                              No.       91-049

            IN THE SUPREME COURT OF THE STATE OF MONTANA




LLOYD R. DONAHUE,
            Plaintiff and Appellant,
     -VS-                                          L't:.r
                                                        s:   <   -

                                                                     -   I...

CONVENIENCE DISPOSAL, INC. , A Montana corp. , and SUE AE~N+'HPIGEE~~TY,
            Defendants and Respondents.


APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Leonard H. Langen, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Paul L. Frantz; Morrow, Sedivy     &   Bennett, Bozeman,
                 Montana.
            For Respondent:
                 J.  Robert Planalp; Landoe,            Brown,                    Planalp   &
                 Braaksma, Bozeman, Montana.


                                    Submitted on briefs:                    July 25, 1991
                                                 Decided:                       October 9, 1991
Filed:

                                /
                                i
                                    4
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    Lloyd R. Donahue (Donahue) appeals an order of the District
Court for the Eighteenth Judicial District, Gallatin County, which
denied    Donahue1s motion   for leave to   file a second amended
complaint and granted Convenience Disposal, Inc., and Sue Ann
Haggertyls (collectively referred to as Defendants) motion to
dismiss or in the alternative, motion for summary judgment.      We
affirm.
     Donahue presents the following issues on appeal:
     1.    Did the District Court err in denying Donahue's motion to
file a second amended complaint?
     2.    Did the District Court err in granting Defendants1 motion
to dismiss or in the alternative, motion for summary judgment?
     In November 1983, Donahue worked as a garbage collector for
Convenience Disposal, Inc.     (Convenience), a garbage collection
company located in Bozeman, Montana.    Sue Ann Haggerty (Haggerty)
was an officer and shareholder of Convenience.
     Donahue sustained two injuries while in the course and scope
of his employment with Convenience.     On November 1 0 or 11, 1983,
Donahue injured his back when he bent over to retrieve loose
garbage under a garbage dumpster while he was positioned behind a
garbage truck.    A co-worker was inside the garbage truck and was
mechanically lifting the garbage dumpster at the time of Donahue's
injury.    The co-worker testified that he was uncertain if this
accident occurred.      Donahue missed no work time and filed no claim
following this incident.
      On November 15, 1983, Donahue jumped off the back of a garbage
truck, twisted his back, and hit his head against the garbage
truck's metal support railing. The garbage truck was being driven
by a co-worker at the time of Donahuets injury.                Donahue missed
work time following this incident.
      Following the November 15th incident, Donahue filed a claim

with the State compensation Insurance Fund.              In November 1983,
Convenience was an uninsured employer under                   39-71-501, MCA;

accordingly, Donahue's          claim   was   referred   to    the   Uninsured
Employers' Fund.        The Uninsured Employerst Fund did not have
adequate funds at this time,
      On July   12, 1 9 8 4 ,   Donahue filed with the District Court a

complaint against Hagqerty d/b/a Convenience to recover damages for
his November 25th injury under 5 39-71-508, MCA (1983). On January
13,   1986, Donahue filed an amended complaint against the Defen-

dants.   Donahuets amended complaint alleges in pertinent part:


           That during the course and scope of Plaintiffs
           [sic] employment with Defendant, and on or
           about November 10 or 11, 1983, the Plaintiff
           herein while in the course and scope of his
           employment did sustain an injury while bending
           down to pick up loose garbage under a garbage
           dumpster which was being mechanically lifted
           by the garbage truck and being operated by a
           co-employee, said garbage dumpster was lowered
           onto Plaintiff's back.
          That the Plaintiff as a result of said acci-
          dent which occurred on or about November 10 or
          11, 1983, did sustain an injury to his back,
          but was able to return to his employment with
          the Defendant, Convenience Disposal, Inc.
                                  IV.
          That on November 15, 1983, while in the course
          and scope of his employment with Defendant,
          Convenience Disposal, Inc., the Plaintiff
          herein twisted his back jumping off the back
          of a garbage truck and in addition to twisting
          his back, said Plaintiff hit the back of his
          head against a metal support railing as lo-
          cated on said garbage truck.
The amended complaint further prays for damages and attorney fees
regarding Donahue's November 10th or 11th and November 15th
injuries under   §§   39-71-509 and -515, MCA (1985)
     A jury trial was scheduled for September 24, 1990.    During a
pretrial conference on September 7, 1990, the District Court Judge
advised counsel of his legal analysis regarding this case:
          [Tlhe first issue of law I see - Can the
          Plaintiff recover under 39-71-515? My answer
          to that is no. The reason is that statute
          wasn't passed until 1985, and the accident
          occurred in 1983.    There's nothing in the
          statute that says that it is to be applied
          retroactively. I think this brings into play
          Boehm v. Alanon Club, 722 P.2d 1160, where
          [the court] held that 515 cannot be applied
          retroactively and does not apply to injuries
          which occurred prior to 1985.
          Now the next one is, number two, Can the
          Plaintiff recover attorney fees[?]    And my
          answer to that is no. The reason is because
          Sec. 39-71-515 does not apply to this case.
Now question number three is -  Can the Plain-
tiff recover for the accident described begin-
ning in Paragraph (4) of Count I of the Com-
plaint[?]   Thats the accident that occurred
November 15, 1983.     As I see it now, the
answer is no. It says the Plaintiff's alleged
injury occurred from jumping off the back of
the truck and he twisted his back. No allega-
tion of negligence on the part of the Defen-
dant or any co-employee [was alleged in the
Complaint].   And without negligence I don't
think a regular suit for damages applies.
Number four - Can a Plaintiff recover for
injuries resulting from the accident on Novem-
ber 10 or 11, 1983? That's when the garbage
dumpster was lowered on his back. The answer
is yes if the Plaintiff can show that the co-
employee was negligent and that that negli-
gence proximately caused the Plaintiff's
injuries. However, from reading the Complaint
it appeared that you might have trouble prov-
ing injuries, or damages, from that accident,
because after that accident the Plaintiff went
right back to work and worked until the second
accident, which was November 15, 1983.
Now the fifth issue that I see - Can the
Plaintiff pursue a claim for benefits from
unsecured employers1 fund and also maintain a
damage action against the Defendant in accor-
dance with 39-71-509.     The answer is no,
because again, we must apply 509 and also 508,
the companion statute, as it existed prior to
the 1985 amendment, and thats governed by
Boehm v. Alanon Club which I previously cited.
And prior to the 1985 amendment, 508 pro-
vide[~] "the injured employee may not receive
both benefits from the fund and pursue a
damage action." The statute prior to 1985,
that is 39-71-508 also specifically required
the Plaintiff to elect between the two reme-
dies. In this case it seems to me that at the
time of the filing of the Complaint he elected
to not pursue the uninsured employers' fund
case but to rely on the damage action pursuant
to 509. In fact, that's what the Complaint
specifically says.
     On September 14, 1990, ten days before the jury trial was to
begin, Donahue moved the District Court for leave to file a second
amended complaint.     On September 14, 1990, the Defendants moved
the District Court to dismiss this case, or in the alternative,
grant summary judgment.    In an order dated September 20, 1990, the
District Court denied Donahue's motion for leave to file a second
amended complaint holding that its filing "would materially change
the issues of the first case in the midst of trial, at least close
to trial, and would unduly prejudice the Defendants." The District
Court further granted the Defendants' motion to dismiss, or in the
alternative, motion for summary judgment. Fromthis order, Donahue
appeals.


        1. Did the District Court err in denying Donahue's motion to
file a second amended complaint?
     Montana Rule of Civil Procedure 15(a) provides in pertinent
part:     na party may amend his pleading only by leave of court or

by written consent of the adverse party; and leave shall be freely
given when justice so requires."        Furthermore, this Court has
held:
            "In the absence of any apparent or declared
            reason--such as undue delav, bad faith or
            dilatory motive on the part of the movant,
            repeated failure to cure deficiencies by
            amendments previously allowed, undue prejudice
            to the opposinq party bv virtue of allowance
            of the amendment, futility of amendment, etc.-
            -the leave sought should, as the rules re-
            quire, be 'freely given."' [Emphasis added.]
Prentice Lumber Co. v. ~ukill (l972), 161 Mont. 8, 17, 504 P.2d
277, 282 (citing Foman v. Davis (l962), 371 U.S. 178, 83 S.Ct. 227,
9 L.Ed.2d 222).
     Donahue argues that his amended complaint sufficiently alleges
that Defendants1 negligence proximately caused Donahue's injuries.
Donahue further argues that he sought leave from the District Court
to file a second amended complaint only to clarify these allega-
tions of negligence.
       We hold that the District Court properly stated in the
pretrial conference and later held in its September 20, 1990 order
that Donahue's amended complaint did not allege that Defendants'
negligence proximately caused Donahue1s injuries.     Accordingly,
Donahue1s second amended complaint was an attempt to introduce a
new cause of action based on negligence against the Defendants ten
days prior to trial.   The District Court denied Donahue leave to
file the second amended complaint holding that its filing "would
materially change the issues of the first case in the midst of
trial, at least close to trial, and would unduly prejudice the
Defendants."
     In Yellowstone Conference of the United Methodist Church v.
D. A. Davidson, Inc. (1987), 228 Mont. 288, 741 P.2d 794, the

plaintiff moved to amend its complaint to include a new cause of
action, a securities fraud claim.      This Court held that this
amended complaint "offered after four years of discovery and two
weeks prior to trial" would have unduly prejudiced the defendants
                                 7
and was properly denied by the District Court.             Yellowstone
Conference of the United Methodist Church, 228 Mont. at 293, 741
P.2d at 798.
     Here, Donahue's second amended complaint, which also included
a new cause of action, was offered over six years after Plaintiff's
original complaint was filed, four years after our decision in
Boehm v. Alanon Club (1986), 222 Mont. 373, 378, 722 P.2d 1160,
1163, and ten days prior to trial.          The question of permitting
amendments to pleadings is one addressed to the sound judicial
discretion of the trial court.       Before we will hold a refusal of
leave to amend to have been error, appellant must show an abuse of
discretion.    Cullen v. W.P. Mtg.    &   Warranty Title Co. (1913), 47
Mont. 513, 134 P. 302. We conclude that there has been no showing
that the trial court abused its discretion when it denied the
Plaintiff's second motion to amend his complaint under these
circumstances.    We therefore hold that the District Court properly
denied Donahue leave to file a second amended complaint.


     2.   Did the District Court err in granting Defendants' motion
to dismiss or in the alternative, motion for summary judgment?
     Donahue argues that the Defendants' motion to dismiss or in
the alternative, motion for summary judgment was not timely filed
under Montana Rule of Civil Procedure 12(b) and the District
Court's scheduling order.   Donahue further argues that even if the
Defendants' motion was timely filed, the District Court erred in
                                  8
dismissing this action because Donahue should have been allowed to
proceed to trial on the alleged November 10th or 11th accident
pursuant to Judge Langen's remarks at the pretrial conference.
Donahue further argues that the District Court's September 20,       1990

order is ambiguous as it appears to grant both Defendants1 motion
to dismiss and motion for summary judgment.
     In reviewing the District Court's September     20,    1990   order,
we agree that it appears that this order granted both Defendants'
motion to dismiss and motion for summary judgment.         We hold that
in this case, the granting of summary judgment in the Defendants'
favor was appropriate. Accordingly, we will not discuss Donahue's
argument regarding Montana Rule of Civil Procedure   1 2 (b)   as it does
not apply to summary judgment.
     Here, the applicable rule concerning motions for summary
judgment is Montana Rule of Civil Procedure 56.      Montana Rule of
Civil Procedure 56(b) provides that "a party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any
part thereof."    Therefore, the timeliness of Defendants' motion
for summary judgment is not an issue.
     Montana Rule of Civil Procedure 56(c) provides that a motion
for summary judgment shall be granted "if the pleadings, deposi-
tions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
                                 9
as to any material fact and that the moving party is entitled to
a judgment as a matter of law."    Here, the District Court properly
stated in the pretrial conference and later held in its September
20, 1990 order that Donahue's amended complaint is fatally flawed.

First, it is based on   § 39-71-515,   MCA, a statute enacted in 1985.
Donahue's accidents and sustained injuries occurred in 1983.      This
Court has previously held that 5 39-71-515, MCA, cannot be applied
retroactively, and does not apply to accidents that occurred prior
to 1985.   Boehm v. Alanon Club (l986), 222 Mont. 373, 378, 722 P. 2d
1160, 1163.    Second, as previously discussed, Donahue's amended
complaint does not allege that his accidents were proximately
caused by the negligence of the Defendants. Accordingly, Donahue's
amended complaint fails to present a genuine issue for trial, and
the Defendants are entitled to judgment as a matter of law.         We
therefore hold that the District Court properly granted summary
judgment in this instance.
     A£ firmed.




                                          ,
                                              Chief Justice
We concur:
                                            October 9, 1991

                            CERTIFICAIX OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Paul L. Frantz
Morrow, Sedivy & Bennett
P.O. Box 1I68
Bozeman, MT 59771-1168

J. Robert Planalp
Landoe, Brown, Planalp & Kornmers
P.O.Box One
Bozeman, MT 59771-0001

                                                ED SMITH
                                                CLERK OFAWE SUPREME COURT
