No. 94-558
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
SUSAN KORTES, Personal Representative on
behalf of the Estate of RICHARD JON KORTES,
on behalf of RAYMOND JON KORTES and
CASSANDRA EILEEN KORTES, the minor
children of RICHARD JON KORTES,
Plaintiff and Appellant,
v.
POOL COMPANY and JOHN DOE MANUFACTURER A, and
JOHN DOE MANUFACTURER B, jointly and severally,
Defendants and Respondents.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerrold L. Nye, Nye & Meyer
Billings, Montana
For Respondents:
Joe C. Maynard and Lori A. Harper,
Crowley, Haughey, Hanson, Toole & Dietrich,
Billings, Montana
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Susan Kortes filed a complaint in the District Court
for the Seventh Judicial District in Richland County in which she
alleged that her son Richard's death was caused by the negligence
of his employer, Pool Company. Pool Company moved to dismiss
Susan's complaint pursuant to Rule 12 (b) (6), M.R.Civ.P. The
District Court granted Pool Company's motion to dismiss based on
its conclusion that the Workers' Compensation Act provided Susan's
exclusive remedy. Susan appeals. We affirm the judgment of the
District Court.
Susan raises the following issue on appeal:
Should. an exception to the exclusivity provision in the
Montana Workers' Compensation Act be created when a worker is
killed and the accident causing death is the result of the
employer's failure to install, or the removal of, a safety device
which was designed to prevent the accident?
FACTUAL BACKGROUND
Because this is an appeal from an order of dismissal pursuant
to Rule 12(b) (6), M.R.Civ.P., we accept the allegations in the
complaint as true and limit our discussion to those facts. Wilkon
v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182.
Richard Jon Kortes was killed on December 30, 1993, in an oil
rig accident while working for Pool Company. The accident occurred
when a traveling block fell on him as a result of Pool Company's
negligent removal of, or failure to install, the appropriate safety
2
shut-off device. Pool Company carried workers' compensation
insurance and its carrier is paying benefits to Richard's minor
children. Susan Kortes is the personal representative of his
estate.
On August 17, 1994, Susan filed a complaint in the District
Court in Richland County to recover damages sustained by Richard
prior to his death, and for his wrongful death. Susan's complaint
states that pool Company's neglect caused her son's death. The
nature of the conduct that she complained of is specifically set
forth in the following paragraphs of her complaint:
1) Pool Company was the employer of Richard Jon Kortes
and owned and operated the drill rig on which he was
killed.
2) The facts which set in motion the events and cause
of death was the absence of an appropriate safety shut
off device at the crown of the drill rig to prevent the
traveling block from hitting the crown.
3) Pool Company assembled the drill rig and failed to
install the safety device or removed the existing safety
device.
4) By neqliqentlv failing to install or bv removing the
safetv device, Pool Company failed in its duty to provide
a safe work place and subjected Richard Jon Kortes to an
unreasonable and wrongful risk of harm in operating of
the drilling equipment.
5) Pool Company allowed the drill rig to be operated by
a person or persons not properly or fully trained and who
allowed the traveling block to hit the crown of the drill
rig, breaking the cable, and allowing the traveling block
to hit Richard Jon Kortes.
6) Pool Company's neqliqent conduct created a condition
likelv to cause serious bodilv harm or death, making
Richard Jon Kortes' death or serious injury foreseeable
and preventable by installing the proper maintenance
safety device.
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(Emphasis added.) Nowhere in Susan's complaint does she allege
that Richard's injury or death was caused by intentional and
malicious conduct on the part of Pool Company.
On September 15, 1994, Pool Company filed a motion pursuant to
Rule 12(b) (6), M.R.Civ.P., for an order dismissing Susan's
complaint. On November 4, 1994, the District Court granted Pool
Company's motion to dismiss. It held that § 39-71-411, MCA,
limited Susan's remedy to the provisions of the Workers'
Compensation Act. The District Court's order was certified as
final pursuant to Rule 54(b), M.R.Civ.P., and this appeal followed.
DISCUSSION
Should an exception to the exclusivity provision in the
Montana Workers' Compensation Act be created when a worker is
killed and the accident causing death is the result of the
employer's failure to install, or the removal of, a safety device
which was designed to prevent the accident?
Susan's complaint was dismissed for failure to state a claim
pursuant to Rule 12(b) (6), M.R.Civ.P. We have previously held
that:
A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. A motion to
dismiss under Rule 12(b) (6), M.R.Civ.P., has the effect
o f admitting all well-pleaded allegations in the
complaint. In considering the motion, the complaint is
construed in the light most favorable to the plaintiff,
and all allegations of fact contained therein are taken
as true.
Willson, 634 P.Zd at 1182 (citations omitted). Therefore, we treat
the facts set forth in Susan's complaint as true.
Susan acknowledges that § 39-71-411, MCA, provides that
workers' compensation is her exclusive remedy, but suggests that we
carve out a judicial exception where: (1) a worker is killed
(2) due to a failure to install or maintain a required safety
device which is designed to prevent the accident which causes
death. She suggests that an employer has duties pursuant to
§§ 50-71-201 and -203, MCA, to maintain a safe work place and
provide proper safety devices which would be circumvented if it was
shielded by the exclusivity provision of the Act. Susan suggests
that such a result is contrary to Montana statutes, as well as
public policy.
Pool Company counters that allegations of negligence, or even
gross negligence, are insufficient to eliminate the exclusive
remedy provision found in § 39-71-411, MCA, which provides:
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
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.
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The only exception created by the legislature to this
exclusive remedy provision is found at 5 39-71-413, MCA, which
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 Workers'
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.
In the past, this Court has been divided over the meaning of
"intentional and malicious" as used in § 39-71-413, MCA, and the
degree of culpability necessary to bring an employer's conduct
within its exception to the exclusive remedy provision found at
5 39-71-411, MCA. See Blythe v. Radiometer America, Inc. ( 19 9 3 ) , 2 6 2 Mont .
464, 866 P.2d 218 (Trieweiler, J., Harrison, J., and Hunt, J.,
dissenting); and Noonan v. Spring Creek Forest Products (1985) , 216 Mont.
221, 700 P.2d 623 (Sheehy J., Hunt, J., and Harrison, J.,
dissenting).
However, there is no disagreement that, based on the plain
language of these provisions, something more than mere negligence
must be alleged to avoid the exclusive remedy provision in
§ 39-71-411, MCA.
Susan's complaint does not allege that Richard's death was
caused by an intentional and malicious act. Her complaint merely
asserts that Richard's death was caused by Pool Company's neglect.
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A1 though Susan makes reasonable public w l i c y arguments in support
of her position, OUT role is not to substitute our judgment for
that of the legislature on matters of public policy. We are bound
by the legislative determination that absent intentional and
malicious conduct employees cannot sue their employers for injuries
sustained during the course of their emplqment which are covered
by the Workers' Compensation Act.
We conclude that Susan's complaint fails to allege facts which
would entitle her to relief under the laws of this state.
Therefore, we affirm the judgment of the District Court.
We concur:
CERTIF ICATE OF SERVICE
I hereby certify that the following cert ified order was sent by United States mail, prepaid,
to the following named:
JERROLD L. NYE
Nye & Meyer
3317 Third Avenue North
Billings, ,MT 59101
JOEC. MAYNARD
LORI A. HARPER
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 2529
Billings, MT 59103-2529
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:&
Deputy u