Neisinger v. New Hampshire Ins.

Montana Supreme Court

Neisinger v. New Hampshire Ins.

DecidedJune 11, 2024

DocketDA 24-0339

StatusUnpublished

This text of Neisinger v. New Hampshire Ins. (Neisinger v. New Hampshire Ins.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neisinger v. New Hampshire Ins., (Mo. 2024).

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ORIGINA1 06/11/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 24-0339

DA 24-0339

El 7D MICHAEL NEISINGER, JUN 1 1 2024 Bowen Greenwood Claimant and Appellant, Clerk of Supreme court State of Montana

v. ORDER

NEW HAMPSHIRE INS. CO.,

Defendant and Appellee.

Appellant Michael Neisinger appeals from the April 25, 2024 Order Granting Insurer's Motion to Compel IME Attendance in Missoula, Montana from the Montana Workers' Compensation Court entered in that court's Cause No. 2024-00340. Neisinger filed his Notice of Appeal on May 28, 2024. In that Notice, he indicated the appeal was an appeal from an order certified as final under M. R. Civ. P. 54(b). He further indicated that the Workers' Compensation Court had certified the order as final pursuant to Admin. R. M. 24.5.348(2) (2018) and M. R. Civ. P. 72. However, neither appears to be the case. M. R. App. P. 4(b) provides, in relevant part, that if an appeal is taken after certification by the district court under M. R. Civ. P. 54(b), the notice of appeal shall state that fact, and a copy of the certification order shall be attached to the notice of appeal. In this case, the only document attached to the Notice of Appeal is the April 25, 2024 Order. The Order does not contain any certification pursuant to M. R. Civ. P. 54(b). Nor does the Order specify that it is final pursuant to Admin. R. M. 24.5.348, and it does not appear to be certifiable as such in any event since the Order is not a final certification constituting an entry of judgment Admin. R. M. 24.5.348(2). Without proper certification, we are without jurisdiction to entertain the appeal. Kohler v. Croonenberghs, 2003 MT 260, 317 Mont. 413, 77 P.3d 531. Furthermore, this Court may sua sponte raise the issue of whether an appeal has come to this Court prematurely and should therefore be dismissed for lack ofjurisdiction. Farmers Union Mut. Ins. Co. v. Horton, 2003 MT 79, ¶ 19, 315 Mont. 43, 67 P.3d 285 (Gray, CJ, concurring) (citing Litigation Relating to Riot, 283 Mont. 277, 281, 939 P.2d 1013, 1016 (1997)). Since the April 25, 2024 Order Granting Insurer's Motion to Compel IME Attendance in Missoula, Montana is not directly appealable under M. R. App. P. 6(1) or 6(3), and since Neisinger failed to attach a certification order as required by M. R. App. P. 4(b), this matter is not properly before this Court at this time. IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE. Dated this 1 I day of June, 2024.

X1/4 N,s,

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ORIGINA1 06/11/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 24-0339

DA 24-0339

El 7D MICHAEL NEISINGER, JUN 1 1 2024 Bowen Greenwood Claimant and Appellant, Clerk of Supreme court State of Montana

v. ORDER

NEW HAMPSHIRE INS. CO.,

Defendant and Appellee.

Appellant Michael Neisinger appeals from the April 25, 2024 Order Granting Insurer's Motion to Compel IME Attendance in Missoula, Montana from the Montana Workers' Compensation Court entered in that court's Cause No. 2024-00340. Neisinger filed his Notice of Appeal on May 28, 2024. In that Notice, he indicated the appeal was an appeal from an order certified as final under M. R. Civ. P. 54(b). He further indicated that the Workers' Compensation Court had certified the order as final pursuant to Admin. R. M. 24.5.348(2) (2018) and M. R. Civ. P. 72. However, neither appears to be the case. M. R. App. P. 4(b) provides, in relevant part, that if an appeal is taken after certification by the district court under M. R. Civ. P. 54(b), the notice of appeal shall state that fact, and a copy of the certification order shall be attached to the notice of appeal. In this case, the only document attached to the Notice of Appeal is the April 25, 2024 Order. The Order does not contain any certification pursuant to M. R. Civ. P. 54(b). Nor does the Order specify that it is final pursuant to Admin. R. M. 24.5.348, and it does not appear to be certifiable as such in any event since the Order is not a final certification constituting an entry of judgment Admin. R. M. 24.5.348(2). Without proper certification, we are without jurisdiction to entertain the appeal. Kohler v. Croonenberghs, 2003 MT 260, 317 Mont. 413, 77 P.3d 531. Furthermore, this Court may sua sponte raise the issue of whether an appeal has come to this Court prematurely and should therefore be dismissed for lack ofjurisdiction. Farmers Union Mut. Ins. Co. v. Horton, 2003 MT 79, ¶ 19, 315 Mont. 43, 67 P.3d 285 (Gray, CJ, concurring) (citing Litigation Relating to Riot, 283 Mont. 277, 281, 939 P.2d 1013, 1016 (1997)). Since the April 25, 2024 Order Granting Insurer's Motion to Compel IME Attendance in Missoula, Montana is not directly appealable under M. R. App. P. 6(1) or 6(3), and since Neisinger failed to attach a certification order as required by M. R. App. P. 4(b), this matter is not properly before this Court at this time. IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE. Dated this 1 I day of June, 2024.

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