DeWINTER v CAPP HOMES INC
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No. 12254 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN 1973 PETER Dew INTER, P l a i n t i f f and A p p e l l a n t , -VS - CAPP H M S , I N C O E ., Defendant and Respondent. Appeal from: District Court of t h e Eleventh J u d i c i a l D i s t r i c t , Honorable Robert Sykes , Judge p r e s i d i n g . Counsel of Record: For Appellant : McGarvey, Morrison and Hedman, Whitefish, Montana James D. Moore argued, Whitefish, Montana For Respondent: Murphy, Robinson, Heckathorn and P h i l l i p s , K a l i s p e l l , Montana I. James Heckathorn argued, K a l i s p e l l , Montana Submitted : February 27, 1973 Decided: Filed : MAR 2 MAR 2 8 1n 9 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This action came before the d i s t r i c t court of the eleventh judicial d i s t r i c t , Lincoln County, on the complaint of the p l a i n t i f f , Peter Dewinter, f o r personal injuries sustained in a f a l l from the roof of a house on which he was working on November 2 , 1966. Defendant, Capp Homes, Inc., i s in the business of selling precut and prefabricated homes, and as a part of the price, s e t s u p the framing of the house. All inside work and shingling was t o be done by the purchaser. In t h i s case, Capp Homes had sold one of i t s units t o a purchaser in Fortine, Montana. Plaintiff had been contacted by telephone two weeks prior t o the date of the accident by Mr. Bruce Ward, a f i e l d representative f o r Capp Homes, who asked the p l a i n t i f f i f he would build a house f o r the defendant. P l a i n t i f f went t o the building s i t e t o consider the proposition and was Supposedly, two other carpenters persuaded by the purchaser t o begin work. were t o help the p l a i n t i f f b u t they did not appear until a f t e r the p l a i n t i f f had been injured. There was no written contract between the p l a i n t i f f and the defendant. Plaintiff was t o receive compensation a t the r a t e of 50t per square Plaintiff could, however, draw foot, payable upon completion of the job. upon the amount i f he needed the money. Plaintiff never met Mr. Ward, nor did he a t any time ever personally see a Capp Homes'representative. Plain- t i f f was n o t supervised while on t h i s job. After p l a i n t i f f began construction, he noticed some of the plywood had deteriorated because of weathering t o the point where i t had become warped and moldy. The purchaser, desirous of having his house completed, directed the p l a i n t i f f t o continue construction. As p l a i n t i f f was moving across the roof of the building, he tripped over a s p l i t in the bad lumber, tumbled t o the ground and suffered a fractured right ankle and three vertebrae as a r e s u l t of the f a l l . Plaintiff contends that while he was hospitalized, his wife was told by M. Ward t h a t Capp Homes had no industrial accident coverage in the State r of Montana. It was later determined that Aetna Life and Casualty was in fact the industrial accident insurance carrier for Capp Homes and that Capp Homes was a subsidiary of Evans Products Company under which name the Industrial Accident Board had Workmen 's Compensation coverage filed. However, plaintiff admitted that no notice of claim for injuries was made within the sixty day limit established by section 92-807, R.C.M. 1947. Plaintiff's first counsel wrote a letter to Capp Homes, putting defendant on notice of plaintiff's claim. Counsel wrote in the letter that: "His [plaintiffIs] immediate concern is whether or not he is covered under the Montana Workman's [sic] Compensation Act." In the reply brief filed by plaintiff in the district court in February, 1970, directed toward the question of the appl icabi 1 i ty of Workmen's Compensation, plaintiff said that he " * * * relies upon the Defendant's allegations that Plaintiff was not covered regardless of whether or not Plaintiff was in fact an employee. " A1 though plaintiff's Workmen's Compensation coverage was an "immediate concern", it does not appear from the record that plaintiff investigated any further within the time limit established by the statute. Rather, he merely relied on Mr. Ward's alleged statement to the plaintiff's wife. Four pretrial conferences were held in this case and a number of briefs were filed. Finally, in February 1972, the court granted the defendant's motion for summary judgment after determining that plaintiff was an independent contractor, not an employee. From the judgment entered pursuant to the granting of defendant's motion, plaintiff appeals. Plaintiff presents two issues to this Court on appeal: (1) whether the record sustains the proposition that there existed no genuine issue as to any material fact; and (2) whether a determination of plaintiff's status, regarding independent contractor as opposed to employee, could be made without first deciding upon the applicability of the Montana Workmen's Compensation Act. Rule 56(c), M.R.Civ.P., relating to summary judgment, reads: " * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" Plaintiff relies heavily on the fact that, almost a year prior to rendering judgment, the trial court issued a memorandum and pretrial decision in which the court said: "(1 ) That if Defendant employer did in fact have an insurance policy for employees engaged in work under the same or similar circumstance as that of the Plaintiff, then the question as to whether or not Plaintiff was an employee or an independent contractor was one for determination under and by the provisions of the Workmen's Compensation Act of Montana. "(2) The pleadings at this time are not sufficiently definitive on this question to support any ruling prior to trial . I ' Plaintiff contends that because of the judge's decision he could not at a later date determine that there was no longer any genuine issue concerning any material fact and make the determination of plaintiff 's status without reference to the Workmen's Compensation Act. Plaintiff's contention simply has no merit. The court file clearly reflects that between the date of filing of the memorandum and pretrial decision and the date of the final order, a number of additional documents were filed, among which were the following: (1) Request for admissions, filed by defendant, and a reply to request for admissions; (2) The deposition of the plaintiff; and (3) Request for admissions, filed by plaintiff, and answers to requests for admissions. Clearly, it was with these additional documents that the court reached its decision. In essence, plaintiff asserts that whether plaintiff was an independent contractor or an employee cannot be decided prior to a determination of the applicability of Workmen's Compensation. This is so, maintains the plaintiff, because the standards for the employer-employee relationship under Workmen's Compensation are more 1 i beral than under traditional common law rules. While a person may be an independent contractor by stringent common law standards, he may be an employee under t h e Workmen's Compensation Act, c i t i n g G r i e f v. I n d u s t r i a l Acc. Fund, 108 Mont. 519, 93 P.2d 961. P l a i n t i f f , however, ignores one simple f a c t . When i t appears from t h e r e c o r d t h a t p l a i n t i f f was an independent c o n t r a c t o r by any standards, t h e r e c o u l d no longer be a genuine issue as t o any m a t e r i a l f a c t . Plaintiff suggests t h a t t o p e r m i t t h i s d e c i s i o n t o stand, w i t h o u t a d e t e r m i n a t i o n o f whether t h e common law o r Workmen's Compensation standard i s appl i c a b l e , would be t o a1 low t h e judgment t o be made w i t h o u t a "frame o f reference". The frame o f reference here i s t h e p l a i n t i f f I s own deposition, which does n o t suggest t h a t t h e p l a i n t i f f was anything b u t an independent c o n t r a c t o r . The t r i a l c o u r t ' s determination o f t h e p l a i n t i f f ' s s t a t u s i s n o t as s i g n i f i c a n t as t h e p l a i n t i f f would have t h i s Court b e l i e v e . If p l a i n t i f f was an independent c o n t r a c t o r he had no b a s i s f o r recovery under h i s comp l a i n t ; i f he was an employee he should have sought recovery under t h e Workmen's Compensation Act. P l a i n t i f f ' s o r i g i n a l complaint was f o r negligence and f o r common law a c t i o n a g a i n s t defendant due t o t h e f a c t he was n o t covered by Workmen's Compensation. t o t a l damages. An amended complaint was f i l e d a year l a t e r amending as t o I n defendant's answer t h e defendant r a i s e s as a defense t h e argument t h a t i f p l a i n t i f f i s n o t an independent c o n t r a c t o r , as a l l e g e d i n t h e t h i r d defense, then i f he were an employee, which defendant denies, t h e a c t i o n was barred by s e c t i o n 92-203, R.C.M. 1947. Accepting t h e p l e a d i n g a t t h i s stage, and t r y i n g t o 1ib e r a l l y construe t h e Workmen's Compensation Act, could t h e t r i a l court/have found t h a t t h e o n l y saving f a c t h e l p f u l t o p l a i n t i f f wars t h e a l l e g e d r e l i a n c e upon M r . Ward's statement t o p l a i n t i f f ' s w i f e t h a t Capp Homes had no Workmen's Compensation coverage i n Montana. I f t h i s re- 1 iance worked some s o r t o f estoppel upon defendant, p l a i n t i f f m i g h t s t i l l o b t a i n r e l i e f under h i s complaint. i s , a t best, f r a g i l e . However, t h e a l l e g e d r e l i a n c e as estoppel The t r i a l judge o b v i o u s l y d i d n o t b e l i e v e t h a t t h e r e l i a n c e was s u f f i c i e n t and i n absence o f a showing o f an abuse o f d i s c r e t i o n , h i s d e c i s i o n w i l l n o t be overturned. The t r i a l judge was faced w i t h a s e t of f a c t s t h a t could only produce one conclusion. I n i t i a l l y , the burden was on defendant t o show an absence of any issue of material f a c t . When defendant met t h e burden, i t was incumbent upon the p l a i n t i f f t o present evidence t o r a i s e a genuine issue. A we recently said i n Roope:~. The Anaconda Company, 159 Mont. s "The burden of establishing the absence of any issue of material f a c t i s on t h e party seeking summary judgment. Byrne v . Plante, 154 Mont. 6, 459 P.2d 266, and c i t a t i o n s therein. B u t where, as here, the record discloses no genuine issue a s t o any material f a c t , t h e burden i s upon the party opposing the motion t o present evidence of a material and substantial nature r a i s i n g a qenuine issue of f a c t . Flansberg v. Mont. Power Co., 154 Mont. 53, 460 P.2d 263, and a u t h o r i t i e s c i t e d therein. " (Emphasis added. ) In S t a t e ex r e l . Burlington Northern v. D i s t r i c t Court, 159 Mont. 295, 496 P.2d 1152, 29 St.Rep. 380, we affirmed t h a t r u l e : "Failure of the party opposing the motion t o e i t h e r r a i s e o r demonstrate the existence of a genuine issue of material f a c t , or t o demonstrate t h a t t h e legal issue should not be determined in favor of the movant, i s evidence t h a t the p a r t y ' s burden was not c a r r i e d . Summary judgment is then proper, t h e court being under no duty t o a n t i c i p a t e proof t o e s t a b l i s h a material and substantial issue of f a c t . " I f , i n f a c t , t h e p l a i n t i f f had evidence a n t i t h e t i c a l t o t h e proposit i o n t h a t p l a i n t i f f was an independent contractor, a s he contends, the record is void of such evidence. Allegations of "unorthodox and ad hoc business practices" of Capp Homes add no weight whatsoever t o the p l a i n t i f f ' s case. The judge v i r t u a l l y nad no other choice; t h e p l a i n t i f f f a i l e d t o carry his burden of proof, although he was afforded every opportunity t o do so. In Calkins v. Oxbow Ranch, Inc., 159 Mont. 120, 495 P.2d 1124, 29 St.Rep. 244, we said: "In discussing a motion Gallatin Tr. & Sav. Bk. 172, 461 P.2d 448, this v. Jorgenson, 146 Mont. f o r summary judgment i n v. Henke, 154 Mont. 170, Court c i t i n g from Silloway 307, 406 P.2d 167, said: ""I * * * t h e party opposing motion [ f o r sumary judgment] must present f a c t s in proper form -conclusions of law will not s u f f i c e ; and t h e opposing p a r t y ' s f a c t s must be material and of a Substantive nature, not fanciful, frivolous , gauzy, nor merely suspicions. I' 6 Moore's Federal Practice 2d, $ 56 .I 5 [3] , pp. 2346, 2347; Hager v. Tandy, 146 Mont. 531, 410 P.2d 447. "' The decision of the trial judge granting defendant's motion for summary judgment was proper. Judgment is affirmed. A
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