SITZMAN v SCHUMAKER
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No. 85-259 85-260 IN THE SUPREME COURT OF THE STATE OF MONTANA BARBARA SITZLriN, Petitioner and Appellant, -vsJAKE SCHUMAKER, Respondent and Respondent. JAMES H. SITZMAN, Petitioner and Appellant, JAKE SCHUMAKER, Respondent and Respondent. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Prairie, The Honorable R. C. McDonough, Judge presiding. COUNSEL OF RECORD: For Appellant: Kelly & Kelly; Patrick J. Kelly argued, Miles City, Monta.na Terry J. Hanson, Miles City, Montana For Respondent: Crowley, Haughey, Hanson, Toole & Dietrich; William J. Mattix argued, Billings, Montana Submitted: January 30, 1986 Decided: May 15, 1986 Mr. Justice John C. Harrison delivered the Opinion of the Court. This is an appeal from a summary judgment of the District Court in the Seventh Judicial District of the State of Montana, in and for Prairie County. We reverse and remand for trial. The plaintiff, James Sitzman, worked for the defendant, Jake Shumaker, performing general ranch labor. did not get along. Shumaker "son-of-a-bitch" and "idiot." often The two men called Sitzman a Sitzman did not respond to these names at first, but eventually began shouting back. The day Sitzman was working together. were full. injured, he and Shumaker were Shumaker asked Sitzman if the calf feeders Sitzman responded by telling Shumaker that the first one was half full, the second about three-quarters full, and the third one was about two-thirds full. Shumaker exploded, saying "I believe you, you god damn idiot. you just say 'yes' or 'no'?" Later in the morning, Shumaker asked Sitzman if he wanted to work on the tractor. responded, "Yeah, sure, no problem. Shumaker again son-of-a-bitch. exploded, to him Sitzman Let's go to work on it." saying, "you god damn Why can't you just say 'yes' or 'no'?" When ," Shumaker walked several times in the face. Sitzman replied, "Don't call me an s.0.b. over Can't and struck him Sitzman pushed Shumaker to the ground. Shumaker then picked up a four-foot length of two-inch pipe and held it over his head. Sitzman asked Shumaker not to hit him, and turned to walk away. Shumaker hit Sitzman on the back of the head and when Sitzman turned to protect himself, hit him on the front of the head, knocking him to the ground, unconscious. Sitzman skull. suffered severe injuries, including a fractured The extensive head injuries have altered the course of his life. Sitzman applied disability wage for and was granted temporary total and medical benefits under Compensation Act. the Workers' He brought this action in the District Court to recover damages caused by Shumaker's attack. His wife, Barbara, brought an action for loss of consortium, society, support, comfort and companionship of her husband due to his injuries. Shumaker moved for summary judgment. Judgment was granted in both actions for the stated reason that because of Sitzman's application for and receipt of Workers ' Compensation benefits, their exclusive to the Workers' Compensation Act. remedies were Upon stipulation of the parties, the Sitzmansl actions were consolidated for purpose of appeal. The issue presented for review by Sitzmans is whether receipt of Workers1 Compensation benefits by them results in an election pursuant to $ 39-71-411, MCA, thereby barring them from a common law tort action against employer Shumaker. Summary judgment is proper only when there is a genuine issue of material fact and the movant is entitled to prevail as a matter of law. Cereck v. Albertsonls (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The lower court, in granting summary judgment, reasoned that by filing for benefits under the Workers' Compensation Act "Sitzman became subject to the provision of the Act and more specifically The exclusivity clause, found in $ $ 39-71-411, MCA." 39-71-411, MCA, provides in pertinent part: For all employments covered under the Workers' Compensation Act or for which an election has been made for coverage under + this chapter, the provisions chapter are exclusive.. .. The election referred to in § of this 39-71-411, MCA, however, is the election to come under the Act made by an employer not specifically covered by the Act pursuant to 5 39-71-401 (2), MCA. It has no reference to an employee seeking to recover for injuries suffered as a result of an assault and battery committed personally by the employer upon the employee who also may have filed for and received F70rkers1 Compensation benefits. Ordinarily, when an employee is injured in the work place due to negligence or accident, his remedy is exclusive to the Workers' Compensation Act. Noonan v. Spring Creek Forest Products (Mont. 1985), 700 P.2d 623, 625, 42 St.Rep. Common law damages are not available under 5 759, 762. 39-71-411, MCA, inflicted by for injuries negligently or accidentally an employer. dismissed on this ground. Negligence claims should be Such are not the facts in this case--Sitzmanls injuries are not the result of negligence or accident. The question then becomes whether there is a permissible exception under § 39-71-411, MCA, for the tort inflicted by Shumaker upon Sitzman. This Court has said: The "intentional harm" which removes an employer from the protection of the exclusivity clause of the Workers ' Compensation Act is such harm as is maliciously and specifically directed at out of which such an employee specific intentional harm the employee receives injuries as a proximate result. ... Great Western Sugar v. District Court (1980), 188 Mont. 1, 7, 610 P.2d 717, 720. There is evidence that Sitzman suffered. intentional harm maliciously and specifically directed at him by Shumaker. It i s not reasonable to suppose the legislature . intended to give statutory protection in the form of immunity from suit to an employer who hits his employee in the head with a pipe while the employee is carrying out his employment duties. The egregiousness of these circumstances removes the In a manner similar to exclusivity bar for an employee. injury by a £el-low employee, 5 39-71-413, MCA, where the legislature provided for coverage from an intentional injury, under the facts of this case, we provide for such coverage where the injury is by the employer. There decision. are sound policy reasons for reaching this The purpose of the Workers' Compensation Act is to protect both the employer and the employee by incorporating a quid pro quo for negligent acts by the employer. The employer is given immunity from suit by an employee who is injured on the job in return for relinquishing his common law defenses. The employee is assured of compensation for his injuries, but foregoes legal recourse against his employer. To allow an employer to personally commit an assault and battery upon an employee and hide behind the exclusivity clause of the Workersf Compensation Act is to disregard the purpose of the Act. his protection. Other employers would have to pay for In effect, he would have bought the right to hit his employees. That is not a quid pro quo. The law does not allow a wrongdoer to benefit from his wrongs. Consequently we hold that a narrow exception to the exclusiveness of the compensation remedy exists where the employer personally commits an assault and battery upon an employee. The remanded summary for judgment trial Court. We concur: / is consistent reversed. and with the the findings case of is this
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