*1 YEAROUT, v. RAIN- KYLE W. Appellant, Claimant and PAINTING, BOW Employer, and In- Respondent. Fund, Defendant surance 85-418. No. Submitted on Briefs March 1986. Decided June P.2d 1258. Falls, Jackson, Hoyt, Great John C. Kurt M.
Law Offices of appellant. claimant and Chronister, Gen., Helena, Atty. for defendant
Allen B. Asst. respondent. *2 Opinion
MR. of the Court. JUSTICE HUNT delivered appeals Kyle order the Workers’ Yearout of denying attorney’s his fees. We affirm. claim for appeal The sole issue on is whether against by refusing attorney’s fees and costs Court erred to assess to 39-71- pursuant Section the State Insurance Fund 611, MCA? 1984, employed by Painting,
In a Great Falls Yearout was Rainbow working a radar company. injury, At time of his he was at based from Great north of Havre. and his foremen drove base Yearout Tuesday Monday, Monday and Thursday mornings; Falls on and they stayed housing. The foreman was Thursday evenings at on-site expense, pickup company his and his gasoline for reimbursed at the generally had work in it and was used site. tools 21, 1984, On his foreman had worked November Yearout and Falls for the early get to to Great eight hour shift back Havre, north of Thanksgiving holiday About 33 miles weekend. several times. pickup on the ice and rolled slid out of control severely injured. report of the accident was Yearout filed a Yearout Rainbow, him to his doctor told but continued to work until 27, 1984, 21, a claim quit he filed on December 1984. On December with the State Fund. and denied investigated the claim
A State Fund claims examiner it, At duty time of the accident. finding off at the that Yearout was sup- time, Rainbow given no was the examiner that that information denied Janu- plied pickup. The claim was the fuel for the foreman’s 4, 28, attorney February 1985. on ary 1985. Yearout hired was depositions taken. The matter Discovery and was conducted of hear- 11,1985. At the commencement scheduled for trial June conceding liabil- legal that was ing, State Fund counsel announced a as well as ity, compensation benefits pay and that it would medical 39-71-2907, unrea- for percent penalty pursuant 20 to argued delay pay counsel benefits. Yearout’s sonable or refusal attorney’s pursuant to Section fees Yearout was also entitled to that Au- By 39-71-611, parties order dated the issue. MCA. The briefed
67 9, 1985, fees gust attorney’s for Judge Reardon denied the claim finding that not and that adjudicated, the matter had 622, (1976), 249, Indemnity v. Industrial Co. 170 552 P.2d Mont. recovery appeal barred this instance. This followed. long attorney’s
It has been the Montana fees are rule that special parties or agreement recoverable absent between the some Re- Department Wilson v. Natural statutory authorization. (1982), sources and Conservation P.2d St.Rep. 1294; Nikles v. Barnes 454 P.2d statutory attorney’s by appellant for claimed authorization fees is found at Section MCA. That section states: “In the compensa- event an insurer denies for a claim for compensation tion or terminates benefits and the claim ad- is later judged compensable by ap- compensation judge the workers’ or on peal, the pay attorneys’ insurer shall and reasonable costs compensation established the workers’ judge.” argues Yearout that was petition hearing he forced to file a power invoke Compensation judge at- award torney’s argues fees. State Fund the statute is clear face on its may no “adjudged awarded until the claim is *3 compensable by Compensation judge the appeal,” Workers’ or on case, and in this adjudication there nowas as State Fund conceded liability hearing. at the commencement of the
In its denying request attorney’s fees, the Yearout's for Compensation Workers’ Court declared: efforts, argues claimant herein that for counsel’s the but “[T]he accepted defendant liability. pro- would not in have record this ceeding supports that is the for conclusion. It clear to Court that but counsel’s efforts pursued investigation the insurer would not have of necessary depositions this claim. The not would have been taken Yet, likely and the unchanged. defendant’s denial been would have reluctantly agree the Court must with has the defendant there adjudication no Court at- which would allow this to assess an torney against fee the insurer.” agree
We the Court. statutory by
The rules this of were discussed construction High Department Court Montana Contractors’ Association v. of (Mont. ways 1986), 1056, St.Rep. 715 P.2d [220 392.] step in One function of legislation. this Court is to construe The first such If of language language construction is to look to the used. the speaks for itself unambiguous, statute the
the is clear and statute nothing the Court to construe. and there is fees, 39- case, attorney’s Section authorizing the In this statute If insurer denies 71-611, unambiguous. is clear and attorney’s fees liable for compensation, insurer for a claim for is Com adjudged compensable if claim is later statute that of the pensation language from the judge. It is clear of before an award compensability adjudication of there must be an attorney’s fees is authorized. Cosgrove v. Industrial Indem- this before
We addressed issue we stated: 552 P.2d wherein nity 170 Mont. Co. construction Section the rule of liberal argues that under “Plaintiff interpreted as should be [presently Section 92-616 MCA] has at- attorneys’ the insurer fees when requiring payment of pay to by agreeing statutory provision tempted to circumvent the compen- of adjudication compensation there has been before sability .... agree must and that Workmens’
“While we do man, working liberally of the favor Act should be construed room for construc- some must first allow language of the statute requires that the claim . . . Section 92-616 tion. It is obvious that in- appeal’ before or on by the division ‘adjudged compensable, find- been no attorney There has required pay fees. surer can be by the Division or compensability ing adjudication or of in this Compensation Court case. Worker’s may some desire is and what as it not must rule on the law “We to be.” 254-255, P.2d 622.
Cosgrove, disposi applicable to and Cosgrove equally reasoning in is Our distinguish attempts case, and Yearout’s tive of adjudication was no persuasive. There instant case are from the case, in this by Workers’ compensability 39-71- attorney’s justified is no award of hence favoring arguments equitable there are agree that We MCA. denies a claim who by an insurer payment *4 How begun. have proceedings judicial accepts then after This Legislature. to the presented ever, arguments such must written, no award must the law follow Court this MCA, facts of 39-71-611, the under by Section justified fees is case. reasons,
For the foregoing we affirm order of the the Workers’ Compensation Court.
MR. HARRISON, JUSTICES and GULBRANDSON WEBER concur.
MR.
SHEEHY,
JUSTICE
dissenting:
It merely
is
Hunt,
coincidental that Justice
who
major-
authors the
ity opinion,
the
Compensation
was
Judge
Workers’
whose decision
not to
attorneys
award
fees was
v. Industrial
affirmed
Indemnity Company (1976),
For I think we 39-71-611,MCA, construe Section too nar- rowly under the facts of claimant, this case. When the whose bene- fits had by Fund, refused had to resort to the Work- Compensation ers* relief, Court for he did so under Section 39-71- statute, MCA. Under that Workers’ Judge has jurisdiction exclusive to make concerning determinations dis- putes for compensation. workers’ When a claim has been unreasona- bly delayed by or insurer, refused prior subsequent either to or to the of an by issuance order Workers’ Judge, the claimant is penalty entitled to a percent of 20 of the benefits 39-71-2907, MCA. pretrial
A order in by case was Compen- entered the Workers’ Court, sation agreed parties on June 1985. Under Sec- tion F. entitled “Issues to be Determined the Court” the three (1) issues listed were: injured whether claimant was within the scope course and (2) of his employment, whether he was entitled to attorneys costs and pursuant 39-71-611, MCA, to Section (3) whether he was percent entitled to penalty the 20 under Section 39-71-2907,MCA. On the day however, 11, 1985, same June appeared both counsels before the and there Court counsel for the State Fund confessed to compensable, that the claim was and that the claimant was percent entitled to the 20 penalty for un- delay. reasonable question right attorneys claimant’s was briefing reserved for and the further order of the Court.
Although the Workers’ Compensation jurisdic- Court had exclusive tion of the claim point, at that it did not enter order based on the stipulated liability of the State Fund. Since the Court had exclusive jurisdiction of all issues under Section should of course had making entered binding stipulated *5 binding order to a in was entitled
liability. The claimant case Court, have the effect which would from the Workers’ attorneys under Section purpose adjudication for of an 39-71-611, MCA. pen- as the why attorneys fees well important reason
There is an Under alty in this case. should be exacted against an allowed penalties and assessments provided “the it is and assess- penalties exclusive Chapter 71 are the under insurer arising disputes insurer for against an assessed ments that can be Fund that the State is admission Chapters Here there 71.” to the claimant. refusing benefits unreasonably in delaying it acted punitive dam- faith, not liable for good it is If its actions were Comp. Ins. Fund [212 v. Montana ages. Birkenbuel legisla- intention 139,] P.2d 700. It is the obvious par- State Fund against the assessments penalties and ture that weapons available to ticular are the interpret the We should dealing claimants. fair Court to ensure intent effective. legislative make the penalties and assessments attorneys fees and in this case and would award I therefore dissent penalty. . costs, percent to the addition