No. 85-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
LOUISE N. GIDLEY, individually and
as Personal Representative of the
Estate of James I. Gidley, Deceased,
Plaintiff and Appellant,
W. R. GRACE & COMPANY, a Connecticut
corporation, GRACE W. R. & COMPANY-
CONSTRUCTION PRODUCTS DIVISION, an
unincorporated association, and JOHN
DOES I THROUGH V.,
Defendants and Respondents.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Murphy, Robinson, Heckathorn & Phillips; I. James
Heckathorn argued, Kalispell, Montana
For Respondents:
Garlington, Lohn & Robinson; Gary L. Graham argued,
Missoula, Montana
Submitted: February 18, 1986
Decided: April 15, 1986
Filed: APR 1 5 4986
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Louise Gidley (wife), personal representative of de-
ceased husband who allegedly died from asbestosis-related
cancer, sought judgment against W.R. Grace & Company (Grace)
under theories of wrongful death and misrepresentation. Upon
motion by Grace, the Lincoln County District Court granted
partial summary judgment dismissing the wrongful death action
on the ground that the Montana Occupational Disease Act
(MODA) provided the exclusive remedy. Wife appeals. Fe
J
reverse and remand.
The sole issue on appeal is whether MODA was Mr.
Gidley's exclusive remedy against Grace.
In July 1977, husband worked his ,-astday for Grace. He
died. in May 1982. Wife alleges husband discovered he had
cancer in June 1981, three years and eleven months after his
last actual day of work. In July 1982, wife filed for bene-
fits under MODA. The claim was denied by Grace because it
was not timely filed within three years after husband's last
actual day of work under S S 39-72-403 and -406, MCA (1981).
In June 1984, wife filed an action against Grace alleging
wrongful death and misrepresentation. Later, the court
dismissed the wrongful death action on the ground MODA pro-
vided the exclusive remedy.
Was MODA Mr. Gidley's exclusive remedy against Grace?
Our initial question is which MODA statutes control the
claim; those in effect on Mr. Gidley's last actual day of
work in July 1977, or those in effect at the alleged time of
discovery of the disease in June 1981, or those in effect
when the claim was originally filed in July 1982? As to
MODA, this issue is novel. However, it has been considered a
number of times in workers' compensation cases and the Court
has concluded that the statute in effect at the date of
accident or injury controls. See Iverson v. Argonaut Insur-
ance Company (1982), 198 Mont. 340, 342, 645 P.2d 1366, 1-367;
Yurkovich v. Industrial Accident Board (1957), 132 Mont. 77,
86, 314 P.2d 866, 872; Chisholm v. Vocational School for
Girls (1936), 103 Mont. 503, 510, 64 P . 2d 8 3 8 , 842-43. We
conclude that the same rationale should be applied in MODA
claims. Here, Mr. Gidley's last actual day of work was in
July 1977. We therefore conclude t.hat MODA statutes in
effect on his last actual d-ay of work are controlling.
MODA was originally enacted in 1959. Sections 92-1308
and 92-1331 governed rights of suit at common law until 1979,
when § 92-1308 was amended and S 92-1331 was repealed. As
applicable here, S S 92-1308 and 92-1331 stated:
. Ri ht to compensation exclusive
4.-
remedy. The rlght to recover compensa-
tion PU .rsuant 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 he bound by and
subject to this act, except as to such
employees as shall reject this act as
provided herein.
92-1331- Rights - - - -
of suit at common -
- law.
There shall be no common-law right of
action for damage from occupational
disease against an employer who elects to
come under the ~rovisians of this act,
excepting for thbse employees not eligii
ble for compensation under the terms of
this act, or who reject coverage of this
act.
Under § 92-1308, where an employer elected to be bound
by MODA, the rights of an employee were limited to MODA
unless an employee had rejected MODA. Affirmative rejection
appeared to be the only means by which an employee could step
out from under MODA and preserve a common law right of ac-
tion. In substance § 92-1331 provided for a common law right
of action when either the employee rejected coverage or the
employee was not eligible for compensation under the terms of
MODA. Consequently, it appears the statutes are not in
agreement on the issue of common law rights. One statute
makes MODA the exclusive remedy unless affirmatively reject-
ed. The other statute makes MODA the exclusive remedy unless
MODA is rejected or the employee is not eligible for compen-
sation under the terms of NODA. We conclude that the stat-
utes are at least ambiguous, if not contradictory.
We therefore review PODA's legislative history. See
Dorn v. Bd. of Trust. of Billings Sch. Dist. (Mont. 1983),
661 P.2d 426, 40 St.Rep. 348. In 1959, MODA was introduced
as Senate Bill #112. As originally introduced, section 31 of
Senate Bill #I12 prohibited a common lav~ right of action
stating:
There shall be no common law right of
action for dama.ge from occupational
disease against an employer who elects to
come under the provisions of this act.
This proposal was debated in the Senate Committee on Labor
and Compensation. Employee representatives presented objec-
tions that the employers were getting the benefit of waiver
provisions at the expense of the common law rights of employ-
ees. As an example, under § 92-1330, if an employee failed a
requested physical exam because the employee already had an
occupational disease, then as a condition of employment the
employer could request the employee to waive his rights to
MODA benefits. In addition, even if an employee passed a
requested medical examination, no benefits were granted
unless the employee had worked a minimum of 1000 workshifts
and also timely filed his claim within a prescribed period
after his last actual day of work.
After debate, the Senate Committee of the Whole (Commit-
tee) recommended that the bill be amended. The
recommendation of the Committee regardin.q common law rights
was approved by both the Sena.te and the House. Later, the
bill was signed into law by the Governor and read:
92-1331. Rights of suit at common law.
There shall be no common-law right of
action for damage from occupational
disease against an employer who elects to
come under the provisions of this act,
excepting - thbse employees - eligi-
for not
hie - -
- for compensation under - terms of
the
- -act, or who reject coverage - - z
this - - of t h
act (adopted amendment underscored) .
Section 92-1368, RCM (1947) a.s amended, provided that
the MODA is to be liberally construed. Although this Court
has not previously considered R 92-1368, it is directly
comparable to a similar provision of the Workers' Compensa-
tion Act. Because both Acts involve the same
employer-employee relationship, we conclude that the same
rules of liberal construction which have been applied by the
Court to Workers' Compensation Act cases should also be
applied to MODA cases. We therefore conclude that MODA shall
be liberally construed in favor of the claimant. Stokes v.
Delaney & Sons, Inc. (1964), 143 Mont. 516, 519-20, 391 P.2d.
698, 700. We also conclude that MODA is to be administered
so as to give the employee the greatest possible protection
within the purposes of the Act. Yurkovich v. Industrial
Accident Board (1957), 132 Mont. 77, 83, 314 P.2d 866, 870.
We further conclude that when MODA statutes are open to more
than one interpretation, one of which is favorable to the
employee and another against him, the Court may properly
construe the statutes in a manner most favorable to the
employee. Geary v. Anaconda Copper Mining Co. (1947), 120
Mont. 485, 489, 188 P . 2 d 185, 186.
While the legislative history on S 92-1308 and S 92-1331
may not be determinative of the issue, it does establish that
the Committee carefully considered the question of common law
rights of employees, and recommended an amendment that ap-
pears to allow common law action by an employee in two dif-
ferent circumstances. Notwithstanding the provisions of S
92-1308, our question is whether S 92-1331 allows a common
law right of action in the present case because Mr. Gidley
was not eligible for compensation under MODA. Applying the
above described liberal rule of construction, we conclude
that wife has a common law right of action in behalf of P r
l.
Gidley because he was not eligible for compensation under
MODA.
This conclusion contradicts Anaconda Co. v. District C.
of S.J.D. In and For C. of S.B. (1973), 161 Mont. 318, 506
P.2d 81, which was relied upon by the District Court. We
have carefully considered Anaconda, and have studied both the
majority and the dissent. We note that the majority in
Anaconda did not explain why it concluded that where the
employer had elected to be bound by MODA, such an election of
necessity bound the employee. As is indicated by our more
extensive analysis of MODA, we conclude that where the em-
ployee was not eligible for compensation because of the
running of the limitation period, he comes within the statu-
tory definition of an employee who is not eligible for com-
pensation and is therefore entitled to his common law right
of action. We essentially agree with the dissent in Anaconda
that pointed out that if an employee was not eligible for
compensation under MODA then common law remedies were pre-
served. We therefore expressly overrule Anaconda insofar as
it is inconsistent with the holding of this opinion.
Under the applicable MODA statutes, a claim was required
to be timely filed within three years from Mr. Gidley's last
actual day of work. Wife alleges that Mr. Gidley did not
discover his occupational disease until three years and
eleven months after his last actual day of work. As a re-
sult, Mr. Gidley was not eligible under the terms of MODA for
compensation. F e hold his common law right of action was
7
preserved. In doing so, we make no comments regarding the
merits of the case itself.
We reverse the judgment of the District Court and direct
the reinstatement of the plaintiff's claim for relief.
We Concur: /