NO. 83-363
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
EDPJARD MASSEY and .LUCILLE MASSEY,
his wife l
Plaintiffs and Appellants,
-vs-
RAY SELENSKY,
Defendant and Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Knight, Dahood, McLean & Everett; Bernard Everett
argued, Anaconda, Montana
For Respondents :
Poore, Roth & Robinson; Donald C. Robinson argued,
Butte, Montana
Submitted: June 5 , 1984
~ecided: August 17, 1984
Filed:
i 4 ~ G !i$84'
.L
Clerk
4 . J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.
T h i s c a s e a r i s e s o u t of an a c c i d e n t i n which a p p e l l a n t
Edward Massey was i n j u r e d a f t e r b e i n g s t r u c k by r e s p o n d e n t
Roy S e l e n s k y l s p i c k u p . S i n c e Masseyls i n j u r i e s were covered
under the provisions of t h e Montana W o r k e r s 1 C o m p e n s a t i o n
Act, the District Court granted S e l e n s k y l s motion for
summary judgment and d i s m i s s e d t h e c a u s e o f a c t i o n . Massey
a p p e a l s from t h i s r u l i n g .
At t h e t i m e of t h e a c c i d e n t which g a v e r i s e t o t h i s
action, both Massey and Selensky were employees of the
Anaconda Company and worked a t t h e s m e l t e r i n t h e C i t y of
Anaconda. A s t h e y were neighbors, Massey and S e l e n s k y made
a p r a c t i c e o f r i d i n g t o work t o g e t h e r i n S e l e n s k y l s p i c k u p .
T h i s p r a c t i c e had begun l o n g b e f o r e t h e a c c i d e n t o c c u r r e d .
Typically, t h e two would l e a v e home a t a p p r o x i m a t e l y 6:40
a.m. and arrive at the smelter at approximately 6:50 to
"punch i n " on t h e company t i m e c l o c k . Their s h i f t s did not
b e g i n u n t i l 7:30 a.m.
When t h e y a r r i v e d a t t h e s m e l t e r , S e l e n s k y would p a r k
h i s p i c k u p on a h i l l where t h e b u i l d i n g which h o u s e d the
time clock was located. This building is located well
i n s i d e t h e b o u n d a r i e s of t h e Anaconda Company p r o p e r t y . The
two would t h e n l e a v e t h e p i c k u p t o punch i n . After doing
s o , Massey would walk t o t h e "machine s h o p " w h e r e h e c h a n g e d
c l o t h e s and v i s i t e d w i t h c o - w o r k e r s u n t i l h i s s h i f t b e g a n .
On January 8, 1980, the parties' d a y began in the
above d e s c r i b e d manner; t h e men d r o v e t o work, parked the
p i c k u p and e n t e r e d t h e b u i l d i n g w h i c h h o u s e d t h e t i m e c l o c k .
Massey punched i n , e x i t e d t h e b u i l d i n g a n d b e g a n w a l k i n g t o
the machine shop. While he was en route, the pickup either
slid or rolled down the hill and struck Massey causing the
injuries complained of. The pickup was unoccupied at the
time, and as yet what caused the pickup to move remains
unknown.
On February 7, 1980, Massey filed a claim with the
Workers' Compensation Division, seeking compensation for the
injuries. An investigation was conducted by Harry McKernan,
who is the personnel representative in charge of benefits
for Anaconda Minerals Company. McKernan found the facts as
set forth above, and initiated the claim on behalf of
Massey. The Division recognized and allowed the claim.
Massey has been receiving disability benefits since the date
of the accident, and his related medical bills and expenses
have all been paid.
This action was commenced on December 1 5 , 1980, by
Massey and his wife Lucille seeking damages from Selensky.
The complaint alleged negligence on the part of Selensky
which caused his injuries. After a period of discovery,
Selensky moved for summary judgment, alleging that since the
injury was compensable under the Workers ' Compensation Act,
Selensky was immune from suit. The issue was briefed and
oral arguments were heard. The motion was granted and
judgment for Selensky was entered. From this ruling Massey
appeals.
In reviewing an appeal from summary judgment, the
function of the Supreme Court is to determine whether the
moving party is entitled to judgment in light of the law
applicable to the facts of the case. Jordon v. Elizabethan
Manor (1979), 181 Mont. 424, 593 P.2d 1049. As this case
was e s s e n t i a l l y s u b m i t t e d on a g r e e d f a c t s , on a p p e a l w e a r e
only concerned with questions of law. State v. North
American Car Corporation (1945), 1 1 8 Mont. 183, 1 6 4 P.2d
161. A corollary of these rules is that we first must
d e c i d e what t h e a p p l i c a b l e l a w i s .
It i s w e l l s e t t l e d i n Montana t h a t a co-employee is
immune from liability for negligent acts resulting in
injuries which are compensable under the Workers'
Compensation A c t . Madison v. P i e r c e ( 1 9 7 0 ) , 156 Mont. 209,
478 P.2d 860. The b a s i s of t h i s r u l e i s s e c t i o n 39-71-412,
MCA, which allows an injured worker to bring an action
against one "other than his employer or the servants or
e m p l o y e e s o f h i s e m p l o y e r " which s u c h p e r s o n ' s a c t s may h a v e
caused a compensable i n j u r y . However, the simple f a c t t h a t
two persons have the same employer would not necessarily
cause t h i s r u l e t o apply. W e m u s t t h e r e f o r e d e t e r m i n e when
a co-worker i s an "employee" a s t h a t t e r m is used i n s e c t i o n
39
w-71-412, MCA, for purposes of applying the co-employee
immunity r u l e .
W e n o t e t h a t t h i s is a q u e s t i o n o f f i r s t i m p r e s s i o n i n
Montana. Though w e h a v e applied t h e co-employee immunity
rule on several occasions, under the prevailing facts of
those c a s e s t h e r u l e obviously a p p l i e d a s t h e workers were
on s h i f t and d o i n g t h e i r e m p l o y e r ' s business. S e e Madison
v. Pierce, supra, and B a i r d v. Chokatos ( 1 9 7 0 ) , 1 5 6 Mont.
3 2 , 473 P.2d 547. Under t h e f a c t s o f t h e p r e s e n t c a s e it i s
not c l e a r t h a t the rule applies. N e i t h e r man had begun work
yet, though t h e y were i n t h e m i d s t o f preparing f o r work.
O b v i o u s l y t h e r e m u s t b e some c o n n e c t i o n b e t w e e n t h e a c t s o f
t h e employee and h i s work f o r t h e immunity t o a p p l y . There
rnust be a test which can be applied by trial courts to
determine whether an employee's actions were so work related
so as to make him immune from suit under section 39-71-412.
We hold that the proper test is whether the co-worker
was acting within the course and scope of his employment at
the time the negligent acts occurred. If the allegedly
negligent co-worker was acting within the course and scope
of his employment at the time he engaged in the purported
negligent acts, then he is an "employee of his employer,"
and immune from suit by the injured claimant. There is a
wealth of case law in Montana to aid trial courts in their
application of this test as it is the same used to determine
whether a claimant's injuries are work related. See section
39-71-407, MCA.
We note that the often quoted rule of liberal
construction in favor of claimants is inapplicable here.
The Workers1 Compensation Act should not be liberally
construed to extinguish the right to maintain a third party
cause of action, nor should it be liberally construed to
allow a third party cause of action if it has been expressly
abolished. The statutory provision of the Act and this
Court's interpretations of the same have been slanted away
from insurers in favor of the injured claimant. This
inequity has no place in determining the apportionment of
liability between fellow workers.
However, courts should bear in mind the theory of
Workers1 Compensation. It is recognized that injuries will
occur in the workplace, and will be the fault of both
employers and fellow workers. In return for immediate and
assured compensation for work or employment related
injuries, the injured claimant gives up his right to
maintain an a c t i o n a g a i n s t t h e employee o r f e l l o w worker.
See Vol. 2A, L a r s o n ' s FJorkmenls C o m p e n s a t i o n Law, section
72.22.
The test adopted by this opinion should be
a d m i n i s t e r e d w i t h t h e a b o v e i n mind. An i n j u r e d c l a i m a n t
has given up h i s right t o maintain an action against a
f e l l o w worker f o r work o r employment r e l a t e d i n j u r i e s , if
t h e f e l l o w worker was a c t i n g w i t h i n t h e c o u r s e and s c o p e o f
h i s employment. A s noted above, t h i s t e s t h a s been t a c i t l y
a p p l i e d by t r i a l c o u r t s many times w h e r e they have found
co-employees immune from suit. See, Madison v. Pierce,
s u p r a , and B a i r d v. C h o k a t o s , s u p r a . However, t h e f a c t s o f
t h i s c a s e a r e much c l o s e r t h a n a n y p r i o r c a s e and t h e t r i a l
c o u r t must e x p r e s s l y a d d r e s s t h e i s s u e o f w h e t h e r t h e f e l l o w
worker was a co-employee for purposes of the immunity
statute. It is n o t o u r i n t e n t t o c r e a t e any e x c e p t i o n t o
t h e co-employee immunity s t a t u t e , b u t s i m p l y t o e x p r e s s t h e
test which has been and should be used to answer this
question.
We note that the trial court dismissed the action
based on a f i n d i n g t h a t S e l e n s k y was w i t h i n t h e s c o p e a n d
c o u r s e o f h i s employment a t t h e t i m e o f injury. The c a s e
m u s t t h e r e f o r e be r e t u r n e d t o a d j u d g e w h e t h e r h e was a c t i n g
w i t h i n t h e c o u r s e a n d s c o p e o f h i s employment a t t h e t i m e o f
the alleged negligence.
Reversed and remanded for further proceedings
c o n s i s t e n t with t h i s opinon.
W concur:
e
--
Chief J u s t i c e
-
justices
Mr. Chief Justice Frank I. Haswell, dissenting:
I respectfully dissent. I would affirm the District
Court's summary judgment dismissing the Masseys' action
against Selensky on the ground that it is barred by the
Montana Workers' Compensation Act.
Massey has been accorded full benefits under the Work-
ers' Compensation Act. He now seeks damages from his
co-employee, Selensky. In declining to affirm the dismissal
of the damage action by the District Court, the majority have
ignored the fundamental purpose and structure of Montana's
Workers' Compensation Act.
We have previously expressed that purpose and structure
in this language:
"The foregoing purposes a.nd structure of
the Montana Workmen's Compensation Act
demonstrate its foundation of enterprise
liability for injury to its employees,
paid directly by the employer in the
first instance and ultimately passed on
to the public in the price of its prod-
uct. To permit an injured employee to
collect compensation for injury from his
employer under the Act and additionally
sue a negligent coemployee of the same
enterprise for the same injury, with the
employer recouping his compensation
payments, destroys the purposes and
structure of the entire Act. We do not
believe the legislature intended such
result.
"If section 9 2 - 2 0 4 were construed to
withhold immunity to a coemployee from a
negligence action, the cost of injury to
an employee of the business would be
shifted from the employer, where the Act
places it, to a fellow employee, where
the Act does not place it. It also would
defeat the ultimate payment of injury
cost by the public purchasing the prod-
uct. This result would follow if section
92-204 were interpreted as urged by
plaintiff because of the suit rights,
subrogation rights, and lien rights
granted the employer by this section. We
cannot believe the legislature intended
to permit the ultimate costs of employee
injury to be borne by fellow employees,
whether negligent or not. It would be a
sad. spectacle, indeed, for a workman to
find his home taken and his future earn-
ings subjected to payment of a judgment
in such a suit; nor did the legislature
intend to permit any such action.
"The purposes and provisions of the Act
can be fully effectuated by permitting
negligence actions, in addition to com-
pensation, only against strangers to the
business enterprise. There is no reason
why negligent strangers to the business
should not pay the cost of injury to
employees of the enterprise. The suit
rights, subrogation rights, and lien
rights granted to the employer under the
Act, together with the compensation
rights and suit rights granted the em-
ployee, permit ultimate collection of
injury costs from a negligent stranger to
the business enterprise. The Act does
not cover strangers, only employees.
There is no substitution of rights under
the Act for common law remedies as be-
tween strangers on the one hand and
employers and employees of the business
on the other." Madison v. Pierce (1970),
156 Mont. 209, 215-216, 478 P.2d 860,
864.
Although the Act has been amended twice since Madison,
the amendments are irrelevant to the foregoing principles and
analysis. Ch. 550, Laws of Montana (1977); Ch. 397, Laws of
Montana (1979). Additionally, section 92-204, R.C.M. 1947,
has been recodified as sections 39-71-411 through 39-71-414,
MCA .
The District Court found that Selensky was acting in
the course and. scope of his employment at the time of
Massey's injury. This makes him a co-employee immune from a
damage action by Massey by statute (sections 39-71-411 and
39-71-412, MCA) and case law (Madison v. Pierce, supra). No
hair splitting and remand should render a co-employee liable
in a damage action.
a ~
Chief JCTStic&
~ $ L
Mr. Justice Fred J. Weber:
I concur in the foregoing dissent of Mr. Chief Justice
Haswell.