No. 95-482
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
RONNIE LEE REYNOLDS,
Plaintiff,
v.
CERTIFIED QUESTION FROM: United States District Court
District of Montana, Billings Division
The Honorable Richard W. Anderson,
Judge presiding.
COUNSEL OF RECORD:
For Plaintiff:
Kurt M. Jackson, Hoyt & Blewett, Great Falls,
Montana (argued)
For Defendant:
Victoria L. Francis (argued), William W. Mercer
(argued) Assistant U.S. Attorneys, Billings,
Montana (United States of America); Robert L.
Sterup, Jr. Dorsey & Whitney, Billings, Montana
For Amicus Curiae:
Maxon R. Davis, Davis, Hatley, Hafferman & Tighe,
Great Falls, Montana (Montana Defense Trial Lawyers,
Inc.); John J. Richardson (argued) Beck Law
Offices, Bozeman, Montana (Montana T;ial Lawyers
Association)
Heard: May 30, 1996
Submitted: May 31, 1996
Decided: December 13, 1996
Filed:
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
The United States District Court for the District of Montana,
Billings Division, has certified to this Court the following two
questions:
1. Does § 27-l-703, MCA (1995), which permits the trier of
fact to apportion negligence against an injured worker's employer
or fellow employee, violate Article II, Section 16, of the Montana
Constitution, which guarantees the right of full legal redress
against liable third parties for injuries incurred in employment?
2. Can 5 27-l-703, MCA (1995), be retroactively applied to a
cause of action which arose prior to the effective date of the
statute?
We conclude that our recent decision in Plumb v. Fourth
Judicial District (Mont. No. 96-023, decided November 22, 1996),
has rendered it unnecessary that we reach the constitutional issue
raised in the first certified question and has rendered the second
certified question moot.
FACTS
The parties have stipulated the following facts for purposes
of submitting the two certified questions to this Court:
1. On or about January 7, 1991, defendant CBI Services, Inc.
(CBI), and defendant United States of America (USA), entered into
a construction contract for the Penstock Replacement at Power Plant
No. 1, Fort Peck Dam, Valley County, Montana.
2. Defendant CBI was a contractor on the project.
3. Plaintiff Ronnie Lee Reynolds (Reynolds) was at all times
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a citizen of the state of Montana, and was employed as a laborer on
the project by Molts Constructors (Moltz), a subcontractor of
defendant CBI.
4. On August 10, 1991, while Reynolds was working within the
course and scope of his employment as a laborer for Molts, his
safety lanyard was caught and severed by a rotating piece of cut
steel. Reynolds alleges that, as a result, he lost his balance and
fell approximately 22 feet to a concrete floor and suffered
personal injuries.
5. As Reynolds' employer, Molts provided workers'
compensation coverage and workers' compensation benefits to
Reynolds under the workers' compensation laws of the state of
Montana.
6. On April 19, 1994, Reynolds filed a complaint in the
United States District Court for the District of Montana, Billings
Division, asserting a cause of action for negligence against
defendant USA.
7. On or about June 17, 1994, defendant USA filed an answer
and third-party complaint against defendant CBI denying its own
negligence and asserting the negligence of defendant CBI.
8. On or about July 7, 1994, Reynolds filed a first amended
complaint asserting a cause of action for negligence against
defendant CBI. On or about September 28, 1994, defendant CBI filed
an answer denying its own negligence.
9. On or about June 16, 1995, defendant USA filed a motion to
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file an amended answer for the purpose of asserting that Reynolds'
injuries and damages were caused "in full or in part by Molts
Constructors, a nonparty to this action, directly and vicariously
through the actions of its employees." On or about June 19, 1995,
defendant CBI filed a similar motion.
10. On September 13, 1995, the federal district court entered
an order granting defendants leave to file their amended answers.
DISCUSSION
Our disposition of the two certified questions necessarily
follows as a direct consequence of our decision in Plumb. In
Plumb, this Court held that certain of the amendments to 5 27-1-
703, MCA, enacted by the 1995 Legislature under Senate Bill 212
(Sec. 1, Ch. 330, L. 1995) were violative of substantive due
process and were, therefore, unconstitutional. Plumb, slip op. at
23-25.
SB 212 actually did two things, however. First, in response
to our decision in Newville v. State Department of Family Services
(X994), 267 Mont. 237, 883 P.2d 793, this legislation deleted
certain language from and added other language to § 27-I-703, MCA,
with respect to apportioning liability and a percentage of
negligence to non-parties. See 5 27-l-703(4), MCA (1993) and Sec.
1, Ch. 330, L. 1995. Those were the provisions of SB 212 which we
addressed in Plumb and which we declared unconstitutional.
Second, SB 212 also struck from § 27-l-703(4), MCA (19931,
certain language that was dispositive of the issue addressed in our
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decision in Wetch v. Unique Concrete Co. (1995), 269 Mont. 315, 888
P.2d 425. The language struck was:
However, in attributing negligence among persons, the
trier of fact may not consider or determine any amount of
negligence on the part of any injured person's employer
o r coemployee to the extent that such employer or
coemployee has tort immunity under the Workers'
Compensation Act or the Occupational Disease Act of this
state, of any other state, or of the federal government.
Section 27-l-703(4), MCA (1993); Sec.,l, Ch. 330, L. 1995.
Given our decision in -I
Plumb the state of the law clearly is
now that liability may not be apportioned to parties who are not
named in the lawsuit and who do not have an opportunity to appear
and defend themselves. Plumb, slip op. at 23-24. Since the
injured worker's immune employer or coemployee is obviously
included within reach of our decision in Plumb--i.e., such persons
cannot be apportioned liability or negligence as non-parties--the
fact that SB 212 deleted the above-referenced statutory language in
response to Wetch is meaningless from a practical standpoint. The
stricken language was simply a statutory exception to that part of
§ 27-l-703(4), MCA, that we have now twice found unconstitutional.
Furthermore, as long as the employee's injury is covered under
the Workers' Compensation Act or under the Occupational Disease
Act, then the injured worker's employer and coemployees are immune
from suit by the injured employee and by third parties via a suit
for indemnity and contribution. Section 39-71-411, MCA; § 39-72-
305, MCA. See Torres v. State (1995), 273 Mont. 83, 902 P.2d 999;
Raisler v. Burlington Northern R.R. Co. (1985), 219 Mont. 254, 717
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P.2d 535; Cordier v. Stetson-Ross, Inc. (1979), 184 Mont. 502, 604
P.2d 86; Forrester v. Kuck (1978), 177 Mont. 44, 579 P.2d 756
(cited in Malek v. Hankins (1996), 275 Mont. 97, 911 P.2d 1127).
But see, Stratemeyer v. Lincoln County (Mont. 1996), 915 P.2d 175,
53 St.Rep. 245.
Accordingly, since the immune employer and coemployee can be
neither apportioned liability or negligence as non-parties, nor
named, sued and, thereby, apportioned liability or negligence as
parties, there is no way in which the injured worker's third-party
recovery can be reduced as a result of any conduct by the employer
or coemployee.
our decision in Plumb has rendered it unnecessary that we
reach the constitutional issue raised in the first certified
tion mo d.
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