No. 85-636
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1987
EDWARD MASSEY and LUCILLE MASSEY,
h i s wife,
P l a i n t i f f s and Respondents,
-vs-
R A Y SELENSKY,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f D e e r Lodge,
The Honorable R o b e r t Boyd, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P o o r e , Roth & Robinson; Donald. C . Robinson, B u t t e ,
Montana
For Respondent :
K n i g h t , Dahood, McLean & E v e r e t t ; B e r n a r d J. E v e r e t t ,
Anaconda, Montana
S u b m i t t e d on B r i e f s : Dec. 1 8 , 1986
Decided: January 13, 1987
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from the District Court of the Third
Judicial District in and for the County of Deer Lodge,
Montana, granting plaintiff partial summary judgment. We
reverse and remand.
This the second time this case has been before the
Court. See Massey v. Selensky (Mont. 1984), 685 P.2d 938, 41
St.Rep. 1596. The parties have stipulated to the following
facts: Plaintiff/respondent (Massey) and defendant/appellant
(Selensky), both employed by the Anaconda Smelter, Anaconda
Montana, rode to work in Selensky's pickup truck the morning
of January 8, 1980. They entered the employer's premises by
the main gate and travelled some distance to the change house
or clock house, a small building where the company time clock
was located. The building was at an intersection from which
various roads led to employee parking lots.
Selensky parked his truck on an inclined area near the
clock house and both men walked into the building for the
purpose of punching their time cards. Massey punched-in
first, shortly after 6:30 a.m., and left the building to
walk to the machine shop, where he worked. The shift did not
begin until 7 : 3 0 , but it was his usual practice to punch-in
early, drink coffee with fellow employees, change into work
clothes, and generally prepare for work. The employer was
aware of this practice. As Massey walked toward the machine
shop, Selensky's unoccupied truck rolled backwards down the
incline, struck and injured Massey. He filed a claim with
the Workers' Compensation Division for compensation and
medical expenses incurred for his injuries. The claim was
allowed and Massey received compensation benefits and payment
of medical expenses as allowed by law.
Massey and his wife also filed a complaint against
Selensky in District Court. Both parties moved for summary
judgment. Summary judgment was granted Selensky, and Massey
appealed. We reversed and remanded in Massey, supra, ordering
the District Court to determine whether Selensky was acting
within the course and scope of his employment at the time of
the alleged negligence, making him a co-employee immune from
suit pursuant to S 39-71-412, MCA.
Additional discovery was undertaken, and both parties
again filed motions for partial summary judgment. Following
oral argument, the District Court reversed its first decision
and ordered partial summary judgment on the issue of
co-employee immunity be entered for Massey. Selensky
appeals.
It is appropriate first to emphasize the policy
underlying the Workers' Compensation Act which is to
compensate employees for injuries in the work place without
regard to fault. In turn an employee relinquishes the right
to bring a negligence action against his employer or a fellow
employee. A majority of states provide this immunity from
common law liability. The principle of enterprise liability
was recognized by this Court long before enactment of the
co-employee statutory protection. Madison v. Pierce (1970),
156 Mont. 209, 478 P.2d 860; Mahlum v. Broeder (1966), 147
Mont. 386, 412 P.2d 572; State ex rel. Morgan v. Indus.
Accident Bd. (1956), 130 Mont. 272, 300 P.2d 954.
Co-employee protection is a natural exension of enterprise
liability and relieves the employee of justifiable
apprehension about the possibility of a suit against him.
Co-employee immunity is essential to the integrity of the
Act.
Our previous decision required only that the District
Court focus on Selensky's status at the time of the alleged
negligence. After the first Massey case was handed down, the
parties stipulated that Selensky's negligence occurred at the
time he parked his vehicle near the change house, minutes
before Massey was hurt. We said previously the proper test
for the District Court to determine whether co-worker's
actions were so work related as to make him immune from suit
under 5 39-71-412, MCA, is whether he is acting within the
course and scope of his employment at the time the negligent
acts occurred. Massey, supra, at 940, 41 St.Rep. at 1599.
To determine whether Selensky was acting within the
course and scope of his employment at the time he parked his
truck, the District Court applied the going and coming rule.
Generally, travel by an employee to and from work is outside
the course and scope of employment. Gordon v. H. C. Smith
Construction Co. (1980), 188 Mont. 166, 612 P.2d 668.
Findings of the District Court will be set aside only when
they are clearly erroneous. Rule 52 (a), M. R.Civ. P. We find
it is error to apply the going and coming rule in this case.
The parties already had travelled to and arrived at their
place of work. Rather, the premises rule should be used.
Compensable injuries include those sustained by employees
having fixed hours and place of work who are injured while on
the premises. See Sieck v. Trueblood (Colo. 1971) , 485 P.2d
134, and Stewart v. U.S. (10th Cir. 1982), 716 F.2d 755. The
negligent act occurred on the employer's premises within a
reasonable time before the commencement of Selensky ' s shift.
The conduct of both Massey and Selensky was in accord with
accepted practice at the plant, and was in accordance with
their repeated and usual procedure. Massey was found to be
an employee at the time of the accident. Selensky's
temporarily parking his truck in an area where parking was
not permitted is legally insignificant for purposes of
determining his status as employee.
When analyzing misconduct for the purpose of
determining status, a distinction must be made between
prohibited activities outside the boundaries of the ultimate
work to be done, such as using a machine to cut paper for
employee's personal use, in violation of company policy, and
prohibited methods of doing the work, such as a pilot who,
while giving a lesson, flies at an altitude in violation of a
rule limiting altitude. Misconduct which involves violation
of regulations or prohibitions relating to method of
accomplishing a task does not take an employee outside the
course and scope of employment. See 1A Larson, Workmen's
Compensation Law, Sec. 31, pp. 6-8. Parking in a restricted
zone on the employer's property while punching-in had been a
common practice of numerous employees over a considerable
period of time. Such a practice is not that type of conduct
which takes one outside the course and scope of his
employment.
We find the negligent act of parking his truck for the
purpose of punching-in does not remove Selensky from the
co-employee immunity protecting him from common law
liability.
We reverse and remand to the District Court for an
We concur: a
/
,
Mr. Justice Frank B. Morrison, Jr. dissents as follows:
This rather amazing majority opinion flies directly in
the face of the first case before this Court entitled Massey
v. Selensky (Mont. 1984), 685 P.2d 938, 41 St.Rep. 1596. In
that case we held there was a fact question about whether
Selensky was at work when he temporarily stopped his pickup
truck on the employer's premises. Selensky walked into the
clock house to "punch-in" and then was going to return to his
vehicle so that he could take it to the employee parking lot.
The trial court held that, as a matter of law, Selensky was
not at work at the time he stopped the truck. He certainly
had not punched in.
This Court finds as a matter of law that Selensky was
"on the job" when he temporarily stopped the truck. The very
most favorable view to the defense should result in a fact
question that must be resolved by the jury. This would
require reversing summary judgment in favor of the plaintiff
and remanding for a trial.
This Court, in finding there is no fact issue, runs
directly contrary to our other decision. If there was no
fact question for submission to a jury then the first case
should have resulted in summary judgment for the defendant.
The majority opinion is but another example of the
inconsistency of approaches emanating from this Court. We do
not follow the law. We simply make it up as we go.