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Riley v. W.R. Grace & Company9/10/1999
DECISION AND JUDGMENT
The trial in this matter was held on March 8, 1999, in Kalispell, Montana. Petitioner, Karen Riley the widow of a deceased worker, Donald A. Riley was represented by Mr. Allan M. McGarvey. Respondent, Transportation Insurance Company (Transportation), was represented by Mr. Thomas R. Bostock. A trial transcript has not been prepared.
Exhibits: Exhibits 1 through 7 were admitted without objection.
Witnesses: Thomas R. Bostock, counsel for respondent, was sworn and testified. The parties had previously stipulated that the attorneys may testify without need for co- counsel as it was anticipated none of the facts established through their testimony would be contested. No depositions were submitted.
JUDICIAL NOTICE
Petitioner seeks attorney fees with respect to a matter previously litigated in this Court, W.R. Grace & Company and Transportation Ins. Co. v. Karen Riley, 1998 MTWCC 26. In the prior case Transportation sought a determination as to its entitlement to offsets against death benefits being paid to Karen Riley (Karen). The Court takes judicial notice of the file and record in that case.
FACTS
The following facts are taken from the DECLARATORY JUDGMENT in W.R. Grace & Company and Transportation Ins. Co. v. Karen Riley and the statement of uncontested
facts filed by the parties in the present action, or are Court findings based on the evidence and exhibits presented at trial.
W.R. Grace & Company (Grace) formerly operated a vermiculite mine near Libby, Lincoln County, Montana. Donald A. Riley (Donald) worked for Grace at the Libby mine from May 1960 until March 3, 1987. Transportation insured Grace for occupational disease purposes during the latter years of Donald's employment. (DECLARATORY
JUDGMENT [Abbreviated DJ hereafter].)
During the course of his employment for Grace, Donald contracted asbestosis, an occupational disease. As a result, he submitted a claim to the Division of Workers' Compensation for occupational disease benefits. Following an administrative hearing before the Department of Labor & Industry (DLI), the hearing officer determined that Donald was permanently totally disabled, that such disability was solely related to his occupational disease, and that he was entitled to occupational disease compensation and medical benefits. (DJ.)
Transportation and Donald entered into a full and final compromise settlement for $85,000. An Order approving such settlement was issued by the Employment Relations Division on December 28, 1993, and $85,000 was paid by Transportation to Donald pursuant to that Order. (DJ.)
Donald died on February 26, 1997. (DJ.) At the time of his death he was married to Karen.
In a March 18, 1997 letter, Karen through Mr. Allan M. McGarvey (McGarvey), made a demand to the insurer for death benefits. (Uncontested Fact [abbreviated UF hereafter]; Ex. 1.)
By letter dated April 2, 1997, Transportation denied the claim. (UF; Ex. 2.)
By letter dated April 7, 1997, McGarvey asked Transportation to reconsider its position and to accept the claim. (UF; Ex. 3.)
By letter dated April 15, 1997, Mr. Thomas R. Bostock (Bostock), counsel for Transportation, advised McGarvey the insurer would "initiate weekly death benefit payments." Bostock explained, "however, payment of these benefits is being made under ยง39-71-608, MCA, 1985." The letter further explained that Transportation would "immediately file a petition for declaratory ruling before the Workers' Compensation Court for clarification of
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