No. 85-259
85-260
IN THE SUPREME COURT OF THE STATE OF MONTANA
BARBARA SITZLriN,
Petitioner and Appellant,
-vs-
JAKE SCHUMAKER,
Respondent and Respondent.
JAMES H. SITZMAN,
Petitioner and Appellant,
JAKE SCHUMAKER,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Prairie,
The Honorable R. C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Kelly; Patrick J. Kelly argued, Miles City,
Monta.na
Terry J. Hanson, Miles City, Montana
For Respondent:
Crowley, Haughey, Hanson, Toole & Dietrich; William
J. Mattix argued, Billings, Montana
Submitted: January 30, 1986
Decided: May 15, 1986
Mr. Justice John C. Harrison delivered the Opinion of the
Court.
This is an appeal from a summary judgment of the
District Court in the Seventh Judicial District of the State
of Montana, in and for Prairie County. We reverse and remand
for trial.
The plaintiff, James Sitzman, worked for the defendant,
Jake Shumaker, performing general ranch labor. The two men
did not get along. Shumaker often called Sitzman a
"son-of-a-bitch" and "idiot." Sitzman did not respond to
these names at first, but eventually began shouting back.
The day Sitzman was injured, he and Shumaker were
working together. Shumaker asked Sitzman if the calf feeders
were full. Sitzman responded by telling Shumaker that the
first one was half full, the second about three-quarters
full, and the third one was about two-thirds full. Shumaker
exploded, saying "I believe you, you god damn idiot. Can't
you just say 'yes' or 'no'?" Later in the morning, Shumaker
asked Sitzman if he wanted to work on the tractor. Sitzman
responded, "Yeah, sure, no problem. Let's go to work on it."
Shumaker again exploded, saying, "you god damn
son-of-a-bitch. Why can't you just say 'yes' or 'no'?" When
Sitzman replied, "Don't call me an s.0.b. ," Shumaker walked
over to him and struck him several times in the face.
Sitzman pushed Shumaker to the ground. Shumaker then picked
up a four-foot length of two-inch pipe and held it over his
head. Sitzman asked Shumaker not to hit him, and turned to
walk away. Shumaker hit Sitzman on the back of the head and
when Sitzman turned to protect himself, hit him on the front
of the head, knocking him to the ground, unconscious.
Sitzman suffered severe injuries, including a fractured
skull. The extensive head injuries have altered the course
of his life.
Sitzman applied for and was granted temporary total
disability wage and medical benefits under the Workers'
Compensation Act. He brought this action in the District
Court to recover damages caused by Shumaker's attack. His
wife, Barbara, brought an action for loss of consortium,
society, support, comfort and companionship of her husband
due to his injuries. Shumaker moved for summary judgment.
Judgment was granted in both actions for the stated
reason that because of Sitzman's application for and receipt
of Workers ' Compensation benefits, their remedies were
exclusive to the Workers' Compensation Act. Upon stipulation
of the parties, the Sitzmansl actions were consolidated for
purpose of appeal.
The issue presented for review by Sitzmans is whether
receipt of Workers1 Compensation benefits by them results in
an election pursuant to $ 39-71-411, MCA, thereby barring
them from a common law tort action against employer Shumaker.
Summary judgment is proper only when there is a genuine
issue of material fact and the movant is entitled to prevail
as a matter of law. Cereck v. Albertsonls (1981), 195 Mont.
409, 411, 637 P.2d 509, 510. The lower court, in granting
summary judgment, reasoned that by filing for benefits under
the Workers' Compensation Act "Sitzman became subject to the
provision of the Act and more specifically $ 39-71-411, MCA."
The exclusivity clause, found in $ 39-71-411, MCA,
provides in pertinent part:
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.. ..
The election referred to in § 39-71-411, MCA, however, is the
election to come under the Act made by an employer not
specifically covered by the Act pursuant to 5 39-71-401 (2),
MCA. It has no reference to an employee seeking to recover
for injuries suffered as a result of an assault and battery
committed personally by the employer upon the employee who
also may have filed for and received F70rkers1 Compensation
benefits.
Ordinarily, when an employee is injured in the work
place due to negligence or accident, his remedy is exclusive
to the Workers' Compensation Act. Noonan v. Spring Creek
Forest Products (Mont. 1985), 700 P.2d 623, 625, 42 St.Rep.
759, 762. Common law damages are not available under 5
39-71-411, MCA, for injuries negligently or accidentally
inflicted by an employer. Negligence claims should be
dismissed on this ground. Such are not the facts in this
case--Sitzmanls injuries are not the result of negligence or
accident.
The question then becomes whether there is a permissible
exception under § 39-71-411, MCA, for the tort inflicted by
Shumaker upon Sitzman.
This Court has said:
The "intentional harm" which removes an
employer from the protection of the
exclusivity clause of the Workers '
Compensation Act is such harm as is
maliciously and specifically directed at
an employee ...
out of which such
specific intentional harm the employee
receives injuries as a proximate result.
Great Western Sugar v. District Court (1980), 188 Mont. 1, 7,
610 P.2d 717, 720. There is evidence that Sitzman suffered.
intentional harm maliciously and specifically directed at him
by Shumaker. It i s not reasonable to suppose the legislature
.
intended to give statutory protection in the form of immunity
from suit to an employer who hits his employee in the head
with a pipe while the employee is carrying out his employment
duties.
The egregiousness of these circumstances removes the
exclusivity bar for an employee. In a manner similar to
injury by a £el-low employee, 5 39-71-413, MCA, where the
legislature provided for coverage from an intentional injury,
under the facts of this case, we provide for such coverage
where the injury is by the employer.
There are sound policy reasons for reaching this
decision. The purpose of the Workers' Compensation Act is to
protect both the employer and the employee by incorporating a
quid pro quo for negligent acts by the employer. The
employer is given immunity from suit by an employee who is
injured on the job in return for relinquishing his common law
defenses. The employee is assured of compensation for his
injuries, but foregoes legal recourse against his employer.
To allow an employer to personally commit an assault and
battery upon an employee and hide behind the exclusivity
clause of the Workersf Compensation Act is to disregard the
purpose of the Act. Other employers would have to pay for
his protection. In effect, he would have bought the right to
hit his employees. That is not a quid pro quo. The law does
not allow a wrongdoer to benefit from his wrongs.
Consequently we hold that a narrow exception to the
exclusiveness of the compensation remedy exists where the
employer personally commits an assault and battery upon an
employee.
The summary judgment is reversed. and the case is
remanded for trial consistent with the findings of this
Court.
We concur: /