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No. 99-634
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 366
303 Mont. 398
15 P. 3d 962
KAREN A. MANEY, personally, and as the Personal
Representative of the ESTATE OF JASON ROBERT
FOGLESON, and as the Guardian Ad Litem and parent
of ANTHONY MICHAEL FOGLESON, CORDELL
WILLIAM MANEY and DELANA TL MANEY,
Plaintiffs and Appellants,
v.
LOUISIANA PACIFIC CORPORATION,
Defendant and Appellant,
v..
THOMAS B. CHEFF, d/b/a T & S CHEFF LOGGING,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
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COUNSEL OF RECORD:
For Appellants:
Michael C. Coil (argued); Angel Law Firm, Bozeman, Montana
Lawrence F. Daly (argued); Garlington, Lohn & Robinson, Missoula,
Montana (for Louisiana Pacific Corporation)
For Respondent:
Robert J. Phillips (argued); Phillips & Bohyer, Missoula, Montana
Argued: June 8, 2000
Submitted: July 19, 2000
Decided: December 28, 2000
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Karen A. Maney (Maney) and the Louisiana Pacific Corporation (LP) appeal from the
judgment entered by the Eighteenth Judicial District Court, Gallatin County, on its order
granting summary judgment to Thomas B. Cheff, d/b/a T & S Cheff Logging (Cheff), and
denying LP's motion for leave to file a cross-claim against Cheff. We affirm.
¶2 We address the following issues:
¶3 1. Did the District Court err in granting summary judgment to Cheff based on its
conclusion that the claims raised in Maney's complaint were barred by the exclusive
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remedy provision of Montana's Workers' Compensation Act?
¶4 2. Did the District Court abuse its discretion in denying LP's motion for leave to file a
cross-claim against Cheff?
BACKGROUND
¶5 Prior to the summer of 1994, Cheff contracted with LP to cut and remove timber owned
by LP and located in the Mill Creek drainage in Park County, Montana. Cheff hired Jason
Robert Fogleson (Fogleson) to assist in logging the timber. On July 8, 1994, while
working for Cheff, Fogleson was injured by a falling tree; he died later that day. At the
time of the accident, Fogleson was covered by workers' compensation insurance provided
by Cheff.
¶6 Maney, Fogleson's mother, subsequently filed a complaint against Cheff and LP for
damages resulting from Fogleson's death, asserting claims based on negligence, loss of
consortium, negligent and intentional infliction of emotional distress, and violations of the
Montana Safety Act. The complaint was filed by Maney individually, as personal
representative of Fogleson's estate and as guardian ad litem of Fogleson's minor siblings.
LP answered the complaint and asserted various affirmative defenses. Cheff moved to
dismiss the complaint, arguing that Maney's claims were barred by the exclusivity
provision of the Workers' Compensation Act (the Act) because Fogleson's injury and
death were compensable under the Act. While Cheff's motion to dismiss was pending, LP
moved the District Court for leave to amend its answer to assert a cross-claim against
Cheff for indemnity and contribution.
¶7 The District Court heard arguments on both motions and, because Cheff had filed an
affidavit in support of the motion to dismiss, converted that motion to one for summary
judgment. The court concluded that all of Maney's claims were barred by the Act's
exclusivity provision and granted summary judgment to Cheff on that basis. Based on its
conclusion that the Act barred Maney's claims against Cheff, the court also denied LP's
motion for leave to amend its answer to assert a cross-claim against Cheff.
¶8 Maney appeals from the District Court's order granting summary judgment to Cheff on
her negligent and intentional infliction of emotional distress claims which were based on
her seeing the severe injuries her son suffered and watching him die in the hospital. LP
appeals from the court's denial of its motion for leave to amend.
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DISCUSSION
¶9 1. Did the District Court err in granting summary judgment to Cheff based on its
conclusion that the claims raised in Maney's complaint were barred by the exclusive
remedy provision of the Act?
¶10 We review a district court's grant of summary judgment using the same Rule 56, M.R.
Civ.P., criteria applied by that court. Sherner v. Conoco, Inc., 2000 MT 50, ¶ 10, 298
Mont. 401, ¶ 10, 995 P.2d 990, ¶ 10. In that regard, summary judgment is appropriate only
when no genuine issue of material fact exists and the moving party is entitled to judgment
as a matter of law. See Rule 56(c), M.R.Civ.P. Here, the parties do not dispute the material
facts and, as a result, we review only whether Cheff is entitled to judgment as a matter of
law.
¶11 The general purpose of the Act is to protect employers and employees by
incorporating a quid pro quo for negligent acts by employers. Sherner, ¶ 17. Employees
are assured of compensation for their work-related injuries under the Act and forego other
legal recourse against their employer. Sherner, ¶ 17. In turn, employers are given
immunity from suit by an injured employee and relinquish their common law defenses to
liability. Sherner, ¶ 17. In furtherance of this purpose, the Act contains an exclusive
remedy provision which states as follows:
For all employments covered under the . . . Act . . . the provisions of this chapter are
exclusive. Except as provided in part 5 of this chapter for uninsured employers and
except as otherwise provided in the . . . Act, an employer is not subject to any
liability whatever for the death of or personal injury to an employee covered by
the . . . 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 . . . Act
binds the employee himself, and in case of death binds his personal representative
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.
Section 39-71-411, MCA.
¶12 Cheff argued in the District Court that Maney's claims were barred by § 39-71-411,
MCA, because they were based on Fogleson's personal injury and death. The District
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Court agreed and granted Cheff summary judgment on all of Maney's claims. Maney
asserts the court erred in determining that the Act precludes her from bringing her claims
for negligent and intentional infliction of emotional distress.
¶13 Maney's first argument is that her emotional distress claims are not barred by § 39-71-
411, MCA, because they are psychological injuries which do not come within the purview
of the Act. She asserts that a psychological injury such as emotional distress is not an
"injury" as defined in § 39-71-119, MCA, and is not compensable under the Act. She
contends, therefore, that because her emotional distress claims do not constitute injuries
under the Act, they are not precluded by the Act's exclusivity provision. In support of her
argument, Maney cites Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 915 P.2d
175, Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 920 P.2d 108, and
Yarborough v. Mont. Mun. Ins. Auth. (1997), 282 Mont. 475, 938 P.2d 679.
¶14 In Stratemeyer, the plaintiff sued his employer alleging he had suffered severe mental
and emotional distress resulting from a work-related incident. Stratemeyer, 276 Mont. at
70, 915 P.2d at 177. The district court granted the employer's motion to dismiss,
concluding that the Act provided the plaintiff's exclusive remedy. Stratemeyer, 276 Mont.
at 69, 915 P.2d at 176. We held on appeal that, because an emotional injury resulting from
work-related mental or emotional stress--known as a "mental-mental" injury--is not an
"injury" as defined in § 39-71-119, MCA, and is not compensable under the Act, the
exclusive remedy provision did not apply. Stratemeyer, 276 Mont. at 78, 915 P.2d at 181-
82. Thus, a plaintiff with a work-related "mental-mental" injury may bring a tort action
against his or her employer to recover damages. See Stratemeyer, 276 Mont. at 79, 915
P.2d at 182.
¶15 In Kleinhesselink, the plaintiff brought suit against his employer alleging both mental
and physical injuries resulting from work-related emotional or mental stress.
Kleinhesselink, 277 Mont. at 160, 920 P.2d at 109-10. In other words, the plaintiff alleged
both "mental-mental" and "mental-physical" injuries. We observed that § 39-71-119(3)(a),
MCA, excludes both mental and physical conditions arising from emotional or mental
stress from the definition of "injury" and, as a result, the plaintiff's "mental-mental" and
"mental-physical" injuries were not compensable under the Act. Therefore, pursuant to our
holding in Stratemeyer, we held that the plaintiff could proceed with a tort action against
his employer. Kleinhesselink, 277 Mont. at 163, 920 P.2d at 111. In Yarborough, we held
that the Workers' Compensation Court correctly denied a claimant benefits under the Act
where the evidence established the claimant suffered from a "mental-mental" injury
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excluded from the § 39-71-119, MCA, definition of "injury." Yarborough, 282 Mont. at
483, 938 P.2d at 684.
¶16 In each of these cases, the issue was the nature of the employee's injury and whether it
was a compensable "injury" under the Act. If an employee's injury is not compensable
under the Act, the exclusive remedy provision does not preclude a tort action against the
employer. Thus, the initial inquiry in determining whether the § 39-71-411, MCA,
exclusive remedy provision applies is whether the employee suffered an "injury" as
defined in § 39-71-119, MCA. Before even reaching the "injury" portion of the inquiry, of
course, it is clear that, to avoid the exclusivity provision, the injuries at issue must be those
of the employee. In attempting to analogize her injuries to those at issue in our previous
cases, Maney fails to recognize that she was not the injured employee here; Fogleson was.
Furthermore, the parties do not dispute that Fogleson's physical injury and death were
compensable injuries under the Act, thus bringing into play the exclusive remedy
provision. Consequently, Stratemeyer, Kleinhesselink, and Yarborough do not apply here.
¶17 Maney also argues that the emotional distress claims are outside the purview of the
Act's exclusive remedy provision pursuant to our holding in Sacco v. High County
Independent Press (1995), 271 Mont. 209, 220, 896 P.2d 411, 417-18, that negligent and
intentional infliction of emotional distress claims may be brought as independent, rather
than derivative, causes of action. She contends that, because the claims are independent
from Fogleson's injury and neither she nor Fogleson's siblings have any relationship to
Cheff, his employer, the Act and its exclusive remedy provision do not apply. She urges us
to adopt the reasoning in Nelson v. Hawkins (D. Mont. 1999), 45 F.Supp.2d 1015, where
the federal district court addressed the issue now before this Court and held that
independent emotional distress claims brought by an employee's family are not barred by
the Act's exclusivity provision. See Nelson, 45 F.Supp.2d at 1021. The Nelson court
observed that, pursuant to Sacco, the family's emotional distress claims were independent
from--and not derivative of--the injured employee's claim, were personal to the family and
were based on a separate duty owed by the employer to the family. Nelson, 45 F.Supp.2d
at 1020-21. The court determined that, due to the independent nature of the claim, the quid
pro quo policy underlying the Act was not involved and the exclusive remedy provision
does not operate to preclude the family's emotional distress claims. Nelson, 45 F.Supp.2d
at 1021.
¶18 Cheff responds that the legally independent nature of emotional distress claims is
irrelevant to whether the Act precludes Maney's claims here. He relies on the broad
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language of § 39-71-411, MCA, that employers are not subject to "any liability whatever"
for an employee's work-related injury or death and that, in case of the employee's death,
the Act--including the no liability provision--binds "all persons having any right or claim
to compensation for [the employee's] injury or death . . . ." From that language, Cheff
contends any tort claim which arises collaterally to the employee's death--whether
considered independent or derivative--is precluded. Cheff also points to holdings from
other jurisdictions that independent emotional distress actions by an employee's family are
barred by workers' compensation exclusive remedy statutes, citing specifically Williams v.
Schwartz (Cal. App. 1976), 131 Cal.Rptr. 200, Provost v. Puget Sound Power & Light Co.
(Wash. 1985), 696 P.2d 1238, and McLaughlin v. Stackpole Fibers Co., Inc. (Mass. 1988),
530 N.E.2d 157.
¶19 Our analysis of whether § 39-71-411, MCA, bars Maney from bringing an
independent tort action for emotional distress against Cheff begins with a determination of
the intent of the Legislature as evidenced by the plain meaning of the language used. See
In re R.L.S., 1999 MT 34, ¶ 8, 293 Mont. 288, ¶ 8, 977 P.2d 967, ¶ 8. "The statutory
language must be reasonably and logically interpreted and words given their usual and
ordinary meaning." In re R.L.S., ¶ 8.
¶20 As stated above, § 39-71-411, MCA, provides that "an employer is not subject to any
liability whatever for the death of or personal injury to an employee covered by the . . .
Act . . . ." This language is clear and unequivocal. An employer has no liability for an
employee's work-related injury or death which is compensable under the Act. The statute
then states that, in case of an employee's death, the Act binds "all persons having any right
or claim to compensation for his injury or death . . . ." This also is clear and unequivocal.
In the case of an employee's death, the employer has no liability for any claim of any
person for that injury and death. Moreover, in the context of § 39-71-411, MCA, no
liability "for" the injury or death means "[a]s a result of; because of" or "[a]s regards;
concerning." See The American Heritage Dictionary 686 (4th ed. 2000). Thus, the Act's
exclusivity provision bars any third party action against an employer for compensation
claimed "as a result of" or "concerning" an employee's injury or death. Finally, we
previously have indicated that the § 39-71-411, MCA, exclusive remedy provision
precludes claims against employers by third parties.
Our statute rules out "any liability whatever" even before it goes on to state that the
employee and those under him are limited to such recovery as the Act allows against
the employer. The language "any liability whatever" would be surplusage unless it is
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read to mean liability not only to the employee and those claiming under him, but
also any other party attempting to claim liability against the employer for the same
incident.
Cordier v. Stetson-Ross, Inc. (1979), 184 Mont. 502, 508-09, 604 P.2d 86, 89-90.
¶21 Consequently, the fact that the torts of negligent and intentional infliction of
emotional distress are independent, rather than derivative, causes of action pursuant to our
decision in Sacco is not pertinent to a determination of whether those actions are barred by
the Act's exclusive remedy provision. The language of § 39-71-411, MCA, precluding
"any liability whatever" and binding any person having any claim to compensation for an
employee's injury or death neither contemplates nor encompasses technical legal
distinctions relating to the independent or derivative nature of a tort created in non-
workers' compensation contexts. Rather, the inquiry to be made in analyzing whether a
third party claim for emotional distress is barred by the Act's exclusivity provision is
whether it is a claim for compensation "as a result of" or "concerning" the employee's
injury or death. The question, therefore, is whether there is some rational nexus between
the third party's claim and the acts or omissions leading to the employee's injury or death.
¶22 Here, while Maney's claims for negligent and intentional infliction of emotional
distress are independent tort causes of action, they are logically related to the underlying
injury to, and death of, Fogleson. In other words, had Fogleson's injury and death not
occurred, Maney's emotional distress claims would not have arisen. Thus, her claims arose
as a result of--and directly concern--Fogleson's compensable injury and death. Moreover,
her complaint does not allege any acts by Cheff resulting in her emotional distress separate
from--or in addition to--the negligence which allegedly caused Fogleson's accident. There
is a clear nexus between the injury to, and death of, Fogleson and Maney's emotional
distress claim.
¶23 Other jurisdictions have addressed this issue under similarly broad exclusive remedy
provisions and held that independent emotional distress claims brought by an employee's
family are barred. The Washington Supreme Court has held that actions brought by an
employee's family for negligent infliction of emotional distress are barred by Washington's
workers' compensation exclusive remedy provision--notwithstanding that the family's
emotional distress action was separate and distinct from the employee's cause of action--
because such actions arise out of the employee's injury or death. Provost, 696 P.2d at
1241. Similarly, the California Supreme Court has held that "a claim for negligent or
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intentional infliction of emotion distress, based on the plaintiff's having witnessed the
physical injury of a close relative, is logically dependent on the prior physical injury" and,
as a result, is barred by the state's exclusive remedy statute. Snyder v. Michael's Stores,
Inc. (Cal. 1997), 945 P.2d 781, 785 (citing Williams, 131 Cal.Rptr. at 203); see also Cole
v. Fair Oaks Fire Protection Dist. (Cal. 1987), 729 P.2d 743, 752.
¶24 The Supreme Court of Wyoming also has held that emotional distress actions by an
employee's family members are barred notwithstanding the independent nature of the
action, because the actions arise out of the underlying employment and "worker's
compensation benefits cover all injuries having any rational nexus to the employment."
Anderson v. Solvay Minerals, Inc. (Wyo. 2000), 3 P.3d 236, 240 (citation omitted).
Additionally, the Supreme Judicial Court of Massachusetts has held that a claim for
negligent infliction of emotional distress brought by an employee's widow "arose from his
injury and ultimate death, and are therefore barred" by the workers' compensation
exclusive remedy provision. McLaughlin, 530 N.E.2d at 159.
¶25 The common thread in the holdings of each of the above cases is the concept that,
where the independent emotional distress action brought by someone other than the
employee is based on alleged acts of an employer which are the same acts which resulted
in the employee's compensable injury, the emotional distress claims are logically related
to--or arise from--the employee's injury. Thus, the emotional distress claims are claims for
compensation for the employee's injury and are barred by workers' compensation
exclusive remedy provisions. The rationale applied in these cases is in accord with our
interpretation of § 39-71-411, MCA, discussed above.
¶26 With regard to Maney's reliance on Nelson, "we are not constrained to follow the
interpretations of Montana's statutes by the federal judiciary . . . ." Wetch v. Unique
Concrete Co. (1995), 269 Mont. 315, 319, 888 P.2d 425, 427; see also Ridley v. Guaranty
National Ins. Co. (1997), 286 Mont. 325, 334, 951 P.2d 987, 992. Moreover, Nelson is
unpersuasive in light of the fact that the federal district court cited no legal authority in
support of its conclusion that § 39-71-411, MCA, does not preclude bringing an
independent tort action against an employer when the underlying injury to the employee is
compensable under the Act; nor did it take our statements in Cordier into account. As a
result, we conclude that Maney's emotional distress claims are claims "for the death of or
personal injury to an employee covered by the . . . Act . . ." and are barred by the exclusive
remedy provision in § 39-71-411, MCA.
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¶27 Finally, Maney argues that her claim for intentional infliction of emotional distress is
not barred by the Act's exclusive remedy provision because, pursuant to § 39-71-413,
MCA, a separate cause of action may be brought against an employer when an employee
is injured by an intentional and malicious act. She asserts that her allegations of an
intentional tort constitute an allegation that Cheff acted intentionally and maliciously and
remove this claim from the purview of the Act. Cheff responds that Maney's complaint did
not allege facts sufficient to support a claim under § 39-71-413, MCA. We agree.
¶28 It is a plaintiff's burden to adequately plead a cause of action. Oliver v. Stimson
Lumber Co., 1999 MT 328, ¶ 61, 297 Mont. 336, ¶ 61, 993 P.2d 11, ¶ 61. Moreover, while
a concise statement of facts upon which relief can be granted is sufficient, " 'a complaint
must state something more than facts which, at the most, would breed only a suspicion
that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of
that which is material and necessary in order to entitle relief.' " Ryan v. City of Bozeman
(1996), 279 Mont. 507, 512, 928 P.2d 228, 231 (quoting Rambur v. Diehl Lumber Co.
(1963), 142 Mont. 175, 179, 382 P.2d 552, 554). In the context of the Act, we have held
that something more than mere negligence by the employer must be alleged in order to
meet the standard of § 39-71-413, MCA, and avoid the exclusive remedy provision in § 39-
71-411, MCA. Kortes v. Pool Co. (1995), 270 Mont. 474, 478, 893 P.2d 322, 325.
¶29 Maney's complaint states "[t]hat said acts by the Defendants as set out above have
proximately caused and resulted in negligent and intentional infliction of emotional
distress on the Plaintiffs . . . ." However, the complaint alleges no facts which would
establish that Cheff acted intentionally or maliciously in relation to Fogleson's injury and
death. Indeed, the complaint is devoid of any factual allegations of specific acts or
omissions by Cheff. We conclude that Maney's conclusory allegation of an intentional
tort, absent any factual allegations regarding intentional and malicious acts by Cheff, is
not sufficient to allege a separate cause of action under § 39-71-413, MCA, and avoid the
exclusivity provision of the Act.
¶30 We hold that the District Court did not err in granting summary judgment to Cheff
based on its conclusion that the claims raised in Maney's complaint were barred by the
exclusive remedy provision of the Act.
¶31 2. Did the District Court abuse its discretion in denying LP's motion for leave to file a
cross-claim against Cheff?
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¶32 After filing its answer to Maney's complaint, LP moved the District Court for leave to
amend its answer to add a cross-claim against Cheff for indemnity and contribution. The
court denied the motion and LP asserts error. We review a district court's denial of a
motion to amend a pleading to determine whether the court abused its discretion. Hadford
v. Credit Bureau of Havre, Inc., 1998 MT 179, ¶ 36, 289 Mont. 529, ¶ 36, 962 P.2d 1198,
¶ 36.
¶33 Section 39-71-411, MCA, provides, in part, that "an employer is not subject to any
liability whatever . . . for any claims for contribution or indemnity asserted by a third
person from whom damages are sought on account of [an employee's] injuries or death."
Here, LP is the third "person" from whom Maney seeks damages on account of Fogleson's
injuries and death. Having held above that Maney's claims against Cheff are barred by the
exclusive remedy provision in § 39-71-411, MCA, we conclude that the statute also bars
LP from asserting claims of indemnity and contribution against Cheff for those claims.
Consequently, we hold that the District Court did not abuse its discretion in denying LP's
motion for leave to file a cross-claim against Cheff.
¶34 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JAMES C. NELSON
Justice William E. Hunt, Sr.:
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I dissent.
/S/ WILLIAM E. HUNT, SR.
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