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Ebi/orion Group v. State Comp. Ins. Fund11/29/1989
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State Fund also contends that EBI has no standing to bring an indemnity claim. It points to § 39-71-601(1), MCA, which reads as follows:
"In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf."
State Fund contends that the indemnity claim is not brought by the claimant or by someone legally authorized to act for him in his behalf, and further contends that the petition for compromise settlement was not executed until June of 1988 and not approved until August of 1988 and that therefore the one year statute of limitations applies. The contention is weightless. EBI is not bringing a claim on behalf of the claimant, but rather on its own behalf, contending that it has an indemnity right for a payment which State Fund should have made. Section 39-71-601(1), MCA, does not apply in this case
Finally, State Fund contends that there is no genuine issue of material fact in this case and that a second injury cannot be found from the testimony of the doctors through deposition or by the affidavits presented. Our examination of those documents and testimonies indicates that there is such a genuine issue which must be resolved by a trier of fact, in this case, the Workers' Compensation Court
The summary judgment of the Workers' Compensation Court of this case is reversed and the cause remanded. The Workers' Compensation Court is instructed to determine whether Claude Athey had reached the condition of maximum healing following his injury of September 19, 1985, prior to his second injury, and whether in fact a second injury occurred. A resolution of those fact issues will determine whether EBI is entitled to indemnity
CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GULBRANDSON, HUNT, McDONOUGH and WEBER concur
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