*1 v. Appellant, ASHCRAFT, CHARLES D. Plaintiff COMPANY, THE POWER Defendant MONTANA Respondent. 11822. No. 20, Submitted Nov. 1970. Decided Feb. 1971.
Rehearing
Denied Deb.
1971.
Knight, & Dahood appellant. plaintiff and Anaconda, (argued), for M. McLean An- (argued), James Smith Dean, & Kendrick Corette, Smith respondent. Butte, defendant (argued), derson *2 delivered HARRISON MR T. CHIEF JUSTICE JAMES opinion of the court. Plaintiff, Ashcraft, appealed an order of Charles D. from defendant, County granting district court of Silver Bow Company’s summary judgment. Montana Power motion for Stipulated defen- facts are follows-. On December Company, dant with & Morris Construction contracted Swain Morris Inc., and facilities. Swain & electrical lines construct independent in the designated contract was independent contractor. job work as an conducted its on the journeyman a employed by Swain & Morris as Plaintiff was particular project job his on this consisted lineman, and adding erossarms, and poles, replacing existing climbing power system. transmission existing wire third when 30, 1967, plaintiff performing was his task October On in- ground toppled to the power pole had he ascended jured him. Morris Swain & contract, required defendant
In their which Compensation Law to comply with Montana Workmen’s which was ascribed and previously had Swain & Morris work- claim for injured. Plaintiff’s plaintiff was effect when plan Swain under the carried paid men’s sec- pursuant filed suit addition, plaintiff but, in & Morris party third as a against defendant R.C.M.1947, 92-204, tion injury. negligence had caused alleged whose found defendant facts, district court stipulated theOn 92-438, according party suit immune from district whether or not here is issue R.C.M.1947. this statute. interpretation of in its
was correct part-. R.C.M.1947, pertinent reads Section “* * * legal But shall defense of compensable not bar otherwise industrial accident claims employers except interposed when such defense is on behalf party who immediate previously required has the claimant’s Compensation employer to come within the "Workmen’s Act.” plaintiff’s employer, required Defendant immediate Morris, & Swain within the Workmen’s come exception compliance Act, therefore, defendant with the using the 92-438, R.C.M.1947, from and is not barred of section defense. However, does the allowance of this defense when the required employer carry work- has the immediate provide men’s insurance also immunity with from third suits? This Court believes that ac- complete where control of the details means of it does complishing project employee’s are left to immediate “inde- employer, is, employer is where the immediate pendent contractor”.
Thus,
reasoning
takes the form a
When it is
truism.
*3
inde-
undisputed
employee’s
employer
that the
immediate
an
is
pendent contractor,
carry
compensation
required to
workmen’s
insurance,
independent
to
defense
available
contractor
is
general employer thereby
liability.
regard
absolving
his
With
defense,
independent
liability immunity under
to
contractor
recently
Thill,
153
452
v.
this Court
said
Mont.
Wells
1015, 1017:
P.2d
“
full
every
‘In
such instance
the contractor
is
where
work,
to
supervision and
of the
he alone becomes liable
control
”
injuries sustained.’
employees
his
under the statute for
im-
employer under
circumstances
effect,
general
In
a
these
is
suit.
mune from a third
92-438,
law, which
This rule of
is axiomatic
section
R.C.M.1947,
strictly
is
limited to circumstances
which
independent
injured employee’s
employer
an
immediate
is
compensation insur-
required
carry workmen’s
tractor who is
to
general
apply to
employer. This rule of law does not
ance
injured employee’s
other situation where the status of
“independent
an
found
than
immediate
is
to be other
require
contractor,”
contractor does not
or where
carry workmen’s
an
independent contractor
apply
indepen-
of law does not
Likewise,
rule
insurance.
this
employment” under
“strangers
are
to the
dent tortfeasors who
Mont.
Johnston, 120
Hoffman v.
92-204,
section
R.C.M.1947.
231, 242,
Since the the instant case contract Morris independent & and Swain & Morris required by the operated independent as an contractor who de carry insurance, defendant workmen’s 92- liability under completely immune from section fendant 438, R.C.M.1947. affirmed.
Order HARRISON, MR. C. JUSTICES CASTLES and JOHN concur. HASWELL, participating.
MR. JUSTICE DALY, (dissenting). MR. JUSTICE
I dissent. interpretation
We have been asked of the amend- ment R.C.M.1947, amend- to determine this general employer independent ment makes of an statutory employer em- independent of the contractor’s ployees general employer after the contrac- complied employer has tor have with the statute and the pay compensation employees inde- no follows, course, were pendent It that if the contractor. statute general employer em- make general employer, ployees then the *4 compensation payments, would immune liable for be while not 92-204, R.C.M. liability as well under section from Compensation Act. 1947, 372 impression
This is a of in I cannot case first this Court and in agree that any previous authority that this we have Court controlling point in determining this matter. principal authority position
For its to sustain its that our statute employer, respondent creates Lar relies on Compensation son’s Workmen’s Law, 72.31, pp. V. § Appeals, and on the Tenth Circuit, Court of Burk v. Cities Co., Oil 266 433 (1959), Service F.2d wherein the circuit question interpretation while ruling on this follows an of Okla homa’s laws, 85, O.A.S., 12, by Title 11 and §§ Supreme Court, Pipe speaking the Oklahoma in Mid-Continent Wilkerson, (1948). 193 Line Co. v. 200 Okl. 586 P.2d quotes Respondent heavily from and on also relies Oklahoma’s Pipeline Mid-Coniimenl case.
Realizing in statutory interpretation construction and impression matters of go first we jurisdictions to outside guidance, vigilant we must also be deter- to make accurate mination jurisdiction’s that the outside favor- compare statutes ably with Montana statutes that we have considera- tion. I feel then that go we should back to the Tenth Circuit analysis question together examine Court its of this squares above with cited eases determine if Oklahoma law legislative with enactment in Montana. Co.,
In Thomas Inc., v. Farnsworth Chambers F.2d (10th 1960) examining ruling Cir. on the question same while Compensation Laws, Colorado’s Workmen’s but without bene- precedent, being im- fit Colorado thus a case of first pression Circuit, through the Tenth the court speaking its Judge, pertinent part said in as follows: Chief ‘‘ question interpretation The answer to our turns on Compensation provisions relevant Colorado’s Workmen’s Act. 81-3-2, provides
“Section C.R.S. 1953 material presently part any employer subject and substance that who elects to the Workmen’s shall not be Act *5 * * * subject liability any other whatsoever the death for any injury employee, except provided or the as personal * * chapter this *.’ preserves “Section 81-13-8 the common law action injured employee representative against or his party a third upon and election to compensation, provides take tortfeasor for subrogation employer pays who compen- sation award. ‘‘The answer our narrow question whether general tractor-appellee may be liable as a party tortfeasor to these injured compensated employees and aof subcontractor turns on general whether the was an employer of these em- ployees within the meaning section 81-9-1, C.R.C. 1953 which comprehensively employer subject defines an exclusively to the provisions of the pertinently act. This section provides that * * * * * * Any person, company corporation or conducting * * * any business contracting any out part or all of work * * * * * * thereof to subcontractor, shall be construed employer to be and an be as chapter, defined in this and shall * * * * * * pay be liable injury resulting for ** * therefrom to said subcontractors and their employees, and employer such this section defined, commencing before work, said keep shall insure and shall his insured * * * provided herein subcontractor, such shall be deemed employees chapter. as defined in this Such be shall * * * entitled to recover the cost of such insurance from said withhold subcontractor, and deduct the same from the * * * money due, price owing or other or contract to become due * * * * * * * * * If subcontractor. said subcontractor said shall chapter doing as defined this himself be commencing shall said work of such work and before insure pro- keep insured his as herein shall company corporation engaged in or person, then such vided subject provisions shall not to the said business conducting ’ of this section. position take the appellants since the subcontractor “The fully complied Act, and has Compensation with the Workmen’s compensated employees thereunder, his at subject consequently liable to its and is law as a third common tortfeasor.
“Admittedly
con
the Colorado
not had occasion to
courts have
interpreted section
question.
sider this identical
trial
upon
employer-em
impose
81-9-1 to
ployee relationship
employees
subcontractor,
with the
of a
even
though
complied
such
had
with the
subcontractor
fully
injured employee.
compensated
Act and
*6
employer-employee
The
took
view
a
that
of
relationship subsisted to vouchsafe the benefits
the act to
employee
a
reason the subcontractor
of
subcontractor if for
contingently
comply with
And that
thus
having
failed to
the act.
upon
contractor,
reasonable
imposed liability
general
it was
legislature
liability
intended such
to be exclu
to infer that the
consequently
law actions were
abro
and asserted common
sive
gated.
obviously
a recent decision
court was
influenced
provisions
pertinent
the Oklahoma
construing
this court
of
of
principal
immunize a
con
Law to
liability
injured
duly
law
to an
com
tractor
common
from
subcontractor.
pensated employee
its
Burk v. Cities Service
of
10
the editors have and classified into two cate- gories question. group bearing on our of cases cases One construe imposing of workmen’s acts as relevant upon liability general only or fully comply fails with pro- intermediate subcontractor generally the act. All these cases favor retention visions of common compensated of a law of action of insured and negligent general employee of a subcontractor tractor. group
“The other of cases relevant provisions construe liability their acts as imposing absolute for the of the benefits general upon contractor, act consequent with immunization liability. law from common See Anderson v. Por- Sanderson & ter, 58; Compensation, 8 Cir. F.2d Larson on Workmen’s 72.31, p. 175. Yol. § which favor
“Those cases
tend to
retention or survival
proceed
common law
on the
everyone
premise that
basic
is answerable for
torts at
com-
statutorily abrogated
mon law unless such
modi-
by preserving
injured employee
fied. And
anof
remedy against
pursue
party wrong-
his common law
a third
exempt
not intend
doer the
did
contrac-
*7
liability
statutory liability
where
tor
law
no
at-
common
from
words, ‘Where
subcontractor
secured
taches. In other
the
has
employees, a
no
general
for his
contractor is under
’
subject
liability.
liability,
law
statutory
and is
to common
Clark
438.
Engineering Co.,
107,
436,
248 N.Y.
161 N.E.
v. Monarch
Co.,
Sweezy v.
Electrical Construction
N.Y.
Arc
See
“From cases accurate that of Missouri, containing exculpatory no apart statute from destroy has been construed the like Colorado common clause injured compensated employee am action law of of of negligent contractor. The a subcontractor similarity bear textual does Colorado Act Oklahoma ‘principal i/n it the Missouri that makes a employer’ employees all the contractors of of of subjects liability the him to under and subcontractors and direct by his inde- require compliance with the act act he if fails pendent subcontractor or the contractors of Colorado, statute does not But unlike the Oklahoma tractor. general employer ‘shall not be language provide that clear compliance requires act subject provisions’ he to the doing work under him. by employers with act all * * * called purpose “We know of course that the basic the so ‘statutory employer’ provisions workmen’s employees all is to vouchsafe the benefits of the act to com- acts prevent to that end to ing within their definitive engaged in are a business or action all those who en- evasive coming coverage. equally their An terprise purpose within basic provided under the act exclu- act is to make the remedies employer, act, from and to insulate the liable sive legislative objec- however, this Once other whatsoever. good no reason for the fully accomplished there is seems tive remedy. law we see Indeed further common curtailment saying immunity from statutory reason not no liability granted act should coexistent common law liability. within course it Of with the factum law immunity from common province grant legislative statutory liability and ex- in return for vicarious from intent is of be discerned legislative course tent of the ought But we language the enactments. used particular an intent curtail the common attribute to especially manifest. And this is intent is remedy unless such law state forecasters of what the here, are but we where true * * * enactment. its state say about judge’s interpreta- trial respect to the Colorado great “With brought nevertheless law are to the conclu- we Colorado tion of action not de- common law the asserted sion that contingent employer liability. appellee’s stroyed by (Emphasis supplied.) is reversed.” judgment “The
377 appear distinguish It would that this would Oklahoma from quot- when consider Montana we further the additional fact as case, in Cities Co. concerning ed Service Oil Title 85 O.A.S. § Act), 12 (The exceptions, Oklahoma “With immaterial Section remedy provided of the Act in Section makes exclusive employer any employees, of all other liabilities ‘of the and of his ’ ” * * * law or otherwise. at common quotes The from Larson’s Workmen’s Law are problem up an academic discussion of the but end leaving us to with, presupposes our own devices “All of discussion the above establishing that the various conditions for the status of a statu- * * * tory employer (from have met immunity been third action) party attach, example, does present for the facts ** * employer if the actual or was not true subcontractor but an contractor over whom the contrac- * * tor had no control Montana, as it will demonstrated, be has no statute which strong as Colorado much less Oklahoma. Neither state has exceptions intentional pertaining contractors recognized inserted our Montana and has and preserved right party under our Act the common law to third employees by 92-204, R.C.M.1947, pro- action which part: vides in employer employee
“92-204. Election and come injury. act—action causing Where both employee act, have elected to come under this exclusive, of this act shall be and such election a surrender shall be held be such and such em- ployee, themselves, as between their other method, compensation, kind form or or there- determination action, law, action suit in of, equity, or at or cause remedy, proceeding whatever, or or or common-law any personal injury em- on account of to or death such rights except specifically ployee, such hereinafter employee himself, election shall bind the and such granted; personal bind his all representative, shall death case of in- any right persons having or claim for his *9 conducting his death, employer, or as well as and jury those insolvency. Provided, bankruptcy during liquidation, or business injury per- an while employee that whenever such shall receive i/njury in- employment and such forming the duties or of by act or by employee, juries, so such are caused received employ- persons corporations other than his or omission some of heirs or employee, the case his death his er, then or in such to re- shall, i/n addition to personal representatives, Compensation Act, compensation under the ceive any action he have prosecute a cause have for causing corporations, such agaimst persons or damages such * * supplied.) injury. (Emphasis employees’ language qualified by And and concise an clear bring in involving action contrac- right to cases independent contractors, 92-604, excluding but tors, E.C.M.1947, as follows: any Employer when work other than lets
“92-604. liable any any employer procures work independent Where contractor. him, by a contractor other done, wholly part or to be procured contractor, work so and the independent than an such part process or in the trade or business em- be done is pay compensa- all employer shall be liable ployer, then such as work the same extent were done tion under this act to the work so such contractor. And without the intervention of ‘casual not construed to be em- done shall to be procured ” supplied.) (Emphasis ployment.’ employee defining legislature while Again, Montana independent E.C.M.1947, 92-411, excludes workman, section language: following in the contractors Employee ‘Employee’ workman “92-411. defined. synonymously every person used and mean are ‘workman’ independent other than an state, including this who is the service of as contractor’ defined any appointment or contract preceding section, * (Emphasis written, implied, oral or hire, expressed supplied.) def- statutes, legislative supplement these
Prior to independent forth in section set inition of R.C.M.1947, as follows: Independent ‘An “92-438. Contractor defined. in the course of occu- is one who renders service
contractor’ only result representing the will of his pation, accom- which it is the means work, of his and not plished.” language added following
In 1965 sec- changes: other without tion 92-438 legal “But defense contractor shall compensable otherwise industrial accident bar claims *10 except interposed employers when such defense is on behalf of previously required immediate party has the claimant’s who within the Act.” to come Workmen’s language to This is amended we are asked to construe as the primary employers independent it whether or not makes con- purposes consequently statutory employers for all tractor provided in actions as section immune from M.1947. R.C parties disagree prior here do not that 1965 if the to independent
employee of an contractor claimed benefits principal employ- Compensation Act legal employer could the claim with the principal defeat er the compensation and independent and pay contractor no defense of legal in- provided amendment that the the 1965 defense of employee claim said dependent be used if independent only contractor could first independent employer required principal instance Compensation Act under the Workmen’s tractor to come carry compensation independent requiring said insurance. principal employer complies with section if the
Simply stated amended, 92-438 as pays employ- lie no claims to ees of contractors. And lie is comply fails to he pay compensation liable employees indepen- claims to of the ndet contractor.
In the discussion herein and the view of rules known to all of us relating statutory my opinion construction it that when is preseryed by a common law has been statute and when the language in clear and legislature part concise removes of this 92-604, R.C.M.1947, it section affects contractors a whole contains and the act as still exclusions, give can do not we amendment I believe agree 92-604 and Tenth dignity given as is with the same Thomas Court in the ease: Circuit “* * * immunity legislative province grant it is within law return for vicarious from common legislative intent is of extent course language particular from the used enact- be discerned ought not attribute to intent But we ments. remedy unless intent law such common curtail the ma/nifest.” supplied.) (Emphasis should be reversed. reasons the cause
For these