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Schmill v. Liberty Northwest Insurance Corp.6/4/2004
BR>
Although the Workers' Compensation Court is not vested with the full powers of a District Court, it nevertheless has been given broad powers concerning benefits due and payable to claimants under the Act. It has the power to determine which of several parties is liable to pay the Workers' Compensation benefits, or if subrogation is allowable, what apportionment of liability may be made between insurers, and other matters that go beyond the minimum determination of the benefits payable to an employee.
Id. It then held that the Court had jurisdiction to entertain and adjudicate a petition filed by the purported employer of an injured employee seeking a determination that the claimant was an independent contractor, not an employee.
In Kelleher Law Office v. State Compensation Ins. Fund, 213 Mont. 412, 691 P.2d 823 (1984), the Supreme Court held that the Workers' Compensation Court's ancillary jurisdiction extended to the enforcement of an attorney fee lien against benefits paid by an insurer. Thus, the Workers' Compensation Court clearly has jurisdiction to enforce the lien claimed by the petitioner in this case.
B. Timeliness, Res Judicata , Due Process and Estoppel Arguments
Liberty challenges the right of the petitioner to seek common fund fees based on arguments concerning timeliness, res judicata, due process, and estoppel. I considered and rejected the identical arguments in Flynn v. State Compensation Ins. Fund, 2003 MTWCC 55. In Flynn I held that the petitioner's failure to request common fund attorney fees in her petition does not preclude her from demanding such fees after an adjudication on the merits of her claim. After reviewing Liberty's arguments, I am still persuaded that my discussion and holding in Flynn were sound: I reaffirm and incorporate that holding and discussion. Accordingly, I find that the petitioner's assertion of a common fund lien is not barred.
II. Retroactivity
Liberty argues that Schmill should be applied prospectively only. Prospective application would defeat the request for common fund attorney fees since no common fund exists unless the decision is applied retroactively.
Prior to Porter v. Galarneau, 275 Mont. 174, 911 P.2d 1143, 1150 (1996), the Montana Supreme Court applied the three-part test articulated by the United States Supreme Court in Chevron Oil C. v. Huson, 404 U.S. 97 (1971), to determine whether one of its decisions should be applied retroactively. The Chevron test was adopted in LaRoque v. State, 178 Mont. 315, 583 P.2d 1059 (1978).
However, in 1994 the United States Supreme Court repudiated the Chevron test and adopted a per se rule of retroactivity for its decisions. Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). The Montana Supreme Court appeared to have followed suit in 1996 when it decided Porter v. Galarneau, 275 Mont. 174, 911 P.2d 1143 (1996). In Porter the retroactivity issue involved the statute. The Court noted that several of its prior decisions appeared to require retroactive application of statutes. However, the Court distinguished between retroactively applying statutes, which is generally condemned, and retroactively applying judicial decisions. With regard to judicial decisions, it said, "We will continue to give retroactive effect to judicial decisions, which is in accord with the U.S. Supreme Court's holding in Harper v. Virginia Dept. of Taxation (1993), 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74." 275 Mont. at 185, 911 P.2d at 1150.
Subsequent Montana Supreme Court decisions concerning the retroactivity of judicial decisions are inconsistent, making it nearly impossible for an inferior Court to
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