MASSEY v SELENSKY
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NO. 83-363 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 EDPJARD MASSEY and .LUCILLE MASSEY, his wife l Plaintiffs and Appellants, -vsRAY 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 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 Court. 4 . t h e Opinion of 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 . under Act, the provisions the District S i n c e Masseyls i n j u r i e s were covered 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 Court granted S e l e n s k y l s motion 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 . for Massey a p p e a l s from t h i s r u l i n g . At action, t h e t i m e of both Massey 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 and were Selensky employees Anaconda Company and worked a t t h e s m e l t e r Anaconda. A s t h e y were neighbors, of the i n t h e C i t y of 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, a.m. and t h e two would arrive at the l e a v e home a t a p p r o x i m a t e l y 6:40 smelter at "punch i n " on t h e company t i m e c l o c k . approximately 6:50 to 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 time h i l l where t h e b u i l d i n g which h o u s e d the 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 clock was located. This building is 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, above d e s c r i b e d manner; the parties' d a y began t h e men d r o v e t o work, in the 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. set forth Massey. above, and The Division McKernan found the facts as initiated the recognized claim and on allowed behalf of 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. oral arguments were heard. The issue was briefed and The motion was granted judgment for Selensky was entered. and 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. Manor (1979), 181 Mont. 424, 593 P.2d Jordon v. Elizabethan 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 American Car 161. corollary A questions (1945), Corporation of of these law. State 1 1 8 Mont. rules is v. 183, we that North 1 6 4 P.2d 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 . i s w e l l s e t t l e d i n Montana t h a t a co-employee It immune from injuries liability which are MCA, against allows one compensable acts under resulting the in Workers' 209, 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, 860. which negligent Madison v. P i e r c e ( 1 9 7 0 ) , 156 Mont. Compensation A c t . 478 P.2d for is an "other injured than his worker to bring employer or the an action 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 . two persons have the same However, employer the simple f a c t t h a t would not necessarily 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 cause t h i s r u l e t o apply. 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 a co-worker 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 Though w e h a v e Montana. rule on several applied occasions, under t h e co-employee immunity the facts prevailing 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 v. Pierce, 3 2 , 473 P.2d supra, 547. and B a i r d v. Chokatos S e e Madison ( 1 9 7 0 ) , 1 5 6 Mont. 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. yet, business. N e i t h e r man had begun work 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 Workers1 Compensation. occur in mind It is recognized that injuries will in the workplace, and will be employers and fellow workers. assured compensation the theory of for the fault of both In return for immediate and work or employment related injuries, the injured claimant maintain an a c t i o n a g a i n s t See Vol. 2A, gives up his t h e employee o r right to f e l l o w worker. 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 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. has given up h i s f e l l o w worker right should be An i n j u r e d c l a i m a n t t o maintain an action against f o r work o r employment r e l a t e d i n j u r i e s , a 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, a p p l i e d by t r i a l co-employees t h i s t e s t h a s been t a c i t l y c o u r t s many times w h e r e immune suit. from See, 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 . they have Madison v. found Pierce, 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 statute. a It co-employee for purposes of the immunity 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 been which has and should be used to answer this question. W e based note that the trial court dismissed the action 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 c o n s i s t e n t with t h i s opinon. for further proceedings W concur: e - Chief J u s t i c e justices - Mr. Chief Justice Frank I. Haswell, dissenting: I respectfully dissent. Court's summary I would affirm the District 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 Workers' Compensation Act. co-employee, Selensky. He now seeks damages from his 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 product. 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 We do not structure of the entire Act. 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 product. 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 earnings 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 compensation, 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 employee, 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 between 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 Massey's injury. his employment at the time of 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& ~ $ Mr. Justice Fred J. Weber: I concur in the foregoing dissent of Mr. Chief Justice Haswell. L
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