Webb v. Montana Masonry Construction Co.

No. 87-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

ROCKY L. WEBB,
Plaintiff,
-VS-

MONTANA MASONRY CONSTRUCTION COMPANY,
a Montana corporation, and ALDINGER
CONSTRUCTION COMPANY, INC., a Montana
corporation,
Defendants.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Plaintiff:
Jarussi & Bishop; Gene R. Jarussi argued, Billings,
Montana
For Defendants:
Jardine, Stephenson, Blewett & Weaver; Steven Potts
argued, Great Falls, Montana

Submitted: arch 31, 1988
Decided: ~ u q u s t11, 1988

Clerk
Honorable Gordon R. Bennett, District Judge, delivered the
Opinion of the Court.
Honorable Paul G. Hatfield, United States District
Judge for the District of Montana, has certified to this
Court under Rule 44 of the Montana Rules of Appellate Proce-
dure the following question:
Where a general contractor is compelled,
pursuant to Section 39-71-405(l), Mon-
tana Code Annotated, to pay workers'
compensation benefits to an employee of
an uninsured subcontractor, is that
general contractor's liability limited,
by Section 39-71-411, Montana Code
Annotated, to compensation under the
Workers1 Compensation Act?
The statutes referred to provide:
39-71-405. Liability of employer who
contracts --
work out. ( 1 ) ~ n
employer who
contracts with an independent contractor
to have work performed of a kind which
is a regular or a recurrent part of the
work of the trade, business, occupation,
or profession of such employer is liable
for the payment of benefits under this
chapter to the employees of the contrac-
tor if the contractor has not properly
complied with the coverage requirements
of the Workers' Compensation Act. Any
insurer who becomes liable for payment
of benefits may recover the amount of
benefits paid and to be paid and neces-
sary expenses from the contractor pri-
marily liable therein.
39-71-411. Provisions of chapter exclu-
sive remedy--nonliabilyty - insured
of
employer. For all employments covered
under the Workers' Compensation Act or
for which an election has been made for
coverage under this chapter, the provi-
sions of this chapter are exclusive.
Except as provided in part 5 of this
chapter for uninsured employers and
except as otherwise provided in the
 Workers1 Compensation Act, an employer
is not subject to any liability whatever
for the death of or personal injury to
an employee covered by the Workers'
Compensation Act or for any claims for
contribution or indemnity asserted by a
third person from whom damages are
sought on account of such injuries or
death. The Workers1 Compensation Act
binds the employee himself, and in case
of death binds his personal representa-
tive 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.
The following facts are stipulated:
1. In 1985, Aldinger Construction, Inc.
(hereinafter referred to as "Aldinger") ,
was the general contractor hired by the
Bainville School District to remove an
existing building and construct a new
school building. Montana Masonry Con-
struction Company (hereinafter referred
to as "Montana Masonry") was a subcon-
tractor on the project. Rocky L. Webb
(hereinafter referred to as "Webb") was
an employee of Montana Masonry.
2. On or about September 11, 1985, Webb
was injured in an accident which arose
out of and in the course of his employ-
ment with Montana Masonry.
3. By reason of the employer-employee
relationship between Webb and Montana
Masonry, Montana Masonry was required by
Montana law to provide workers1 compen-
sation insurance coverage for Webb.
Montana Masonry failed to provide said
coverage for the accident which occurred
on or about September 11, 1985.
4. On the date of the accident,
Aldinger did carry workers' compensation
 coverage through the State Compensation
Insurance Fund.
5. Since Montana Masonry had not prop-
erly complied with the coverage require-
ments of the Workers ' Compensation Act,
the State Compensation Insurance Fund
became liable for payment of benefits by
reason of the provisions of
5 39-71-405 (1), MCA.
6. On or about December 22, 1986, Webb
initiated the present action. Webb is
seeking compensation for his injuries
from Montana Masonry and Aldinger on the
grounds that they failed to comply with
the requirements of the Montana Scaffold
Act and also failed to provide a safe
place to work as provided by 5 50-71-201
et seq., MCA.
7. As of the date of the Joint Motion,
Montana Masonry has not been served with
the lawsuit. However, Aldinger has been
served and has filed an Answer denying
liability. In addition, Aldinger has
asserted in its Third Affirmative De-
fense that since it was required to and
did pay compensation and medical bene-
fits to Webb, an employee of Montana
Masonry, pursuant to the provisions of
the Workers' Compensation Act, Aldinger
is entitled to the insulation provided
employers under the Workers' Compensa-
tion Act, including those provisions of
§ 39-71-411, MCA.

Section 39-71-412, MCA, provides in pertinent part:
The right to compensation . .
. is not
affected by the fact that the injury
... is caused by the negligence of a
third party other than the employer.
... Whenever such event ... is
caused by the act or omission of some
persons or corporations other than his
employer ... , the employee, . .. in
addition to the right to receive compen-
sation under this chapter, [has] a right
 to prosecute any cause of action he may
have for damages against such persons or
corporations.
The question here is whether Webb may maintain an
action for negligence against Aldinger under the above stat-
ute and circumstances. We hold that he can, and that the
answer to the question certified is, therefore, "no."
The question upon which this answer turns is whether
Aldinger becomes clothed with immunity under , 39-71-411,
§

MCA, by becoming liable under 5 39-71-405(1), MCA, due to the
failure of Montana Masonry to provide coverage under the
Workers' Compensation Act. The question is not without
difficulty or a considerable history.
The Act, originally passed in 1909 (Chapter 67, Laws of
1909) , was found unconstitutional because it did not protect
an employer who furnished compensation under it from being
sued by the injured worker. Because no provision was made
for reimbursement, in whole or in part, the Court found that
the employer against whom an action was successfully prose-
cuted would be compelled to pay twice. The Court saw this as
a violation of the employer's right to equal protection of
the laws. See, Cunningham v. Northwestern Improvement Co.
(1911), 44 Mont. 180, 119 P. 554. The legislature tried
again in 1915, providing specifically for immunity for any
employer who elected to pay compensation under the Act (Sec-
tion 3, Chapter 96, Laws of 1915) . The new Act passed con-
stitutional muster in Shea v. North-Butte Mining Co. (1919),
55 Mont. 523, 179 P. 499, wherein it was held the Act did not
offend the Constitution by closing the courts to injured
workmen who had chosen to become subject to the Act. Shea,
55 Mont. at 533-534, 179 P. at 503.
The question of an owner's or general contractor's
reciprocal immunity arising from liability for a noncomplying
subcontractor did not arise until after the 1965 legislature
amended the definition of an independent contractor by
adding:
But the legal defense of independent
contractor shall not bar otherwise
compensable industrial accident claims
against employers except when such
defense is interposed on behalf of a
party who has previously required the
claimant's immediate employer to come
within the workman's compensation act.
Chapter 49, Laws of 1965, amending $ 92-438, R.C.M. 1947.
In Ashcraft v. Montana Power Co. (1971), 156 Mont. 368,
480 P.2d 812, this Court extended the legal defense to an
industrial accident claim provided for in the amendment to
$ 92-438, R.C.M. 1947, to immunity from any liability on the
part of any employer who required a subcontractor to comply
with the Act. The decision turned on a phrase borrowed from
Wells v. Thi11 (1969), 153 Mont. 28, 32-33, 452 P.2d 1015,
1017, which was in turn borrowed from a Wisconsin independent
contractor case: "In every such instance where the contrac-
tor is in full supervision and control of the work, he alone
becomes liable to his employees under the statute for inju-
ries sustained. The Court, concluding that this sentence

The question in the case cited (Potter v. City of
Kenosha (Wisc. 1955), 68 N.W.2d 4) was whether the
city, as owner of the streets, was liable under Wiscon-
sin's "safe place statute" for the injury of an inde-
pendent contractor's employee because it permitted the
contractor to work in a trench in the street without
shoring it was required by the safety code. The court
concluded the contractor was liable because he was
independent and that the city was not liable because it
had contracted for a sewer, not a trench, and therefore
had no control over the trench. The case had nothing
to do with workmen's compensation, as such.
made the immunity of the employer of an independent contrac-
tor "axiomatic" under S 92-438, R.C.M. 1947, stated that its
holding was "strictly limited to circumstances in which the
injured employee's immediate employer is an independent
contractor who is required to carry workmen's compensation
insurance by his general employer." Ashcraft, 156 Mont. at
370, 480 P.2d at 813.
The term "statutory employer" was not mentioned in the
Ashcraft majority opinion. But Justice Daly, dissenting,
asserted the majority had created a statutory employer on the
authority of Professor Arthur Larson's Workmen's Compensation
- Vol. 2A, S 72.31.
Law, Subsection 72-31(a) of that work
states:
When subcontractor is not insured.
Forty-four states now have "statutory-
employer" or "contractor-under" statutes
--i. e., statutes which provide that the
general contractor shall be liable for
compensation to the employee of a sub-
contractor under him, usually when the
subcontractor is uninsured but sometimes
without reference to the insured status
of the subcontractor, doing work which
is part of the business, trade or occu-
pation of the principal contractor.
Since the general contractor is thereby,
in effect, made the employer for the
purposes of the compensation statute, it
is obvious that he should enjoy the
regular immunity of an employer from
third-party suit when the facts are such
that he could be made liable for compen-
sation; and the great majority of cases
have so held. This result is not af-
fected by the fact that no compensation
claim has been brought against the
 general contractor by the employee, or
that compensation benefits were volun-
tarily paid by the general contractor.
[Citations omitted.]
In Buerkle v. Montana Power Company (1971), 157 Mont.
57, 59, 482 P.2d 564, 568, a case characterized by the Court
as a "sequel" to Ashcraft, the plaintiff urged that the
exception in 5 92-438, R.C.M. 1947, should be limited in
effect to the Workmen's Compensation Act and should not be a
bar to third party liability suits grounded on the common
law. In concluding otherwise, this Court observed: "The
system of compensation under the Workmen's Compensation Act
does not envision benefits drawn from a single employer by a
common law tort action together with liability from workmen's
compensation insurance." In so holding, the Court cited the
passage from Larson set forth above. Buerkle, 157 Mont. at
62, 482 P.2d at 566-567. It could be fairly said that the
Buerkle case set this state firmly in the "statutory employ-
er" column, granting immunity from common law tort action to
all employers who were liable under the Workmen's Compensa-
tion Act.
This quid pro quo concept was affirmed in First Nation-
al Bank v. District Court (1973), 161 Mont. 127, 505 P.2d
408, a case in which immunity was clearly and specifically
extended, under 5 92-438, R.C.M. 1947, to owners who required
their independent contractors to provide workmen's compensa-
tion coverage against claims of employees of their subcon-
tractors. 161 Mont. at 133, 505 P.2d at 411. But the
immunity did not stop there. The Court went on to accord the
statutory employer immunity to the owner, even though it did
not contractually require the injured employee's immediate
employer to carry workmen's compensation, thus at least
eroding one of the two requirements for application of the
rule laid down in Ashcraft--i.e., that the employer require
the independent contractor to be covered.
The accident in First National Bank, supra, occurred
February 5, 1971, the case was submitted to this Court Novem-
ber 28, 1972, and decided January 9, 1973. On March 22,
1972, the 1972 Montana Constitutional Convention adopted the
declaration of rights article (11) of our present Constitu-
tion, to be effective, prospectively, on July 1, 1973. Mont.
Const. Conv., Vol. 11, pp. 1104 and 1108. The Constitution
was approved by the electorate on June 6, 1972. Section 16
of Article I1 of the Constitution provides:
Section 16. The administration of
justice. Courts of justice shall be
open to every person, and speedy remedy
afforded for every injury of person,
property, or character. No person shall
be deprived of this full legal redress
for injury incurred in employment for
which another person may be liable
except as to fellow employees and his
immediate employer who hired him if such
immediate employer provides coverage
under the Workmen's Compensation Laws of
this state. Rights and justice shall be
administered without sale, denial, or
delay.
The president of the convention was Leo Graybill, Jr., of the
law firm which represented the claimant in Wells v. Thill,
supra, upon which, as noted, Ashcraft was based, and the
Chairman of the Bill of Rights Committee, which formulated
the Declaration of Rights article, was Wade J. Dahood of the
law firm which represented the claimant in Ashcraft, supra.
The second sentence of Section 16 speaks loudly and
clearly for itself. If there could be any question about
what the members intended the sentence to mean, the question
can be answered by reference to the transcript of the conven-
tion. Delegate Marshall Murray, a Kalispell attorney, moved,
on behalf of a unanimous Bill of Rights Committee, for the
adoption of Section 16, which amended the 1889 Constitution
by adding the workmen's compensation provision of the second
sentence. In so doing, Delegate Murray announced:
... The committee felt, in light of a
recent interpretation of the Workmen's
Compensation law, that this remedy
needed to be explicitly guaranteed to
persons who may be employed by one
covered by Workmen's Compensation to
work on the facilities of another.
Under Montana law, as announced in the
recent decision of Ashcraft versus
Montana Power Company, the employee has
no redress against third parties for
injuries caused by them if his immediate
employer is covered under the Workmen's
Compensation law. The committee feels
that this violates the spirit of the
guarantee of a speedy remedy for all
injuries of person, property or charac-
ter. It is this specific denial, and
this one only, that the committee in-
tends to alter with the following addi-
tional wording: "No person shall be
deprived of his full legal redress for
injury incurred in employment for which
another person may be liable except as
to fellow employees and his immediate
employer who hired him if such immediate
employer provides coverage under the
Workmen's Compensation laws of this
state." In other words, the committee
wants to insure that the Workmen's
Compensation laws of the state will be
used for their original purpose--to
provide compensation to injured
workmen--rather than to deprive an
injured worker of redress against negli-
gent third parties, beyond his employer
and fellow employees, because his imme-
diate employer is covered by Workmen's
Compensation. The committee believes
that clarifying this remedy would have a
salutary effect on the conscientiousness
of persons who may contract out work to
be done on their premises. To permit no
 remedy against third parties in cases
where the employer is covered by Work-
men's Compensation is to encourage
persons with rundown premises to con-
tract out work without improving the
quality of the premises. The committee
urges that this is an abuse of the
Workmen's Compensation law and consti-
tutes a misapplication of that law to
protect persons who are negligent. The
committee commends this provision to the
Convention with the belief that it is an
important, if technical, aspect of the
administration of justice. Those are
the remarks which are contained in the
booklet. Let me amplify them by saying
basically this: we felt that the right
to third party action is a right which
we should establish in our Constitution.
It is a right which working men and
women who are unfortunate enough to be
injured have had for nearly 80 years in
this state. We feel that it was wrongly
taken away from these people by the
Supreme Court decision which was men-
tioned. We feel that we perhaps are
legislating in asking that this be
written into our Constitution, but we of
the committee really believe that we are
acting in a judicial manner in asking
that it be written in the Constitution
for we feel that this Convention, per-
haps, is the court of last resort for
injured working men and women in Montana
with respect to the third party lawsuit,
and we recommend that the section be
adopted.
Mont. Const. Conv., Vol. V, pp. 1753-1754.
Delegate Otto Habedank, a Sidney attorney, moved for
deletion of the provision and argued against it on the ground
the same result could be obtained by legislation. The motion
failed on a vote of 76 to 14, and the section was approved
without a dissenting vote. Mont. Const. Conv., ~ o l . V, pp.
1754-1760. On this record, it must be concluded without
equivocation that our 1972 Constitutional Convention deter-
mined that Professor Larson's grant of immunity to statutory
employers was to be excised from Montana law, root and
branch, forever.
The legislative session immediately following the
Constitutional Convention responded to the command of Article
11, Section 16, of the new Constitution by reworking the
Workers' Compensation Act. It repealed in its entirety
5 92-438, R.C.M. 1947, the section around which this Court
had structured its statutory employer immunity principle.
See, Section 2, Chapter 251, Laws of 1973. It also enacted a
new paragraph which has become 5 39-71-405 (1), MCA (see
current text above), which provided:
Any employer who contracts to have work
performed of a kind which is a regular
or a recurrent part of the work of the
trade, business, occupation or profes-
sion of such employer shall be liable
for the payment of compensation to the
employees of any subcontractor unless
the iubcontracto; primarily liable for
the payment of such compensation has
coverage under this act. Any employers
who shall become liable -- compen-
for such
sation may recover the amount - -
of bene-
L
fits ~ a i d and necessarv exDenses from
- z &

the subcontractor primarily liable
therein. [Emphasis added. 1
Section 1, Chapter 154, Laws of 1973 (second paragraph).
It is of particular interest to note that the legisla-
ture used, for the first time, the term "primarily liable";
that the "primarily liable" subcontractor was ultimately
responsible for payment of benefits; and that an employer
paying benefits on behalf of a noncovered subcontractor was
entitled to look to the subcontractor for indemnification.
In this way, it would seem, the legislature intended to avoid
the double payment problems first encountered in Cunningham,
supra, and to provide the employer with a means of avoiding
loss because of a noncomplying contractor, but not to immu-
nize a negligent employer from a third party action. The
language of this subsection was altered by the 1979 legisla-
ture to accommodate specific reference to independent con-
tractors, and to make it clear insurers, including, we
suppose, self-insured employers, were entitled to recover
benefits paid on behalf of primarily liable contractors,
leaving unaltered the basic thrust of the section: the lia-
bility for payment of benefits stayed with the immediate
employer, as did the immunity.
Clayton R. Fiscus was injured May 27, 1971, while
working for a subcontractor of Beartooth Electric
Co-operative, which had not required the subcontractor to
carry workmen's compensation. The proceedings, in Fiscus v.
Beartooth Electric (1974), 164 Mont. 319, 522 P.2d 87, were
therefore not affected by the 1972 Constitution or the 1973
enactments pursuant thereto, even though the case was submit-
ted and decided after the effective date of both. See,
Poulson v. Walsh-Groves (1975), 166 Mont. 163, 531 P.2d 1335.
Characterizing it as a "step-out" from Ashcraft and Buerkle,
this Court held the employer enjoyed immunity even though it
had not required the subcontractor to carry workmen's compen-
sation insurance and even though the subcontractor had not
only had insurance but had paid the claimant from it. The
latter feature was the new one in the case because the Court
had already decided in the First National Bank extension of
the Ashcraft case that the employer enjoyed immunity even
though it had not contractually required its subcontractor to
insure. As to this new feature, it was concluded that immu-
nity was justified in the case where the owner or employer
did not require the subcontractor to be insured because the
owner or contractor was subject to liability as the statutory
employer in the event the subcontractor did not maintain
workers' compensation coverage. The fact that the subcon-
tractor had, in the Fiscus case, actually maintained the
coverage, even though not required to do so by the owner, was
of no moment because the potential for liability on the part
of the owner was present. Fiscus, 164 Mont. at 326, 522 P.2d
at 90. This Court unanimously overruled the Fiscus "step
out1' in Piper v. Lockwood Water Users Assn. (1978), 175 Mont.
242, 573 P.2d 646.
With this history in mind, we consider the arguments
presented.
Aldinger's initial and central argument is that it is
entitled to immunity as Webb's statutory employer. Its
principal reliance is on the 1972 case of Kelleher v. State
(1972), 160 Mont. 365, 503 P.2d 29, in which Justice Daly,
writing for the majority, adopted Professor Larson's statuto-
ry employer concept and concluded: " . .. the rationale of
the statutory employer-employee extension by the legislature
is for the benefit of the employee and that such a benefit
conferring a liability on the employer is co-existent with
immunity from common law liability." 160 Mont. at 369-370,
503 P.2d at 31. Kelleher, of course, followed Ashcraft in
both time and legal principle. Reliance on it in this case
is defective for at least three reasons, as heretofore noted.
First, the statute upon which the statutory employer concept
was enacted for Montana ( 5 92-438, R.C.M. 1947) has been
repealed. Second, the Ashcraft holding was expressly and
specifically overruled by the people of the state with their
approval of Article 11, Section 16, of the 1972 Constitution,
in which they directed that immunity would be restricted to
an "immediate employer who hired" the workmen and who had
provided coverage. Third, the 1973 Montana legislature
implemented the new constitutional provision by amending
5 39-71-405, MCA, to provide that employers such as Aldinger
who were required to pay, as self-insurers or through their
insurance, compensation on behalf of a "primarily liable"
contractor could recover the payment from such an employer.
If the immediate or primary employer who hired the worker is
ultimately responsible for payment of workmen's compensation,
the whole quid pro quo rationale underlying the statutory
employer concept disappears, which was clearly what the
legislature intended.
Aldinger's other arguments are, for the most part,
variations on the statutory employer theme. It contends the
Workers' Compensation Act provides an exclusive remedy for
the employee as well as the employer. That undoubtedly is
what 5 39-71-411, MCA, provides: it binds the employee to the
extent the Act applies. The Act, however, also specifically
preserves the employee's common law right to sue third par-
ties, other than his employer or a fellow employee, for his
injuries. Section 39-71-412, MCA. In this case, the ques-
tion comes down again to whether Aldinger is an immunized
employer, and we hold it is not.
The argument is made that granting immunity to Aldinger
is in conformity with the first sentence of Article 11,
Section 16, of the 1972 Constitution, because its payment of
workers' compensation to Webb provides him a "speedy remedy."
This sort of sophistry is hardly worth consideration when one
places the phrase back into its context. A "speedy remedy"
is afforded by the Constitution to every person for every
injury of person, property or character. The fact that
workers' compensation must be paid in a relatively speedy
manner, ultimately by the immediate employer, is no justifi-
cation for cutting off legitimate third party remedies.
Aldinger argues that preserving Webb's right to bring a third
party suit against it gives Webb a double remedy. A passing
perusal of the subrogation statute, $ 39-71-414, MCA, ex-
plodes this theory.
Aldinger summons Washington Metropolitan Area Transpor-
tation Authority v. Johnson (1984), 467 U.S. 925, 104 S.Ct.
2827, 81 L.Ed.2d 768, in aid of its cause. In this case, the
United States Supreme Court concluded the Authority was
entitled to immunity from tort actions brought by employees
of its contractors because under the operative statute (Long-
shoremen's and Harbor Workers' Compensation Act, 33 USC
940(a)), the Authority was required to obtain workers' com-
pensation coverage for all of the employees of its contrac-
tors which failed to obtain such coverage. The Authority was
therefore found to be ultimately liable for the coverage of
all employees of its contractors and subcontractors. As we
have pointed out, that is not the case under the law in
Montana, where the immediate employer is ultimately liable
and where there is no requirement that the contractor carry
compensation insurance if its subcontractor does not. The
cases from other states relied upon by Aldinger are likewise
readily distinguishable on the basis of differences in the
statutes construed.
On the other hand, Loffon v. Bell and Zoller Coal Co.
(Ill. 1977), 359 N.E.2d 125, deals with a statute which, like
Montana's, permitted recovery by the paying contractor from
the noncomplying subcontractor. The Court met the fundamen-
tal argument made here in the following discussion:
The defendants argue that a construction
of section 5 (a) adverse to their posi-
tion would result in a violation of
their rights to due process and equal
protection. They premise this conten-
tion on the basis that they are liable
to pay compensation benefits without
fault under section l(a) (3) and still
remain subject to a subsequent common
law or statutory action for damages. We
 find this argument to be without merit,
for under this construction of section
5(a) defendants are placed in no worse
position than they are in regard to
suits by employees of insured subcon-
tractors. The only difference between
the two situations is that in one case
the general contractor has paid compen-
sation. He, however, has the right of
indemnification against the uninsured
subcontractor. If the subcontractor is
insolvent, the general contractor who is
found liable based upon a common law or
statutory cause of action may set off
from that award the amount of compensa-
tion benefits he has previously paid to
the employee. The employee receives no
windfall or double recovery. In some
cases, where the subcontractor is insol-
vent and the general contractor prevails
in the common law or statutory action,
the general contractor must bear the
burden of the compensation payments. It
must be noted, however, that the general
contractor had it within his power to
protect himself from this loss by hiring
insured subcontractors.
Loffon, 359 N.E.2d at 130.
The declaration made in the second sentence of Article
11, Section 16, together with its legislative implementation
in 5 39-71-405, MCA, would seem to be so clear that it not
only needs no interpretation, it prohibits it. If, however,
some doubt may somehow be cast on the constitutional and
legislative intent, any interpretation of that intent must be
in favor of the claimant. It is stipulated the accident
involved here occurred September 11, 1985. At that time,
5 39-71-104, MCA, provided: "Whenever this chapter or any
part or section thereof is interpreted by a court, it shall
be liberally construed by such court." The decisions of this
Court had long since established that this provision required
liberal construction in favor of the claimant. See, e . g . ,
Cordier v. Stetson-Ross, Inc. (1979), 184 Mont. 502, 604 P.2d
86. While this section was repealed by the 1987 legislature
(Section 68, Chapter 464, Laws of 1987), it was substantive
in nature and must therefore be applied as it existed at the
time the claimant's right accrued, i .e. : on the date of the
accident.
Aldinger invites this Court to overrule its holdings in
White v. State (1983), 203 Mont. 363, 661 P.2d 1272, and
Pfost v. State (Mont. 1985), 713 P.2d 495, 42 St.Rep. 1957,
to advance its theory that the first sentence of Article 11,
Section 16, of the 1972 Constitution ("Courts of justice
shall be open to every person, and speedy remedy afforded for
every injury of person, property, or character."1 , does not
represent a fundamental right and should therefore somehow be
less seriously regarded. It concedes, however, that the
right expressed goes back to Magna Charta, and it would be
difficult to argue that it does not express a common law
right. Common law rights are extinguished only upon strict
construction. Madison v. Pierce (1970), 156 Mont. 309, 478
P.2d 860. To deprive Webb of his right to bring an action
against Aldinger on Professor Larson's equitable theory that
anyone who pays or is subject to paying workers' compensa-
tion, whether the payment can be recovered or not, is enti-
tled to immunity would be a most liberal construction of a
clear and long established constitutional imperative.
If we by judicial fiat defy the clearly stated inten-
tion of both the 1972 Constitutional Convention and the 1973
legislature and once more raise the ghost of Ashcraft by
immunizing owners and contractors from liability for their
negligence because they had paid or are subject to paying
compensation for their noncomplying contractors or subcon-
tractors, we will be rewarding them for not requiring the
immediate employers of injured working men to comply with the
spirit as well as the letter of the Act, and we will be
ignoring the fact that they may recover the payments made
from the offending employers, thus acquiring the immunity
free. This would be a patent perversion of a law that was
conceived, enacted and is supposed to be implemented primari-
ly to provide aid and relief to injured working men and
women.
For all of the above reasons, we hold the answer to the
question certified must be "No," and the United States Dis-
trict Court is so advised.

Hon. Gordon Bennett, District
Judge, sitting in place of Mr.
Justice L. C. Gulbrandson

We concur:

Justices
Mr. Justice Fred J. Weber specially concurs as follows:

In Ashcraft, the Court extended to Montana Power Company
immunity from tort liability in the workers' compensation
setting. The framers of the 1972 Constitution expressly
overruled Ashcraft by providing immunity only to immediate
employers who provide workers' compensation coverage. Unlike
the majority, I do not believe that Article 11, Section 16,
contemplated Aldinger's position, which is distinguishable
from Montana Power Company's position in Ashcraft.
In Ashcraft, the employee received workers' compensation
from Swain & Morris, the subcontractor of Montana Power.
Under the quid pro quo theory which underlies the workers'
compensation law, Swain & Morris had immunity from tort
liability as the employer which furnished workers compensa-
tion. Ashcraft held that Montana Power, the employer of
Swain & Morris, also had immunity from tort liability. At
that point Montana Power had furnished nothing in return for
the freedom from tort liability.
In contrast, Montana Masonry, as Webb's immediate
employer, failed to carry workers' compensation insurance.
As a result of that failure, Aldinger, the employer which had
hired Montana Masonry as a subcontractor, was required to
furnish and did furnish workers' compensation coverage to Mr.
Webb. Following the quid pro quo theory, Montana Masonry
under our statutes will not be granted immunity from tort
liability because of its failure to furnish workers' compen-
sation coverage. Under the theory of the majority, Aldinger
is also denied immunity from tort liability even though
Aldinger actually furnished the workers' compensation cover-
age which protected and paid the employee.
The majority states that the 1973 Legislature imple-
mented the new Constitution by enacting 9 3 9 - 7 1 . - 4 0 5 ( 1 ) , MCA,
to hold the subcontractor primarily liable. The majority
does not mention that the 1973 enactment was amended in 1979.
I do not conclude that a 1973 enactment to workers' compensa-
tion law which was subsequently amended is determinative.
I agree that the clear wording of Article 11, Section 16
of the Montana Constitution, is determinative of the present
case, because I find no legislative indication of an intent
to grant immunity from tort liability to employers such as
Aldinger. I find no statute which suggests that Aldinger
should be considered as the equivalent of the "immediate
employer who hired him" as provided in Article 11, Section
16. Although I do not agree that the Constitution's framers
had this situation in mind, in view of the clear wording of
the constitutional provision, I have to agree that Aldinger's
liability for workers' compensation to Mr. Webb has not given
it immunity from tort liability. Contrary to the argument of
the majority, I reach that conclusion because I can find
nothing in the statutes to persuade me that the legislature
has actually considered the problem of Aldinger.
The majority reaches the conclusion that to deprive Mr.
Webb of his right to bring an action against Aldinger on
Professor Larson's equitable theory--that anyone who pays or
is subject to paying workers' compensation is entitled to
immunity, whether the payment can be recovered or not--would
be a most liberal construction of a constitutional impera-
tive. I do not agree with that broad conclusion. It reminds
me of the arguments made in Shea v. North-Butte Min. Co. ,
(1919), 55 Mont. 522, 179 P. 499, when the worker questioned
the constitutionality of the Workmen's Compensation Act. In
that case the Court stated as foLlows with regard to the
purpose of workmen's compensation:
 It is sufficient . . . to call to mind that the
object sought was to substitute for the imperfect
and economically wasteful common-law system by
private action by the injured employe for damages
for negligent fault . . . which, while attended
with great delay and waste, compensated those
employes only who were able to establish the proxi-
mate connection between the Fault and the injury, a
system by which every employe in a hazardous indus-
try might receive compensation for any injury
suffered by him . . . whether the employer should
be at fault or not ...
Shea, 179 P. at 501. In that case this Court concluded that
there were appropriate benefits to both the employer and
employee to uphold the Act as constitutional, applying a quid
pro quo theory. Under that theory, it may be that the Mon-
tana Legislature could enact legislation granting an equiva-
lent benefit to Aldinger as the employer which furnished
compensation.
Without taking a position as to whether the legislature
has the power to do so under the Constitution, I do invite
the legislature to carefully consider this question. It
certainly may be argued that as a matter of fairness,
Aldinger is entitled to immunity from tort liability in
exchange for providing workers' compensation. Consideration
of that question will require careful analysis of the provi-
sions of Article 11, Section 16 of the Montana Constitution.
I concur in the result of the majority opinion.