Alexander v. Bozeman Motors, Inc.

personal ALEXANDER, as NICOLE representative of Mike of the Estate OSTERMILLER, Alexander, BURT ALEXANDER, HELEN Appellants, Plaintiffs INC., MOTORS, BOZEMAN FORD, BOZEMAN d/b/a SNEDEKER, BOB WALLIN, DAVID A. BEVERAGE, ROGER Appellees.

Defendants DA 09-0550. No. April Briefs Submitted on 9, 2010. Decided June MT 135. Mont. 439. 234 P.3d 880.

JUSTICE LEAPHART concurred.

JUSTICE RICE part concurred in and dissented in part. Appellants For Nicole Alexander and Burt Ostermiller: Shandor Badaruddin, S. Moriarity, Booke, Badaruddin LLC, & Missoula. Appellant

For Tollefsen, Helen Alexander: Gig A. Berg, Lilly & Tollefsen, P.C., Bozeman.

For Appellees: Herndon, Donald R. Herndon Firm, P.C., Law Billings.

For Intervenor State of Bradley Luck, Montana: J. Special Attorney General, Assistant Garlington, Robinson, Lohn & Missoula; Hon. Bullock, Steve General, Montana Attorney Tweeten, Chris D. Counsel, Chief Civil Helena; Larsen, Curtis E. Special Assistant Attorney General, Fund, Montana State Helena.

For Amicus Montana Chamber of Bennion, Commerce: John W. Law, Attorney at Helena.

For Liberty Amicus Northwest Corporation: Insurance Larry W. Jones, Law Larry Jones, offices of W. Liberty Mutual Group, Missoula.

For Amicus Montana Compensation Fund, Contractor Montana Counties, Association of Sisters of Charity of Leavenworth Health System, Region, Montana Montana School Group Insurance Authority, and Montana Municipal Interlocal Authority: Goe, Oliver Christy H. McCann, S. Browning, Kaleczyc, Berry Hoven, P.C., & Helena. of the Court. Opinion delivered the JUSTICE COTTER Ostermiller, Helen and Burt Appellants Nicole appeal from an order (collectively Employees), Alexander summary judgment in Eighteenth granting Court Judicial District Wallin, Inc., Bob Motors, David A. Bozeman Appellees favor of Motors). We Snedeker, (collectively Bozeman Roger Beverage for part, proceedings. in in and remand further part, affirm reverse FACTUAL AND PROCEDURAL BACKGROUND (Ostermiller) Motors in Burt Ostermiller worked for Bozeman at Corners August at Motors’s satellite office the Four Bozeman Bozeman, Montana, selling recreational vehicles. intersection Wallin, Snedeker, Beverage all worked at Bozeman Defendants managerial supervisory held duties. The officein Motors and either 12' 24' working during this time was a which Ostermiller was had prefabricated building placed empty which on an lot. been Snedeker, Wallin, Beverage open Employees claim that decided office, approximate The officehad and knew its size volume. desks, a door. The just enough room two had two windows and bought purchased. office did not have heat source when Snedeker to heat it. propane gas stove for the office order gas operating, and Ostermiller After the stove was installed ¶3 stove the office caused a build propane claims that the leaked into and up he ill as a result of of carbon monoxide. Ostermiller claims became the inhalation of and/or monoxide. He asserts that propane carbon office, by chemical in told friends noticed a smell and that he was body beginning friends that his was to stink of chemical order when he not at work. that he about complained was Ostermiller maintains office that Bozeman resulting symptoms, smells and his but nothing response. Motors did On or about November lost in the office. was Ostermiller consciousness while Ostermiller by girlfriend at the office his and taken home. He did not discovered return to at Bozeman Motors after this time. work (Alexander) working in the satellite began Michael Alexander ¶4 Employees claim that office sometime around November 2003. without Bozeman Motors sent Alexander work in satellite office stove, proper investigation giving conducting into without him warnings. complained Alexander any Employees claim that stomach, upset telling him that the Beverage about headaches making him Alexander properly officewas not ventilated and was sick. well, visiting his from the office as dog got claimed that sick subsequently refused to enter the office Employees with him. claim that when Alexander complained to Bozeman Motors about the conditions and physical his symptoms, nothing was done about the stove. Employees assert that by Alexander was sickened the propane and carbon monoxide in a manner similar to Ostermiller. Employees claim that ¶5 Alexander’s health and condition deteriorated point where he was unable to come to work.1 Alexander and Ostermiller they both claimed that physical, suffered mental and emotional symptoms as a result exposures. of the Employees claim that Alexander was unable to care for himself as a result of physical his injuries emotional and had to be cared for by his mother. Alexander and Ostermiller diagnosed were later Raymond Singer, Ph.D., suffering from chronic effects of acute and workplace chronic exposures to a faulty ventless space heater which affected a number of neurobehavioral functions including memory, cognition perception. Singer Dr. concluded that Ostermiller and Alexander were permanently disabled. After quit he working office, at the Alexander arranged for an

inspection of the office Greg (Brainerd), Brainerd the owner and operator ofBrainerd Home Inspection. Employees claim that Brainerd determined the stove leaking, forwarded the results of his inspection to Bozeman Motors and told the defendants not to use the stove. After inspection Brainerd’s in April claim the stove again. was not used Bozeman Motors later conducted its own investigation stove, but investigation did not any reveal issues with the stove. Employees claim this investigation was inadequate in respects. several Employees claim that Ostermiller and Alexander continued to

suffer various symptoms well after their exposure. In February 2006, Alexander and Ostermiller filed suit against Bozeman Motors. Later month, same Alexander died at Hospital Deaconess in Bozeman. mother, Alexander’s Helen and sister Nicole Alexander joined were later in the suit. The complaint set forth claims of negligence, intentional battery, and negligent infliction of emotional distress and punitive damages against the defendants. On 1,2007, March Bozeman Motors moved for summary judgment complaint, In her alleged Helen Alexander that Alexander was found employee

unconscious at the Four Corners office an February of Bozeman Motors in alleged 2004. Helen also represented that Bozeman Motors had to Alexander that the issues with the stove had been fixed. 17, 2007. hearing September A held on was against Employees. on complaint motion and dismissed granted The District Court claims were 25, Employees’ Court 2008. The District held March Act Compensation “exclusivity provision” ofthe Workers’ by the barred (2003).2 Am., LLC, 39, 71, MCA In Wise v. CNH (WCA), chapter Title described 142 P.3d Court MT exclusivity provision as follows: scope of the generally provides Act Compensation The Workers’ injury in the employee for who suffers an remedy an exclusive 39-71-411, An MCA. employment. her Section scope his or fellow bring employer action an or may against an employee however, intentionally injured by employee is “[i]f employee, employer byor employee’s act ofthe intentional and deliberate Section employee.” act of a fellow the intentional and deliberate injury as “an 39-71-413(1), MCA. defines intentional The statute by an intentional and deliberate act injury caused injury to the actually intended to cause specifically 39-71-413(3), MCA. employee.” Section Wise, 7.¶ Wise,therefore, allege “an ... must that he or she Under injured by the of an intentionally

has intentional act been exclusivity provision in order to avoid the fellow Wise, In to Bozeman Compensation response Workers’ Act.” had summary judgment, Employees argued they Motors’ motion for intentionally presented demonstrating that Bozeman Motors evidence them, injured allowing exclusivity provision them to avoid the Employees claimed Motors knew that the stove WCA. that Bozeman big ruining sickening it was too the officeand that was the air Ostermiller, experiencing knew the he but specific symptoms Then, nothing protect passed did or warn him. after Ostermiller out office, in the Bozeman Motors sent Alexander into the same conditions any warning, ignored complaints until too was without his he addition, permanently injured. Employees argued In in their brief judgment opposing summary respect the evidence with adequate proceed not as to trial. compelling, Ostermiller was but concluding The Court rejected Employees’ arguments, District deliberately had they had failed to show that Bozeman Motors The specific harm to Alexander or Ostermiller. intended cause applies instant ease. The version of WCA in the 444

District best, Court concluded that at Employees had demonstrated that Bozeman Motors’ conduct and omissions amounted to wanton negligence, which was insufficient as a matter oflaw under Calcaterra Resources, 187, v. Mont. 424, 1998 MT 289 590, Mont. 962 P.2d grounds overruled on Saloon, other Essex Inc., Ins. Co. v. Moose’s 202, MT 423, 451, 2007 338 Mont. 166 P.3d to avoid the WCA’s (internal exclusivity provision. Calcaterra, See 13 quotations ¶ omitted) (stating “allegations negligence, of no matter how wanton, are insufficient to avoid remedy the exclusive of the Workers’ Act.”). Compensation Furthermore, the District Court concluded that Bozeman Motors’conduct was not akin to an “intentional jab left chin,” and therefore failed to meet the level intentionality required escape exclusivity WCA’s provision Enberg under v. Anaconda Co., (1971). 135, 137, 158 Mont. 1036, 489 P.2d Employees argued ¶11 also 39-71-413, MCA, (1) unconstitutional because it: equal protection violates II, under Art. (2) Section 4 of Constitution; the Montana is an grant unconstitutional special privileges and immunities in XI, violation of Article Section (3) 31; and is an piece unconstitutional special legislation in V, violation of Article Section 12. The District rejected Court each of challenges.3 these Accordingly, the District granted Court Bozeman Motors’ summary motion for judgment, concluding that Employees’ claims were barred exclusivity provision of the WCA. 12 Employees now appeal ¶ from the District Court’s decision.We state the issues appeal on as follows: Issue

¶13 One: Did the District Court err in granting summary judgment on Alexander and Ostermiller’s claims? §39-71-413, MCA, Issue Two: Is unconstitutional?

STANDARD OF REVIEW We review de novo a grant district court’s summary judgment applying the criteria set forth in M. R. Civ. P. 56. Mattson v. Mont. Co., 286, Power 2009 MT 352 Mont. ¶ 215 P.3d 675. Summary judgment proper is when the moving party shows an absence of order, Court, citing In its the District Sugar Ct., to Great Western Co. v.Dist. (1980), expressly Mont. 610 P.2d 717 held exception that the intentional act under 39-71-413, MCA, recognized § suggests is appeal, under Montana law. On Bozeman Motors actually II, this statute is unconstitutional under Article Section 16 ofthe Montana has rightly point out, however, Constitution. As the Bozeman Motors appeal portion not filed a cross from this of the District Court’s order. See M. R. 12(4). App. Accordingly, P. we decline challenge to consider Bozeman Motors’ to this appeal. statute on judgment as a entitlement genuine issues material fact and burden, meets Mattson, moving party 15. If this of law. ¶ matter that raises non-moving party present must substantial evidence summary judgment. fact genuine issue of material in order avoid 8, 326 Co., 74,MT Mont. ¶ Miss. Farm Bureau Cas. Ins. Carter v. 350, 109 P.3d 735. questions plenary. Our review of constitutional is Rohlfs 133, 227 LLC, 440, 7, 354 MT P.3d 42. The

Klemenhagen, ¶ law, constitutionality and we review the question of a statute regard Rohlfs, for correctness. district court’s conclusions

DISCUSSION granting summary err Issue One: Did the District Court ¶17 ? judgment on Alexander Ostermiller’s claims presented sufficient evidence Employees they The contend have ¶18 deliberately them that Motors intended cause show Bozeman at specific harm when it allowed them to work the Four Corners office. office, the the that the argue that Bozeman Motors knew size of They ventilated, only that was heat source for office was not the stove office, causing the air and Ostermiller to be fouling and that it was Further, that Bozeman Motors knew the Employees sick. claim experiencing breathing were result of Ostermiller was symptoms office, office the air in the and that Ostermiller had to remain day further Employees allege most of the due to the weather. no into inquiry investigation

Bozeman Motors conducted or the source air, functioning properly, the contaminated whether the stove was any symptoms. alternative causes for Ostermiller’s respect Alexander, that Bozeman Employees With contend ¶19 out passed Motors knew Ostermiller had due to contaminated office, air ill he in the and then became so could not return to work. Yet, failed to of these conditions. Bozeman Motors warn Alexander employment, Bozeman Motors After Ostermiller fell ill and left his office, placed exposing Alexander in the same him the same that had sickened Ostermiller. who conditions “not a complainer,” claim was known Bozeman Motors as Employees had, asserting that registered complaints the same as Ostermiller he the same experiencing there was an odor in the office and that was eventually overcome and as Ostermiller. Alexander symptoms then unable to return to work. physically challenge sufficiency not appeal, On Bozeman Motors does Instead, summary judgment. allegations purposes

these for Bozeman Motors observes that the District Court acknowledged these that, allegations, true, but then held they even if did not rise to the attempt level of deliberate specific Accordingly, cause harm. we too accept will factual allegations solely these as true purpose considering summary judgment motion.4 The disposition hinges this issue upon Employees’ whether allegations, factual taken as true and viewed in a light most favorable to the as the non-moving party, are arguably sufficient to avoid the exclusivity provision by WCA’s 39-71-413, MCA, virtue of § so plaintiffs as to entitle to a trial on the merits of their claims. As the Wise, Court noted in “an employee allege ... must that he or she has intentionally injured been by the intentional act of an employer or fellow in order exclusivity to avoid the provision of the Workers’ Compensation Wise, Act.” Furthermore, under 39-71- 413(3), MCA, the injured employee must demonstrate that employer deliberately intentionally caused an injury” “intentional employee. to the This statute defines injury” “intentional injury as “an caused an intentional and deliberate act specifically that is actually injury intended to cause injured and there is knowledge actual injury is certain to occur.” Section 39-71- 413(3), words, MCA.In other injury” “intentional required has two (1) elements: an intentional and specifically deliberate act actually (2) intended to injury; cause knowledge actual injury’s certainty. Although much Employees’ argument in appeal has

focused on whether Bozeman Motors acted deliberately and intentionally to injury, cause them the statutory requirement that the employer have “actual knowledge” of injury’s certainty equally significant. respect Ostermiller, With to even assuming the actions of Bozeman Motors satisfied the “intentional and deliberate” element of 39-71-413(3), MCA, § we conclude Employees that the have not set forth allegations sufficient to demonstrate that Bozeman Motors had actual knowledge that his exposure to the contaminated air in the appeal, interjects array On Bozeman Motors of facts which it claims shows injuries that the conditions, Alexander and Ostermiller were caused other medical by exposure and not to contaminated air in the Four Corners office. While such facts may play ultimately establishing a injuries, they role in causation these are not germane currently to the issues before the Court. injury.5 cause While “certain” to him Corners office was Four intentionally Motors that Bozeman do aver Employees office, in the dangerous to conditions deliberately Ostermiller exposed ill or becoming he complaints to that was respond not his did conditions, these to any measures address these otherwise take simply Employees, to the light in a most favorable allegations, viewed knowledge that had actual do that Bozeman Motors not establish in certain to office would result requiring Ostermiller work this raise Employees that have failed to Accordingly, we conclude injury. case, element their genuine a material fact on this essential issue of Ostermiller’s claims was summary judgment against that appropriately granted. with to Alexander. presented respect A scenario is different the Four Corners Bozeman Motors sent Alexander to work in

When Moreover, it is office, knowledge injury. it had actual of Ostermiller’s injury to Motors did not disclose Ostermiller’s alleged Bozeman investigate nor it take to the cause of his any did measures Furthermore, injuries. allege that Alexander in the Bozeman Motors about the contaminated air complained office, becoming and told them he sickened it. The fact was Ostermiller previously complaints had raised these same Bozeman Motors, office, Four and then lost consciousness in the Corners when raise light Employees, genuine in a most favorable to does a viewed issue of material fact as to whether Bozeman Motors had actual office, knowledge that to work in the same requiring Alexander investigating addressing alleged without contamination from stove, injury. was “certain” cause him decision, reaching rely presented In our we on the facts and the In establishing law which has evolved relative to intent. 39-71-413, MCA,

Legislature amended present its form. statute, amending Laws In session this Mont. 1095-96. law Legislature specifically response stated the amendment was Conoco, Inc., 50, 298 401, 995 MT Mont. Sherner P.2d component “provide intended remove the “malice” and instead injured employee damages against that an has a cause action for if employer’s employee only or the or fellow Laws injury.” causes an intentional amendments, in Wise. After these Court rendered its decision Opinion, negligence is noted in 10 of the wanton insufficient As above even exclusivity provision. exception law to matter of invoke the 448 (Wise) case,

In that an employee injury suffered an operating while heavy equipment. Wise claimed that employer negligently his failed to comply laws, with state and federal workplace safety and that employer’s inactions constituted intentional and deliberate conduct as 39-71-413, defined in MCA. Applying plain language § of 39-71- § 413, MCA, this Court rejected Wise’s claims. The Court held that complaint alleged Wise’s nothing ordinary more than negligence and alleged “no conduct that could be construed as ‘intentional and acts, deliberate’ other than the general allegation near the end of his complaint. Wise’s attempt negligent characterize conduct as ‘intentional and bring deliberate’ fails to his claim within the ambit of 39-71-413, Wise, MCA.” § ¶ While the Legislature 2001 amendments removed “malicious” 39-71-413, MCA,

conduct from and also upon focused and narrowed meaning injury,” “intentional we must decide in present case what allegations factual are sufficient a genuine raise issue of material fact that the injury was by “caused an intentional deliberate act that is specifically and actually intended injury to cause to the employee 39-71-413(3), ....” Section law, MCA. In criminal intent generally is jury inferred from the surrounding facts and “ circumstances. ‘Because it is seldom subject to direct proof, intent must be inferred from the acts of the accused and the facts and ” circumstances of the Gittens, offense.’ State v. 55, 38, 2008 MT 341 ¶ 450, 178 P.3d 91 (quoting Hall, 366, 371, State v. 249 Mont. 816 “ (1991)). 438, ‘[cjriminal P.2d 441 differently, Stated intent, being a mind, state of rarely susceptible of positive direct or proof and therefore must usually be inferred from the facts testified to by ” witnesses and the circumstances as developed by the evidence.’ State Motarie, 285, v. 2004 MT 323 Mont. ¶ 100 P.3d 135 (quoting Longstreth, State v. 204, 34, 157). 1999 MT 295 Mont. 984 P.2d Analogizing intent component issue, of the statute at if even the degree of intentional required conduct 39-71-413, MCA, under § rises to a level similar to required prove criminal culpability,6 an employer’s may intent undoubtedly be inferred from the facts and circumstances, and direct proof that the employer intended to cause an injury intentional required is not in order to submit such an issue jury or survive a summary motion for judgment. Indeed, such a scenario was present People O’Neil, 550 suggested Wise, Justice Nelson as much in his concurrence in Wise. See ¶¶ 16-17 (Nelson, J., concurring). (Ill. 1990) (commonly Film- App. Dist. referred N.E.2d Blythe v. Radiometer Recovery), a case this Court both discussed (1993), W.R. Am., Inc., 464, Lockwood v. 262 Mont. P.2d (1995). Lockwood, 202, 314 In the Co.,& 272 Mont. 900 P.2d Grace allegations to sufficient plaintiff presented concluded that a had Court intentionally harmed him his that W.R. Grace had contention support had plaintiff alleged motion The that W.R. and survive a to dismiss. had to know extended inhalation Grace knew or reason that a particles and created ingestion continuous of vermiculite asbestos him; willfully deliberately concealed degree risk or harm to high knowledge co-employees; provide from failed plaintiff its the danger; the advised protective equipment sufficient avoid continuously in that it was to work plaintiff employees and other safe thereby particles; to vermiculite and asbestos proximity close and, ultimately, his death. proximately plaintiffs caused mesothelioma 208, Lockwood, Mont. P.2d at The Court stated that at 900 318. means the injure injure; not mean desire to it that “intent does undergo injury-the the should the employer employee intended that daily knew a employer the harm-of which the on basis.” exposure decision, Lockwood, reaching P.2d at In its at 319. Recovery the Court discussed Film as follows: harmful fumes Recovery, employee inhaling In Film an died after manufacturing employer’s process; released in course inhaling that his harmful employees knew were his of the harm from the knowledge fumes and concealed We indicated that Larson cited Film employees. Professor involving constituting as case Recovery approval with a facts exclusivity. Blythe, tort 866 P.2d at intentional sufficient to avoid 223. distinguishing Recovery

The Film and cases factor between Blythe alleged knowledge such employer’s as is former, employee being injured, employer’s is in the versus knowledge ofharm certain exposing risk without harmed, See being that the is or will be in the latter. it Blythe, analysis, [the] 866 P.2d at 223. Under this is clear that allegation plaintiff] [the knew acts harm that Grace its created of “intent to harm” and meets both Professor Larson’s definition Blythe. that of this Court in Recovery inapplicable Film here argues

Grace is because an intentional tort nor involving it is criminal case neither exclusivity legislation under such as the MODA. While Grace’s correct, Recovery argument

characterization of Film its misses Recovery for our point. rely precedent do not on Film We are allegations [these] determination that sufficient to avoid Rather, exclusivity. only we address it to indicate the facts type which an intentional tort sufficient to avoid support will in a exclusivity alleged complaint must be to withstand which a motion to dismiss.

Lockwood, 210-11, at at 272 Mont. 900 P.2d Center, Blythe, employee (Blythe) Community In Medical (CMC), damages Inc. in Missoula sued the after he hospital inadvertently himself with a needle an Arterial Gas pricked Blood (ABG). Blythe, Mont. at P.2d at kit 220. The needle allegedly from a patient contained blood had been infected with who AIDS kit in question virus. The ABG defective kit had which purchased by price. Blythe’s CMC at a been reduced claim was ultimately rejected by this Court he because failed to show the of an intentional harm CMC presence specifically which maliciously Blythe, directed him. at at 262 Mont. 866 P.2d at 221. Relying Recovery, on Film the Court held intentional conduct be employer employee could inferred in situations “where the the knew being was harmed and continued to the expose employee to known failing warnings ....’’Blythe, harm after [such] to disclose 262 Mont. at case, Blythe’s however, 866 P.2d at In 223. the and facts surrounding circumstances failed CMC’s conduct to show intentional conduct. Calcaterra, In Court analysis, holding the relied on a that

¶29 similar employee allege an and an employer must establish that had “actual knowledge” employee being satisfy that an was in harmed order to the Calcaterra, definition of an case, intentional harm. 14. In an that ¶ employee fatally injured work, was at against and his estate filed suit employer. the injured employee The estate of the alleged that the injury was due to intentional conduct employer by as evidenced employer’s the of safety regulations violation various federal and the that employee fact the was forced in to work unsafe conditions. Calcaterra, rejected Court 7. This evidence to ¶ this as sufficient harm, an stating: demonstrate intent Notwithstanding these principles govern allegations which or insufficient exclusivity however, evidence to avoid provision, the 39-71-413, it is MCA, clear that an to that provides exception bar for injuries during employment which “are caused intentional ... act or omission” of a fellow that employee. In evidence that an allegations that regard, we have held high degree of harm an created a employer knew its acts requirement act to meet the intentional employee are sufficient Lockwood, at 900 P.2d 272 Mont. 39-71-413, MCA. See of § however, employee an approach, Lockwood at 319. Under the knowledge actual employer that the had allege and establish must as that an harmed; such being allegations employee that the was being the harm reason know” of employer ample “had Lockwood, at 272 Mont. experienced are insufficient.

P.2d 318. at

Calcaterra, of intent” well- “inferred principles In cases7 and light these and context, we hold that deliberate in the criminal law

established allegations indicating factual may conduct be inferred from intentional harmed, being failed to warn employee employer that knew harm, intentionally expose continued to plain Additionally, required under employee to the harm. 39-71-413(3), MCA, allege must language of § certainty knowledge” that the had “actual demonstrate injury. Alexander, in Viewing light the facts most favorable we summary conclude that Alexander has met this burden has judgment against improperly granted. alleged him was Alexander harm knowledge posed that Bozeman Motors had actual office, being use of the the Four Corners and knew he was stove light lost previous harmed in of Ostermiller’s consciousness. turn, lodged similar to those of Ostermiller. complaints Furthermore, Motors failed to warn Employees claim Bozeman dangers posed by Alexander about the stove. These factual genuine allegations are sufficient raise a issue of material fact on issue, permit a trier of fact to draw the inference that intentionally deliberately Bozeman Motors caused an intentional injury Alexander. reasons, grant For reverse the District Court’s these we

summary judgment respect respect with to Alexander. With to however, if Ostermiller, summary judgment proper. Even Lockwood, Although Blythe, prior were to Shemer and and Calcaterra decided 39-71-413, MCA, analysis Court’s of what constitutes the 2001 amendments to § exclusivity provision the context of the remains “intentional” conduct in WCA’s instructive. allegations set

Ostermiller could forth to demonstrate that Bozeman harm, intentionally causing him he deliberately Motors acted and an injury” cannot demonstrate he suffered “intentional as defined 39-71-413(3), MCA, allegations since there are no factual § inference to actual support sufficient Bozeman Motors had knowledge certainty that he would be harmed. §39-71-413, MCA, Issue Two: Is unconstitutional? grant summary Because have affirmed the District Court’s we Ostermiller, respect

judgment Employees’ with we must address 39-71-413, challenges constitutionality Briefly various MCA. § stated, arguments First, Employees these are follows. allege § MCA, 39-71-413, II, equal protection violates the clause in Article subjects 4 of Montana it Section Constitution because Montana arbitrary discriminatory workers to action and an creates impermissible claim employees. Employees class that the statute businesses, of employees-those creates two classes who work for small proprietors, partnerships, sole and those who for work corporations. Employees 39-71-413, MCA, contend that virtue § injured employee bring an of the former class can direct cause of against employer, injured employee action while in the latter class cannot. contend there is no rational basis classes, two corporations creation of these and that allowing and their employees escape liability unreasonable, irrational, ignores place. Employees realities of work also contend that strict scrutiny apply analysis should to the constitutional of the statute. Second, Employees 39-71-413, MCA, claim that § violates Article II, V, Section 31 and Article Section 12 of Montana Constitution. II, prohibits Article legislation Section the enactment of that confers “any grant franchises, of special privileges, irrevocable or immunities V, Article prohibits any ....” Section 12 or special enactment local legislation. Employees claim that the provisions statute violates these it employers because insulates immunizes their responsibility from injurious for malicious and intentional Finally, Employees conduct. 39-71-413, MCA, right contend that violates their substantive due process infringes law and their upon rights fundamental under the Montana They injured Constitution. contend that this deprives statute employees meaningful of a opportunity to be heard causes of action against injure Furthermore, employers they who them. claim impermissibly infringes upon rights statute workers’ to a healthful environment, enjoy health, liberty, safety, life and to seek happiness, pursue gainful employment. constitutional, party and the presumed Statutes are

¶36 proving of the statute a statute bears the burden challenging State Stavenjord doubt. Mont. beyond a reasonable unconstitutional 466, 67 We conclude that 67, 45, 314 MT P.3d 229. Fund, 2003 demonstrating beyond have to meet their burden of failed 39-71-413, MCA, is that unconstitutional. a reasonable doubt § of Therefore, rejection Employees’ the District Court’s we affirm challenges. constitutional

CONCLUSION summary of with grant judgment District Court’s We affirm the ¶37 reject Employee’s the constitutional respect to Ostermiller. We also However, 39-71-413, District MCA. we reverse the challenges to § summary to Alexander and grant judgment respect of with Court’s proceedings for consistent with remand his cause of action further Opinion. McGRATH and JUSTICE MORRIS concur.

CHIEF JUSTICE LEAPHART, concurring. JUSTICE Two, One. As to I in the Court’s resolution Issue Issue concur

¶38 Court, rejection of like the I affirm the District Court’s However, upon I do so based challenge. constitutional would showing unconstitutionality. a As plain failure to make Employees’ Department I in in Oberson v. U.S. pointed my out concurrence 33-37, Agriculture, MT 339 Mont. 171 P.3d ¶¶ standard, J., a concurring), “beyond reasonable doubt” (Leaphart, herein, for the Court is an absurd standard decision which invokes question of constitutional law. RICE, dissenting concurring part part. in in JUSTICE summary judgment with Court’s I concur conclusion Ostermiller, as well as its properly against § entered conclusion However, 39-71-413, MCA, I from Court’s is constitutional. dissent necessary has conclusion that Alexander asserted facts to evade exclusivity. rule of “an Legislature objective The has declared that the Montana fault, regard compensation system provide, [is to]

workers’ without from a wage suffering and medical benefits to worker supplement 39-71-105(1), disease.” Section MCA. Pursuant injury work-related thereto, Legislature employments “[flor has all provided for which an election Compensation covered under the Workers’ Act or chapter, provisions of this coverage has made for under this been 39-71-411, added); (emphasis see are exclusive.” Section MCA chapter (Rev. ed., Compensation also Law 103.03 Matthew Larson’s Workers’ 2009) exclusivity two “to Supp. (stating Bender reasons are employee maintain the of sacrifices between balance minimize liability liability” and “to the substitution no-fault for tort merit”). litigation litigation, even of undoubted very Only may injured limited circumstances exclusivity collecting avoid the rule and a lawsuit in addition to pursue Compensation benefits Act: under Workers’ intentionally injured If an intentional by act of or employee’s employer deliberate the the intentional performing and deliberate act of a fellow while the employment, duties of the or in the case of the death employee’s personal representatives, heirs or to the addition right compensation Compensation to receive under the Workers’ Act, a cause of for damages against person have action the whose act injury. intentional deliberate caused the intentional 39-71-413(1), Section MCA. The statute “intentional injury” defines “an injury caused an intentional and deliberate act that is specifically actually injury intended to cause to the employee injured is knowledge injury and there actual that an is certain added). 39-71-413(3), occur.” Section MCA (emphasis statutory This admittedly scheme very high evading exclusivity sets a bar for the rule maintaining an a against employer, action covered a but such bar was the Legislature. deliberate calculated action of the v.Wise CNH Am., LLC, 194, 9-11, 181, 2006 MT 333 ¶¶ Mont. 142 P.3d 774. Further, is with understanding bar consistent the common exclusivity states, workers’ compensation among the and this Court’s precedent. Larson’s Compensation Workers’ Law illustrates level necessary

intention injury to be taken outside of workers’ compensation exclusivity. Notably, an employer’s alleged conduct “goes beyond which aggravated negligence” “knowingly and includes permitting exist,” a hazardous work condition to “wilfully failing to furnish a place work,” “withholding safe or information about worksite hazards” is not sufficient. Compensation Larson’s Workers’ Thus, Law 103.03. of dangerous may § “toleration a condition may stage not set injury for an accidental But in any later. normal words, said, use it cannot if injury be such an does that happen, this was comparable deliberate infliction of harm to an left intentional jab Larson’s Compensation chin.” Workers’ Law This 103.03. § is not commentary explains “firmly mere Montana that —Larsora Larson’s Workers’ subscribing principles. to these camp” within 103.04[3][c]1. Law Compensation held, case, the intention in a that already Court has similar This not as a matter of law when exclusivity did exist

necessary to evade injuries caused an unsafe work previous knew employee to and, knowledge, directed the despite such environment danger. a informing him of such in the without work environment Forest Prods., Inc., 216 221, 224-25, 700 Mont. Spring Noonan Creek (1985).2 to free a 623, planer reached into wood Noonan P.2d hand, sustaining entrapped his jammed piece planer ofwoodwhen Noonan, 700 P.2d at Noonan injuries. at serious Creek, against employer, Spring claiming brought a suit his to do planer but failed requested repair Creek “had been Spring prior planer on the but concealed so”and that it “knew accidents Noonan, Randy Noonan.” 216 Mont. at fact of such accidents from P.2d at 624. appeal, proposition “[t]he Noonan for the On offered cases may be knowledge of this or intent inferred from existence Noonan, employer’s surrounding conduct circumstances.” However, rejected P.2d that approach, Mont. at at 625. we concluding: Creek Spring operated

The facts do establish that owners dangerous workplace. injuries a hazardous and The number of among relatively occurred small number workers However, to provides ample support for this observation. translate this into situation an inference of tortious intent on behalf of of law has require would standard Court thus far to adopt. refused concurrence,

Noonan, 216 at In a special 700 P.2d at 625. directly contradictory offered an explanation Justice Morrison which “camp” sampling 1A of United small other decisions from the include: Russell v. (8th Serv., Inc., 1981); Biologies LLC, F. 666 F.2d Cir. Rolon v. Ortho 404 Parcel 1188 (D.P.R. (S.D. 2005); Airco, 2003); Frye Inc., Supp. Supp. 2d 409 269 F. 2d 743 Miss. v. (E.D. Transp. Co., 1986);Provo Loughridge Supp. v. 649 F. 52 v. Bunker Overnite Mo. (D. Co., 1975); Casinos, Inc., Supp. Conway 393 F. 778 v. 8 Hill Idaho Circus Circus (Nev. (Ark. 2000) 1997); curiam); Angle (per v. 945 933 P.3d 837 S.W.2d (Ark. Apollo-Lakewood, Inc., 1986); v. Bank White v. Wash., 720 S.W.2d 702 Grillo Natl. (D.C. 1988);Hildebrandt Whirlpool App. Corp., A.2d N.W.2d (Minn. (Miss. 1985); O’Bannon, 2001); Taylor v. Blailock v. 795 So. 2d 533 Cf. (La. 2001). Operators, Inc., App. Cir. Transocean Terminal 785 So. 2d 860 4th 2Although prior to the 2001 to 39-71- this Court decided Noonan amendments 413, MCA, analysis Opinion, ¶ remains instructive. See 30 n.7. intent

to the approach today: Court’s

There is sufficient in evidence this record to allow a factual if apply determination we a “willful” standard. The conscious disregard others is type conduct that rises to the level and were we adopt such a standard Workers’ willfulness for Compensation purposes this case permitted should be to go to a jury for liability resolution of the damage questions.

I legislature believe the intended Compensation Workers’ to be remedy the exclusive except in those situations where the conduct arose specific intent rather than defendant’s from words, In other an assault personal would allow a willfulness. injury action. Gross negligence, here, such as we have would not. open Were we to personal injury the door for actions where the defendant’s conduct rises to a gross level of negligence or willfulness, I can foresee personal injury many actions in Compensation Workers’ cases. Although may there be a basis public sound policy allowing this, for I do not believe that is what legislature intended. Noonan, 216 Mont at (Morrison, 700 P.2d at J., concurring) added). (emphasis agree I with both Justice legal Morrison’s analysis and his concern about the future effect contrary of a decision. Ostermiller and Alexander indicate that they presented the following factual Court, assertions to the District quoted from their briefing:

(1) (2) present CO was office[;] at the satellite Propane was (3) present office; the satellite Mike Alexander and Burt Ostermiller breathing were both chemicals during the time they (4) were in office; the satellite Mike Alexander and Burt Ostermiller suffered injuries as a proximate result of their (5) exposure gas(es); [Bozeman Motors] or knew should have presence known of the gas(es) originating stove, from the (6) [Bozeman nothing Motors] did causing to avoid expected and anticipated harm [Burt] Ostermiller and Mike Alexander.

Ostermiller and Alexander then delineate sixteen they facts which allege that Bozeman Motors knew about the work environment:

1. The office; size of the satellite 2. That the big stove was too office; 3. That rather, the stove was primary, only, source of heat for the small building; 4. That the office was unventilated; 5. air; That the stove fouling 6. That Ostermiller was getting sick from breathing office; the air at the 8. symptoms experiencing; that Ostermiller was 7. The specific a result of symptoms were Oste[r]miller That claimed office; they conducted no air in the 9. That had breathing air or whether investigation into the source of bad inquiry or functioning properly or other alternative causes the stove was such that symptoms; 10. That the weather was Ostermiller’s throughout inside office most of Ostermiller had remain so ill that he day; passed 11. That Ostermiller had out become working work; 12. That Mike Alexander was could not return year a colder time of the exact same during in the same office with just previously; had 13.That Mike Alexander operating stove as it warning no breathing office; the air in the 14. That had been was Alexander; Mike Mike 15. That who was provided to was of the complain anything, complaining known about not Ostermiller; symptoms experienced same odor and same physically 16. That Mike Alexander was also overcome and unable to return work. summary allegations purposes these as true for

Accepting all of demonstrating facts “an allege still does not judgment, Alexander actually intended and deliberate act that is specifically intentional most, 39-71-413(3), MCA. employee.” to the Section At injury to cause aggravated failing alleged negligence conduct establishes environment, although working reprehensible, a safe provide deemed such conduct insufficient to remove this case Legislature has exclusivity provision Act. See Compensation from Workers’ MCA; 39-71-413(3), Wise, Only intentional and involving cases injured specifically injury deliberate acts intended to cause exclusivity. Taylor, are under the See permitted exception (employee employee). So. 2d at fellow stabbed Therefore, grant summary I would Court’s affirm District judgment regard with to Alexander.

Case Details

Case Name: Alexander v. Bozeman Motors, Inc.

Court Name: Montana Supreme Court

Date Published: Jun 9, 2010

Citation: 234 P.3d 880

Docket Number: DA 09-0550

Court Abbreviation: Mont.