No, 12402
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1972
THE ANACONDA COMPANY,
a Montana Corporation,
Petitioner,
THE DISTRICT COURT O THE SECOND JUDICIAL DISTRICT
F
O THE STATE O MONTANA, I N AND FOR THE C U T O
F F O NY F
SILVER BOW, and THE HONORABLE JOHN B. McCLERNAN,
a Judge t h e r e o f ,
Respondents.
ORIGINAL PROCEEDING:
Counsel o f Record :
For P e t i t i o n e r :
Douglas D. Dasinger argued, Bozeman, Montana.
James A , Robischon, B u t t e , Montana,
For Respondents:
Burgess, Joyce, Prothero, Whelan and ~ ' ~ e a r y ,
B u t t e , Montana.
Thomas F. Joyce argued, B u t t e , Montana.
A, G, Shone, B u t t e , Montana,
Submitted: November 29, 1972
Decided :J N
A 3 1 7973
Filed: JAN 3 1 1973
Mr. Chief Justice James T. Harrison delivered the Opinion
of the Court.
This is an original proceeding commenced by the Anaconda
Company. It is seeking a writ of supervisory control over the
district court of Silver Bow County, the Hon. John B. McClernan
presiding. The petition for the writ alleges Judge McClernan
acted contrary to the laws of Montana in overruling petitioner's
request for summary judgment. \
The petition is based upon the following facts. The
Anaconda Company is the defendant in a lawsuit filed by Charles
Marchlik. Mr. Marchlik complains that:
"Plaintiff was employed by defendant as a miner
and from August 26, 1969 to November 7, 1969,
plaintiff worked underground on the 4,000, 4100,
and 4400 foot levels and while so working he
necessarily came into close contact with extreme
heat, gas, metallic and nonmetallic substances,
sulphur and copper dust compounds impregnated
with silicon particles and other injurious sub-
stances caused through the negligent operations
of defendant and arising out of and in the course
of plaintiff's employment. Plaintiff was exposed
to and forced to inhale and breath (sic) in said
injurious substances with the result that he be-
came diseased, sick, poisoned, and his internal
organs, particularly his lungs, were affected
and weakened so as to cause, and it did cause,
plaintiff to suffer with a disease or condition
as the proximate result of the negligence of
defendant, so that on November 7, 1969 he be-
came totally disabled and incapacitated from
work of any kind." (Emphasis added).
A motion to dismiss for failure to state a claim upon which re-
lief could be granted was made by the petitioner. Its support
for the motion was the assertion both parties were bound by
the Workmen's Compensation Act and the Occupational Disease Act,
which provided an exclusive remedy for the plaintiff. The motion
was overruled. A motion for summary judgment was then made
alleging essentially the same grounds. Again the motion was over-
ruled resulting in this original proceeding.
The position of the petitioner in this Court is the same
as it advanced in the district court, that the lawsuit is
barred by the terms of the Workmen's Compensation Act and
the Occupational Disease Act. The Workmen's Compensation Act
in section 92-204, R.C.M. 1947, provides:
"Where both employer and employee have elected
to come under this act, the provisions of this
act shall be exclusive, and such election shall
be held to be a surrender by such employer and
the servants, and employees of such employer and
such employee, as among themselves, of their
right to any other method, form or kind of com-
pensation, or determination thereof * * * or
cause of action, action at law, suit in equity,
or statutory or common-law right or remedy, or
proceeding whatever, for or on account of any
personal injury to or death of such employee
* * *.It
The Occupational Disease Act in section 92-1308, R.C.M.
1947, provides:
"The right to recover compensation pursuant to
the provisions of this act for occupational
diseases sustained by an employee and arising
out of and in the course of his employment,
whether resulting in death, or not, shall be the
exclusive remedy therefor against the employer
electing to be bound by and subject to this act,
except as to such employees as shall reject this
act as provided herein.i (Emphasis added).
The petitioner further points out, that the claim now
being prosecuted in the lawsuit has been presented to the Indus-
trial Accident Board and disposed of. As the result of a hear-
ing held in Butte, Montana, on December 17, 1970, the Board in
an order dated February 24, 1971, held:
"That Charles Marchlik, the claimant herein,
has not sustained the burden of proof in estab-
lishing an industrial injury within the meaning
of the Workmen's Compensation Act nor an occu-
pational disease within the meaning of that Act,
and therefore, his claim for benefits must be
denied. "
The basis for the ruling insofar as the claim for benefits re-
sulting from silicosis appears to be the statement of the
hearing officer for the Board, Mr. Carden, who referred to the
number of shifts worked by Marchlik as being 368.042 shifts
and then said:
"That seems to preclude immediately the possi-
bility of any recovery under the Occupational
Disease Act, irregardless of what his medical
findings are. * * * Claim has to be presented
within a certain period of time, must establish
silicosis, and must have worked the minimum
number of shifts, so unless you have anything
else, it would seem to me we should pursue then
the claim that he has filed for benefits under
the Workemn's Compensation Act."
Counsel for the claimant then remarked: "Very well."
It is argued by the respondent that because of this
ruling by the Industrial Accident Board, Marchlik was an employee
not covered by the Occupational Disease Act, therefore he may
maintain his lawsuit against the petitioner. As authority for
that proposition, respondent cites section 92-1331, R.C.M. 1947,
which reads:
"There shall be no common-law riqht of action
for damage from occupational disease against an
employer-who elects to come under the provisions
of this act, excepting for those employees not
eligible for compensation under the terms of this
act, or who reject coverage of this act." (Emphasis
added) .
The issue before this Court is to determine whether the
claim presented in Marchlik's complaint is covered under terms
of the Occupational Disease Act and whether Marchlik is an
employee excluded from coverage of the act by section 92-1331,
R.C.M. 1947. The facts of the case show both parties elected
to come under the Act. Marchlik's election came about by his
submission of a claim to the Industrial Accident Board as hereto-
fore recited.
Boiling the complaint down to its basic elements and
taking the statements made by counsel for respondent in oral
argument, Marchlik is claiming he was poisoned by sulphur and
copper compounds and conkacted silicosis while working for the
Anaconda Company. The poisoning by the sulphur and copper
compounds and the silicosis are specifically covered by the
Occupational Disease Act in section 92-1304, R.C.M. 1947, before
its amendment in 1971:
"The following diseases only shall be termed
occupational diseases.
"1. Silicosis
"2. Poisoning by
"(1) Sulphur or its compounds.
' (m) Copper or its compounds."
I
Therefore the claim presented by Marchlik is covered by the
terms of the Occupational Disease Act. The result of this is
that if Marchlik is an eligible employee to receive benefits
of the Act he cannot maintain his lawsuit. As pointed out
earlier under section 92-1308, R.C.M. 1947, this Act is the
exclusive remedy for an employee whose employer has elected to
be covered by the Act.
had
This is the first opportunity this Court has/to construe
the effect of section 92-1331, R.C.M. 1947. The section was
discussed in a suit arising in Montana in the Federal-Court.
The result of that suit was to allow a workman to sue his em-
ployer on the basis he was an employee excluded under the terms
of section 92-1331, R.C.M. 1947. The critical fact in that case
was that the employer had chosen not to elect one of three plans
of the Act. Summer v. Victor Chemical Works, 298 F.2d 66, (9th
Cir. 1961). Under the terms of the Act all employers who are
subject to the Workmen's Compensation Act will be subject to the
Occupational Disease Act.
Section 92-1307, R.C.M. 1947, states:
"This act shall apply to and only to, all
employers and employees who now are or hereafter
will be subject to the provisions of the Workmen's
Compensation Act of the state of Montana. * * *"
To be subject to the Workmen's Compensation Act an employer
engaged in a hazardous occupation must make an election of one
of three plans or lose his common law defenses. Section 92-207,
R.C.M. 1947. Section 92-303, R.C.M. 1947, would include copper
mining within the definition of a hazardous employment. The
record here shows that the Anaconda Company is subject to pro-
visions of the Workmen's Compensation Act and therefore it is
subject to provisions of the Occupational Disease Act. There-
fore Marchlik being an employee of Anaconda was eligible for
compensation under the Act.
The determination by the Industrial Accident Board that
he could not receive benefits was not an exclusion of him from
the Act but a finding he had not proved a claim for which he
<'-
-> <02>, Ji
could receive benefits. Section 92-1311(3), R.C.M. 1947, of
the Act reads:
"Compensation shall be paid to every employee
who becomes disabled by reason of occupational
disease arising out of his employment, subject
to the following conditions; and when claims
are presented and notices given in accordance
with the limitations of sections 92-1312 and
92-1313. * * *
"3. No compensation shall be paid in case of
silicosis unless during the eight years
immediately preceding the disablement the in-
juned employee has been exposed to harmful
quantities of silicon dioxide dust for a total
period of not less than one thousand (1,000)
workshifts in employment in this state and
unless total disability results within four
years from the last day upon which the employee
actually worked for the employer against whom
compensation is claimed."
This statute points out under what conditions an eligible
employee will be entitled to recover. In the opinion of the
Board Marchlik did not fulfill all the conditions. As to the
claim for the poisoning by copper and sulphur he did not pro-
duce any evidence before the Board that he was poisoned by
those compounds. The result is that Marchlik was not an
employee who falls within the class of employees mentioned in
section 92-1331, R.C.M. 1947, and therefore he cannot bring a
law suit to recover for his alleged ailments.
This is a proper case for this Court to exercise its
powers of supervisory control under Article VIII, Section 2
of the 1889 Constitution of Montana and section 93-1106, R.C.M.
1947. Therefore a writ of supervisory control is ordered to
issue directing the district court to vacate its order over-
ruling the motion for summary judgment by petitioner and enter
judgment favor petiti
Chief Justice
sociate Justices
/
Mr. Justice Gene B. Daly and Mr. Justice Frank I. Haswell
dissenting:
We dissent.
The majority opinion sets forth section 92-1308,
R.C.M. 1947 of the Occupational Disease Act and section 92-204,
R.C.M. 1947 of the Workmen's Compensation Act in their own
language and establishes that employees who elect to come under
the Act and qualify to receive benefits under the Act have no
action at law against their employer. The language of section
92-1308, R.C.M. 1947, uses the words: "The riqht to recover
compensation pursuant to the provisions of this act for occu-
pational diseases * * *", which in itself is a clear indication
that they have exchanged the right of recovery under the Act,
a statutory right, for their common law right of action against
the employer. This quid pro quo basis for granting immunity to
the employer from common law liability is well recognized, most
recently in State ex rel. First National Bank v. District Court,
- .
Mont -
1
P.2d ,
- - 30 St.Rep. 25. This is a well
recognized principle of law but it never has been viewed as
denying the employee both remedies, i.e., in the context that
if you fail to gualifx under the Act, as opposed to having no
injury, you lose both rights of recovery.
Section 92-1331, R.C.M. 1947, quoted by the majority
further strengthens this doctrine in this language:
"There shall be no common-law right of action
for damage from occupational disease against
-
an employer who elects to come under the pro-
visions of this act, excepting for those
employees not eligible for compensation under
the terms of this act * * * I (Emphasis added).
.'
This is merely a negative statement of the principle in
section 92-1308, R.C.M. 1947. If you are not eligible under
the Act, you have preserved your common law remedies.
At the Industrial Accident Board hearing the examiner
found that under the Occupational Disease Act, section 92-1311(3),
R.C.M. 1947, that a claimant during a time period certain must
have worked not less than 1,000 work shifts -- claimant here had
worked only 368.042 work shifts. The examiner immediately said:
"That seems to preclude immediately the possi-
bility of any recovery under the Occupational
Disease Act, irregardless of what his medical
findings are * * *."
This terminated the hearing insofar as it related to the Occu-
pational Disease Act.
While making no comment regarding the merits of the
cause of action, claimant under the Act nonetheless has his
common law right of action. If he is denied this as the major-
ity holds, he has no remedy at all. This is not the intent
of this Act.
In our view, the judgment of the trial court should be
affirmed accordingly.
Associate Justices