Barthule v. Karman

• Decision Date: 20 December 1994
• Docket Number: No. 94-147,94-147
• Parties: Robert C. BARTHULE, Plaintiff and Respondent, v. Robert KARMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 971

886 P.2d 971

268 Mont. 477

Robert C. BARTHULE, Plaintiff and Respondent, v. Robert KARMAN, Defendant and Appellant.

No. 94-147.

Supreme Court of Montana.

Submitted on Briefs Nov. 17, 1994.

Decided Dec. 20, 1994.

John A. Hauf, Hauf & Forsythe, Billings, for appellant.

John Houtz, Forsythe, for respondent.

TRIEWEILER, Justice.

Plaintiff Robert C. Barthule filed a complaint in the District Court for the Sixteenth Judicial District in Rosebud County in which Robert Karman was named as the defendant. Barthule alleged that he suffered an injury while working for Karman at a time when Karman was uninsured in violation of Montana's workers' compensation laws. The jury returned a verdict in Barthule's favor and awarded him $35,000 as damages. Karman appeals from the judgment entered pursuant to the jury's verdict. We affirm the judgment of the District Court.

The issues on appeal are restated as follows:

1. Did the District Court err when it denied Karman's motion to change venue from Rosebud County to Yellowstone County?

2. Did the District Court have subject matter jurisdiction of Barthule's independent cause of action against his uninsured employer?

3. Was Barthule's claim barred by the statute of limitations?

4. Was there substantial evidence to support the jury's verdict?

5. Did the District Court abuse its discretion when it refused to give Karman's proposed jury instruction number 11?

6. Did the District Court abuse its discretion when it refused Karman's proposed special verdict form?

FACTUAL BACKGROUND

In December 1990, Barthule began working as a ranch hand for Karman in Yellowstone County. Trial testimony indicated that it was a common practice for ranch hands to help neighboring farmers gather and brand cattle, hay, and perform other farm operations.

Barthule had, on several occasions, assisted neighbors while employed by Karman. For several days from July 16 to July 20, 1991, Barthule helped roundup cattle on the neighboring King Ranch. Barthule testified that on July 20, 1991, the last day of the roundup, he injured his knee. Barthule testified that he was riding in the back of a pickup while chasing a bull. The pickup struck and rolled over the top of the bull. As a result, Barthule was thrown forward. Afterward, he jumped out and helped remove the bull from under the truck. Barthule stated that he injured his knee either when: he fell in the truck; jumped out of the truck; or was trying to remove the bull from under the truck. Other witnesses recalled the incident differently and some did not recall that Barthule injured his knee at the time or in the manner Barthule testified.

After Barthule injured his knee, he quit working for Karman and was paid for the work he had completed. A copy of Barthule's last paycheck indicated that it was paid for work performed during two-thirds of July 1991. Karman admitted that he was not insured against workers' compensation claims during that period of time.

After initial treatments were less than satisfactory, Barthule eventually underwent a total knee replacement. He filed a claim with the uninsured employers' fund and received benefits of over $8000 before payments were discontinued. On December 18, 1992, Barthule filed a complaint in District Court against Karman for failing to maintain workers' compensation coverage.

While considering proposed jury instructions, the District Court decided to give Karman's proposed jury instruction number 10, but rejected his instruction number 11. The court also refused to submit Karman's special verdict form to the jury. After trial, the jury returned a unanimous verdict for Barthule and awarded him $35,000 as damages. Additional facts are added as necessary to decide the issues below.

ISSUE 1

Did the District Court err when it denied Karman's motion to change venue from Rosebud County to Yellowstone County?

The denial of a motion to change venue is a legal conclusion which we review to determine whether the district court correctly applied the law. Carter v. Nye (1994), --- Mont. ----, ----, 879 P.2d 729, 730, 51 St.Rep. 781, 782. On January 21, 1993, Karman filed his motion to change venue on the basis that Rosebud County was an improper location. Barthule filed a response and an affidavit which stated that he had lived in Rosebud County for 15 of the last 16 years and was employed in and resided in Rosebud County at the time he filed his complaint. After a hearing, on March 2, 1993, the court denied Karman's motion.

Barthule filed an independent cause of action against Karman for failing to maintain insurance as required by Montana law. Section 39-71-515, MCA. Section 39-71-516, MCA, provides that an independent cause of action under § 39-71-515, MCA, must be brought in the district court in the district where the claimant resides or the alleged violation occurred. Section 25-2-201(1), MCA, provides, in relevant part, that the court must grant a motion to change venue if the county designated in the complaint is not the proper county.

Karman argues that despite what Barthule stated in his affidavit, Barthule resided in Mussellshell County. Karman bases his argument on a Mussellshell County address Barthule listed on a form filed with the Department of Labor and Industry before his complaint was filed in District Court. The alleged injury occurred in Yellowstone County, hence, Barthule argues venue is improper in Rosebud County.

Venue is proper in either the county where Barthule resided at the time his complaint was filed, or where the alleged violation occurred. A defendant may not change venue to a different county when a suit may be commenced in more than one county and the plaintiff files in one of the permissible locations. See Melroe v. Doyle (1989), 239 Mont. 524, 525, 781 P.2d 1134, 1135. Based on the affidavit and pleadings, Rosebud County was one of the permissible locations for venue. Therefore, we conclude that the District Court did not err when it denied Karman's motion to change venue.

ISSUE 2

Did the District Court have subject matter jurisdiction of Barthule's independent cause of action against his uninsured employer?

When we review a motion to dismiss based on lack of subject matter jurisdiction, the relevant inquiry is whether the complaint states facts that, if true, would vest the district court with subject matter jurisdiction. Stanley v. Holms (1994), --- Mont. ----, ----, 883 P.2d 837, 838, 51 St.Rep. 1082, 1082 (citing United States Natl. Bank of Red Lodge v. Dept. of Revenue (1977), 175 Mont. 205, 209, 573 P.2d 188, 190). This determination is a question of law, therefore, we must determine whether the District Court's interpretation of the law is correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.

The District Court denied Karman's motion to dismiss, which was based on his claim that the court lacked jurisdiction. On appeal, Karman argues that the Workers' Compensation Court had exclusive jurisdiction. He relies on cases that interpret statutes other than those involved in the present case, or cases that existed prior to the time the statutes at issue were enacted. He also contends, based on the language in § 39-71-508, MCA, that because Barthule initially pursued a claim with the uninsured employers' fund he could not later pursue an action in district court because all remedies must be pursued at the same time.

An employee has several options for bringing claims against an uninsured employer pursuant to § 39-71-508, MCA. That statute provides:

An employee who suffers an injury arising out of and in the course of employment while working for an uninsured employer as defined in § 39-71-501 ... may pursue all remedies concurrently, including but not limited to:

(1) a claim for benefits from the uninsured employers' fund;

(2) a damage action against the employer in accordance with 39-71-509;

(3) an independent action against an employer as provided in 39-71-515; or

(4) any other civil remedy provided by law.

(Emphasis added.) This action was brought pursuant to § 39-71-515, MCA. Karman argues that the "concurrently" language in § 39-71-508, MCA, requires that a claimant file all of the optional claims at the same time, and that a worker may not pursue a claim against the uninsured employers' fund, and if dissatisfied, later pursue any of the other remedies. The plain language of the statute suggests otherwise.

Section 39-71-508, MCA, provides several options and states that an employee may pursue them concurrently, which allows, but does not require, a concurrent pursuit of remedies. Legislative history also supports a conclusion that the remedies were designed to increase an injured employee's options against an uninsured employer without making them mutually exclusive. Minutes, Legislative Hearing on HB 529 before Senate Judiciary Committee, March 18, 1985 at 1-2. We, therefore, conclude that the language of § 39-71-508, MCA, does not require a claimant to file and pursue all claims at exactly the same time, and that receipt of benefits from the uninsured employers' fund does not bar a later district court action.

In a related argument, Karman argues that the District Court did not acquire jurisdiction because Barthule did not file all pleadings with the Department of Labor and Industry as required by § 39-71-517, MCA. That section requires an injured employee to serve all pleadings on the department, whether or not the department is a party to the action. Karman pointed out Barthule's failure to comply with this requirement in a pretrial motion. Barthule subsequently served all pleadings on the Department and the record reflects that the Department acknowledged service. The Department indicated that the State would not be a party to the action.

The purpose of this statute is to ensure that the State is aware of its right to subrogation. That purpose was satisfied, even though the papers were not served at the same...