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construction injury

Murer v. State Comp. Mut. Ins. Fund – a Worker’s Comp Class Action

Fundamentally, creative group litigation procedures change the dynamic of the common person’s fight, leveling the playing field and empowering groups of ordinary citizens to take on individually small, but collectively huge, injustices. Through a series of precedent setting cases, we wrote the book on class actions in Montana. And then we re-wrote it, forging a groundbreaking path in collective litigation.

In the early 1990’s when we embarked on Jack Murer’s workers’ comp case, we expected it to go as smoothly all the others we were preparing at the time. But as we reviewed his case so that he would receive his full disability benefits and began crafting our argument to the Workers’ Comp Court, we noticed something curious about the cap on his benefits. The statute limited payments to $299, a sum based on the state’s average weekly wage in 1987, when the cap was adopted—and when wages were lower. Our review of the statute indicated that this cap was only a temporary measure, and that it was now expired. And yet, the State Fund was continuing to apply the cap—or misapply it, as we suspected. If this were true, there were potentially thousands of injured folks in Montana who weren’t receiving the full amount of their benefits.

Immediately, we realized that this underpayment was a common throughout many of our worker’s comp clients. This opened up the potential for pursuing the remedy of this systemic injustice through the mechanism of “class action” litigation. For each individual worker, and especially those who were only utilizing worker’s comp for a couple of months, the discrepancy in the payments may not have been enough to expense the hiring of an attorney to pursue a bigger case like this. But we knew this group could harness the power of collective litigation to bring about justice for everyone.

Flathead Valley Montana loggers

Fighting for the workers.

“Class action changes the dynamic of the common person’s fight, empowering groups to take on the system.”

We soon ran into a hurdle. The Workers’ Compensation Court refused to certify our claimants as a class action. We didn’t want to drop the case, so we needed to get creative. When we eventually appealed again to the Supreme Court, we represented the group of injured workers through a new kind of collective litigation—vindicating the creation of a “common fund” through which underpaid claimants could receive the full benefits to which they were entitled.

The Montana Supreme Court agreed with us, concluding that the language of the statute that originally established the cap unambiguously indicated that it was to be a temporary limit, and that all of our claimants should be receiving weekly compensation based on the full wages they were earning at the time of their injury. The impact of the ruling went even further: the State Fund was also obligated to increase the rate of benefits payments to workers’ compensation claimants who were never involved with the Murer litigation, and all such beneficiaries of the resulting “common fund” were required to share in the payment of attorney fees, so that not just the claimants who initiated the action were responsible for fees.1

Head injury

Seeing the widespread and institutional impact of this decision, we appealed to the Supreme Court on the matter of common funds, which are an essential feature of class action cases. We argued that the common fund doctrine should be expanded to include Murer-style cases because it benefitted a substantial number of workers, few of whom could have pursued such a lengthy and complex case alone. In a groundbreaking decision, the court recognized the merits of our argument and established a common fund for Murer’s case, and others like it.

While our mastery of the class certification process served as the foundation for creative strategic adjustments during the Murer saga, our firm has pursued a number of major class action cases, including on behalf of workers at the Columbia Falls Aluminum Company who were cheated out of profit sharing payments they were owed, as well as shareholders of the former Montana Power Company who were denied the right to vote on the tragic re-organization of the company that led to its demise. Each resulted in recoveries approaching one hundred million dollars.

Fundamentally, the class action procedure changes the dynamic of the common person’s fight, leveling the playing field and empowering groups of ordinary citizens to take on individually small, but collectively huge, injustices foisted on them by large corporate entities. As soon as the class is assembled and certified, we know we’re going to be able to fight to the end. And, as in the Murer case, even when the Court wouldn’t’ certify the class, we were still able to use creative strategies to achieve the same result, drawing on our deep understanding of class action principles.

  1. See Murer v. State Comp. Mut. Ins. Fund, 283 Mont. 210, 222, 942 P.2d 69, 76 (1997) (Murer III) (“The doctrine is employed to spread the cost of litigation among all *126 beneficiaries so that the active beneficiary is not forced to bear the burden alone and the ‘stranger’ … beneficiaries do not receive their benefits at no cost to themselves.” Murer III, 283 Mont. at 222, 942 P.2d at 76.