                                       No. 1 4 9 8 9

            IN THE SUPREME COURT OF THE STATE OF MONTANA




JAMES E. SHANNON,
                             Claimant and Appellant,
                  -vs-

PAUL C. KELLER and LYNN SORDIE,
d/b/a K & S TRANSPORT,
                     Employer,
        and
STATE COMPENSATION UNINSURED EMPLOYERS'
FUND,
                             Defendant and Respondent.




Appeal from:          Workers' Compensation Court, The Honorable
                      William E. Hunt, Judge presiding.
Counsel of Record:
     For Appellant:

          Olsen, Christensen       &   Gannett, Billings, Montana
     For Respondent:
          Tim Reardon, Helena, Montana



                                       Submitted on Briefs:         March 27, 1980

                                                       Decided:   JUN 2 4

              -   i   yd&Q
Filed: -t\Jp! l
              t       --
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
          Claimant-appellant James E. Shannon sought benefits from
the Uninsured Employers' Fund for injuries received September 24,
1977.   Claimant appealed to the Workers' Compensation Court
after relief had been denied by the Division of Workers' Compen-
sation.    The Workers' Compensation Court also denied relief and
Shannon brings this appeal.
          Claimant, James E. Shannon, was employed by Paul C. Keller
and Lynn Sordie, d/b/a K   &   S Transport, in September 1977.    On
September 24, 1977, Shannon was seriously injured when a tractor-
trailer rig was involved in an accident in Deer Lodge County.          At
the time of the accident, claimant was a relief driver and was in
the truck sleeper.    His injuries consisted of multiple fractures
and resulted in hospitalization and extensive treatment.         Shannon's
employer did not have workers' compensation insurance coverage.
          In June 1978, claimant filed a claim with the Division
of Workers' Compensation, seeking benefits from the Uninsured
Employers' Fund.    His claim was denied on the ground that his in-
jury occurred before the effective date of the payout provision of
the Uninsured Employers' Fund.
          Claimant's petition to the Workers' Compensation Court
was denied.    The judgment was based on the following provision
contained in section 92-214, R.C.M.    1947 (not codified in MCA):

          "Effective date of uninsured employers fund.
          Except as provided in this section, 92-212 is




          The Workers' Compensation Court found:
          "That the Division's position relative to the
             r e t r o a c t i v e e f f e c t o f t h e Uninsured Employers'
             Fund t o c o v e r a c c i d e n t s o c c u r r i n g p r i o r t o J a n u a r y
             1, 1979 i s i n t e n d e d t o p r e s e r v e t h e f u n d and make
             it s o l v e n t f o r a c c i d e n t s happening a f t e r J a n u a r y 1,
             1979 and s a i d c o n s t r u c t i o n i s a v a l i d and c o r r e c t
             c o n s t r u c t i o n o f t h e law."

             The c l a i m a n t c o n t e n d s on a p p e a l t h a t t h e d a t e s p e c i f i e d

t o commence p a y o u t s , i . e .      t h e d a t e on which t h e fund a t t a i n s a

l e v e l o f $150,000 o r J a n u a r y 1, 1979, whichever o c c u r s f i r s t ,

merely r e q u i r e s a c l a i m a n t t o w a i t u n t i l t h i s d a t e t o s e c u r e

payment b u t d o e s n o t p r e c l u d e r e c o v e r y f o r i n j u r i e s s u s t a i n e d

p r i o r t o t h e date.       T h i s c o n t e n t i o n i s b a s e d upon t h e e f f e c t i v e

d a t e o f t h e s t a t u t e , J u l y 1, 1977.

             The s o l e i s s u e on a p p e a l i s whether a n employee, who w a s

i n j u r e d p r i o r t o t h e e f f e c t i v e payout d a t e o f s e c t i o n 92-214,

R.C.M.     1947, may c o l l e c t b e n e f i t s from t h e Uninsured Employers'

Fund.

             I f t h e s t a t u t e i s p l a i n , unambiguous, d i r e c t and c e r t a i n ,

t h e s t a t u t e s p e a k s f o r i t s e l f and t h e r e i s n o t h i n g l e f t f o r t h e

Court t o construe.             Dunphy v. Anaconda Co.                 ( 1 9 6 8 ) , 1 5 1 Mont. 76,

438 P.2d 6 6 0 ; D o u l l v. Wohlschlager ( 1 9 6 3 ) , 1 4 1 Mont.                     354, 377

P.2d 758.         I f t h e s t a t u t e i s ambiguous o r u n c l e a r t h e i n t e n t i o n

o f t h e l e g i s l a t u r e i s t o be p u r s u e d i f p o s s i b l e .    S e c t i o n 1-2-102,

MCA.     To a s c e r t a i n t h e l e g i s l a t i v e i n t e n t , r e c o u r s e must f i r s t b e

had t o t h e language employed and t o t h e a p p a r e n t p u r p o s e t o be

subserved.         S t a t e e x r e l . Krona v. Holmes ( 1 9 4 3 ) , 1 1 4 Mont.                 372,

136 P.2d 220.

             I n o r d e r t o more p l a i n l y d e t e r m i n e t h e l e g i s l a t i v e i n t e n t

and p u r p o s e i n p a s s i n g t h e Uninsured Employer's Fund, t h e r e l e v a n t

s t a t u t e s are s e t o u t below a s t h e y were p r e s e n t e d t o t h e l e g i s l a -

t u r e , Ch. 550, Laws o f Montana ( 1 9 7 7 ) , and a s c o n t a i n e d i n R.C.M.

1947.      S e c t i o n 92-214,     R.C.M.      1947, h a s n o t been c o d i f i e d i n MCA.

The r e m a i n i n g p o r t i o n of t h e Uninsured Employers' Fund h a s been

c o d i f i e d i n s e c t i o n s 39-71-501,      MCA t h r o u g h 39-71-510,          MCA.
"92-213. Election of uninsured em~loveeto take
under the fund or bring action against employer--
limitation on benefit entitlement under the fund.
 .-.
(1) An employee who suffers an injury arisinq out
of and in the course of employment while working
for an uninsured employer as defined in 92-212(1),
or an employee's beneficiaries in the injuries
resulting in death, may elect to either Geceive
benefits from the uninsured employers fund or pursue
a damage action against the employer. However, once
an election has been made to either take from the
fund or pursue a damage action, the election is
final and binding on the employee or the employee's
beneficiaries, heirs, and personal representatives.
An injured employee or the employee's beneficiaries
may not receive both benefits from the fund and pur-
sue a damage action. If an injured employee or the
employee's beneficiaries elect to bring an action
to recover damages for personal injuries sustained
or for death resulting from personal injuries so
sustained, it is not a defense for the employer that
the :
"(a) employee was negligent unless such negligence
was willful:
"(b) injury was caused by the negligence of a fellow
employee; or
"(c) employee had assumed the risks inherent in,
incident to, or arising out of his employment or
arising from the failure of the employer to provide
and maintain a reasonably safe place to work or
reasonably safe tools or appliances.
"(2) Notwithstanding the provisions of 92-212 and
92-614, injured employees or an employee's benefi-
ciaries who elect to receive benefits from the un-
insured employers fund are not granted an entitle-
ment by this state for full workers' compensation
benefits from the fund. Benefits from the fund
shall be paid in accordance with the sums in the
fund. If the division determines at any time that
the sums in the fund are not adequate to fully pay
all claims, the division may nake appropriate
proportionate reductions in benefits to all claim-
ants. The reductions do not entitle claimants to
retroactive reimbursements in the future." (Emphasis
added. )
"92-214. Effective date of uninsured employers'
-
fund. Except as provided in this section, 92-212
is effective on July 1, 1977. Payouts for benefits
may not be made from the uninsured employers' fund
until the fund attains a level of $150,000 or Jan-
uary 1, 1979, whichever occurs first. However,
until payouts for benefits from the uninsured
employers' fund begin, an uninsured employer, as
defined in 92-212(1), is subject to suit by an
employee who suffers an injury arising out of and
in the course of employment. In any such action
to recover damages for personal injuries sustained
or for death resulting from personal injuries so
         sustained, it is not a defense that the:
         "(1) employee was negligent unless such negligence
         was willful;
         " (2) injury was caused by the negligence of a
         fellow employee; or
         "(3) employee had assumed the risks inherent in,
         incident to, or arising out of his employment or
         arising from the failure of the employer to provide
         and mai?.~t.ain reasonably safe place to work or
                      a
         reasonable safe tools or appliances."
          The ambiguity created under the two preceding statutes is
the result of the legislative failure to expressly specify that
causes of action arising prior to the effective payout date may
only be maintained against the employer.     However, this intent is
readily determinable from the language of the statutes and the ap-
parent underlying purpose.    Section 92-214, R.C.M.    1947, states
that July 1, 1977, is the effective date for section 92-212, R.C.M.
1947, which creates the Uninsured Employers' Fund and reveals the
purpose, funding and administration of the fund.       Section 92-214,
R.C.M.   1947, further provides that in the period between July 1,
1977, and January 1, 1979, an injured employee may initiate an
action against the uninsured employer who does not have the bene-
fit of certain common law defenses.    The purpose of this provision
is to allow the fund to attain a sufficient level to pay claims
without a substantial risk of insolvency.     This purpose is further
bolstered by the provision of 92-213(2), R.C.M.     1947, which pro-
vides that injured employees are not entitled to retroactive reim-
bursements if the division determines that there is not sufficient
funds to pay all benefits.
         We conclude that the legislative intent and purpose for
including section 92-214, R.C.M.   1947, was to ensure the likeli-
hood of the Fund's solvency by requiring employees injured prior
to the effective date to seek recovery from the uninsured employer.
Without this interpretation, the Uninsured Employers' Fund would
immediately become available to hundreds of claimants injured
prior to January 1, 1979, which would defeat the purpose of

the effective date provision contained in section 92-214, R.C.M.
1947.
        The judgment of the Workers' Compensation Court is

affirmed.




                                         Chief Justice
