IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 80-63
GREAT WESTERN SUGAR COMPANY,
a Delaware corporation,
Relator,
VS .
DISTRICT COURT FOR THE THIRTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
YELLOWSTONE AND THE HONORABLE CHARLES ~7~
MAY - 8 '1980
LUEDKE, PRESIDING DISTRICT JUDGE, Jbii JJ J6arngr
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Respondents. -- s OF SUPREME G O U
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OPINION AND ORDER GRANTING SUPERVISORY CONTROL
Relator, Great Western Sugar Company, filed its
application with this Court, praying that we issue a writ
of supervisory control or other appropriate writ to the
District Court of the Thirteenth Judicial District, in and
for Yellowstone County, upon the following facts:
On September 20, 1979, Jim R. Shelton filed his amended
complaint in cause no. 71515 in the Yellowstone County
District Court, naming as defendants Kober Farms, Inc.,
Great Western Sugar Company and Silver Engineering Works.
In that amended complaint, Jim R. Shelton alleged that
on October 4, 1976 in the course of his employment with the
Great Western Sugar Company, he was unloading sugar beets
from trucks to a conveyor system, constructed and designed
by Silver Engineering Works. Shelton further alleged that
while unloading a truck operated by an employee of Kober
Farms, Inc. the truck's winggate struck him in his right foot
causing permanent damages.
Kober Farms, Inc. filed a response to the amended
complaint, denying in general the allegations of the amended
complaint raising affirmative defenses, and including a
cross claim against Great Western Sugar Company based either
upon indemnity or upon contribution. Great Western Sugar
Company moved to dismiss the plaintiff's amended complaint
against it, and the cross-claim of defendant Kober Farms,
Inc. against it, on the grounds that the pleadings in each
case failed to state a claim against Great Western Sugar
Company upon which relief could be granted.
The allegations upon which Jim R. Shelton claims to be
entitled to relief against Great Western Sugar Company are
these :
"9. That the defendant,Great Western Sugar Company,
failed to comply with the following duties that it
owed to plaintiff:
"a. the common law duty of providing a reasonably
safe place to work for the plaintiff;
"b. the duty to employ competent help, equipped with
proper equipment and assisted with a proper safety
program and trained personnel;
"c. the duty of warning the plaintiff of all the
hazards which it knew or should have known, in the
exercise of due care, existed;
"d. Although the defendant, Great Western Sugar
Company, was aware that the machinery involved in
the use of the conveyor system was extremely hazard-
ous and that the utilization of the machinery placed
the plaintiff and other people like him in an extremely
hazardous position, they failed to install a system
that would prevent the trucks, when loading and unloading
on the platforms, from going forward and moving while
the plaintiff was in a position of danger. They failed
to install or have installed any fail-safe devices or
self-checking devices that would prevent harm to
plaintiff in the position in which he was iocated.
"e. They failed to adequately warn the plaintiff of
the dangers involved in working in the position in
which they placed him and failed to adequately train
him to protect himself against the dangers that the
defendant, Great Western Sugar Company, at all times,
from many previous experiences with other employees,
knew or should have known existed.
"f. The defendant sugar company failed to
adequately train the fellow employees as well
as the customers utilizing the conveyor system
of the safe use of the conveyor system. That
the said company did negligently, carelessly and
wantonly continue to place untrained and unskilled
people such as the plaintiff in this case in the
position of danger on the conveyor system, knowing
at all times that the system, because of its
faulty design, placed the plaintiff in an extremely
dangerous position to his life and limb.
"g. The defendant sugar company failed to comply
with the safety provisions then and there in effect
in the State of Montana.
"h. Although the defendant knew that other employees
had been injured on the conveyor system of the
type used by the plaintiff in this matter, they failed
to take any steps to avoid further unnecessary injuries,
although they were, at all times, aware that rnodi-
fications were possible that could make it safer for
the employees to work in the position occupied by
the plaintiff on the conveyor system."
The District Court on January 11, 1980, granted the
motion to dismiss the cross-claim of Kober Farms, Inc. against
Great Western. In the same order, it denied Great Western's
motion to dismiss the amended complaint of Shelton against
it.
Great Western's application for supervisory control
alleges that the case in the District Court involves complex
liability claims against multiple defendants that will require
extended and complicated discovery and a jury trial. It
alleges that while it has a remedy by appeal from the claimed
error of the District Court in refusing to grant its motion
to dismiss the amended complaint, the remedy is not speedy
or adequate and would subject Great Western Sugar Company to
unnecessary expense and involvement in the proceedings and
trial ~ n t i . 1 ~
judgment before it could find its remedy by
appeal. Accordingly, Great Western claims that it is proper
in this situation for this Court to grant a remedial writ.
Upon receipt of the application from Great Western, and
after considering the same, we ordered responses to be filed
by all the interested parties. Such responses have been
received from the plaintiff, Jim R. Shelton, and from the
defendant, Kober Farms, Inc. After considering the application,
the responses, and the documents filed in connection therewith,
and the memoranda of the parties, we have concluded that this
is a proper case to assume jurisdiction and to issue an order
of supervisory control directed to the said District Court
ordering the dismissal of the amended complaint against Great
Western. Our reasons follow:
Kober's response is that Great Western Sugar Company,
as the employer of the plaintiff, because it has supplied
Workers' Compensation coverage to the plaintiff, is entitled
to recover, if plaintiff is successful, at least 50 percent
and perhaps 100 percent of the monies which it has paid to
plaintiff as Workers' Compensation benefits. Kober further
contends that we are thus presented with a case where an
employer which might itself have been negligent in a substantial
degree as a proximate cause of Shelton's injuries will
nevertheless enrich itself by its subrogation interest in the
outcome of Shelton's lawsuit. Kober therefore supports
Shelton's opposition to the dismissal in the lower court,
and the grant of a writ or order in this cause.
Section 39-71-411, MCA, under the Workers' Compensation
Act, provides that the "employer is not subject to any
liability whatever" to an injured employee except under the
Act itself. Western contends that this exclusivity provision
applies here and insulates the employer Great Western, from
the cause of action claimed by Shelton, the employee.
On the other hand, Shelton contends that under the
allegations of his amended complaint, as we have set them
forth previously, Great Western, by wantonly, maliciously
and carelessly placing the plaintiff in a position of danger,
-4-
has committed the equivalent of an intentional harm;
that applying the exclusivity clause to the contractual
agreement of employment between Great Western and Shelton,
under principles of contract law, would be against public
policy as enunciated in section 28-2-702, MCA; and that
since the quid- - for the adoption of Workers' Com-
- pro quo
pensation Acts was the elimination of defenses or contributory
negligence, assumption of risk, and the fellow servant rule,
which defenses do not apply to intentional torts, that the
exclusivity clause should not apply in Shelton's case.
Shelton also contends that Great Western has not made out a
proper case for supervisory control.
In Enberg v. Anaconda Company (1971), 158 Mont. 135,
489 P.2d 1036, we held that where a plaintiffs complaint did
not allege intentional injury by the defendant employer, any
claim for relief was barred by the exclusive remedy provisions
of the Workers' Compensation law; 158 Mont. at 137, 138; 489
P.2d at 1037. Although the charges in Shelton's complaint
against Great Western, set forth above, are broadly stated,
they fall short of intentional tort, and therefore do not
state such a claim against the employer as would serve to
override the exclusivity provision of the Workers' Compensation
Act. See State ex rel. City of Havre v. District Court (1980),
Mont. - P.2d , 37 St.Rep. 552.
Since intentional tort against Great Western is not
alleged, but only negligence, however wanton or malicious,
the right of an employee to sue his employer for work related
injuries covered by the Workers' Compensation Act is subject
to the principles we enunciated in Cordier v. Stetson-
ROSS, Inc. (1979), - Mont. , 604 P.2d 86, 36 St.Rep. 2107.
In Cordier, we stated:
"It is our opinion that the broad provisions
of section 92-204.1, R.C.M. 1947, now section
39-71-411, MCA, require us to hold that the
provisions of the Workers' Compensation Act
are exclusive as to the liability of the
employer for damages sustained by the injured
employee whether they are sought by the
employee directly, or by a third party under
contribution. 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 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. . ." 604 P.2d at 89-90, 36 St.Rep.
at 2111.
Our holding that the allegations of Shelton's complaint
do not constitute a claim of intentional tort disposes of
Shelton's contention that the exclusivity rule should not
apply here. The quid- - on which Shelton claims we should
- pro quo
have ignored the exclusivity clause, that is the elimination
of Workers' Compensation Act of the defenses of contributory
negligence, assumption of risk and the fellow servant rule,
have indeed been sacrificed by the employer Great Western
in this case in providing Workers' Compensation coverage for
its employee Shelton. Shelton pointed us to the holding in
Mandolidis v. Elkins Industries, Inc. (19781, - W.Va.
, 246 S.E.2d 907. The West Virginia statute provided
immunity from suit to an employer who "does not inflict an
injury with deliberate intention." Even with the requirement
of section 39-71-104, MCA, that the Workers' Compensation
Act be liberally construed, no part of Mandolidis would allow
us to transmute negligence into deliberate or intentional
harm.
We hold that the "intentional harm" which removes an
employer from the protection of the exclusivity clause of
the Workers' Compensation Act is such harm as it maliciously
and specifically directed at an employee, or class of employee
out of which such specific intentional harm the employee
receives injuries as a proximate result. Any incident involving
a lesser degree of intent or general degree of negligence
not pointed specifically and directly at the injured employee
is barred by the exclusivity clause as a basis for recovery
against the employer outside the Workers' Compensation Act.
Likewise we see no substance in the public policy
contention of Shelton. Section 28-2-702, MCA states:
"All contracts which have for their object,
directly or indirectly, to exempt anyone
from responsibility for his own fraud, or
willful injury to the person or property of
another, or for violation of law, whether
willful or negligent, are against the policy
of the law."
The drafters of the Workers' Compensation Act have been
careful to include all possible contracts of employment
within their provisions. See sections 39-71-401 to 39-71-405,
incl., MCA. It is more nearly accurate to state that it is
the public policy of this State to make certain that all
forms of employment be subject to the Workers' Compensation
Act, and that this includes the exclusivity clause therein.
As we pointed out in Cordier, supra, it is also the public
policy of this State to allow the employer to be reimbursed
out of any recovery that the employee may make against a
responsible third party:
.
". . We must look at the subrogation rights
provided by the Montana Act from the viewpoint
that the employer has accepted liability without
fault of the employee; that the employee's recovery
against the employer is limited to the benefits
under the Act; that the employer has given up
its common law defenses if it does not come under
the Act; and that the special provisions of the
Act with respect to subrogation are designed to
provide an incentive to the employee to seek
reimbursement for his damages from a responsible
party so that the employer may be reimbursed in
whole or in part out of any recovery made by the
employee." 604 P.2d at 93, 36 St.Rep. at 2115.
We find therefore that the complaint against Great
Western by Shelton should have been dismissed in the
District Court. Great Western finds itself in a situation
where it has no plain, speedy or adequate remedy at law,
and it has no right of appeal of the order of the District
Court. In those circumstances, it is proper for us to assume
jurisdiction, and to order supervisory control. State v.
Doty (1977), 173 Mont. 233, 566 P.2d 1388.
Accordingly, IT IS ORDERED:
That the amended complaint of Jim R. Shelton against
Great Western Sugar Company in cause no. 71515, in the
District Court, Thirteenth Judicial District, County of
Yellowstone, be dismissed;
That the Clerk of this Court serve a copy of this opinion
and order upon all counsel of record herein;
That as and at the time when, under the Rules of this
Court, remittitur would issue upon decisions of this Court,
the Clerk of this Court shall mail a certified copy of this
opinion and order to the respondent District Court;
That said certified copy of this opinion and order shall
be and serve the office of a writ of supervisory control from
this Court to the said District Court. Costs of this
proceedings to relator.
DATED this u d a y of Jlay, 1980. ,
We Concur:
i'
Mr. Chief Justice Frank I. Haswell did not participate in
this cause.