Kleinhesselink v. Chevron, U.S.A.

                             NO.    95-524
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1996




APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Stillwater,
               The Honorable Diane G. Barz, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Donald W. Molloy; Molloy Law Offices,
               Billings, Montana
               Adele P. Kimmel; Trial Lawyers for Public
               Justice, Washington, D.C.
          For Respondents:
               Jeanne M. Bender, Patricia D. Peter-man;
               Holland & Hart, Billings, Montana


                               Submitted on Briefs:     April 25, 1996
                                             Decided:   July 24, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of Court

        Dan Kleinhesselink (Kleinhesselink) appeals from an order of
the     Thirteenth      Judicial    District      Court,      Stillwater      County,
dismissing his complaint for failure                  to state a   claim upon which
relief can be granted.          We reverse and remand.
        The issue on appeal is whether the District Court erred in
dismissing Kleinhesselink's complaint pursuant to Rule 12(b) (6),
M.R.Civ.P.,       on the basis that the exclusivity clause of the
Workers' Compensation Act bars his               claims.

        Kleinhesselink was employed by the Stillwater Mining Company
at the Stillwater Mine near Nye, Montana.                  He held various safety
positions,       including Safety Coordinator.             Kleinhesselink     alleges
that,    during his employment,       employees of the Stillwater Mining
Company negligently disregarded safety and that such disregard
resulted in deaths and injuries at the mine.                           According to
Kleinhesselink,        those deaths and injuries could have been avoided
if his safety recommendations had been followed.
        Kleinhesselink further alleges that, due to the deaths and
injuries     at the mine,       he experienced guilt and suffered from
depression,       chronic fatigue, insomnia, nausea, headaches, muscle
spasms     and     digestive     problems.        His      request     for   Workers'
Compensation benefits was denied.
        Kleinhesselink     subsequently       filed   a    complaint   alleging   two
counts of negligence against Chevron U.S.A., the Pittsburg &Midway
Coal Mining Company,           Manville Mining and the Stillwater Mining
Company.         All    four    defendants      ultimately     moved     to dismiss
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Kleinhesselink's complaint for failure to state a claim upon which
relief could be granted.          Hereafter,      we refer to the defendants
collectively as Chevron and consider the separate motions to
dismiss as one motion.
         Chevron based its motion to dismiss solely on the exclusivity
clause of the Workers'         Compensation Act (the Act), § 39-71-411,
MCA, arguing that "Montana law clearly holds that Kleinhesselink
cannot maintain negligence claims against his employer if his
employer has       secured     workers'       compensation   insurance."   The
District Court       agreed that the entirety of Kleinhesselink's
negligence action was barred by 5 39-71-411, MCA, and dismissed his
complaint for failure to state a claim upon which relief could be
granted.      Kleinhesselink    appeals.
     Did the District Court err in dismissing Kleinhesselink's
     complaint pursuant to Rule 12(b) (6), M.R.Civ.P., on the
     basis that the exclusivity clause of the Workers'
     Compensation Act bars his claims?
         In reviewing a Rule 12(b) (6), M.R.Civ.P., motion to dismiss,
courts are required to construe the complaint in a light most
favorable to the plaintiff.          Loney v. Milodragovich, Dale & Dye,
P.C. (1995), 273 Mont. 506, 509, 905 P.2d 158, 160. Such a motion
has the effect of admitting as true all of the well-pleaded
allegations of fact in the complaint.                Mogan v. City of Harlem
(1987),     227 Mont. 435, 437, 739 P.2d 491, 493.           A complaint should
not be dismissed pursuant to Rule 12(b) (61, M.R.Civ.P., unless it
appears certain that the plaintiff will be unable to recover under
any set of facts which could be proven in support of his claim.
Moqan,     739 P.2d at 492-93.      Rule 12(b) (6), M.R.Civ.P., motions to
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dismiss    are viewed with disfavor and a complaint                    should be
dismissed only if the allegations in the complaint                       clearly
demonstrate that the plaintiff does not have a claim. Buttrell v.
McBride Land & Livestock (1976), 170 Mont. 296, 298, 553 P.Zd 407,
408 (quoting Wheeler v. Moe (1973), 163 Mont. 154, 160, 515 P.2d
679, 683).

        In granting Chevron's motion,        the    District   Court    correctly
noted     that    "purely mental or         emotional    injuries"      are   not
compensable under the Act.        &   § 39-71-119(3),     MCA;    Stratemeyer v.

Lincoln County (1993), 259 Mont. 147, 855 P.2d 506 (Stratemever I).
It then concluded that "[t]he exclusivity clause [set forth at §
39-71-411, MCA] provides an employer is not liable for a covered
employment unless held liable under the Act."            On those bases, the
court concluded that Kleinhesselink could neither recover under the
Act nor sue in tort and dismissed his complaint for failure to
state a claim upon which relief could be granted.
        The District Court's determination that Kleinhesselink's
complaint failed to state a claim upon which relief could be
granted as       a result of the Act's exclusivity provision is a
conclusion of law.       Loney,
                         See               905 P.2d at 161.       We review a
district     court's   conclusion of          law   to   determine if         the
interpretation of the law is correct.               Lonev,     905 P.2d at 161
(citation omitted).
        Section 39-71-411, MCA, provides in pertinent part:
        For   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. Except as provided in part 5 of
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     this chapter for uninsured employers and except as
     otherwise provided in the Workers' Compensation Act, an
     employer is not subject to any liability whatever for the
     death of or personal injury to an employee covered by the
     Workers'   Compensation Act or for any claims         for
     contribution or indemnity asserted by a third person from
     whom damages are sought on account of such injuries or
     death.
Approximately    five    months after the District Court dismissed
Kleinhesselink's complaint and Kleinhesselink filed his notice of

appeal,   we decided Stratemeyer v. Lincoln County (Mont. 1996), 915
P.2d 175, 53 St.Rep.     245 (Stratemever II), wherein we interpreted
the foregoing statute in the context of injuries excluded from
coverage under the Act.         We give retroactive effect to judicial
decisions.    Porter v. Galarneau (Mont. 1996), 911 P.2d 1143, 1150,
53 St.Rep. 99, 103.       Therefore,       Stratemever II is applicable to
this case even though it was not available to the District Court in
addressing Chevron's motion to dismiss Kleinhesselink's complaint.
      The plaintiff in Stratemever II sued his employer in tort for
a mental injury excluded from coverage under the Act.         See § 39-71-
119(3) (a), MCA; Stratemever II, 915 P.2d at 177.             The   district
court dismissed his complaint based, in part, on the exclusivity
provision of the Act, § 39-71-411, MCA.           Stratemever II, 915 P.2d
at 176.
      On appeal, we reviewed the history of the Act, emphasizing
that it was a compromise between industry and labor pursuant to
which workers received guaranteed no-fault recovery and industry
was relieved of the possibility of large damage awards in the tort
system.    Stratemever    II,   915 P.2d at 179 (citation omitted).


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       The quid pro quo between employers and employees is
       central to the Act; thus, it is axiomatic that there must
       be some possibility of recovery by the employee for the
       compromise to hold.     The scope of immunity from tort
        [liability] relates to the definition of injury under §
       39-71-119, MCA.
Stratemever II, 915 P.2d at 179. Thus, injuries expressly excluded
from coverage under the Act by § 39-71-119, MCA, are also excluded
from the shield against tort liability provided to employers by the
exclusivity clause in § 39-71-411, MCA.            See Stratemever II, 915
P.2d at 181.       Because the plaintiff's ttmental-mentaltt        injury was
excluded from coverage by 5 39-71-119(3) (a), MCA, we concluded that
the plaintiff        was    entitled to     sue   his   employer in      tort.
Stratemever II, 915 P.2d at 182.
       We note that the plaintiff's alleged injuries in Stratemever
u and Kleinhesselink's alleged injuries in this case are not
identical.      In Stratemever II, the plaintiff suffered a "mental-
mental"     injury which,     in statutory terms,       is a mental injury
arising from emotional or mental stress.           & Stratemever II, 915
P.2d at 180; § 39-71-119(3) (a), MCA. Here, Kleinhesselink alleges
both     llmental-mental"    and   "mental-physical"    injuries;    in other

words,     Kleinhesselink     alleges   mental,   emotional and physical
injuries arising from emotional or mental stress caused by deaths
and injuries at the mine.
       Section 39-71-119 (3) (a), MCA, excludes both physical and
mental conditions arising from emotional or mental stress from
coverage under the Act.        Thus, Kleinhesselink is clearly precluded
from recovery under the Act for his alleged injuries. As a result,
our holding in Stratemever II that tort remedies are available to
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an employee whose injuries are excluded from coverage under the Act
pursuant to § 39-71-119, MCA,       is equally applicable here.   See

Stratemever II, 915 P.2d at 181-82.     Accordingly, we hold that the
District Court erred in concluding that the Act's exclusive remedy
provision barred Kleinhesselink's    negligence action in its entirety
and in dismissing his complaint under Rule 12(b) (6), M.R.Civ.P., on
that basis.
     Reversed and remanded.




We concur.


        Chief Justice




             Justices
Justice Charles E. Erdmann dissenting.
     I respectfully dissent from the majority opinion consistent

with my dissent in Stratemeyer v. Lincoln County (Mont. 1996),   915

P.2d 175,   53 St. Rep. 245.




                                         Justice


Chief Justice J. A. Turnage joins    in the foregoing dissenting
opinion.




                                         Chief Justice