Hunnewell v. Syme

MR. JUSTICE 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 *526 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. II. “Plaintiff was employed for the Defendant from May 1, 1981 to July 17, 1981. III. “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, MCA 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 Section 39-71-509, MCA (1981), rather than initiate proceedings against the uninsured employers’ fund, Section 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. *527 Hines Motor Supply (1937), 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 Section 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 Section 39-71-509, MCA, requires proof of negligence that results in physical injury only. In Boehm v. Alanon Club (Mont. 1986), [222 Mont. 373,] 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 Section 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. Hunnewell’s injuries. The Workers’ 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 Section 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 Section 39-71-401, *528 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 Section 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. Iverson v. Argonaut Insurance Company (Mont. 1982), 198 Mont. 340, 645 P.2d 1366, 1367, 39 St.Rep. 1040, 1041. Ms. Hunnewell also raises the argument that if she is not allowed to recover in a damage action she will be denied her constitutional right of full redress pursuant to Article II, 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. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON and SHEEHY concur.