Piper v. Lockwood Water Users Ass'n

No. 13794
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977

GERALD E. PIPER; and THE FONTANA INSURANCE
FUND OF THE WORKBIENS' COWENSATION DIVISION
et al.,

Flaintiffs and Appellants,
-vs-
LOCKWOOD WATER USERS ASSOCIATION; et al.,

Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District,
Honorable Robert Wilson, Judge presiding.
Counsel of Record:
For Appellants:
Lewis E. Brueggemann argued, Billings, Montana
For Respondents:
Crowley, Haughey, Hanson, Toole and Dietrich,
Billings, Montana
H. Elwood English argued, Billings, Montana
Anderson, Symmes, Forbes, Peete & Brown, Billings,
Montana

Submitted: September 19, 1977

Decided:JAN ,. 1~78
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Filed:
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a summary judgment entered
against plaintiff Gerald E. Piper in a personal injury action
by the District Court, Yellowstone County.
Plaintiff at the time of his injury was employed by
Harold L. Mooney, painting contractor, and was and had been for
years covered in his employment under Plan I11 of the Workers'
Compensation Act. On April 30, 1971 plaintiff was working in-
side a huge water tank, owned by defendant Lockwood Water Users
Association, on a scaffold leased by Lockwood, under written
agreement, from Montana Powder & Equipment Co. Lockwood trans-
ported and erected the scaffold to be used by Mooney's paint
crew. While working on the scaffold, it collapsed and plaintiff
was injured. Lockwood did not by contract or otherwise require
Mooney to conform to section 92-438, R.C.M. 1947.
An action was filed joining defendant Lockwood and Mon-
tana Powder & Equipment Co. et al. Lockwood defended on con-
tributory negligence and assumption of risk by plaintiff. Lock-
wood also cross-complained against Montana Powder & Equipment Co.
On September 17, 1976, plaintiff moved to strike the de-
fenses of contributory negligence and assumption of risk as im-
properly raised, as these defenses were in law foreclosed by
Montana's Scaffold Act, section 69-1401, et seq., R.C.M. 1947.
Defendants in turn each filed motions for summary judgment.On Octo-
ber 5 all motions were denied.
On January 20, 1977, defendant Montana Powder & Equipment
Co. filed the printed rental agreements, both of which contain
"hold harmless" and "indemnifying" clauses inuring to its benefit.
Both defendants renewed their motion for summary judgment. Plain-
tiff renewed his motion to strike the defenses of contributory
negligence and assumption of risk.
 On March 2, 1977, the court denied plaintiff's motion
to strike and denied P4ontana Powder & Equipment's motion for
summary judgment. However, it granted defendant Lockwood Water
Users Association's motion for summary judgment. Plaintiff
appeals from the summary judgment.
The issues presented on appeal are:
1. Should plaintiff be precluded from a recovery against
the landowner or occupier for injuries sustained by him by reason
of the landowner or occupier's negligence, because plaintiff and
his immediate employer elected to be covered by the Workers'
Compensation Act?
2. Was the granting of summary judgment as to defendant
Lockwood Water Users Association improper as a matter of law?
3. Did the District Court err in denying plaintiff's
motion to strike the affirmative defenses of contributory negli-
gence and assumption of risk?
Harold Mooney orally contracted with defendant Lockwood
to sandblast and paint the interior of its water storage tank.
However, Lockwood rented, supplied and erected the scaffolding
owned by Montana Powder & Equipment Co. inside the Lockwood water
tank prior to plaintiff's arrival at the job site. The scaffold-
ing was erected on wheels and the shafts from the wheels were
inserted into each hollow metal leg of the scaffolding. A bolt
or pin is normally inserted through the horizontal holes in the
legs of the scaffolding, and through the hole in the shaft attach-
ed to the wheel. This safety measure prevents the wheel from
falling out. No pins or bolts were inserted to hold the wheels
in this scaffolding and plaintiff was not warned they were not
properly secured. It was customary to move the scaffolding with
the workmen remaining on it, because of the heavy equipment.
When the scaffolding was rolled along the steel tank floor, a
depression or dip was encountered and one or more wheels fell
out because they lacked a horizontal pin. As a result the
scaffolding tipped, plaintiff fell off the scaffolding and parts
of the scaffolding fell on him.
There is no serious fact dispute between the parties.
The controlling issue is whether the injured workman can be
denied his right to a third party action on these facts under
the Workers' Compensation Act.
Defendant Lockwood relies entirely on Fiscus v. Beartooth
Electric (1974), 164 Mont. 319, 522 P.2d 87, to support its
argument that it became a statutory employer and was immune to
third party action.
It would be well to recognize that this class of cases
turns on some direct or indirect application or enlargement of
the foundation case, Ashcraft v. Montana Power Company (1971), 156
Mont. 368, 480 P.2d 812, which rendered an interpretation of
section 92-438, R.C.M. 1947, as amended by Sec. 1, Chap. 49, Laws
of 1965; and since repealed by Sec. 2, Chap. 251, Laws 1973 [as
mandated by the 1972 Montana Constitution]. Therefore, any in
depth discussion on points of disagreement, other than case
references, would be an exercise in futility considering the en-
tire matter except for this cause is moot and would be of no
value to the Bar of Montana as precedent or otherwise.
A reading of Ashcraft will set the stage for all of the
bitter controversy that followed and the major points of disagree-
ment. Whichever point of view to which litigants might subscribe
does not alter the plain language of limitation the majority of
this Court put on its holding in Ashcraft:
"This rule of law * * * is strictly limited to
circumstances in which the injured employee's
immediate employer is an independent contractor
who is required to carry workmen's compensation
insurance by his qeneral employer. This rule of
 law does not apply to any other situation where
the status of the injured employee's immediate
employer is found to be other than an 'indepen-
- -
dent contractor,' or where the general contractor
does not require an independent contractor to
carry workmen's compensation insurance. * * * "
(Emphasis supplied.) 156 Mont. 370, 371.
Further, the statute and Ashcraft's interpretation
thereof as they concern the elimination of the common law right
of third party action must be strictly construed. Madison v.
Pierce (1970), 156 Mont. 209, 478 P.2d 860. These legislative
eliminations of the right must also be found within the Workers'
Compensation Act and strictly construed. Kelleher v. State and
Montana Aeronautics Comm. (1972), 160 Mont. 365, 503 P.2d 29.
The majority in Ashcraft found an intent in section 92-
438, R.C.M. 1947, to limit third party actions but, as demonstrated
above, limited the application to a very select class of cases.
We have followed the rule and its narrow application since that
time in a series of cases beginning with Buerkle v. Montana
Power Company (1971), 157 Mont. 57, 482 P.2d 564, through Poulson
v. Walsh-Groves (1975), 166 Mont. 163, 531 P.2d 1335, with one
notable exception, Fiscus v. Beartooth Electric (1974), 164 Mont.
319, 522 P.2d 87. The majority in Fiscus agreed that it was not
an Ashcraft case and proceeded to ignore the rationale it estab-
lished in Ashcraft and its limitation as well. The majority
reached a desired result and then backed into a long explanation
to support this result and ended up with a classic example of jud-
icial legislation. The contractual force of Ashcraft is replaced
by an old misdemeanor statute, section 92-207, R.C.M. 1947, which
was enacted to compel those in hazardous industry to come under
the Workers' Compensation law. This hurdle having been overcome,
it was easy then to proceed to overlook the limiting paragraph
of Ashcraft and speak in broad general terms concerning section
92-604 and section 92-204, R.C.M. 1947, which have no bearing on
independent contractor situations.
Fiscus violates Ashcraft and all other cases cited
herein and its holding is best described by Lockwood Water
Users in its brief on appeal in this manner:
" * * * If the general employer is to be subject
to such liability, the court reasons, it is only
fair that he also have the same immunity under the
Worker's Compensation Act if there is insurance
to cover the workman." (Emphasis supplied.)
This may be a very fine attitude and an equitable method
for a final determination, however, the Workers' Compensation
law does not lend itself to this kind of interpretation when the
right to a third party suit is under consideration, as hereto-
fore pointed out.
This Court cannot affirm the rationale or result reached
in Fiscus by giving it precedential recognition in this case.
Therefore, we overrule in its entirety Fiscus v. Beartooth Electric
(1974), 164 Mont. 319, 522 P.2d 87.
The summary judgment entered in this cause is ordered
vacated and the matter remanded to the District Court for further
proceedings.

Justice kl

Chief Justice /\

Justices