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Thayer v. Uninsured Employers' Fund12/7/1999
sation insurer subrogation against third-party recovery, even though the recovery is less than the total amount of damages, was unconstitutional because it deprived an employee of his right to full legal redress.
30 In concluding that the full legal redress provision was not violated by § 39-71-511, MCA, the Workers' Compensation Court looked to the history of the section as set forth in the minutes of the 1972 Constitutional Convention and as quoted by Trankel v. Montana Department of Military Affairs (1997), 282 Mont. 348, 938 P.2d 614.
31 In Trankel we stated that: The second sentence of Article II, Section 16, was a response to that decision [Ashcraft v. Montana Power Co. (1971), 156 Mont. 368, 480 P.2d 812.] based on the delegates' intent that employees not be barred from third-party suits for injuries sustained during the course of their employment. The following minutes from the Constitutional Convention illustrate that point.
Under Montana law, as announced in the recent decision of Ashcraft versus Montana Power Company, the employee has no redress against third parties for injuries caused by them if his immediate employer is covered under the Workmen's Compensation law . . . . It is this specific denial, and this one only, that the committee intends to alter with the following additional wording: "No person shall be deprived of his full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation laws of this state." Trankel v. State, (1997) 282 Mont. 348, 359-60, 938 P.2d 614, 621-622 (emphasis added) (citing Montana Constitutional Convention, Vol. V at 1754 (March 8, 1972)).
Additionally, in Trankel, we reiterated that "we have considered the impact of Article II, Section 16, on numerous occasions and, without exception, have held that it precludes limitations on claims by injured employees against persons other than the employee's employer or fellow employee." Trankel, 282 Mont. at 361, 938 P.2d at 622. However, we conclude that because the plain language of Article II, Section 16 does not distinguish between third-parties and uninsured employers, it is not appropriate to create a distinction based on what we conclude was the delegates' intention. See Woirhaye v. Montana Fourth Judicial Dist. Court (1998), 292 Mont. 185, 189, 972 P.2d 800, 802. Nevertheless, we conclude that the Workers' Compensation Court arrived at the right result, even if for the wrong reason.
32 Because the Uninsured Employers' Fund is not an insurer and was statutorily created to provide a substitute source of benefits to the employee of an uninsured and impecunious employer, we conclude that Connery and Francetich are not analogous, and limiting the Uninsured Employers' Fund's obligation to the extent of the uninsured employer's ability to compensate the employee or his family does not diminish the employee's right to full legal redress against the uninsured employer.
33 Accordingly, we further conclude that § 39-71-511, MCA, does not violate the right to full legal redress as set forth in Article II, Section 16 of the Montana Constitution.
34 For these reasons the judgment of the Workers Compensation Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE /S/ KARLA M. GRAY /S/ WILLIAM E. HUNT, SR. /S/ JIM REGNIER /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART
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