No. 85-45
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
LINDA HERRON, individually and as
heir to the Estate of ROBERT W.
HERROM,
Plaintiff and Appellant,
PACK AND COMPANY, a Montana
corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman
argued, Kalispell, Montana
For Respondent:
Stephen C. Berg argued, Kalispell, Montana
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Submitted: June 18, 1985
Decided: August 29, 1985
Filed: AUG 2 9 1985
Clerk
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e
Court.
Linda Herron a p p e a l s from a summary judgment ~ n t e r e dby
t h e D i s t r i c t Court o f t h e Eleventh J u d i c i a l District Flathead
County. The D i s t r i c t Court refused t o recognize t h e dual
c a p a c i t y d o c t r i n e which would have a l l o w e d Herron t o m a i n t a i n
a n a c t i o n i n n e g l i g e n c e a g a i n s t Pack and Company, Inc. We
affirm.
Robert Herron was employed by Pack and Company,
h e r e i n a f t e r r e f e r r e d t o a s t h e Company. On J u l y 21, 1984,
R o b e r t H e r r o n was k i l l e d i n a s i n g l e v e h i c l e a c c i d e n t w h i l e
r i d i n g back from work on U.S. Highway no. 2, near Essex,
Montana. It i s a l l e g e d t h a t t h e a c c i d e n t was p r o x i m a t e l y
c a u s e d by negligent, improper and i n s u f f i c i e n t maintenance
upon t h e t r u c k ' s b r a k i n g s y s t e m p e r f o r m e d by employees o f t h e
Company. The Company p r o v i d e d Workers' Compensation c o v e r a g e
t h r o u g h t h e S t a t e Fund and H e r r o n ' s h e i r s r e c e i v e d b e n e f i t s .
On November 15, 1984, Linda Herron filed a wrongful
death and survival a c t i o n i n District Court. The Company
f i l e d a motion t o d i s m i s s a l l e g i n g t h a t § 39-71-411, MCA, t h e
e x c l u s i v e remedy p r o v i s i o n , barred t h e action a s a matter of
law. The District Court granted the Company's motion to
dismiss, ruling that the dual capacity doctrine was
i n c o n s i s t e n t w i t h Montana law.
The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l :
(1) Whether an employee can sue his employer for
n e g l i g e n c e where it i s a l l e g e d t h a t t h e employer o p e r a t e s i n
a d u a l c a p a c i t y and h a s a n e x t r a employer r e l a t i o n s h i p t h a t
is separate and distinct from that of employer/employee.
(2) Whether n e g l i g e n t and i n s u f f i c i e n t m a i n t e n a n c e o f
a v e h i c l e ' s braking system c o n s t i t u t e s an intentional t o r t
f o r p u r p o s e s o f t h e Workers' Compensation A c t .
The exclusive remedy limitation embodied in
S 39-71-411, MCA is both clear and unambiguous. Section
39-71-411, MCA provides:
For all employments covered under the
Workers' Compensation Act or for which an
election has been made for coverage under
this chapter, the provisions of this
chapter are exclusive. Except as
provided in part 5 of this chapter for
uninsured employers and except as
otherwise provided in the Workers'
Compensation Act, employer is not subject
to any liability whatever for the death
of or personal injury to an employee over
indemnity asserted by a third person from
whom damages are sought on account of
such injuries or death. The Workers'
Compensation Act binds the employee
himself, and in case of death binds his
personal representative and all persons
having any right or claim to compensation
for his injury or death, as well as the
employer and the servants and employees
of such employer and those conducting his
business during liquidation, bankruptcy,
or insolvency.
This appeal presents a question concerning the dual
capacity exception to the exclusivity provision of the
Workers' Compensation Act. In an attempt to circumvent the
exclusive remedy limitation, Herron invokes the dual capacity
doctrine.
This doctrine, however, has been subject to
misapplication and abuse by plaintiffs. See Mercer v.
Uniroyal, Inc. (Ohio 1977), 361 N.E.2d 492; Profilet v.
Fallonite (Ill. 1977), 371 N.E.2d 1069; Rosales v. Verson
Allsteel Press Co. (Ill. 1976), 354 N.E.2d 553; Neal v. Roura
Iron Works (Mich. 1975), 238 N.FT.2d 837. The emergence of
the dual persona doctrine is an attempt to correct the
looseness and overextension of the dual capacity doctrine.
"In a sense, a single legal person may be said to have many
'capacities,' since that term has no fixed legal meaning."
Stretching this doctrine to cover the numerous possible
relationships or theories of liability can destroy employer
immunity and "go a long way toward destroying the exclusive
remedy principle." 2A Larson, Workmen's Compensation -
Law
S 72.81 (1982).
Herron argues it was not the intent of the Montana
Legislature in adopting the Workers' Compensation Act to
insulate a grossly negligent employer who assigned extra
duties to its employees simply by strict adherence to the
exclusivity rule. By operating its own separate service
department, appellant maintains that the Company had
generated a different set of obligations to its employees and
had acted in a dual capacity with respect to its employees.
Montana has no line of cases construing $ 39-71-411,
MCA, relative to the dual capacity concept. Herron submits a
United States Supreme Court decision, Reed v. Steamship Yaka
(1963), 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, which
has facts almost identical to the facts of the present case.
In Reed, the plaintiff was a longshoreman who was injured
while loading a vessel that had been leased under a bare-boat
charter by the defendant employer. In addition to being
entitled to compensation benefits, the employee also was
permitted to bring an action against the employer, as
charterer, alleging unseaworthiness of the vessel. The
Supreme Court ruled that the defendant/employer owed a
"traditional, absolute and non-delegable" duty to the
employee that could not be circumvented by the exclusive
remedy provision of the longshoremens' act. 373 U.S. at 415.
The Reed holding has been followed in subsequent United
States Supreme Court cases, as well as several appellate
court decisions. See Jackson v. Lykes Brothers Steamship Co.
(1967), 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488; Griffith
v. Wheeling Pittsburgh Steel Corporation (3rd. Cir. 1975),
521 F.2d 31, cert. den'd., (1976) 423 U.S. 1054, 96 S.Ct.
785, 46 L.Ed.2d 643; Longmeir v . S e a d r i l l i n g C o r p o r a t i o n ( 5 t h
Cir. 1 9 8 0 ) , 610 F.2d 1342.
The C a l i f o r n i a c o u r t s have been the forerunners i n a
minority of jurisdictions adopting the dual capacity
doctrine. I n a r e c e n t C a l i f o r n i a c a s e , h e a v i l y r e l i e d upon
by Herron, a d r i v e r was injured in a fire that developed
while he was transferring propane from his truck to
holding-tanks. The p l a i n t i f f employee was p e r m i t t e d t o b r i n g
a n a c t i o n a g a i n s t t h e employer u n d e r t h e d u a l c a p a c i t y t h e o r y
a l l e g i n g t h a t h e had b e e n i n j u r e d a s a p r o x i m a t e r e s u l t o f
d e f e c t s i n t h e t a n k t r u c k and o t h e r e q u i p m e n t t h a t had b e e n
m o d i f i e d by t h e employer. Bell v. I n d u s t r i a l Vangus, Inc.
( C a l . 19811, 637 P.2d 266.
The Company m a i n t a i n s t h a t B e l l h a s no a p p l i c a t i o n t o
t h e present matter. The B e l l d e c i s i o n c o n c e r n s a n employee
injured as a r e s u l t o f d e f e c t i v e e q u i p m e n t m a n u f a c t u r e d by
the employer. In the instant case, the Company argues,
respondent d i d not manufacture t h e v e h i c l e nor t h e d e f e c t i v e
b r a k i n g equipment which f a t a l l y i n j u r e d M r . Herron.
The Company u r g e s t h i s C o u r t t o a d o p t t h e r u l i n g o f a n
Illinois Supreme Court decision, Romo v. Allin Express
Service, Inc. (Ill. 1982), 436 N.E.2d 20. In Romo, the
e s t a t e o f a n employee b r o u g h t a w r o n g f u l d e a t h a c t i o n a g a i n s t
employer, a l l e g i n g negligence i n t h e maintenance o f a t r u c k .
The I l l i n o i s Supreme C o u r t d i s m i s s e d t h e a c t i o n , h o l d i n g t h a t
t h e a c t i o n b a s e d on d u a l c a p a c i t y was b a r r e d by t h e e x c l u s i v e
remedy p r o v i s i o n o f t h e I l l i n o i s Workers' Compensation A c t .
The c o u r t found s i g n i f i c a n c e i n t h e f a c t t h a t t h e employer
f u r n i s h e d t h e t r u c k t o t h e employee. Because t h e o p e r a t i o n
of t h e t r u c k was a n i n c i d e n t o f h i s employment, the court
r e j e c t e d t h e d u a l c a p a c i t y argument. W e agree.
Herron also argues that the Company's failure to
p r o p e r l y m a i n t a i n t h e v e h i c l e ' s b r a k i n g s y s t e m c o n s t i t u t e s an
intentional tort. However, i n a r e c e n t d e c i s i o n , w e d e c l i n e d
t o r e c o g n i z e a s i m i l a r t o r t a c t i o n by a lumber m i l l employee
against his employer for failing to maintain a safe
workplace. Noonan v. S p r i n g Creek Forest Products, Inc.
(Mont. 1 9 8 5 ) , 7 0 0 P.2d 623, 4 2 St.Rep. 759. Although t h e
hazardous and dangerous nature of the workplace was
recognized, t h i s Court s t a t e d , "to translate this situation
into an inference of tortious intent on behalf of the
employer would r e q u i r e a s t a n d a r d o f law t h i s C o u r t h a s t h u s
f a r refused t o adopt ... " I n a c c o r d w i t h Noonan, w e h o l d
Herron's a c t i o n i n t o r t i s foreclosed.
The summary judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
We c o n c u r : /'
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