Hunnewell v. Syme , 229 Mont. 525 ( 1987 )

No. 86-508
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
SUSAN M. HUNNEWELL,
Plaintiff and Appellant,
-vs-
RICK SYME,
Defendant and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
H. Charles Stahmer, Rozeman, Montana
For Respondent :
Robert T. Curnmins, Helena, Montana
--
Submitted on Briefs: Sept. 10, 1987
Decided: December 31, 1987
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
The plaintiff appeals the District Court's order
granting the defendant's motion for summary judgment. The
issue raised on appeal is whether an employee can recover
bodily injury damages when the only negligence alleged by the
employee in the court below was the employer's failure to
carry workers' compensation insurance. We affirm.
In May 1981, Susan Hunnewell started working for Mr.
Syme. In July 1981, Ms. Hunnewell attended a roping clinic
in Conrad, Montana at the direction of Mr. Syme. Mr. Syme
was paying her and she was in Conrad for his benefit. While
there, the horse she was roping on was undercut by a steer.
Ms. Hunnewell and the horse both tumbled, injuring Ms.
Hunnewell. After the accident Mr. Syme notified Ms. Hunnewell
that he did not carry workers' compensation insurance. There
is a question of fact as to whether the parties were involved
in an employment relationship. For the purposes of reviewing
the motion for summary judgment Ms. Hunnewell's allegations
that it was an employment relationship will be presumed true.
In June 1984, Ms. Hunnewell filed a complaint alleging:
I.
That the Defendant, RICK SYME, employed the
Plaintiff, SUSAN M. HUNNEWELL, as a horse trainer.
11.
Plaintiff was employed for the Defendant from
May 1, 1981 to July I?, 1981.
111.
On the 17th of July, 1981, the Plaintiff,
while engaged in the course of her employment,
received severe bodily injuries.
IV.
The Plaintiff was uninsured as provided by the
Workman's Compensation Act of the State of Montana,
M.C.A. 39-71-509, said Plaintiff was electing to
pursue damage action against the Defendant as her
employer.
The District Court granted Mr. Syme's motion for summary
judgment holding that Ms. Hunnewell failed to present a prima
facie case of negligence. Employees electing to sue
employers under § 39-71-509, MCA (1981), rather than initiate
proceedings against the uninsured employers' fund, 5
39-71-502, MCA, must present a prima facie case of negligence
to maintain an action for damages against an employer. The
District Court cited Chancellor v. Hines Motor Supply ( 1 9 3 7 ) ,
104 Mont. 603, 69 P.2d 764, as authority.
Ms. Hunnewell argues that she did allege negligence on
the defendant's part, even though he had no part in causing
her physical injuries. Ms. Hunnewell contends: 1) that $
39-71-401 (1), MCA, requiring employers to carry workers'
compensation insurance, establishes a standard of care owed
to employees to carry workers' compensation insurance; 2)
that Mr. Syme failed to carry workers' compensation
insurance; 3) that a violation of this statutory duty
constitutes negligence per se; and 4) that she suffered
financial damage because she was deprived of the compensation
she would have received had Mr. Syme been covered by workers'
compensation insurance. Mr. Syme asserts that a damage
action under 5 39-71-509, MCA, requires proof of negligence
that results in physical injury only.
In Boehm v. Alanon Club (Mont. 19861, 722 P.2d 1160, 43
St.Rep. 1341, this Court reaffirmed the holding in Chancellor
that an action for damages against an employer requires the
employee to present a prima facie case of negligence.
Chancellor stated "An injured employee, who avails himself of
the right given to him by the statute in question, is
nevertheless bound to prove that the injury for which he sues
was caused by the employer's negligence." Chancellor, 69
P.2d at 767. Although Ms. Hunnewell admits that Mr. Syme had
no part in causing her physical injuries, she asserts she has
alleged the negligence necessary to pursue a damage claim
pursuant to 5 39-71-509, MCA, by simply asserting that Mr.
Syme did not have workers' compensation insurance.
This contention is incorrect for several reasons.
First, even if Mr. Syme was negligent by not carrying
workers' compensation insurance, his negligence was not the
proximate cause of Ms. Hunnewellls injuries. The Workers1
Compensation Act defines injury as:
(a) internal or external physical harm to the
body;
(b) damage to prosthetic devices or
appliances, except for damage to eyeglasses,
contact lenses, dentures, or hearing aids; or
(c) death.
Section 39-71-119, MCA. Financial injury, such as Ms.
Hunnewell alleges, is not the sort of injury contemplated as
compensable by way of a tort claim under S 39-71-509, MCA.
Although Ms. Hunnewell suffered physical injury, Mr. Syme's
failure to carry insurance was in no way the proximate cause
of her physical injuries.
Second, Mr. Syme's failure to comply with 5 39-71-401,
MCA, does not constitute negligence per se. Workers '
compensation statutes were enacted as social insurance rather
than to provide for damages in tort-connected liability
cases. Mahlum v. Broeder (1966), 147 Mont. 386, 394, 412
P.2d 572, 576. Mr. Syme's failure to comply with 5 39-71-401
is not the proximate cause of Ms. Hunnewell's injuries
because: "To constitute negligence per se, a statutory
violation must also be the proximate cause of the injuries
sustained." Kudrna v. Comet Corp. (1977), 175 Mont. 29, 39,
572 P.2d 183, 189.
Finally, the Workers' Compensation Act has been amended
since Ms. Hunnewell's accident. Section 39-71-515, MCA,
gives employees an independent cause of action against
uninsured employers by imposing liability simply on the basis
of the employer's failure to be enrolled in a workers'
compensation plan. This does not help the appellant in this
case. The cause of action Ms. Hunnewell alleges, imposing
liability on an employer based solely upon failure to enroll
in a workers' compensation plan, did not exist at the time of
her injury. The law at the time of her injury governs
recovery. lverson v. Argonaut Insurance Company (Mont.
1982), 645 P.2d 1366, 1367, 39 St.Rep. 1040, 1041.
Ms. Hunnewe11 also raises the argument that if she is
not allowed to recover in a damamge action she will be denied
her constitutional right of full redress pursuant to Art. 11,
section 16 of the Montana Constitution. This argument has no
application in this case. A "speedy remedy afforded for
every injury" does not equate to damages without first
establishing liability. Thus, the District Court did not err
when it granted summary judgment in favor of respondent.
Affirmed.
Justice
We concur: A