No. 86-226
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
DELORES ADSEM, surviving spouse
and Personal Representative of the
estate of Richard Allen Adsem,
Deceased,
Plaintiff and Appellant,
RICHARD ROSKE and F. H. GROVER, INC.,
a Montana Corp.,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Lohle, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Small, Hatch, Douhek & Pyfer; John C. Doubek, Helena,
Montana
For Respondent:
Worden, Thane & Haines; Martin S. King, Missoula,
Montana
Alexander & Baucus; 7. David Slovak, Great Falls,
Montana
Submitted on Briefs: Sept. 18, 1986
Decided: December 11, 1986
Filed: DEC 11 1986
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
This is an appeal. from a summary judgment entered by the
First Judicial District, Lewis and Clark County in favor of
the defendants, Roske and Grover, Inc. Plaintiff Delores
Adsem appeals. We affirm.
There are two issues on appeal. Did the District Court
err in granting summary judgment? Does the plaintiff have a
remedy outside of the Montana Workers ' Compensation Act?
Richard Adsem was killed in a construction accident at
the Capital Hill Mall sewer line project in Helena, Montana.
He was installing pipe in a trench 11-12 feet deep with no
sloping or shoring of the wall-s when the walls of the trench
collapsed and Adsem suffocated. Adsem maintains that the
employer knew the trench was unsafe, and that a cave-in was
likely and yet ordered him into the trench, which collapsed
on him.
Delores Adsem, Richard Adsem's widow, filed this
wrongful death suit against Richard Roske, a co-employee and
foreman of the crew, and R. F. Grover, Inc., the company that
employed both Adsem and Roske. The suit alleged that the
"intentional and malicious acts and omissions" of the
defendants caused Adsem's death.
The District Court granted summary judgment in favor of
the defendants. The District Court held that there was
"simply nothing in the record which would lead one to believe
that Roske or his employer, Grover, intentionally inflicted
the injuries upon Adsem of which he later died." (Emphasis
in original.
The District Court held that the Workers' Compensation
benefits which Adsem had already received was her exclusive
remedy and granted summary judgment.
Summary judgment is proper where there are no issues of
material fact and the moving party is entitled to judgment as
a matter of law. Noonan v. Spring Creek Forest Products,
Inc. (Mont. 1985), 700 P.2d 623, 42 St.Rep. 759; Herron v.
Pack & Co. (Mont. 1985), 705 P.2d 587, 42 St.Rep. 1303.
The two issues raised by appellant are two ways of
stating the same issue: Did the District Court err in
holding that Workers' Compensation is Adsem's exclusive
remedy? We hold it did not.
The exclusivity provision of Workers' Compensation is
first addressed in Art. 11, 16, 1972 Mont. Const. which
states:
Courts of justice shall be open to every person,
and speedy remedy afforded for every injury of
person, property, or character. No person shall be
deprived of this full legal redress for injury
incurred in employment for which another person may
be liable except - - -
as to fellow employees - -
and his
immediate employer who hired - - -
him if such immediate
employer provides coverage under Workers '
Compensation - -of this state..
Laws - ..
(Emphasis
added. )
That constitutional mandate is implemented by S
39-71-411, MCA as to employers and S 39-71-413, MCA, as to
employees. Section 39-71-411, MCA, as to employers provides:
... Except as provided in part 5 of 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. The Workers'
Compensation Act binds the employee himself, and in
case of death binds his personal representative and
all persons having any right or claim to
compensation for his injury or death, as well as
the employer and the servants and employees of such
employer and those conducting his business during
liquidation, bankruptcy, or insolvency.
Section 39-71-413, MCA as to employees provides:
If an employee receives an injury while performing
the duties of his employment and the injury or
injuries so received by the employee are caused by
- -
the intentional and malicious act or omission of a
servant or employee of his employer, then the
employee or in case of his death his heirs or
personal representatives shall, in addition to the
right to receive compensation under the Workers1
Compensation Act, have a right to prosecute any
cause of action he may have for damages against the
servants or employees of his employer causing the
injury. (Emphasis added. )
This Court has held that "the 'intentional harm1 which
removes an employer from the exclusivity clause of the
Workers1 Compensation Act is harm maliciously and
specifically directed at an employee, or class of employees
out of which such specific intentional harm the employee
receives injuries as a proximate result." Great Western
Sugar Co. v. District Court (1980), 188 Mont. 1, 7, 610 P.2d
Further, we have held that where the fslcts show only
that the employer operated a hazardous and dangerous work
place, no intentional conduct exists. Noonan, supra. In
Noonan, the facts showed that the planer Noonan was working
had been broken for over a month. Noonan had requested that
it be fixed but it was not. Noonan was told not to turn the
planer off as it would slow production. He was required to
run the planer regardless of safety. The on/off switches
were mislabeled. The employer knew it was in violation of
OSHA regulations. There had been prior accidents on the
machine but the employer concealed that fact from Noonan.
The employer's policy was to run the equipment until it broke
down, at which time the empl-oyees would be laid off. We held
such conduct, while negligent, does not rise to the level of
intentional conduct. Mr. Justice Morrison, in a concurrence,
stated:
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.
Noonan, 700 P.2d at 626, 42 St.Rep. at 763. That statement
is illustrated by Sitzman v. Schumaker (Mont. 1986), 718 P.2d
657, 43 St.Rep. 831, in which we held that an employer who
repeatedly hit his employee over the head with a lead pipe
could be sued in tort for the damages he inflicted under the
intentional act exception to the exclusivity rule.
The conduct of the employer in the case at hand is, at
most, gross negligence, but it does not rise to the level of
intentional conduct as defined in the prior decisions of this
Court..
The District Court was therefore correct in granting
summary judgment in favor of the defendants. Adsem's
exclusive remedy in the case is under the Workers'
Compensation.Act.
Affirmed.
F e Concur:
7