Cottrill v. Cottrill Sodding Service

• Decision Date: 03 November 1987
• Docket Number: No. 86-467,86-467
• Citation: 744 P.2d 895,229 Mont. 40,44 St.Rep. 1762
• Parties: David C. COTTRILL, Claimant and Appellant, v. COTTRILL SODDING SERVICE, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
• Court: Montana Supreme Court

Page 895

744 P.2d 895

229 Mont. 40

David C. COTTRILL, Claimant and Appellant, v. COTTRILL SODDING SERVICE, Employer, and State Compensation Insurance Fund, Defendant and Respondent.

No. 86-467.

Supreme Court of Montana.

Submitted Sept. 15, 1987.

Decided Nov. 3, 1987.

Jack M. Scanlon, Donald A. Garrity argued, Helena, for claimant and appellant.

Nancy Butler argued, Helena, for defendant and respondent.

HUNT, Justice.

Appellant, David Cottrill, appeals from an order of the Workers' Compensation Court denying his claim for wage benefits. The Workers' Compensation Court also denied appellant's petition for a rehearing because the constitutional issue raised for rehearing was at no time earlier raised.

We reverse and remand to the Workers' Compensation Court.

The issues raised on appeal are:

1. Can plaintiff raise the issue of constitutional equal protection violation at the appeal level?

2. Does Sec. 39-71-401(2)(c), MCA, violate the equal protection clauses of the Montana and Federal Constitutions?

The uncontested facts are as follows: David Cottrill was injured on September 15, 1985, while working within the course and scope of his employment. He was at that time an employee of Cottrill Sodding Service, a business owned by his father. At the time of the hearing he was 22 years old, single and a fifth year student at the University of Montana. David was working for his father over the summer as he had for the past three summers. He intended to return to school in the fall. At the time immediately preceding and at the time of the accident, David was living in his parent's home, although he claimed that his "residence" was in Missoula. The sod business was insured under Plan III of the Workers' Compensation Act, but David's father/employer had not filed a special election of coverage for his son. Compensation for David's claim was denied by the Workers' Compensation Court under Sec. 39-71-401(2) which provides that:

Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers' Compensation Act does not apply to any of the following employments:

* * *

(c) employment of members of an employer's family dwelling in the employer's household;

Issue 1. Can plaintiff raise the issue of constitutional equal protection violation at the appeal level?

Respondent is correct in that the general rule is that issues brought before this Court for the first time on appeal will not be considered. Akhtar v. Van de Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. However, this Court "reserves to itself the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law." Even if an issue is raised for the first time on appeal this Court can hear the issue "if the alleged ... error affects the substantial rights of a litigant." Matter of N.B. (Mont.1980), 620 P.2d 1228, 1231, 37 St.Rep. 2031, 2033.

We hold that this appeal is properly before this Court and will be decided accordingly.

Issue 2. Is Sec. 39-71-401(2)(c), MCA, unconstitutional?

Appellant, David Cottrill, argues that Sec. 39-71-401(2)(c) violates both the Montana and Federal Constitutions. We agree.

Art. II, Sec. 4 of the 1972 Montana Constitution states that

[t]he dignity of the human being is inviolable. No person shall be denied equal protection of the laws. Neither the State nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

This provides for even more individual protection than the comparable Fourteenth Amendment, Sec. 1 to the United States Constitution, which provides that: "No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

States do have the right to make reasonable classifications. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990. However, "[t]he principal purpose of the Equal Protection Clause, Amend. XIV, U.S. Const., and Art. II, Sec. 4, 1972 Mont. Const., is to ensure that persons who are citizens of this country are not the subject of arbitrary and discriminate state action." Godfrey v. Mont. State Fish & Game Com'n (Mont.1981), 631 P.2d 1265, 1267, 38 St.Rep. 661, 663.

Both parties agree that the right to receive Workers' Compensation benefits is not a fundamental right which would trigger a strict scrutiny analysis of equal protection. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Nor does this statute infringe upon the rights of a suspect class. Examples of fundamental rights are the right of privacy, freedom of speech, freedom of religion, right to vote and the right to interstate travel. Examples of suspect classifications include wealth, race, nationality and alienage. Oberg v. City of Billings (Mont.1983), 674 P.2d 494, 495, 40 St.Rep. 2034, 2036.

When a right determined to be less than fundamental is infringed upon by classification, the test applied by this Court is the rational relationship test. That is, does a legitimate governmental objective bear some identifiable...