June 9 2010
DA 09-0550
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 135
NICOLE ALEXANDER, as personal representative
of the Estate of Mike Alexander, BURT OSTERMILLER,
and HELEN ALEXANDER,
Plaintiffs and Appellants,
v.
BOZEMAN MOTORS, INC., d/b/a BOZEMAN FORD,
DAVID A. WALLIN, BOB SNEDEKER, and ROGER BEVERAGE,
Defendants and Appellees.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 2005-699
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellants Nicole Alexander and Burt Ostermiller:
Shandor S. Badaruddin, Moriarity, Badaruddin & Booke, LLC,
Missoula, Montana
For Appellant Helen Alexander:
Gig A. Tollefsen, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana
For Appellees:
Donald R. Herndon, Herndon Law Firm, P.C., Billings, Montana
For Intervenor State of Montana:
Bradley J. Luck, Special Assistant Attorney General, Garlington,
Lohn & Robinson, Missoula, Montana
Hon. Steve Bullock, Montana Attorney General, Chris D. Tweeten,
Chief Civil Counsel, Helena, Montana
Curtis E. Larsen, Special Assistant Attorney General, Montana State
Fund, Helena, Montana
For Amicus Montana Chamber of Commerce:
John W. Bennion, Attorney at Law, Helena, Montana
For Amicus Liberty Northwest Insurance Corporation:
Larry W. Jones, Law offices of Larry W. Jones, Employees of
Liberty Mutual Group, Missoula, Montana
For Amicus Montana Contractor Compensation Fund, Montana Association of
Counties, Sisters of Charity of Leavenworth Health System, Montana Region,
Montana School Group Insurance Authority, and Montana Municipal
Interlocal Authority:
Oliver H. Goe, Christy S. McCann, Browning, Kaleczyc, Berry
& Hoven, P.C., Helena, Montana
Submitted on Briefs: April 8, 2010
Decided: June 9, 2010
Filed:
__________________________________________
Clerk
2
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellants Nicole Alexander, Burt Ostermiller, and Helen Alexander (collectively
Employees), appeal from an order of the Eighteenth Judicial District Court granting
summary judgment in favor of Appellees Bozeman Motors, Inc., David A. Wallin, Bob
Snedeker, and Roger Beverage (collectively Bozeman Motors). We affirm in part,
reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Burt Ostermiller (Ostermiller) worked for Bozeman Motors in August 2003, at
Bozeman Motors’s satellite office at the Four Corners intersection in Bozeman, Montana,
selling recreational vehicles. Defendants Snedeker, Wallin, and Beverage all worked at
Bozeman Motors and held either managerial or supervisory duties. The office in which
Ostermiller was working during this time was a 12 by 24 prefabricated building which
had been placed on an empty lot. Employees claim that Snedeker, Wallin, and Beverage
decided to open the office, and knew its size and approximate volume. The office had
just enough room for two desks, and had two windows and a door. The office did not
have a heat source when purchased. Snedeker bought a propane gas stove for the office
in order to heat it.
¶3 After the gas stove was installed and operating, Ostermiller claims that the stove
leaked propane into the office and caused a build up of carbon monoxide. Ostermiller
claims he became ill as a result of the inhalation of propane and/or carbon monoxide. He
asserts that friends noticed a chemical smell in the office, and that he was told by friends
that his body was beginning to stink of a chemical order when he was not at work.
3
Ostermiller maintains that he complained about smells in the office and his resulting
symptoms, but that Bozeman Motors did nothing in response. On or about November 1,
2003, Ostermiller lost consciousness while in the office. Ostermiller was discovered at
the office by his girlfriend and taken home. He did not return to work at Bozeman
Motors after this time.
¶4 Michael Alexander (Alexander) began working in the satellite office sometime
around November 2003. Employees claim that Bozeman Motors sent Alexander to work
in the satellite office without conducting a proper investigation into the stove, and
without giving him any warnings. Employees claim that Alexander complained to
Beverage about headaches and upset stomach, telling him that the office was not properly
ventilated and was making him sick. Alexander claimed that his dog got sick from
visiting the office as well, and subsequently refused to enter the office with him.
Employees claim that when Alexander complained to Bozeman Motors about the
conditions and his physical symptoms, nothing was done about the stove. Employees
assert that Alexander was sickened by the propane and carbon monoxide in a manner
similar to Ostermiller.
¶5 Employees claim that Alexander’s health and condition deteriorated to the point
where he was unable to come to work.1 Alexander and Ostermiller both claimed that
they suffered physical, mental and emotional symptoms as a result of the exposures.
Employees claim that Alexander was unable to care for himself as a result of his physical
1
In her complaint, Helen Alexander alleged that Alexander was found unconscious at the Four
Corners office by an employee of Bozeman Motors in February 2004. Helen also alleged that
Bozeman Motors had represented to Alexander that the issues with the stove had been fixed.
4
and emotional injuries and had to be cared for by his mother. Alexander and Ostermiller
were later diagnosed by Raymond Singer, Ph.D., as suffering from chronic effects of
acute and chronic workplace exposures to a faulty ventless space heater which affected a
number of neurobehavioral functions including memory, cognition and perception. Dr.
Singer concluded that Ostermiller and Alexander were permanently disabled.
¶6 After he quit working at the office, Alexander arranged for an inspection of the
office by Greg Brainerd (Brainerd), the owner and operator of Brainerd Home Inspection.
Employees claim that Brainerd determined the stove was leaking, forwarded the results
of his inspection to Bozeman Motors and told the defendants not to use the stove. After
Brainerd’s inspection in April 2004, the Employees claim the stove was not used again.
Bozeman Motors later conducted its own investigation of the stove, but this investigation
did not reveal any issues with the stove. Employees claim this investigation was
inadequate in several respects.
¶7 Employees claim that Ostermiller and Alexander continued to suffer various
symptoms well after their exposure. In February 2006, Alexander and Ostermiller filed
suit against Bozeman Motors. Later that same month, Alexander died at Deaconess
Hospital in Bozeman. Alexander’s mother, Helen Alexander, and sister Nicole
Alexander were later joined in the suit. The complaint set forth claims of negligence,
intentional battery, and negligent infliction of emotional distress and punitive damages
against the defendants.
¶8 On March 1, 2007, Bozeman Motors moved for summary judgment against the
Employees. A hearing was held on September 17, 2007. The District Court granted the
5
motion and dismissed the complaint on March 25, 2008. The District Court held that
Employees’ claims were barred by the “exclusivity provision” of the Workers’
Compensation Act (WCA), Title 39, chapter 71, MCA (2003).2 In Wise v. CNH Am.,
LLC, 2006 MT 194, 333 Mont. 181, 142 P.3d 774, this Court described the scope of the
exclusivity provision as follows:
The Workers’ Compensation Act generally provides the exclusive
remedy for an employee who suffers an injury in the scope of his or her
employment. Section 39-71-411, MCA. An employee may bring an
action against an employer or fellow employee, however, “[i]f an
employee is intentionally injured by an intentional and deliberate act of
the employee’s employer or by the intentional and deliberate act of a
fellow employee.” Section 39-71-413(1), MCA. The statute defines
intentional injury as “an injury caused by an intentional and deliberate act
that is specifically and actually intended to cause injury to the employee.”
Section 39-71-413(3), MCA.
Wise, ¶ 7.
¶9 Under Wise, therefore, “an employee . . . must allege that he or she has been
intentionally injured by the intentional act of an employer or fellow employee in order to
avoid the exclusivity provision of the Workers’ Compensation Act.” Wise, ¶ 11. In
response to Bozeman Motors’ motion for summary judgment, Employees argued they
had presented evidence demonstrating that Bozeman Motors intentionally injured them,
allowing them to avoid the exclusivity provision of the WCA. Employees claimed that
Bozeman Motors knew that the stove was too big for the office and that it was ruining the
air and sickening Ostermiller, and knew the specific symptoms he was experiencing but
did nothing to protect or warn him. Then, after Ostermiller passed out in the office,
2
The 2003 version of the WCA applies in the instant case.
6
Bozeman Motors sent Alexander into the same conditions without any warning, and
ignored his complaints until he too was permanently injured. In addition, Employees
argued in their brief opposing summary judgment that the evidence with respect to
Ostermiller was not as compelling, but adequate to proceed to trial.
¶10 The District Court rejected Employees’ arguments, concluding they had failed to
show that Bozeman Motors had deliberately intended to cause specific harm to Alexander
or Ostermiller. The District Court concluded that at best, Employees had demonstrated
that Bozeman Motors’ conduct and omissions amounted to wanton negligence, which
was insufficient as a matter of law under Calcaterra v. Mont. Resources, 1998 MT 187,
289 Mont. 424, 962 P.2d 590, overruled on other grounds by Essex Ins. Co. v. Moose’s
Saloon, Inc., 2007 MT 202, 338 Mont. 423, 166 P.3d 451, to avoid the WCA’s
exclusivity provision. See Calcaterra, ¶ 13 (internal quotations omitted) (stating that
“allegations of negligence, no matter how wanton, are insufficient to avoid the exclusive
remedy of the Workers’ Compensation Act.”). Furthermore, the District Court concluded
that Bozeman Motors’ conduct was not akin to an “intentional left jab to the chin,” and
therefore failed to meet the level of intentionality required to escape the WCA’s
exclusivity provision under Enberg v. Anaconda Co., 158 Mont. 135, 137, 489 P.2d
1036, 1037 (1971).
¶11 Employees also argued that § 39-71-413, MCA, was unconstitutional because it:
(1) violates equal protection under Art. II, Section 4 of the Montana Constitution; (2) is
an unconstitutional grant of special privileges and immunities in violation of Article XI,
Section 31; and (3) is an unconstitutional piece of special legislation in violation of
7
Article V, Section 12. The District Court rejected each of these challenges.3
Accordingly, the District Court granted Bozeman Motors’ motion for summary judgment,
concluding that Employees’ claims were barred by the exclusivity provision of the WCA.
¶12 Employees now appeal from the District Court’s decision. We state the issues on
appeal as follows:
¶13 Issue One: Did the District Court err in granting summary judgment on
Alexander and Ostermiller’s claims?
¶14 Issue Two: Is § 39-71-413, MCA, unconstitutional?
STANDARD OF REVIEW
¶15 We review de novo a district court’s grant of summary judgment applying the
criteria set forth in M. R. Civ. P. 56. Mattson v. Mont. Power Co., 2009 MT 286, ¶ 15,
352 Mont. 212, 215 P.3d 675. Summary judgment is proper when the moving party
shows an absence of genuine issues of material fact and entitlement to judgment as a
matter of law. Mattson, ¶ 15. If the moving party meets this burden, the non-moving
party must present substantial evidence that raises a genuine issue of material fact in
order to avoid summary judgment. Carter v. Miss. Farm Bureau Cas. Ins. Co., 2005 MT
74, ¶ 8, 326 Mont. 350, 109 P.3d 735.
3
In its order, the District Court, citing to Great Western Sugar Co. v. Dist. Ct., 188 Mont. 1, 610
P.2d 717 (1980), expressly held that the intentional act exception under § 39-71-413, MCA, is
recognized under Montana law. On appeal, Bozeman Motors suggests that this statute is actually
unconstitutional under Article II, Section 16 of the Montana Constitution. As the Employees
rightly point out, however, Bozeman Motors has not filed a cross appeal from this portion of the
District Court’s order. See M. R. App. P. 12(4). Accordingly, we decline to consider Bozeman
Motors’ challenge to this statute on appeal.
8
¶16 Our review of constitutional questions is plenary. Rohlfs v. Klemenhagen, LLC,
2009 MT 440, ¶ 7, 354 Mont. 133, 227 P.3d 42. The constitutionality of a statute is a
question of law, and we review the district court’s conclusions in this regard for
correctness. Rohlfs, ¶ 7.
DISCUSSION
¶17 Issue One: Did the District Court err in granting summary judgment on
Alexander and Ostermiller’s claims?
¶18 The Employees contend they have presented sufficient evidence to show that
Bozeman Motors deliberately intended to cause them specific harm when it allowed them
to work at the Four Corners office. They argue that Bozeman Motors knew the size of
the office, that the office was not ventilated, that the stove was the only heat source for
the office, and that it was fouling the air and causing Ostermiller to be sick. Further,
Employees claim that Bozeman Motors knew the symptoms Ostermiller was
experiencing were the result of breathing the air in the office, and that Ostermiller had to
remain in the office most of the day due to the weather. Employees further allege that
Bozeman Motors conducted no inquiry or investigation into the source of the
contaminated air, whether the stove was functioning properly, or any alternative causes
for Ostermiller’s symptoms.
¶19 With respect to Alexander, Employees contend that Bozeman Motors knew that
Ostermiller had passed out due to the contaminated air in the office, and then became so
ill he could not return to work. Yet, Bozeman Motors failed to warn Alexander of these
conditions. After Ostermiller fell ill and left his employment, Bozeman Motors placed
9
Alexander in the same office, exposing him to the same conditions that had sickened
Ostermiller. Alexander, who the Employees claim was known to Bozeman Motors as
“not a complainer,” registered the same complaints as Ostermiller had, asserting that
there was an odor in the office and that he was experiencing the same symptoms as
Ostermiller. Alexander was eventually overcome and then physically unable to return to
work.
¶20 On appeal, Bozeman Motors does not challenge the sufficiency of these
allegations for purposes of summary judgment. Instead, Bozeman Motors observes that
the District Court acknowledged these allegations, but then held that, even if true, they
did not rise to the level of deliberate attempt to cause specific harm. Accordingly, we too
will accept these factual allegations as true solely for the purpose of considering the
summary judgment motion.4
¶21 The disposition of this issue hinges upon whether Employees’ factual allegations,
taken as true and viewed in a light most favorable to the Employees as the non-moving
party, are arguably sufficient to avoid the WCA’s exclusivity provision by virtue of
§ 39-71-413, MCA, so as to entitle plaintiffs to a trial on the merits of their claims. As
the Court noted in Wise, “an employee . . . must allege that he or she has been
intentionally injured by the intentional act of an employer or fellow employee in order to
avoid the exclusivity provision of the Workers’ Compensation Act.” Wise, ¶ 11.
4
On appeal, Bozeman Motors interjects an array of facts which it claims shows that the injuries
of Alexander and Ostermiller were caused by other medical conditions, and not by exposure to
contaminated air in the Four Corners office. While such facts may play a role in ultimately
establishing causation for these injuries, they are not germane to the issues currently before the
Court.
10
Furthermore, under § 39-71-413(3), MCA, the injured employee must demonstrate that
the employer deliberately and intentionally caused an “intentional injury” to the
employee. This statute defines “intentional injury” as “an injury caused by an intentional
and deliberate act that is specifically and actually intended to cause injury to the
employee injured and there is actual knowledge that an injury is certain to occur.”
Section 39-71-413(3), MCA. In other words, an “intentional injury” has two required
elements: (1) an intentional and deliberate act specifically and actually intended to cause
injury; and (2) actual knowledge of the injury’s certainty.
¶22 Although much of Employees’ argument in this appeal has focused on whether
Bozeman Motors acted deliberately and intentionally to cause them injury, the statutory
requirement that the employer have “actual knowledge” of the injury’s certainty is
equally significant. With respect to Ostermiller, even assuming the actions of Bozeman
Motors satisfied the “intentional and deliberate” element of § 39-71-413(3), MCA, we
conclude that the Employees have not set forth allegations sufficient to demonstrate that
Bozeman Motors had actual knowledge that his exposure to the contaminated air in the
Four Corners office was “certain” to cause him injury. 5 While Employees do aver that
Bozeman Motors intentionally and deliberately exposed Ostermiller to dangerous
conditions in the office, and did not respond to his complaints that he was becoming ill or
otherwise take any measures to address these conditions, these allegations, viewed in a
light most favorable to the Employees, simply do not establish that Bozeman Motors had
5
As noted above in ¶ 10 of the Opinion, even wanton negligence is insufficient as a matter of
law to invoke the exception to the exclusivity provision.
11
actual knowledge that requiring Ostermiller to work in this office would result in certain
injury. Accordingly, we conclude that Employees have failed to raise a genuine issue of
material fact on this essential element of their case, and that the summary judgment
against Ostermiller’s claims was appropriately granted.
¶23 A different scenario is presented with respect to Alexander. When Bozeman
Motors sent Alexander to work in the Four Corners office, it had actual knowledge of
Ostermiller’s injury. Moreover, it is alleged that Bozeman Motors did not disclose
Ostermiller’s injury to Alexander, nor did it take any measures to investigate the cause of
his injuries. Furthermore, the Employees allege that Alexander complained to Bozeman
Motors about the contaminated air in the office, and told them he was becoming sickened
by it. The fact that Ostermiller had previously raised these same complaints to Bozeman
Motors, and then lost consciousness in the Four Corners office, when viewed in a light
most favorable to the Employees, does raise a genuine issue of material fact as to whether
Bozeman Motors had actual knowledge that requiring Alexander to work in the same
office, without investigating or addressing the alleged contamination from the stove, was
“certain” to cause him injury.
¶24 In reaching our decision, we rely on the facts presented and the law which has
evolved relative to establishing intent. In 2001, the Legislature amended § 39-71-413,
MCA, to its present form. 2001 Mont. Laws 1095-96. In the session law amending this
statute, the Legislature specifically stated that the amendment was a response to Sherner
v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990, and was intended to remove
the “malice” component and instead “provide that an injured employee has a cause of
12
action for damages against an employee or the employer’s employee only if the employer
or fellow employee causes an intentional injury.” 2001 Mont. Laws 1096.
¶25 After these amendments, this Court rendered its decision in Wise. In that case, an
employee (Wise) suffered an injury while operating heavy equipment. Wise claimed that
his employer negligently failed to comply with state and federal workplace safety laws,
and that the employer’s inactions constituted intentional and deliberate conduct as
defined in § 39-71-413, MCA. Applying the plain language of § 39-71-413, MCA, this
Court rejected Wise’s claims. The Court held that Wise’s complaint alleged nothing
more than ordinary negligence and alleged “no conduct that could be construed as
‘intentional and deliberate’ acts, other than the general allegation near the end of his
complaint. Wise’s attempt to characterize negligent conduct as ‘intentional and
deliberate’ fails to bring his claim within the ambit of § 39-71-413, MCA.” Wise, ¶ 12.
¶26 While the 2001 Legislature amendments removed “malicious” conduct from
§ 39-71-413, MCA, and also focused upon and narrowed the meaning of “intentional
injury,” we must decide in the present case what factual allegations are sufficient to raise
a genuine issue of material fact that the injury was “caused by an intentional and
deliberate act that is specifically and actually intended to cause injury to the
employee . . . .” Section 39-71-413(3), MCA. In criminal law, intent is generally
inferred by a jury from the surrounding facts and circumstances. “ ‘Because it is seldom
subject to direct proof, intent must be inferred from the acts of the accused and the facts
and circumstances of the offense.’ ” State v. Gittens, 2008 MT 55, ¶ 38, 341 Mont. 450,
178 P.3d 91 (quoting State v. Hall, 249 Mont. 366, 371, 816 P.2d 438, 441 (1991)).
13
Stated differently, “ ‘[c]riminal intent, being a state of mind, is rarely susceptible of direct
or positive proof and therefore must usually be inferred from the facts testified to by
witnesses and the circumstances as developed by the evidence.’ ” State v. Motarie, 2004
MT 285, ¶ 8, 323 Mont. 304, 100 P.3d 135 (quoting State v. Longstreth, 1999 MT 204,
¶ 34, 295 Mont. 457, 984 P.2d 157). Analogizing to the intent component of the statute
at issue, even if the degree of intentional conduct required under § 39-71-413, MCA,
rises to a level similar to that required to prove criminal culpability,6 an employer’s intent
may undoubtedly be inferred from the facts and circumstances, and direct proof that the
employer intended to cause an intentional injury is not required in order to submit such
an issue to the jury or survive a motion for summary judgment.
¶27 Indeed, such a scenario was present in People v. O’Neil, 550 N.E.2d 1090 (Ill.
App. 5 Dist. 1990) (commonly referred to as Film Recovery), a case discussed by this
Court in both Blythe v. Radiometer Am., Inc., 262 Mont. 464, 866 P.2d 218 (1993), and
Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995). In Lockwood, the
Court concluded that a plaintiff had presented sufficient allegations to support his
contention that W.R. Grace had intentionally harmed him and survive a motion to
dismiss. The plaintiff had alleged that W.R. Grace knew or had reason to know that
extended inhalation or continuous ingestion of vermiculite and asbestos particles created
a high degree of risk or harm to him; willfully and deliberately concealed its knowledge
from plaintiff and co-employees; failed to provide protective equipment sufficient to
6
Justice Nelson suggested as much in his concurrence in Wise. See Wise, ¶¶ 16-17 (Nelson, J.,
concurring).
14
avoid the danger; advised the plaintiff and other employees that it was safe to work
continuously in close proximity to vermiculite and asbestos particles; and thereby
proximately caused plaintiff’s mesothelioma and, ultimately, his death. Lockwood, 272
Mont. at 208, 900 P.2d at 318. The Court stated that “intent to injure does not mean
desire to injure; it means that the employer intended that the employee should undergo
the injury—the exposure to the harm—of which the employer knew on a daily basis.”
Lockwood, 272 Mont. at 210, 900 P.2d at 319. In reaching its decision, the Court
discussed Film Recovery as follows:
In Film Recovery, an employee died after inhaling harmful fumes released
in the course of the employer’s manufacturing process; the employer knew
that his employees were inhaling the harmful fumes and concealed his
knowledge of the harm from the employees. We indicated that Professor
Larson cited Film Recovery with approval as a case involving facts
constituting an intentional tort sufficient to avoid exclusivity. Blythe, 866
P.2d at 223.
The distinguishing factor between Film Recovery and cases such as
Blythe is the employer’s alleged knowledge that the employee is being
injured, in the former, versus the employer’s exposing the employee to
risk of harm without certain knowledge that the employee is being or will
be harmed, in the latter. See Blythe, 866 P.2d at 223. Under this analysis,
it is clear that [the] allegation that Grace knew its acts created harm to [the
plaintiff] meets both Professor Larson’s definition of “intent to harm” and
that of this Court in Blythe.
Grace argues that Film Recovery is inapplicable here because it is a
criminal case involving neither an intentional tort nor exclusivity under
legislation such as the MODA. While Grace’s characterization of Film
Recovery is correct, its argument misses the point. We do not rely on Film
Recovery as precedent for our determination that [these] allegations are
sufficient to avoid exclusivity. Rather, we address it only to indicate the
type of facts which will support an intentional tort sufficient to avoid
exclusivity and which must be alleged in a complaint to withstand a
motion to dismiss.
Lockwood, 272 Mont. at 210-11, 900 P.2d at 319.
15
¶28 In Blythe, an employee (Blythe) of Community Medical Center, Inc. (CMC), in
Missoula sued the hospital for damages after he inadvertently pricked himself with a
needle in an Arterial Blood Gas kit (ABG). Blythe, 262 Mont. at 467, 866 P.2d at 220.
The needle allegedly contained blood from a patient who had been infected with the
AIDS virus. The ABG kit in question was a defective kit which had been purchased by
CMC at a reduced price. Blythe’s claim was ultimately rejected by this Court because he
failed to show the presence of an intentional harm which CMC specifically and
maliciously directed at him. Blythe, 262 Mont. at 469, 866 P.2d at 221. Relying on Film
Recovery, the Court held that intentional conduct could be inferred in situations “where
the employer knew the employee was being harmed and continued to expose the
employee to known harm after failing to disclose [such] warnings . . . .” Blythe, 262
Mont. at 472, 866 P.2d at 223. In Blythe’s case, however, the facts and circumstances
surrounding CMC’s conduct failed to show intentional conduct.
¶29 In Calcaterra, the Court relied on a similar analysis, holding that an employee
must allege and establish that an employer had “actual knowledge” that an employee was
being harmed in order to satisfy the definition of an intentional harm. Calcaterra, ¶ 14.
In that case, an employee was fatally injured at work, and his estate filed suit against the
employer. The estate of the injured employee alleged that the injury was due to
intentional conduct of the employer as evidenced by the employer’s violation of various
federal safety regulations and the fact that the employee was forced to work in unsafe
conditions. Calcaterra, ¶ 7. This Court rejected this evidence as sufficient to
demonstrate an intent to harm, stating:
16
Notwithstanding these principles which govern allegations or
evidence insufficient to avoid the exclusivity provision, however, it is
clear that § 39-71-413, MCA, provides an exception to that bar for injuries
during employment which “are caused by the intentional . . . act or
omission” of a fellow employee. In that regard, we have held that
allegations or evidence that an employer knew its acts created a high
degree of harm to an employee are sufficient to meet the intentional act
requirement of § 39-71-413, MCA. See Lockwood, 272 Mont. at 210, 900
P.2d at 319. Under the Lockwood approach, however, an employee must
allege and establish that the employer had actual knowledge that the
employee was being harmed; allegations such as that an employer “had
ample reason to know” of the harm being experienced are insufficient.
Lockwood, 272 Mont. at 209, 900 P.2d at 318.
Calcaterra, ¶ 14.
¶30 In light of these cases7 and principles of “inferred intent” well-established in the
criminal law context, we hold that deliberate and intentional conduct may be inferred
from factual allegations indicating that an employer knew an employee was being
harmed, failed to warn the employee of the harm, and intentionally continued to expose
the employee to the harm. Additionally, as required under the plain language of
§ 39-71-413(3), MCA, the employee must allege and demonstrate that the employer had
“actual knowledge” of the certainty of injury.
¶31 Viewing the facts in a light most favorable to Alexander, we conclude that
Alexander has met this burden and that summary judgment against him was improperly
granted. Alexander has alleged that Bozeman Motors had actual knowledge of the harm
posed by the use of the stove in the Four Corners office, and knew that he was being
harmed in light of Ostermiller’s previous lost consciousness. Alexander, in turn, lodged
7
Although Blythe, Lockwood, and Calcaterra were decided prior to Sherner and the 2001
amendments to § 39-71-413, MCA, the Court’s analysis of what constitutes “intentional”
conduct in the context of the WCA’s exclusivity provision remains instructive.
17
complaints similar to those of Ostermiller. Furthermore, Employees claim that Bozeman
Motors failed to warn Alexander about the dangers posed by the stove. These factual
allegations are sufficient to raise a genuine issue of material fact on this issue, and permit
a trier of fact to draw the inference that Bozeman Motors deliberately and intentionally
caused an intentional injury to Alexander.
¶32 For these reasons, we reverse the District Court’s grant of summary judgment with
respect to Alexander. With respect to Ostermiller, however, summary judgment was
proper. Even if Ostermiller could set forth allegations to demonstrate that Bozeman
Motors acted intentionally and deliberately in causing him harm, he cannot demonstrate
that he suffered an “intentional injury” as defined by § 39-71-413(3), MCA, since there
are no factual allegations sufficient to support the inference that Bozeman Motors had
actual knowledge of the certainty that he would be harmed.
¶33 Issue Two: Is § 39-71-413, MCA, unconstitutional?
¶34 Because we have affirmed the District Court’s grant of summary judgment with
respect to Ostermiller, we must address Employees’ various challenges to the
constitutionality of § 39-71-413, MCA. Briefly stated, these arguments are as follows.
First, Employees allege that § 39-71-413, MCA, violates the equal protection clause in
Article II, Section 4 of the Montana Constitution because it subjects Montana workers to
arbitrary and discriminatory action and creates an impermissible class of employees.
Employees claim that the statute creates two classes of employees—those who work for
small businesses, sole proprietors, and partnerships, and those who work for corporations.
Employees contend that by virtue of § 39-71-413, MCA, an injured employee of the
18
former class can bring a direct cause of action against an employer, while an injured
employee in the latter class cannot. Employees contend there is no rational basis for the
creation of these two classes, and that allowing corporations and their employees to
escape liability is unreasonable, irrational, and ignores the realities of the work place.
Employees also contend that strict scrutiny should apply to the constitutional analysis of
the statute.
¶35 Second, Employees claim that § 39-71-413, MCA, violates Article II, Section 31
and Article V, Section 12 of the Montana Constitution. Article II, Section 31 prohibits
the enactment of legislation that confers “any irrevocable grant of special privileges,
franchises, or immunities . . . .” Article V, Section 12 prohibits the enactment of any
special or local legislation. Employees claim that the statute violates these provisions
because it insulates or immunizes employers from their responsibility for malicious and
intentional injurious conduct. Finally, Employees contend that § 39-71-413, MCA,
violates their right to substantive due process of law and infringes upon their fundamental
rights under the Montana Constitution. They contend that this statute deprives injured
employees of a meaningful opportunity to be heard in causes of action against employers
who injure them. Furthermore, they claim the statute impermissibly infringes upon
workers’ rights to a healthful environment, to enjoy life and liberty, to seek health, safety,
and happiness, and to pursue gainful employment.
¶36 Statutes are presumed constitutional, and the party challenging a statute bears the
burden of proving the statute unconstitutional beyond a reasonable doubt. Stavenjord v.
Mont. State Fund, 2003 MT 67, ¶ 45, 314 Mont. 466, 67 P.3d 229. We conclude that
19
Employees have failed to meet their burden of demonstrating beyond a reasonable doubt
that § 39-71-413, MCA, is unconstitutional. Therefore, we affirm the District Court’s
rejection of Employees’ constitutional challenges.
CONCLUSION
¶37 We affirm the District Court’s grant of summary judgment with respect to
Ostermiller. We also reject the Employee’s constitutional challenges to § 39-71-413,
MCA. However, we reverse the District Court’s grant of summary judgment with respect
to Alexander and remand his cause of action for further proceedings consistent with this
Opinion.
/S/ PATRICIA O. COTTER
We concur:
/S/ MIKE MCGRATH
/S/ BRIAN MORRIS
Justice W. William Leaphart, concurring.
¶38 I concur in the Court’s resolution of Issue One. As to Issue Two, like the Court, I
affirm the District Court’s rejection of the constitutional challenge. However, I would do
so based upon the Employees’ failure to make a plain showing of unconstitutionality. As
I pointed out in my concurrence in Oberson v. U.S. Department of Agriculture, 2007 MT
293, ¶¶ 33-37, 339 Mont. 519, 171 P.3d 715 (Leaphart, J., concurring), the “beyond a
20
reasonable doubt” standard, which the Court invokes herein, is an absurd standard of
decision for a question of constitutional law.
/S/ W. WILLIAM LEAPHART
Justice Jim Rice, concurring in part and dissenting in part.
¶39 I concur with the Court’s conclusion that summary judgment was properly entered
against Ostermiller, as well as its conclusion that § 39-71-413, MCA, is constitutional.
However, I dissent from the Court’s conclusion that Alexander has asserted facts
necessary to evade the rule of exclusivity.
¶40 The Legislature has declared that “an objective of the Montana workers’
compensation system [is to] provide, without regard to fault, wage supplement and
medical benefits to a worker suffering from a work-related injury or disease.” Section
39-71-105(1), MCA. Pursuant thereto, the Legislature has provided that “[f]or all
employments covered under the Workers’ Compensation Act or for which an election has
been made for coverage under this chapter, the provisions of this chapter are exclusive.”
Section 39-71-411, MCA (emphasis added); see also Larson’s Workers’ Compensation
Law § 103.03 (Rev. ed., Matthew Bender Supp. 2009) (stating the two reasons for
exclusivity are “to maintain the balance of sacrifices between employer and employee in
the substitution of no-fault liability for tort liability” and “to minimize litigation, even
litigation of undoubted merit”).
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¶41 Only in very limited circumstances may an injured employee avoid the exclusivity
rule and pursue a lawsuit in addition to collecting benefits under the Workers’
Compensation Act:
If an employee is intentionally injured by an intentional and deliberate act
of the employee’s employer or by the intentional and deliberate act of a
fellow employee while performing the duties of employment, the employee
or in the case of death the employee’s heirs or personal representatives, in
addition to the right to receive compensation under the Workers’
Compensation Act, have a cause of action for damages against the person
whose intentional and deliberate act caused the intentional injury.
Section 39-71-413(1), MCA. The statute defines “intentional injury” as “an injury
caused by an intentional and deliberate act that is specifically and actually intended to
cause injury to the employee injured and there is actual knowledge that an injury is
certain to occur.” Section 39-71-413(3), MCA (emphasis added). This statutory scheme
admittedly sets a very high bar for evading the exclusivity rule and maintaining an action
against a covered employer, but such a bar was the deliberate and calculated action of the
Legislature. Wise v. CNH Am., LLC, 2006 MT 194, ¶¶ 9-11, 333 Mont. 181, 142 P.3d
774. Further, the bar is consistent with the common understanding of workers’
compensation exclusivity among the states, and this Court’s precedent.
¶42 Larson’s Workers’ Compensation Law illustrates the level of intention necessary
for an injury to be taken outside of workers’ compensation exclusivity. Notably, an
employer’s alleged conduct which “goes beyond aggravated negligence” and includes
“knowingly permitting a hazardous work condition to exist,” “wilfully failing to furnish a
safe place to work,” or “withholding information about worksite hazards” is not
sufficient. Larson’s Workers’ Compensation Law § 103.03. Thus, the “toleration of a
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dangerous condition may or may not set the stage for an accidental injury later. But in
any normal use of the words, it cannot be said, if such an injury does happen, that this
was deliberate infliction of harm comparable to an intentional left jab to the chin.”
Larson’s Workers’ Compensation Law § 103.03. This is not mere commentary—Larson
explains that Montana is “firmly within the camp” subscribing to these principles.
Larson’s Workers’ Compensation Law § 103.04[3][c].1
¶43 This Court has already held, in a similar case, that the intention necessary to evade
exclusivity did not exist as a matter of law when an employer knew of previous injuries
caused by an unsafe work environment and, despite such knowledge, directed the
employee to work in the environment without informing him of such a danger. Noonan
v. Spring Creek Forest Prods., Inc., 216 Mont. 221, 224-25, 700 P.2d 623, 625 (1985).2
Noonan reached into a wood planer to free a jammed piece of wood when the planer
entrapped his hand, sustaining serious injuries. Noonan, 216 Mont. at 222, 700 P.2d at
624. Noonan brought a suit against his employer, Spring Creek, claiming that Spring
Creek “had been requested to repair the planer but failed to do so” and that it “knew of
1
A small sampling of other decisions from the “camp” include: Russell v. United Parcel Serv.,
Inc., 666 F.2d 1188 (8th Cir. 1981); Rolon v. Ortho Biologics LLC, 404 F. Supp. 2d 409 (D.P.R.
2005); Frye v. Airco, Inc., 269 F. Supp. 2d 743 (S.D. Miss. 2003); Loughridge v. Overnite
Transp. Co., 649 F. Supp. 52 (E.D. Mo. 1986); Provo v. Bunker Hill Co., 393 F. Supp. 778 (D.
Idaho 1975); Conway v. Circus Circus Casinos, Inc., 8 P.3d 837 (Nev. 2000) (per curiam); Angle
v. Alexander, 945 S.W.2d 933 (Ark. 1997); White v. Apollo-Lakewood, Inc., 720 S.W.2d 702
(Ark. 1986); Grillo v. Natl. Bank of Wash., 540 A.2d 743 (D.C. App. 1988); Hildebrandt v.
Whirlpool Corp., 364 N.W.2d 394 (Minn. 1985); Blailock v. O’Bannon, 795 So. 2d 533 (Miss.
2001); Cf. Taylor v. Transocean Terminal Operators, Inc., 785 So. 2d 860 (La. App. 4th Cir.
2001).
2
Although this Court decided Noonan prior to the 2001 amendments to § 39-71-413, MCA, the
analysis of intent remains instructive. See Opinion, ¶ 30 n.7.
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prior accidents on the planer but concealed the fact of such accidents from Randy
Noonan.” Noonan, 216 Mont. at 223, 700 P.2d at 624.
¶44 On appeal, Noonan offered cases for the proposition that “[t]he existence of this
knowledge or intent may be inferred from the employer’s conduct and surrounding
circumstances.” Noonan, 216 Mont. at 224, 700 P.2d at 625. However, we rejected that
approach, concluding:
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 for this
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.
Noonan, 216 Mont. at 225, 700 P.2d at 625. In a special concurrence, Justice Morrison
offered an explanation which is directly contradictory to the Court’s approach today:
There is sufficient evidence in this record to allow a factual determination if
we apply a “willful” standard. The conscious disregard of others is the type
of conduct that rises to the level of willfulness and were we to adopt such a
standard for Workers’ Compensation purposes this case should be
permitted to go to a jury for resolution of the liability and damage
questions.
I believe the legislature intended Workers’ Compensation to be the
exclusive remedy except in those situations where the defendant’s conduct
arose from specific intent rather than willfulness. In other words, an
assault would allow a personal injury action. Gross negligence, such as we
have here, would not.
Were we to open the door for personal injury actions where the
defendant’s conduct rises to a level of gross negligence or willfulness, I can
foresee personal injury actions in many Workers’ Compensation cases.
Although there may be a basis in sound public policy for allowing this, I do
not believe that is what the legislature intended.
Noonan, 216 Mont at 226, 700 P.2d at 626 (Morrison, J., concurring) (emphasis added).
I agree with both Justice Morrison’s legal analysis and his concern about the future effect
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of a contrary decision.
¶45 Ostermiller and Alexander indicate that they presented the following factual
assertions to the District Court, as quoted from their briefing:
(1) CO was present at the satellite office[;] (2) Propane was present in the
satellite office; (3) Mike Alexander and Burt Ostermiller were breathing
both chemicals during the time they were in the satellite office; (4) Mike
Alexander and Burt Ostermiller suffered injuries as a proximate result of
their exposure to the gas(es); (5) [Bozeman Motors] knew or should have
known of the presence of gas(es) originating from the stove, and (6)
[Bozeman Motors] did nothing to avoid causing the expected and
anticipated harm to [Burt] Ostermiller and Mike Alexander.
Ostermiller and Alexander then delineate sixteen facts which they allege that Bozeman
Motors knew about the work environment:
1. The size of the satellite office; 2. That the stove was too big for the
office; 3. That the stove was the primary, or rather, only, source of heat for
the small building; 4. That the office was unventilated; 5. That the stove
was fouling the air; 6. That Ostermiller was getting sick from breathing the
air at the office; 7. The specific symptoms that Ostermiller was
experiencing; 8. That Oste[r]miller claimed the symptoms were a result of
breathing the air in the office; 9. That they had conducted no inquiry or
investigation into the source of the bad air or whether the stove was
functioning properly or other alternative causes for Ostermiller’s
symptoms; 10. That the weather was such that Ostermiller had to remain
inside the office throughout most of the day; 11. That Ostermiller had
passed out and become so ill that he could not return to work; 12. That
Mike Alexander was working in the same office during a colder time of
year with the exact same stove operating just as it had previously; 13. That
Mike Alexander was breathing the air in the office; 14. That no warning
had been provided to Mike Alexander; 15. That Mike Alexander, who was
known not to complain about anything, was complaining of the same odor
and the same symptoms experienced by Ostermiller; 16. That Mike
Alexander was also overcome and was physically unable to return to work.
Accepting all of these allegations as true for purposes of summary judgment, Alexander
still does not allege facts demonstrating “an intentional and deliberate act that is
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specifically and actually intended to cause injury to the employee.” Section 39-71-
413(3), MCA. At most, this alleged conduct establishes aggravated negligence in failing
to provide a safe working environment, and although reprehensible, the Legislature has
deemed such conduct insufficient to remove this case from the exclusivity provision of
the Workers’ Compensation Act. See § 39-71-413(3), MCA; Wise, ¶ 12. Only cases
involving intentional and deliberate acts specifically intended to cause the injury to the
injured employee are permitted under the exception to exclusivity. See Taylor, 785 So.
2d at 861, 864 (employee stabbed by fellow employee).
¶46 Therefore, I would affirm the District Court’s grant of summary judgment with
regard to Alexander.
/S/ JIM RICE
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