Rothwell v. Allstate Insurance

1999 MT 50, 976 P.2d 512, 293 Mont. 393
CourtMontana Supreme Court
DecidedMarch 18, 1999
Docket98-124
StatusPublished
Cited by9 cases

This text of 1999 MT 50 (Rothwell v. Allstate Insurance) 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.

Bluebook
Rothwell v. Allstate Insurance, 1999 MT 50, 976 P.2d 512, 293 Mont. 393 (Mo. 1999).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 The United States District Court for the District of Montana, Great Falls Division, has certified to this Court the following question:

Whether the provisions of § 39-2-701(1X1995), MCA, that “[a]n employer must indemnify his employee ... for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such or of his obedience to the directions of the employer,” are validly subject to waiver by an employee by way of a provision in the employer’s standard written contract of employment whereby the employee purports to agree to accept less than full indemnification for employment-related expenses.

¶2 Pursuant to Rule 44, M.R.App.P, and by order dated March 10, 1998, we accepted the certified question. After briefing and oral argument by the parties and by the Montana Trial Lawyers Association (MTLA) as amicus curiae, we answer this question in the negative for the reasons set forth below.

[395]*395Background

¶3 On May 30,1997, Reann Rothwell (Rothwell) filed an action in the United States District Court for the District of Montana against Allstate Insurance Company, Allstate Life Insurance Company, Allstate Indemnity Company, Novus Credit Service, Inc. f/k/a Allstate Enterprises, Inc. and its subsidiary companies, and Allstate Motor Club, Inc. (hereinafter collectively referred to as “Allstate”). Rothwell was an insurance agent for Allstate from 1989 until 1997. The complaint sought to require Allstate to indemnify and reimburse Roth-well for office and other employment-related expenses incurred in the course and scope of her employment with Allstate.

¶4 On July 15,1997, Allstate filed a motion to dismiss the complaint arguing that it failed to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., and that Rothwell had waived her statutory right to seek indemnification or reimbursement of these expenses by signing Allstate’s standardized employment agreement. This agreement provides, in part:

II. Office Expense Allowance (OEA)
1. The Neighborhood Office Agent is responsible for his/her office expenses.
2. The Office Expense Allowance, the formula for which is described in the Neighborhood Office Agent Manual(s), is a Company authorized office expense reimbursement and is not a fund, compensation, or income. As such, amounts accrued in your OEA account belong to the Company and these amounts are used to reimburse you for Company authorized expenses.
3. Allstate reimburses actual expenses to the limit of the agent’s OEA for specified office expenses as described in the Neighborhood Office Agent Manual(s). Any amount spent in excess of the OEA is the responsibility of the agent.

Allstate asserted that this agreement required Rothwell to assume responsibility for the expenses of operating an office for Allstate subject to partial reimbursement by Allstate pursuant to the contract language quoted above.

¶5 Rothwell opposed Allstate’s motion to dismiss arguing that the agreement is unenforceable and that the OEA reimbursement scheme is void as against public policy because it is inconsistent with § 39-2-701(1), MCA. The United States District Court certified the [396]*396above question to this Court and stayed all proceedings pending this Court’s answer.

Discussion

¶6 Allstate argues that under § 39-2-701(1), MCA, while an employer is generally responsible for reimbursing an employee’s necessary expenses, the provisions of that subsection may be waived and the parties may agree to a different relationship. Allstate relies on § 1-3-204, MCA, which provides:

Waiver of benefit of a law. Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.

Under this code section, individuals may waive any of their statutory rights unless waiver of those rights violates public policy. Thus, resolution of the certified question turns on whether § 39-2-701(1), MCA, was established for a public reason.

¶ 7 Although this is an issue of first impression in Montana, previous decisions of this Court involving employment-related issues provide guidance in determining this question. In State ex rel. Neiss v. District Court (1973), 162 Mont. 324, 511 P.2d 979, a hotel owner failed to pay the minimum wage as prescribed by statute to various desk clerks and room maintenance employees. The Montana Commissioner of Labor and Industry ordered the employer to pay the employees the difference between the amount actually paid and the minimum wage. Instead, the employer settled the claims of several employees for amounts less than the amounts due under the minimum wage statute. This Court determined that minimum wage provisions exist for the benefit of the public as a whole, thus employees may not bargain away their right to receive minimum wage. Neiss, 162 Mont. at 328, 511 P.2d at 981.

¶8 Similarly, in Hoehne v. Sherrodd, Inc. (1983), 205 Mont. 365, 668 P.2d 232, an employer who provided heavy equipment and personnel to operate that equipment to oil companies in Montana and North Dakota, failed to pay overtime compensation to one of its heavy equipment operators. The employee claimed that he accumulated overtime hours but was not paid the overtime rate for such hours. The employer argued that the employee was estopped from claiming overtime compensation because he failed to report accumulated overtime hours and did not inform the employer that he expected overtime pay. This Court determined that the laws establishing an employee’s right to receive overtime compensation are expressions of public policy ere[397]*397ated for the protection and benefit of the general public, thus, private waiver of that right, by implication or agreement, is contrary to public policy. Hoehne, 205 Mont. at 369-70, 668 P.2d at 234-35.

¶9 Indemnification of an employee for expenses incurred in the discharge of the employee’s duties is a form of employee compensation similar to the payment of overtime compensation and minimum wage. Section 39-3-406(1), MCA, sets forth a list of exclusions describing 16 different categories of workers to whom Montana’s minimum wage and overtime compensation laws do not apply. In addition, § 39-3-406(2), MCA, sets forth a list of an additional 25 categories of workers to whom Montana’s overtime compensation laws do not apply. Hence, while not all workers in Montana are entitled to the benefits of the minimum wage and overtime compensation laws, this Court has determined that these laws were established for a public reason and that they are expressions of public policy. Section 39-2-701(1), MCA, has no comparable list of exclusions, thus it protects a greater number of workers than the minimum wage and overtime compensation laws. Consequently, if the minimum wage and overtime compensation laws are expressions of public policy, then § 39-2-701(1), MCA, which protects a greater number of workers, is also an expression of public policy.

¶10 Moreover, in Hoehne,

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Rothwell v. Allstate Insurance
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Bluebook (online)
1999 MT 50, 976 P.2d 512, 293 Mont. 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rothwell-v-allstate-insurance-mont-1999.