Ram Montana2/20/2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on October 7 and 8, 2002, in Missoula, Montana. Petitioner, RAM Montana, Incorporated (RAM), was represented by Mr. Julio K. Morales. The Independent Contractor Central Unit (ICCU) and Uninsured Employers' Fund (UEF) were represented by Ms. Julia W. Swingley.
Exhibits: Petitioner's Exhibits 1 through 63, 65, 66, 68 through 74, 76 through 81, UEF-1, UEF-2, 143 and 144 were admitted without objection. Petitioners Exhibits 64 and 67 were withdrawn. Petitioner's Exhibit 75 was admitted over objection. There are no Petitioner's Exhibits 82 through 142. Respondent's Exhibits 1 through 62 were admitted without objection.
Witnesses and Depositions: Donald Revell, Amanda Monroe, Michelle Monroe, and Randy Monroe testified at trial. The parties also submitted depositions of Virginia Lewis and James Lewis for the Court's consideration, along with transcribed testimony of Michael Scott Finnegan in another proceeding (WCC No. 2000-0062) and his deposition in that proceeding. The Court also granted petitioner leave to take Mr. Finnegan's deposition post-trial. The deposition was taken on November 14, 2002, and filed with the Court on February 19, 2003, on which date this matter was deemed submitted for decision.
Pending Motions: The Pretrial Order lists three pending motions, as follows:
a RAM's Motion to Dismiss for Lack of Jurisdiction.
b RAM's Motion to Dismiss for Lack of Joinder and Alternative Motion to Join Parties.
c ICCU/UEF'S Motion to File Deposition & Trial Transcript of Michael Scott Finnegan in Lieu of Live Testimony.
(Pretrial Order at 1.) The Court denied the second motion concerning joinder in an Order on Motion to Join Parties filed September 30, 2002. The third motion was granted but with leave of Court for petitioner to take a further deposition of Mr. Finnegan. That deposition was taken on November 14, 2002. The first motion challenging jurisdiction was deferred and is now denied based on the following findings of facts and conclusions of law.
Issues Presented: The issues set forth in the Pretrial Order are in two parts. The first part consists of the issues both parties agree are presented for decision. Those issues are as follows:
a Whether RAM Montana, Inc., a Nevada corporation, was an employer subject to the jurisdiction of the Montana Workers Compensation Act during calendar 1995, 1996 and 1997.
b If so, whether the "crew leaders," specifically Joe McNamara, Don Coffman, Brent Cobb, Michael Scott Finnegan, Scott Johnson, Carl Siruchek, Steve McCullough, and any other similarly situated crewleaders , were employees of RAM whose wages were subject to the penalty, or to the contrary, were independent contractors under Section 39-71-120, M.C.A., for purposes of the audit.
c Whether during the audit period, January 1, 1995, through December 31, 1997, the workers who were supervised by the crewleaders , were employees of RAM, rather than of the crew leaders, for purposes of the audit.
(Id. at 7.) In addition, RAM presents the following issues:
d If so, for which employees and which employments:
A. Concerning Payless store projects in Montana:
(1) Montana resident crew leaders.(2) Non-Montana crew leaders.(3) Montana resident crew workers.(4) Non-resident crew members
B. Concerning Payless store projects outside Montana:
(1) Montana resident crew leaders.(2) Non-Montana crew leaders.(3) Montana resident crew workers.(4) Non-resident crew members
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