NO. 92-333
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
MICHAEL BLYTHE,
-v-
Plaintiff and Appellant,
RADIOMETER AMERICA, INC., &;
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COMMUNITY MEDICAL CENTER, INC ,
and MICHAEL BIGGINS,
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< 1 j $ . ,< 0 -9
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Defendants and Respondents. CLERK YE r;ii:-~m~COURT
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APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas W. Frizzell, Tipp, Frizzell & Buley,
Missoula, Montana
For Respondent:
Charles McNeil, Garlington, Lohn & Robinson,
Missoula, Montana
Submitted: May 25, 1993
Decided: December 22, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff Michael Blytbe appeals from an order of the District
Court of the Fourth Judicial District, Missoula County, dismissing
his complaint charging that defendants Community Medical Center,
Inc. and Michael Biggins had injured him by requiring him to use a
defective medical device. plaintiff's complaint against Radiometer
~merica, Inc. has been dismissed and removed to United States
District Court. We affirm.
The issues presented for review are restated as follows:
1. Does the Workers' Compensation Act provide Blythe with
the exclusive remedy for his injury resulting from his employer's
decision to require its employees to use defective Arterial Blood
Gas kits?
2. Does the exclusivity clause apply to plaintiff's claim for
breach of contract?
In January 1989, Michael Blythe (Blythe) was employed by
Community Medical Center, Inc. (CMC) as a Respiratory Therapist, a
position he had held for ten years. Blythe worked with seriously
ill patients, including those recovering from major heart surgery
and those suffering from communicable diseases.
Blythe's job duties included assisting patients with life
support respirators and periodically testing their arterial blood.
Testing a patient's blood involved taking a blood sample from the
patient using a device called an Arterial Blood Gas kit (ABG kit).
An ABG kit is a syringe classified by the Food and Drug
Administration (FDA) as a Class I1 medical device, defined by the
2
FDA as a device involved in life-sustaining measures. The FDA
regulates and monitors the manufacture of these devices. It is
illegal to sell, receive, possess, or transport in interstate
commerce any Class I1 device which is adulterated, misbranded, or
not manufactured according to standards.
Defendant Michael Biggins (Biggins) was Blythets supervisor
and the head of the CMC respiratory care department. In late 1988
or early 1989, Biggins agreed with a Radiometer America, Inc.
(Radiometer) sales representative to accept certain ABG kits at
little or no cost. These kits were defectively manufactured and
could result in needle-stick injuries to the user if the hypodermic
needle loosened. If that occurred, the user could be inoculated
with the contents of the syringe.
Blythe alleges that Radiometer's sales representative and
Biggins explained to some but not all of the workers who used the
ABG kits how the kits were defective and how to use them to try to
avoid injury. The following comments were handwritten on the box
in which the kits were stored in inventory:
"Free rejects?"
"Yes"
When using needle may screw past it's mark into hub of
serenge (sic)--can still use, but be aware of thisw
These defective ABG kits were the only ABG kits available for use
in CMCVsrespiratory care unit.
On January 29, 1989, Blythe received a sample of arterial
blood from a co-worker which had been taken from a patient who was
infected with the HIV virus, had contracted AIDS and suffered from
3
other AIDS-related infections. As Blythe uncapped the needle from
the syringe containing the patient's blood, he stuck himself in the
hand with the needle. According to Blythe, he cleaned the wound
and immediately went to CMC's emergency room, where the physician
on duty told him that he had probably five to six years before he
came down with AIDS. As of the date of this appeal, Blythe had not
tested positive for the HIV virus.
Although Blythe continued to work after the injury, he began
having psychological problems, including auditory hallucinations
such as loud demonic voices. According to Blythe, he was losing
touch with reality and developing hopelessness and depression
because of his fear of contracting AIDS. Although CMC provided
Blythe with the services of a company psychologist, his symptoms
grew worse. Blythe consulted other professionals in addition to
the CMC psychologist. In October 1989, he was diagnosed as
psychotic. Blythe has been unable to work since March 1991 and now
receives medical and disability benefits under the Workers'
Compensation Act.
The District Court dismissed Blythe's complaint against CMC
and Biggins based on the exclusivity clause of the Workerst
Compensation Act. The standard of review for a district court's
interpretations of the law is whether they are correct. Steer,
Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d
601, 603.
ISSUE I
Does the Workers' Compensation Act provide Blythe with the
exclusive remedy for his injury resulting from his employerts
decision to require its employees to use defective Arterial Blood
Gas kits?
Section 39-71-411, MCA, of the Workers' Compensation Act (the
Act) provides that the provisions of the Act are the exclusive
remedy available to a worker who is injured on the job. This is
known as the l'exclusivity clause."
The Act provides an exception which allows an injured worker
to sue in tort in certain limited circumstances, set forth in 5 39-
71-413, MCA, as follows:
Liability of fellow employee for intentional and
malicious acts or omissions
action.
--additional cause of
If an employee receives an injury while
performing the duties of his employment and the injury or
injuries so received by the employee are caused by the
intentional and malicious act or omission of a servant or
employee of his emplover, then the employee ... shall,
in addition to the right to receive compensation under
the Workers' Compensation Act, have a right to prosecute
any cause of action he may have for damages against the
servants or employees of his employer causing the injury.
(Emphasis supplied.)
While § 39-71-413, MCA, covers intentional acts of a servant
or employee, this Court has held further that employers may be sued
for workplace injuries under limited circumstances. See Great
Western Sugar Co. v. Dist. Court (1980), 188 Mont. 1, 610 P.2d 717.
In Great Western, we also specified the degree of intent required
to meet the standard set forth in 5 39-71-413, MCA:
... "[Ilntentional harmt1
which removes an employer from
the protection of the exclusivity clause of the Workers'
Compensation Act is such harm as it maliciously and
specifically directed at an emplovee. or class of
employee out of which such swecific intentional harm the
emplovee receives iniuries as a proximate result. Any
incident involving a lesser degree of intent or general
degree of negligence not pointed specifically and
directly at the injured employee is barred by the
exclusivity clause as a basis for recovery against the
employer outside the Workers' Compensation Act.
(Emphasis supplied.)
Great Western, 610 P.2d at 720.
This Court has allowed the employee to sue an employer for
intentional torts in some cases. See, m, Sitzman v. Shumaker
(1986), 221 Mont. 304, 718 P.2d 657 (employee war; the victim of his
employer's assault and battery): and Vesel v Jardine Mining Co.
.
(1940) 110 Mont. 82, 100 P.2d 75 (employee received metal in eye
and employer intentionally chose unqualified medical provider).
Unless the harm is "maliciously and specifically directed at
an employee or a class of employees," workers are limited to the
remedy provided under the Act. For example, the plaintiff in Great
Western had alleged that his employer "wantonly, maliciously and
carelessly placed him in a position of danger, committing the
equivalent of an intentional harm." Because the complaint alleged
no more than negligence, this Court held that the Act provided the
plaintiff's exclusive remedy. Great Western, 610 P.2d at 719-20.
Grossly negligent conduct of an employer or a co-employee has
not been classified as "intentional and malicious. 'I See, e 9 ,
..
Adsem v Roske (1986), 224 Mont. 269, 728 P.2d 1352 (claimant was
.
killed by collapsed walls in a deep trench which had no sloping or
shoring) ; Enberg v. Anaconda Co. (1971), 158 Mont. 135, 489 P.2d
1036 (employer violated its own safety standards as well as other
statutes in mine blasting); and Dvorak v. Matador Sew., Inc.
(1986) 223 Mont. 98, 727 P.2d 1306 (employee injured by toxic
materials inside tank of a truck when employer knew a tank could
contain matter contaminated with hydrogen sulfide and insisted
employee enter the tank of a truck to do welding repairs).
Before we consider Blythe's arguments on other theories, we
emphasize that Blythe has failed to meet the requirements set forth
in Great Western and also in Noonan v. Spring Creek Forest
Products, Inc. (1985), 216 Mont. 221, 700 P.2d 623. Under Great
Western, Blythe was required to show the presence of intentional
harm which his employer maliciously and specifically directed at
him, and that he was injured as a proximate result of that specific
intentional harm. Blythe has not demonstrated any intentional harm
maliciously and specifically directed at him or any of his co-
employees. We therefore conclude that Blythe has failed to meet
the standard of intentional harm required by Great Western.
Noonan contains factual precedent which is helpful in the
present case. In Noonan, the employer required the worker to run
a broken planer. The employer had removed the safety guard on the
planer, which violated OSHA regulations. The on/off switch on the
planer was broken and employees were required to run the machine
continuously, even while retrieving wood pieces which became caught
in the planer. Other employees had asked the employer to repair
the planer. The worker, a nineteen-year-old recent high school
graduate who was starting his first full-time job, was required to
feed rough-cut lumber through the planer.
In Noonan, the employer knew these facts and knew that other
employees had been injured, yet it concealed the information from
the worker. The worker's hand was drawn into the planer and
severely injured when he reached in to remove a piece of wood which
had become stuck in the planer. Under these facts, this Court
concluded that Noonan1s employer was not guilty of the type of
intentional harm which removes an employer from the protection of
the Act's exclusivity clause. We stated:
We have reviewed each of the plaintiff's alleged
facts set forth above and fail to discern how any of the
specific facts could be interpreted to mean harm was
specifically directed at Noonan. The facts do establish
that the owners of Spring Creek operated a hazardous and
dangerous workplace. The number of injuries that
occurred among a relatively small number of workers
provides ample support forthis observation. However, to
translate this situation into an inference of tortious
intent on behalf of the employer would require a standard
of law that this Court has thus far refused to adopt.
Where an emulovee's alleaations qo no further than
to charse an emulover with knowledse of a hazardous
machine, the comwlaint does not state a cause outside the
purview of our exclusive remedv statute. (Emphasis
supplied.)
Noonan, 700 P.2d at 625-26.
Blythe has failed to address this Court's holding in Noonan.
In Noonan, this Court concluded that the complaint failed to state
a cause of action outside the purview of the exclusivity statute
where the allegations only demonstrated an employer who had
knowledge of a hazardous machine. We conclude that this rationale
applies to the present case. Here, the most that Blythe has
demonstrated is that his employer knew of the defective and
hazardous character of the medical devices which Blythe and other
employees were required to use. We conclude that under Noonan,
Blythe has failed to state a cause of action which removed his
employer from the protection of the exclusivity clause of the Act.
In Noonan, we discussed a line of cases from a minority of
jurisdictions which have recognized an intentional tort action for
situations where the employee cannot show a specific intent to
injure, but rather where the employer knows or believes that harm
is a "substantially certain" consequence of the unsafe workplace.
Noonan, 700 P.2d at 625-26. West Virginia, Ohio and some Louisiana
courts have used this "substantially certain" test. In his
treatise on workers1 compensation, Professor Larson states:
... [Tlhe various efforts ... to stretch the concept
of intentional injury are not undertaken in the name of
discovering a truer and higher meaning of "intentionalv1;
they are undertaken because these courts still cannot
quite accept the non-fault nature of workers1
compensation, and have taken it on themselves to change
the statutory scheme to conform more closely to their
values. ...
. . . The most cogent argument against this type of
holding is an intensely practical one: the difficulty of
drawing an effective distinction, once this door has been
opened, to prevent the virtual destruction of the
exclusiveness principle, as evidenced by the experience
of Ohio and Louisiana.
Law 5 68.15, at 13-58 to 13-59.
2A A Larson, Workers1 Com~ensation
.
Blythe recognizes that this Court reviewed the leading cases
espousing the minority rule and that we declined to change our
course by adopting the vlsubstantially
certainv1test in Noonan and
he professes that he is not arguing that this Court should adopt it
now. However, he presents several arguments which essentially
reargue the "substantially certainw theory.
Blythe first contends that this case is different from other
cases involving willful violations of safety standards because it
is not the type of risk ordinarily undertaken in the workplace and
because the employer specifically intended to violate the law.
This argument attempts to equate an employer's willful violation of
the law to specific intent by employing the reasoning of the
I1substantially certain" test which we have declined to adopt.
Intent to violate the law does not equate to intentional harm that
is maliciously and specifically directed at an employee or group of
employees.
Blythe next contends that the leading treatise on workersf
compensation law supports his position that specific intent is not
required. This too is essentially an argument for the
"substantially certain" test. We do not interpret the treatise's
discussion of intent in this manner. Professor Larson states:
[I]t seems prudent to hold the line, as the vast majority
have done, in saying that "intentional injury" means
"intended injury." ..
.This is by no means the only area
of compensation law in which, to be administrable and
kept within bounds, a rule must be so arbitrary that it
produces some tlinjustice" its fringes.
on
2A A. Larson, Workers' Compensation Law 5 68.15, at 13-68.
Blythe frames a third argument for the "substantially certain"
test by claiming that he was subjected to what he calls an "active
injurious force" and which Larson would classify as an exception to
exclusivity under the majority rule. Blythe coined the phrase
"active injurious force" from the following:
[Tlhe element of uncertainty is not whether the worker is
apt to be exposed to the active force (whether cave-in or
toxic fumes), but whether the active force to which the
worker is knowingly exposed, proves to be injurious.
2A A. Larson, Workers' Com~ensationLaw § 68.15, at 13-68. Larson
discusses this active force in the context of distinguishing the
majority and minority rules.
Larson illustrates an intentional infliction of harm caused by
what Blythe calls an Itactive injurious forcell and which is
actionable in tort by reference to the facts of People v. Film
Recovery Sys. (Ill. App. 1990), 550 N.E.2d 1090. See Beauchamp v.
Dow Chemical Co. (Mich. 1 9 8 6 ) , 398 N.W.2d 882, 892. Larson points
out that in Film Recoverv, the employer knew that the employees
consistently inhaled fumes, knewthat inhaling fumes caused harmful
consequences, and purposely withheld this information from the
employees. The employer also knew that the employees would not
continue to do the work if they were aware that they were being
injured by inhaling the chemical fumes.
Larson contrasts cases like Film Recovery, where the employer
knows the employee is being injured, to the situation where the
employer exposes the employee to harm but does not know with
certainty that the employee is being harmed or will be harmed. 2A
A Larson, Workers1 Com~ensation
. Law 5 68.15. Larson uses the case
of an employee working in a ditch who is subsequently injured by a
cave-in of the ditch walls as an example of the latter. See, e q ,
..
Adsem, 728 P.2d 1352 (forcing employee to work in trench which
subsequently collapsed and killed employee was not intentional
conduct with known consequences specifically directed at the
employee).
In the case before us, CMC provided only defective ABG kits
for its employees to use. Although CMC may have been aware that
there was risk of injury as illustrated by the fact that it warned
employees and trained some of them on how to use them to avoid
injury, CMC did not force its employees to use the defective ABG
kits with knowledge that they would be certain to sustain injury.
Further, CMC did not withhold information from employees that the
ABG kits were defective. We therefore conclude that Blythets
injury is not analogous to the active force in Film Recoverv where
the employer knew the employee was being harmed and continued to
expose the employee to known ham after failing to disclose
warnings on chemicals.
We reject all Blythets arguments as detailed above which
attempt to reargue the minority rule by couching it in other terms.
Malice
Blythe presents another argument concerning the meaning of
I1malicef*
which this Court has not previously considered. He
contends that his injuries now come within the exception to the
Actts exclusivity clause because the definition of "actual malicem
in 1 27-1-221(2), MCA, changes the Great Western standard.
As set forth above, the type of intentional harm which exposes
an employer to tort liability under Great Western is that which is
maliciouslv and specifically directed at the employee or class of
employee. The word 15maliciously'q used by the Court in Great
as
Western has a well-known meaning in Montana. Section 1-1-204(3),
MCA, defines wmalicell follows:
as
RMali~ew and wmaliciouslyM denote a wish to vex, annoy,
or injure another person ...
Miller's Mutual Ins. CO. v. Strainer (1983), 204 Mont. 162, 168,
663 P.2d 338, 341, referred to this statute in a workers'
compensation case, concluding that intent to injure an employee
does not require specific intent to cause the precise resulting
injury. We emphasize again that the plaintiff has failed to
demonstrate intentional harm maliciouslv and specifically directed
at him or any class of employee, according to the Great Western
standard.
However, Blythe contends that the Great Western standard has
been changed because the definition of malice in 5 1-1-204(3), MCA,
no longer applies to determine whether an injury is "intentional"
within the meaning of 5 39-71-413, MCA. He contends that this
definition has been superseded by the legislature~sdefinition of
Ivactualmaliceu in § 27-1-221(2) , MCA, which applies to the Act
through $
3 1-2-107, MCA. Section 1-2-107, MCA, provides that where
the meaning of a word is defined in part of the code, the
definition is applicable wherever it occurs throughout the code,
except where a contrary intention is clearly apparent. This Court
has not reviewed a case on exclusivity since that statute was
enacted in 1987.
Section 27-1-221, MCA, defines "actual malicef1 follows:
as
Punitive damages--liability--proof--award. ...
(2) A defendant is guilty of actual malice if he has
knowledge of facts or intentionally disregards facts that
create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or
intentional disregard of the high probability of injury
to the plaintiff; or
(b) deliberately proceeds to act with indifference
to the high probability of injury to the plaintiff.
Blythe compares the above section to the definition of
nknowinglyw in 5 45-2-101 (33) , MCA, where proof that a person is
aware of a high probability of the existence of a particular fact
will establish an element of a criminal offense. Blythe further
argues that the legislatureq adoption of the definition of "actual
s
malicell in 5 27-1-221(2), MCA, from the criminal code's definition
of vlknowinglyql
rather than "purposelyN rejects the notion that the
wrongdoer must have a specific intent to injure; rather, he
contends that the level of certainty required now for exception to
exclusivity under the Act is the same as in the criminal code:
45-2-101. ...
General dafi n i t i o n s , (33) lqKnowinglyll--
a person acts knowingly with respect to the result of
conduct described by a statute defining an offense when
the person is aware that it is highly probable that the
result will be caused by the person's conduct. When
knowledge of the existence of a particular fact is an
element of an offense, knowledge is established if a
person is aware of a high probability of its existence.
Blythe contends that the legislature has rejected the notion that
the wrongdoer must have a specific intent to injure while retaining
the distinction made by this Court when it held in Miller's Mutual
that malice can be found where the acts are intended though the
consequences are not. Blythe further contends that CMC
demonstrated its intent to do a wrongful act under the new
definition of "actual malice," by accepting and requiring employees
to use the unlawfully-possessed ABG kits with knowledge of their
defect and the possibility of injury.
As emphasized above, the conduct here does not qualify as
malicious if we use the definition of lvmalicewused in prior
exclusivity cases. The rationale of Noonan applies directly to the
present case where the most that can be charged is that the
employer knew of the defective and hazardous medical device which
the plaintiff was required to use.
The stated intent in House Bill 442 enacted by the 1987
legislature in revising §§ 27-1-220 and 221, MCA (l985), was to
revise the law relating to punitive damages--limiting the right to
recover punitive damages, restricting the award of punitive damages
in contract actions and permitting insurance coverage of punitive
damages. 1987 Mont. Laws 1722. The legislature did not repeal the
definition of malice in § 1-1-204(3), MCA, or otherwise indicate
that the changes in the punitive damages section applied to any
other part of the code, including the chapter governing workers'
compensation awards.
It is our duty to restrict the meaning of general words
whenever necessary so as to carry out the legislative intent. In
re Takahashi's Estate (l942), 113 Mont. 490, 494, 129 P.2d 217,
220. The context in which the word is used must be considered, and
the word, together with the context, then gives the meaning sought
to be conveyed. Takahashi's Estate, 129 P.2d at 221. In addition
to viewing the word within its context, we presume that the
legislature enacts a law with full knowledge of all existing laws
on the same subject, including workers' compensation laws and does
not intend to abrogate or interfere with another law on the same
matter unless the repugnancy between the two is irreconcilable.
Fletcher v. Paige (1950), 124 Mont. 114, 119, 220 P.2d 484, 487.
When an employee is injured on the job, the Act generally
provides the exclusive remedy. I the injury is compensated under
f
the Act, the employee is not allowed other remedies provided for by
other statutes, including punitive damages. Section 27-1-221, MCA,
provides for punitive damages for injuries outside the limits of
the Act. We conclude that the legislature did not intend the
definition of "actual malicew in § 27-1-221(2), MCA, to apply to
determine whether conduct qualifies as an exception to the
exclusive remedy under the Act. We further conclude that the
definition of ''actual maliceM set forth in § 27-1-221(2), MCA, was
intended for purposes of punitive damages awards and is
specifically not applicable to the Act.
We hold the Workers1 Compensation Act provides Blythe with the
exclusive remedy for his injury resulting from his employer's
decision to require its employees to use defective ABG kits.
ISSUE 11.
Does the exclusivity clause of the Workers1 compensation Act
apply to plaintiff's claim for breach of contract?
Blythe contends that if his tort claim is barred by the
exclusivity provision in the Act, he should be allowed to bring an
action for breach of his employment contract. He contends that his
employment contract with CMC carried a duty of good faith in its
performance and CMC is liable in damages upon breach.
Blythe maintains that his employer had the discretion to
choose the equipment to be used and he was required to do as he was
told by his employer. He contends that CMC8s decision to provide
dangerously defective equipment which cannot be commercially sold
16
was a breach which deprived Blythe of the benefit of his contract
by eliminating his right to practice his profession and earn his
living. Blythe contends that contract damages here, unlike most
contract actions, would include emotional distress damages because
the action involves actual physical injury.
If this attempt to create a cause of action for breach of
contract under these facts were to prevail, every employer/employee
relationship might involve contractual issues, resulting in
exposure of each employer beyond the Act. Such a result would
undermine the workers1 compensation system.
Larsonlstreatise on workers1 compensation states:
The all-inclusive character of the exclusiveness
principle results in barring actions for covered injuries
even though the plaintiff casts his action in the form of
a breach of some kind of contract.
2A A. Larson, Workers' Compensation Law 5 65.38, at 12-37.
We conclude that Blythe is further barred by the exclusivity
provision in § 39-71-411, MCA, from bringing an action for breach
of the employment contract. We are supported in this decision by
courts of numerous other jurisdictions which have addressed the
issue.
We hold plaintiff's claim for breach of contract, pled
alternatively to the tort claim, fails to state a claim for which
elief can be aranted. /
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's conclusion that the Workerss
Compensation Act provides Michael Blythe with his exclusive remedy
for the injury he sustained during the course of his employment
with the Community Medical Center.
Blythess complaint in this case was dismissed for failure to
state a claim pursuant to Rule 12(b)(6), M.R.Civ.P. We have
previously held that:
A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. A motion to
dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect
of admitting all well-pleaded allegations in the
complaint. In considering the motion, the complaint is
construed in the light most favorable to the plaintiff,
and all allegations of fact contained therein are taken
as true. [Citations omitted.]
Wilkonv. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182.
With that standard in mind, we assume the following facts to
be true:
Michael Blythe was employed as a respiratory therapist for the
Community Medical Center in Missoula during January 1989. Prior to
that time, the Medical Center had been having financial
difficulties, and therefore, the head of the respiratory care
department accepted free arterial blood gas kits, knowing that they
were defective. Patients, however, were charged the regular price
for this equipment
Although the head of the respiratory care department knew the
kits were defective, he did not advise all of the therapists who
would use those kits during the course of their employment.
Instead, the kits were placed with other equipment inventory for
use.
The danger to which employees were exposed from the defective
kits was the danger that the needle would come loose and cause a
needle-stick injury to the employee. As a result, the disease for
which patients were being treated could be transmitted to the
health care provider using the kit. Hospital administrators knew
that a needle-stick injury resulting from use of the defective kits
could transmit diseases, such as AIDS and hepatitis B to its
employees.
At about 6 a.m. on Sunday morning, January 29, 1989, Blythe
was using a defective arterial blood gas kit on a patient who
suffered staph and strep infection, pneumonia, herpes, the AIDS
virus, and hepatitis 3. Because of the defect in the kit, he was
stuck by the needle and exposed to contamination from the patient s
blood-born diseases. He was subsequently advised by an emergency
room physician that "well, you've got five or six years before you
come down with AIDS."
As a result of his injury and the mental strain from concern
for his future health, Blythe has suffered severe and totally
disabling mental problems.
Blythe alleged, and therefore, we assume it to be true, that
when his superiors provided him with d e f e c t i v e blood gas kits they
acted intentionally and with actual malice. In other words, he
alleged that the hospital intentionally provided its employees with
20
defective blood gas kits, knowing that they were exposed to severe
and terminal harm in the exact manner that Blythe alleges he was
harmed, but disregarding that potential harm because of the
economic benefit it hoped to realize from doing so.
The majority discusses its prior decisions, language from a
treatise, and a selected statutory definition of "malice" to
support its conclusion. However, the rule which excepts
intentional conduct on the part of an employer from the exclusivity
of the Workers' Compensation Act is statutory and is neither as
restrictive nor demanding as this Court's prior decisions. It
simply states that:
If an employee receives an injury while performing the
duties of his employment and the injury or injuries so
received by the employee are caused by the intentional
and malicious act or omission of a servant or employee of
.
his employer, then the employee . . shall, in addition
to the right to receive compensation under the Workers'
Compensation Act, have a right to prosecute any cause of
action he may have for damages against the servants or
employees of his employer causing the injury.
Section 39-71-413, MCA.
There is no question, based on the allegations in the
complaint, that Blythe's supervisor acted intentionally when he
purchased defective arterial blood gas kits from the hospital's
supplier. The question is whether, based on the allegations in the
complaint, his act was also malicious.
Stripping an employer from the protection provided by the
Workers' Compensation Act based on intentional conduct is a
punitive remedy intended to deter employers from intentionally
harming their employees. Therefore, it is most logical to apply
the statutory definition of malice found at 5 27-1-221(2), MCA,
Montana's punitive damage statute. There, the Legislature has
stated that:
A defendant is guilty of actual malice if he has
knowledge of facts or intentionally disregards facts that
create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or
intentional disregard of the high probability of injury
to the plaintiff; or
(b) deliberately proceeds to act with indifference
to the high probability of injury to the plaintiff.
By that definition of malice, Blythe8scomplaint satisfies all
of the elements necessary to overcome defendantsf motion to dismiss
pursuant to Rule 12 (b)(6), M.R.Civ.P.
The majority relies on the definition of malice found at
5 1-1-204(3), MCA, but fails to distinguish its previous decision
.
i n Millers Mutual hwurance Company v. SO-airzer ( 198 3 ) , 204 Mont 162 , 663 P .2d
338, where this Court applied the term "malicew in a workers1
compensation context much more expansively than it does here. In
that case, we held that:
Respondent argues that for one to act maliciously
one must necessarily intend the consequences of the act.
Respondent relies on Boyerv.Kloepfer (1976), 170 Mont. 472,
554 P.2d 1116, wherein this Court equated malice with an
intent to injure. However, the general definition of
malice is more expansive, In Cashin v. Northern Pac, R. Co.
(1934), 96 Mont. 92, 28 P.2d 862, this Court defined
malice as "a wish to vex, annoy, or injure another
person, o an intent to do a wrongful act.
r (Emphasis
supplied). The Montana Supreme Court has also implied
malice where the intentional acts of a defendant were
committed without justifiable excuse, privilege or
defense. Poeppel v. Fisher (1977), 175 Mont. 136, 572 P.2d
912. We hold that malice can be found where acts are
intentional though the consequences are not.
In summary, we hold that section 39-71-413, of the
Workersr Compensation Act, permits the filing of a
third-party action where acts of an employee are
intentional irrespective of whether the results of that
act were intended.
Strainer, 663 P.2d at 341-42
Our holding in Strainer suggests that for purposes of construing
the term rlmalice," it is used in 5 39-71-413, MCA, the statutory
as
definition provided for in 5 27-1-221(2), MCA, is much more
appropriate than the restrictive language found at 5 1-1-204(3),
MCA, which was specifically rejected in the Strainer decision.
The majority also relies on its prior decisions in Great Western
Sugar Company v. Dktrict Court (1980), 188 Mont. 1, 610 P.2d 717, and
Noonan v. Spring Creek Forest Products, Inc. (198 5 ) , 216 Mont . 221, 700 P.2d
623, for the principle that an intentional act which removes an
employer from the protection of the exclusivity clause of the
Workersr Compensation Act requires "intentional harm" and an act
directed at the specific employee, or a class of employees to which
he or she belongs. However, those requirements clearly go beyond
the plain terms of 5 39-71-413, MCA, and are inconsistent with this
Court's prior decision in Strainer. While it is true that since 1987
the Court is not required to construe the Workersr Compensation Act
liberally in favor of the employee, there certainly is no
requirement that it be construed liberally in favor of the
employer. That should be especially true where the issue is
compensation for an employee injured by an allegedly intentional
and malicious act of his employer. Yet, that is the effect of our
decisions in Great Western Sugar, Noonan, and the majority opinion in
this case.
Therefore, I conclude that the decisions relied on by the
majority have misconstrued the plain terms of the Workers8
Compensation Act and have judicially legislated requirements which
are not in the Act. For these reasons, I would not follow those
prior decisions.
I conclude that the acts alleged in Blythets complaint were
both "intenti~nal~~ "malicious" as defined by statute in Montana
and
and our prior case law. Therefore, I would reverse the judgment of
the District Court and remand this case to the District Court for
further proceedings to determine whether Blythels allegations are
true.
Justices John C. Harrison and William E. Hunt, Sr., join in the
foregoing dissent.
Justices