Larson v. Watters Construction Co.

No. 12321

I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN

1972

GERALD A. LARSON,

P l a i n t i f f and A p p e l l a n t ,

WATTERS CONSTRUCTION C M A Y I N C . ,
O PN
a Montana Corporation,

Defendant and Respondent.

Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable Gordon R . Bennett, Judge p r e s i d i n g .

Counsel of Record:

For Appellant :

Hoyt, Bottomly and G a b r i e l , Great F a l l s , Montana,
Robert W. G a b r i e l argued, Great F a l l s , Montana,

For Respondent:

Hughes and Bennett and Alan F. Cain, Helena, Montana.
George T. Bennett argued, Helena, Montana.

Submitted: December 1, 1972

Decided: C)F ? L-
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F i l e d : ?)hi: I d
PER CURIAM:
This is an appeal by the plaintiff from a summary
judgment entered in favor of the defendant in the district
court of Lewis & Clark County.
From the record it appears that plaintiff was injured
while employed by an independent subcontractor who was working
for the defendant contractor. The defendant contractor required
the subcontractor to provide its employees with workmen's com-
pensation and the subcontractor had done so. Plaintiff has
collected his workmen's compensation benefits and medical bene-
fits and then instituted this suit.
After completion of discovery defendant moved for sum-
mary judgment under Rule 56(b), I4.R.Civ.P. Both parties sub-
mitted briefs, the matter was argued in the district court,
the motion granted and this appeal followed.
Plaintiff admits that the action of the district court
was based upon section 92-438, R.C.M. 1947, as interpreted in
Ashcraft v. Montana Power, 156 Mont. 368, 480 P.2d 812, and
Buerkle v. Montana Power Co., 157 Mont. 57, 482 P.2d 564. How-
ever, plaintiff asserts that the holdings in these cases as to
classification are repugnant to the Fourteenth Amendment to the
Constitution of the United States and Art. V, Sec. 26 of the
Montana Constitution. Further, if the holdings are held to be
constitutional they are not applicable in this case because of
the Scaffold Act. (Sections 69-1401-1405, R.C.M. 1947)
In spite of plaintiff's arguments to the contrary, we
are of the opinion that this case falls squarely within our
holdings in Ashcraft and Buerkle.and the immunity from suit
granted a statutory employer, here the defendant, is as to all
causes of action " * * * or statutory or common-law right or
remedy, or proceeding whatever, for or on account of any personal
injury * * *." Section 92-204, R.C.M. 1947. This is also true
in a vast majority of states. Larson in his work entitled
"Workmen's Compensation Law", Vol. 2, § 72.31, asserts that 44
states have similar provisions in their statutory law.
We observe no necessity to enter into a lengthy discourse
in this area since in the last few weeks we have rendered two
opinions which further express our views. See Kelleher v. State,

- .
Mont -1
P.2d ,
- - 29 St.Rep. 897 and State ex rel.
Hammond v. Hager, - Mont .
-I - - 29 St.Rep. 945.
P.2d ,
The judgment is affirmed.