Jacques v. Nelson

NO. 14311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978

MICHAEL R. JACQUES,
Plaintiff and Appellant,

THEODORE R. NELSON, THE ANACONDA
COMPANY, THE MONTANA NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS OF THE
STATE OF MONTANA, and STATE OF MONTANA,
Defendants and Respondents.

Appeal from: District Court of the Third Judicial District,
Honorable Robert Boyd, Judge presiding.
Counsel of Record:

For Appellant:
Greg Skakles argued, Anaconda, Montana
For Respondents:
D. L. Holland argued, Butte, Montana

Submitted: December 18, 1978
Decided: F F r 7
- &-I979
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiff appeals from a judgment of the District Court
of Deer Lodge County dismissing his damage action for personal
injuries.
Plaintiff was injured at his employer's Anaconda Reduc-
tion Works on February 6, 1977. The accident occurred when Larry
Raver, a fellow employee of defendant Anaconda Company, dropped
a warhead which exploded, killing Raver and seriously injuring
plaintiff.
On March 7 plaintiff filed a claim for compensation with
the State Workers' Compensation Division. Defendant Anaconda
Company did not file an employee's first report of injury. On
April 5 Anaconda Company notified the Division it was denying
plaintiff's claim. Plaintiff alleges that he never received
notice of this denial.
On April 7 plaintiff filed a common law tort action for
damages against his employer (the Anaconda Company) and the per-
sonal representatives of the estate of his fellow employee, Larry
Raver (Theodore R Nelson).
. The Anaconda Company filed a motion
to dismiss the complaint on the grounds that plaintiff's exclu-
sive remedy was under the Workmen's Compensation Act.
The District Court granted Anaconda's motion, dismissed
plaintiff's complaint, but no judgment was entered thereon. This
Court dismissed plaintiff's appeal without prejudice on the
ground that the appeal was premature where no judgment had been
entered.
Thereafter plaintiff filed an amended complaint in the
District Court. On April 26 the District Court dismissed the
amended complaint and entered final judgment for defendant Anaconda
Company. Plaintiff appeals from this judgment.
The underlying issue is whether plaintiff's exclusive
remedy for his injuries is under the Workmen's Compensation Act.
 Plaintiff contends that the Workmen's Compensation Act
is not his exclusive remedy because his employer elected not
to be bound by the Act by (1) failing to file the employer's
first report of injury, and (2) failing to notify him that they
were denying his claim under the Act.
Defendant Anaconda Company argues that the Act consti-
tutes plaintiff's exclusive remedy for his injuries. The Company
claims it was not required to file an employer's first report
of injury since the explosion occurred outside the course and
scope of plaintiff's employment and to do so would be admitting
this defense. The Company further contends that any failure on
its part to give plaintiff employee notice of rejection of his
claim under the Act did not eliminate plaintiff's exclusive remedy
under the Act.
All Montana employments are covered by the Workmen's
Compensation Act unless excluded by statute. At the time of
plaintiff's injury the controlling statute provided in pertinent
part :
"This Act applies .. . to all private employment
not expressly exempted by section 92-202.1 . . ."
Section 92-207.1, R.C.M. 1947, since repealed by
Chapter 550, Section 9, 1977 Session Laws.
NO eremption of plaintiff's employment is contained in section
92-202.1, R.C.M. 1947. It is conceded that plaintiff's employer
was covered by the Act.
The Act requires the employer to file a first report of
injury. Section 92-808, R.C.M. 1947, now section 39-71-307(1)
MCA. Here, plaintiff's employer failed to do so. The Act pro-
vides a civil penalty of not more than $1,000 against the employer
for failure to file the first report of injury. Section 41-1718(3),
R.C.M. 1947, now section 50-71-325(3) MCA. Nowhere in the Act
does such failure constitute an election by the employer not to
be bound by the Act or subject him to a common law tort action.
The mandatory coverage of all private employment not expressly
exempted under the Act would be nullified were we to hold
that such failure removes Workmen's Compensation coverage.
The Act further requires the employer to give written
notice to the employee of denial of his claim. Section 92-
615, R.C.M. 1947, now section 39-71-606 MCA. Plaintiff alleges
he never received such notice. The Act provides for the im-
position of a 10% penalty if compensation is awarded by the
Workers' Compensation Court. Section 92-849, R.C.M. 1947, now
section 39-71-2907 MCA. Nowhere in the Act does failure to
give such notice remove the employee from coverage under the
Act or subject him to a common law tort action.
If the law were otherwise, the purpose and intent of the
mandatory coverage of the Act would be effectively subverted.
The employer could eliminate the coverage of the Act over a
particular employee or a particular accident at will simply by
refusing to file an accident report or failing to notify its
employee of denial of his claim. This would indeed be a unique
and unparalleled kind of Workmen's Compensation coverage.
In summary, we hold that on the record before us the pro-
visions of the Workmen's Compensation provides the exclusive
remedy for plaintiff's injuries and that plaintiff's common law
tort action for damages is barred by reason thereof. We retain
continuing jurisdiction of this judgment for the purpose of
amendment, modification or alteration thereof to prevent plain-
tiff from being left without remedy for his injuries should the
Workers' Compensation Court hereafter determine that the acci-
dent did not occur within the course and scope of plaintiff's
employment.
Affirmed.
 Chief J u s t i c e

Justices