted of Roadarmel’s the costs We note
517
nearly
fees, amounted to
action,
attorney’s
including
third-party
insti-
like Roadarmel who
event,
injured employee
$30,000.
any
In
an
speci-
procedure
follows the
properly
action and
third-party
tutes a
freely
(1985),
negoti-
to have
39-71-414,
cannot be said
by
MCA
fied
statutory
following
requirements.
in
the
liability
ated for contractual
(citation omitted) (“A liability
Butler,
386,
(discussinghow the Montana system common-law economically wasteful imperfect tute for the Act in Compensation enacting action” in our Workers’ private 1915). White Pine Sash in Fisher v. Missoula Thus, we determined 795, “any subrogation
Company (1974), 164 Mont. 518 P.2d and, statutory” purely is possess insurer right employer or its of the Montana Workmen’s therefore, provisions “governed Fisher, 44-45, 518 P.2d at 797. Since Act.” at 164 Mont. Compensation Fisher, this Court has properly characterized an right insurer’s subrogation under the Act “statutorily given.” Butori v. Bruce Sportsman Metcalf time, At however, the same we have discussed the insurer’s under the Workers’ Compensation having Act as roots, its at theoretically, least equity: antediluvian notions of *9 worker,
When... a
[or her]
the course of his
employment is in-
jured by
third
[a
the act or omission of
party],...
gives
[it]
rise
anto
obligation on the part
employer
[the
of
or
provide
insurer] to
the
worker with benefits under the
Compensation
Workers’
Act. The
employer or insurer in that
upon
case is called
to
payments
make
to
really
the worker which
should be the burden and responsibility
of the third-party tortfeasor. It is a doctrine
equity
as old as
party
when a
by
is burdened
or obligation
jus-
debt
that in natural
tice, equity
good
another,
by
conscience should be paid
party is subrogated
rights
to the
payee
pay-
his
to the extent
the
of
of
made,
against
ments
as
the responsible party. [Emphasis added.]
(1978),
208,
Brandner v.
213,
Travelers Ins. Co.
179 Mont.
587 P.2d
933, 936-37, overruled
grounds by
on other
Comp.
Francetich v.State
(1992),
Mut.
215,
1279;
Ins. Fund
252 Mont.
827 P.2d
Ness v. Ana
(1996),
conda
472,
Minerals Co.
279 Mont.
Independent any provision of the Workmen’s Compensation Act, employer the or the paying compensation insurance carrier right would have the to subrogated injured be to the claim of the against work[er] as a third party negligence responsi- whose was injuries by ble for the work[er]. sustained the Butler, 86, 148 Fisher, by 116 Mont. at P.2d at as dictum clarified 45, 518 at (expressly disavowing foregoing Mont. P.2d at 797 statement in Butler as “dictum” disregarded”). which “should be recognize While that rights equitable subrogation we exist law, at common we nevertheless determine that the insurer’s “first against any lien” third-party proceeds by injured recovered em- common distinguished from the law ployee conceptually must be distinction, subrogation. right equitable drawing When such insurer’s lien created by the
third-party proceeds employee, recovered constitutes a “liabil- 27-2-211(l)(c), ity meaning MCA, statute” within the of § right it to an not unqualified because amounts of reimbursement found at common law. “subrogation” granted by The necessarily
must be read in reference the Act to as a whole: subrogation rights provided by We must look at the viewpoint employer Montana Act from the that the has li- accepted ability fault employee; employee’srecovery without to the employer Act; is limited to the under benefits the employer given up has its common law defenses if it does not Act; come under the and that the special provisions ofthe Act with respect designed provide are incentive to employee damages to seek reimbursement for his from a responsi- party employer may ble so that the be in whole reimbursed or part any recovery employee. added.] out made [Emphasis Stetson-Ross, Cordier v. Inc. It has been said that workers’ acts create statu- *10 tory “quite causes of action that are different from that ofthe common (Cal. 1939), 826, law.”Rideaux v. Torgrimson (discussing 86 P.2d 827 California). provisions Thus, of the Compensation Workmen’s Act of statutory a compensation provides where workers’ scheme afor cause of specify particular limitations, action but fails to a statute of gen- it erally period has been held that “the limitation to applicable liabili- ties created statute applies proceeding [the] to action or ... .” 54 (1987). C.J.S. Limitations Actions 73§ of However, foregoing general pertaining rule to cre liabilities ated by application statute has no when a workers’ in compensation pursues subrogation per surer a claim See St. Paul & se. Fire Marine 76, 887 Glassing Ins. v. P.2d 218. As we in explained Glassing, “right subrogation purely this is because the of is deriva tive!;] insured, only rights the insurer succeeds to the and no 80, 887 Glassing, new cause of action is created.” 269 Mont. at P.2d at (citation omitted). Vargas 220 See also Risk Mut. Ins. Co.v. Preferred (Ariz. 1988), 346, 348 subrogation does App. (noting Ct.
520
itself,
rather,
equiva-
constitute a claim for relief in and of
but
is
not
claim).
assignment
preexisting
lent to
of
is,
merely
the insurer
concept
subrogation
gives
“the
That
right
possessed
the cause
action which the insured
prosecute
to
anyone legally
Glassing,
for the latter’s harm....”
responsible
(citation omitted)
(emphasis
P.2d at 220-21
that insurer
year
injury). Though
of date
the statute as a whole is
within one
loosely
“subrogation,”
the insurer’s
phrased
terms of
(3)
must
distin
subrogation per
provided
se
for
subsection
be
39-71-414(1),
lien”
MCA
guished from the insurer’s “first
under §
rather
statutory right
to a
which amounts
“reimbursement”
Cordier, Mont. at
subrogation right
than a
in its classic sense. See
P.2d at 93.
Supreme
regard,
In that
we find instructive the Oklahoma
(Okla.
States Ins. Co.
holding
Court’s recent
in ACCOSIF v.American
2000),
ACCOSIF,
paid
In
after the insurer
out workers’
521
really
it
subrogation when was
as one for
“mistakenly characterized”
ACCOSIF, 1 P.3d at
demand.”
recoupment
tanto
“statute-basedpro
scheme, noting
statutory
the
holding
its
on
The court based
992-93.
(1991)
key
“fashion a
distinc-
44
the Okla. State 85 §
that the terms of
present
in the
advanced
subrogation and the demand
tion between
44(c)
ACCOSIF,
assigned
of the statute
at 992. While §
case.”
paid employee’s
insurer
the
compensation
workers’
ru-
the law’s
falling
third
thus
under
against
party,
44(a)
statutory re-
claim for
bric,
the basis of the insurer’s
formed
§
recovered
third-party proceeds
from the
coupment or reimbursement
n.2,
ACCOSIF,
992 n.14.
See
1. P.3d at
employee.
its
“statutory recoupment
is distinct from
The court noted that
namesake,”
legal usage
in modern
has become
common law
which
ACCOSIF,
n.3. The
crued for
all elements of
law,
accrues when
a claim or cause of action
Montana
*12
the claim or
27-2-102(l)(a),
cause exist or have occurred. Section
MCA.We note that the ACCOSIF court determined that the moment
injured
employee becomes entitled to proceeds from the
third-party tortfeasor marks the
time at which the insurer’s
“statutorily
reclaim its
prescribed compensation payout” begins to
run
purposes
ACCOSIF,
for
ofthe statute oflimitations. See
Roadarmel’s Royal notice to of the com successful pletion of the third-party triggered two-year action the start 11(1)(c), period limitations of 27-2-2 give Royal MCA.To § benefit doubt, deciding we assume without that the statute of limita tions began February to run on 1994. From that date until the time Royal filed for statutory right determination ofits to reimburse ment, years Thus, 3V2 claim elapsed. Royal’s we hold that against Roadarmel liability by based on a statute is time-barred un 27-2-211(1)(c), der MCA.
II. Did the concluding WCC err in the action by Royal against the attorney White is not barred three-year 72-34-511(l)(a), MCA, statute of limitations governing ac- upon alleged tions based an breach of trust? three-year White contends that the statute of limitations con- 72-34-511(l)(a), MCA,
tained in any Royal also bars has against upon alleged WCC, him based an breach of trust. Before the Royal argued that personally White was liable for its in- terest since he was a third-party “constructive trustee” of the funds recovered Roadarmel. agreed Royal: The WCC with 39-71-414,MCA,provided Section White with clear ofthe notice lien. by Royal His disbursement of amounts claimed while —even Royal’s acknowledging interest in those amounts —is perplexing. His failure to acknowledge regarding either of Edmiston’s letters Royal unprofessional.... the amount due was discourteous and Un- Royal’s limitations, against less claim him is barred a statute of $63,864.79 Royal. he is liable for the due respond may While White’s failure to have been “discourteous unprofessional,” Royal provides explanation no reasonable as to why years, it waited several informing after Roadarmel that it was going bring interest, an action for determination of its erred, determine claim. that the WCC since to file its We three-year claim White is time-barred under the statute 72-34-511(l)(a), limitations of oflimi- appeal, Royal three-year On contends that if the statute here, his begin running
tations it did not until White disclosed applies Royal trust the first time on March when breach of discovery learned had through White disbursed language of the stat- funds to Roadarmel relies on ute to bolster its claim: beneficiary
If a or final account in writ- has received interim ing report adequately or other discloses the existence written trust, ofa claim the trustee for the claim is barred breach claim beneficiary as to the unless a to assert the proceeding com- years menced receipt report. within three after ofthe account or An *13 report account or adequately disclosed existence the claim it of if provides beneficiary so that the knows sufficient information reasonably of inquired claim or should have into existence of [Emphasis added.] claim. 72-34-511(l)(a), Section MCA. 18, 1994, responds February White that the letter of set which
forth in writing the final account of the successful of appeal action, third-party Roadarmel’s was the date on which the statute of any alleged limitations as to began Royal breach of trust to run. claims, however, knowledge third-party that of the fact that a recov ery had been reached knowledge is not the same as that the claim attorney ant’s by disbursing had violated the insurer’s first lien all of the settlement proceeds his or her client. Ultimately, Royal’sposition unavailing. is As we determined
under appeal, Royal’s against the first issue on claim Roadarmel by 39-71-414(1), based on the “first lien” is differently, Royal’s statutory time-barred. Put lien was “extin guished” years as a matter of law two after it received the notice of February 18, 1994. ACCOSIF, Royal this See P.3d at 994. concedes by point appeal: only extinguished on “the insurer’s first lien is obligation.” running principal of the statute of limitations on the Therefore, Royal asserting that assuming even is correct 72-34-511(l)(a), MCA, limitations three-year statute of did not begin longer to run until in time could no be point White trustee, otherwise, characterized as a constructive or three-year third-party Alternatively, if we assume that the proceeds. 1994, Royal’s against action began statute of limitations to rim put on untimely years as it was filed 3V2 after was White was completion notice of successful of Roadarmel’s against Exxon and Great Western Chemical.
CONCLUSION is Royal’s reimbursement claim Roadarmel barred 27-2-211(l)(c), MCA, and two-year statute of limitations of § similarly by the Royal’s claim is barred breach of trust White 72-34-511(1)(a), Where, three-year statute oflimitations of § here, bearing legal issues are before all ofthe facts on the resolution Court, grant the trial court’s authority this we have the to reverse summary judgment in favor summary judgment and direct it to enter Chrysler Corp. 282 Mont. party. of the other See Swank v. Ins. (citin 631, 637 376, 385-86, of Langendorf Matter Estate g 938 P.2d 123, 128, 434, 438; Duensing v. Traveler’s 863 P.2d 210). Reversed Mont. Companies summary judgment in favor of Roadarmel entry and remanded for and White. and remanded. Reversed NELSON, concur. TRIEWEILER and REGNIER
JUSTICES
LEAPHART, dissenting.
JUSTICE
I,
Royal’s
resolving
the Court concludes that
I dissent. In
Issue
39-71-414, MCA, and
entirely dependent upon
is
statutory rights
two-year
applicable
thus the
statute oflimitations
39-71-414, MCA,
I
is the source of
controlling. agree
However,
statutory
envisions that
rights.
provision
implementing
contract on the terms of
parties may agree
or
39-7l-414(2)(b), MCA,
that,
provides
“[t]he
statutory liability. Section
*14
a
may request
pay proportionate
that the insurer
injured employee
I
action,
attorney fees.”
including
cost of the
share of the reasonable
injured employee can “demand”
say
that the statute does not
note
parties
It
share;
may “request.”
rather he
leaves
proportionate
a
share;” what are
“proportionate
a
free to determine what constitutes
those reasonable costs
agree upon
and-to
whether
“reasonable costs”
accounting. Accordingly,the stat-
in the final
paid up
will be
front or
arrangement.
contractual/statutory
hybrid
ute invites a
Royal’s
to
noted,
2,1989, Mr.
wrote
on June
White
As the WCC
¶54
client, Royal Insur-
agree
your
attorney as
“Wewould also
follows:
Exxon and Great
against
in the action
participation
ance Company’s
$5,000
Western Chemical with the
cost advancement.” On June
1989, Royal’s attorney replied, writing part:
relevant
“The insurer
your
fully
accepts
participate
party
in the third
offer
$5,000.00
Exxon and
by paying
Great Western Chemical
cost ad-
vancement. No other cost advancements
be
In-
required Royal
will
fully
Thus,
surance in order to
participate.”
by way of an offer and ac-
ceptance,
parties clearly “agreed”
$5,000
proportion-
was a
Furthermore,
ate share of “reasonable costs.”
despite the fact that the
require
front,
statute does not
that such
paid
reasonable costs be
up
parties agreed
Royal
would “advance” the costs.
Where the
enter
parties
agreement
into an
settling legal
claim
agreement
and the
supported by consideration,
agreement
constitutes a contract and is enforceable as
Heatherington
such.
v.
Ford Motor Co.
39-71-414(1), MCA, extinguished was years as a matter of law af- two ter it 4,1994. Thus, received the notice of February after that point 4,1996), time (February White longer could no be characterized a trustee, otherwise, constructive or of the third-party proceeds. Since I disagree with the Court’s application two-year issue, statute of in resolving limitations the first I disagree also with above, its conclusion as to Issue II. As indicated I affirm would applying WCC in the longer eight-year five- to statute of limitations hybrid to this contractual/statutory obligation. Accordingly, I would *15 alleged still a trustee as of 1998 when the hold White was Thus, Royal’s re- petitions breach of trust was first disclosed. with timely 72-34-511(l)(a), gard to the breach of trust were filed under § I affirm the WCC on Issues I and II. would both join and JUSTICE GRAY in the CHIEF JUSTICE TURNAGE dissenting opinion. foregoing