*1 FISCUS, BEAR CLAYTON R. Respondent, Plaintiff v. Appellant. ELECTRIC, TOOTH Defendant 12685. No. February 27, Submitted 1974. May 7, Decided 1974. Rehearing Denied June 1974.
Hutton, Sheehy Cromley, Sheehy argued, & John C. Bil- lings, appellant.
Berger, & Anderson, Murphy, Sinclair Richard W. Anderson argued, Billings, respondent, amicus curiae. Huntley argued,
Gene Baker, argued, Bruce R. Toole Bil- lings, amicus curiae. Opinion of
MR. CASTLES delivered JUSTICE Court. jurisdiction accept application
This matter on an comes *2 plaintiff favor appeal summary judgment an from a tort action immunity on an as to common issue law to matters, and procedural No is made of defendant. issue appeal. we treat this an as Co-operative, Electric
The defendant in case is Beartooth Inc., headquartered Lodge, Its business at Red Montana. Carbon, Stillwater, and supplying electricity in rural areas County, Wyoming. Counties, part in Park Sweet Grass and has incorporated 1938. It corporation, It is a Montana poles and! systems, including the usual electric transmission its electricity which is conducted wire over transmission customers. Mon- Clayton Fiscus, Billings,
Plaintiff is R. a resident of tana, 34 He is years who was of this old. on date accident Voltage employed journeyman High Systems* for lineman Inc., an electrical contractor. Sys- involved, High Voltage
Shortly before accident here tems, Inc., had entered into a bid contract Beartooth Inc., miles High Voltage Systems, convert five whereby phase system single phase line on the to three Beartooth wire, 4 a number neutral. number ACSI and performing parties dispute that in no between the There is Systems, Inc., was Beartooth, High Voltage contract contractor. Voltage High Systems, Fiscus, employee of Plaintiff as an power pole 1971, on in the Beartooth Inc., May while 27, power, in man- such system, contact the electric came in lost arm. injuries from which he one ner that he sustained leg knee. below the the elbow and one above Inc., provided com- Voltage workmen’s High Systems, had employees in connection with coverage to pensation cover its compensated, and is now has Plaintiff Fiscus been work. its being- compensated compen- expenses, his medical and for benefits, sation carrier for workmen’s employer, his High Voltage Systems, Inc., as a result of the accident.
In the action pending plaintiff now in the district court has sued personal Beartooth for injuries, alleging his Bear- that negligently tooth provide plaintiff place failed to with a safe work, working appliances. with safe Beartooth specifically did not require, verbally writing or in High Voltage Systems, provide compen- Inc. sation coverage employees. for its However, the statutes do so provide penalty a criminal for failure to do so, section 92-207, and, R.C.M.1947, above, High as noted Volt- age plaintiff. did cover proceeding step-out holdings involves a from the
this Court in Ashcraft v. Power, Montana Mont.
P.2d 812 and Buerkle v. Co., Montana Power 157 Mont. *3 564, respect P.2d legal liability to the of an owner injured employee independent the of an contractor. The injury May 27, 1971; applicable occurred on thus the statutes are applied those that at the of the in time decisions Ashcraft and Buerkle. immunity
The issue here is liability whether to common law recognized in and Buerkle to an extend owner where Ashcraft provided the in compensation contractor fact cover- age, but the owner did not it in the contract.
In plaintiff disputed Buerkle the the rule and Ashcraft claimed that negligence because the general employer, the Montana Company, Power was at least a concurrent cause injuries to the plaintiff, power company the defendant was not immune from common law even under the rule. Ashcraft
This Court by held that Buerke was ruled the rule in Ashcraft explained and p. its rationale in Buerkle at p. P.2d at 565:
“Bearing reasoning above, the self-evident in mind the general employer under cir- in was that a result such party liability immune third suits. same cumstances is from ex- mechanically present the case would follow conclusion charges 92-438, R.C.M. cept plaintiff should be and Act limited effect party liability grounded third suits should not be a bar to agree reasoning. this law. Court does not the common 92-438, 1947, it scope the R.C.M. “To of section understand conjunction 92-204, with sections 92-604 and must be read provides: 1947. Section R.C.M. R.C.M. “ wholly any done, work any employer procures ‘Where to be by part a than an or in for contractor other him, contractor, procured part to be done is the work so employer, process in trade or business such then such the pay act employer shall be liable to all as if the work were without the inter- same extent done the procured work contractor. so to be vention such And ’ employment.’’ “casual shall construed to the done not be general makes a contractor liable “The this'statute effect of employees injuries another contractor where sustained process project part work the trade business general contractor. general if a hired another as a sub- contractor example, For supervise would contractor, contractor control and general carrying work, an em- out the details and means of injured, general was contractor ployee of subcontractor injuries project employee’s was be would liable general contractor. part of the business of contractor’s “But how extensive 1947, provides this answer: 92-204, R.C.M. Section *4 be? “ employee employer to and have elected ‘Where both exclusive, act, provisions shall be act under this come a surrender such em- shall be held to be and such election employer employees of such and servants, employee, right of such among themselves, any as their to method, other form or kind of compensation, or determination thereof, any or to other compensation, or kind of determination thereof, action, or cause of action in equity, at suit or law, sta- tutory right or common remedy, proceeding whatever, for or on account any personal injury to death of such * * employee ‘‘ portion of section 92-204 general limits the contractor’s liability exclusively compensation to provided by the Work- Compensation men’s Act. 92-438,
“How is this relative to section R.C.M. .1947? The previously quoted portion prevents general of section 92-438 ‘independent contractor from using defense of contractor’ where employee’s he does not immediate carry compensation Therefore, workmen’s insurance. general can not ‘independent contractor use the contractor’ then within scope he which defense falls previously described him exclusively makes liable com- pensation Compensation under the Workmen’s Act in accord- ance with Therefore, section 92-204. if section 92-438 in con- junction with section 92-604 and 92-204 limit the a general exclusively compensation contractor under Compensation Workmen’s just Act in described, circumstances is it reasonable the same statutes to assume that where requires contractor employee’s immediate con- carry tractor insurance, gen- eral contractor is not immune from a common law party? suit as a third This Court does not believe so. contrary
“A result theory would be abusive of the central behind Compensation the Workmen’s Act. In Yurkovich v. Bd., Indus. Ace. 77, 83, 84, Mont. 314 P.2d refer- ence Act, we said: “ ‘This act is fundamental legislation enacted first for protection injured and benefit of workman, his wife and children, dependents. and other By force of the law the em- *5 right injury in
ployee surrenders his an action tort for or of dependents death. The act however him and his of the assures protection injury in case of certain benefits death “ ‘Secondly, employer act a fixes limited by so that loss caused such accidents not the economic shall upon employee industry that the public, but rest pay in the which the accident occurs shall first instance for by such accident. the loss occasioned “ construing ‘In a the whole act must statute read to- be provisions gether, particulars and where there several are is, adopted if possible, to be will give such a construction to all.’ effect compensation system Compen- the Workmen’s
“The single benefits from a em- sation Act does not envision drawn together by law a common tort action from compensation (Emphasis supplied.) insurance.” workmen’s appear makes instant different from What ease language Buerkle is R.C.M. interposed reading be- part “except when such is defense party previously required half who has the claimant’s im- employer workmen’s come within the mediate meaning “a (Emphasis supplied.) of the words act.” The by the required” argued respondent has is party previously who previously by rather required has contract party to mean a who the law with criminal sanctions party has relied on than a who argument goes that compensation insurance. The meaning in “previously required” must have some the words coverage law pursuant the mere statute and that fact compliance previously re- not Was is not sufficient. coverage? quired that above, we where Buerkle said
Under provide independent contractor to work- required his not had general employer would be liable for compensation, men’s 92-204, B.C.M. 1947. compensation under section liability. contractor did contingent If It is a by both required employees, though not in fact cover even in that event so; then, contract and to have done compensation. This general employer or owner is liable liability, actually liability in sense it contingent real is what doing any event, is reflected the cost business immunity. general employer protection of entitles the “statutory guaranteed protection. workman is what employer.” is all about. *6 case,
In the instant Beartooth require High because did not Voltage Systems provide coverage, to Beartooth became liable coverage High Voltage Systems to Fiscus had failed for any reason to have so. In general done other words the em- responsible in the first instance for nonfault liability though may it pass general even he on ato subcontractor. The employer potential is under a continuing liability; has he thus exchange a assumed burden for which he is entitled to im- munity damage from a resulting suit from the same accident (See without fault. Volume Larson, Workmen’s Compensation Law, 72.31 (Cum.Supp.)) Section grant immunity general
The an owner or employer who required independent has his not comply contractors to with the Compensation Workmen’s Act represent departure does not a prior holdings. from our In question was whether Ashcraft employer general who complied not had with section 92- required compliance with the Compensa- Workmen’s by independent tion his contractors Act could be sued as a third party by employees. the contractor’s We held that he could Following question again not. was presented in as; deciding Buerkle. In that ease we elaborated our reasoning pointed Subsequently out. question heretofore again was slightly presented albeit different form First National Company Court, Bank Trust v. District Mont. 127, reasoning 412. was P.2d Buerkle reiterated in the First Bank In National we decision. observed that an. general employer party owner or would a third be immune to suit on either of two bases.-
* * First, in the absence of workmen’s coverage (the independent con- by American, either Allen or tractors) clearly Bank en- statute the would not be independent defense, be titled to contractor and would thus statutory employer’. Second, com- plaintiff’s deemed the Bank working persons all plied with the the statue that intent of compensation.” construction be covered compliance previous required all cases In our the element in- Compensation part on the with Workmen’s Act present. In each cases has been of those dependent contractor each party. immune from suit as third In held the owner we granted immunity funda- we because of the those eases subjecting employer party third lia- unfairness of mental statutory employer had bility he could have avoided as which comply contractor his required not he In this case we face the situa- Act. did not the owner which tion Compensation Act and is ac- with the Workmen’s compliance no-fault subject potential benefits cordingly *7 statutory Act as the em- the Workmen’s the owner is injured workman. Since Beartooth of the necessarily it follows that it is also such subject to 92-204, under section B..C.M. party as a third suit to immune Compensa- remedies of the makes the 1947, which employee. between Act tion exclusive as amicus curiae were in this action Shell Oil appearing Also Hatfield, litigant in a parties B. the cause Company and James court which the in federal district involves pending currently herein decided. question legal same summary denying judgment is the district court of order The grant summary directed is to district court the vacated Co-operative. Electric Beartooth to judgment and MR. HARRISON T. JUSTICE JAMES MR. CHIEF concnr. HARRISON JOHN C. JUSTICE (dissenting): MR. JUSTICE DALY
I dissent. interpretation the R.C.M.
This case turns on 1947, 1, Chapter amended 49 of Laws of Section 1965r repealed by 1973. 2, Chapter 251, Section Laws of and since any depth disagreement in points Therefore discussion on by any to bar would be view academic and of little value of Montana. point
I
only
language
out that
contained in the
might
1965 amendment was not clear or as direct as it
have
legislative
in
been
aid
My
the search for
intent.
views in the
original
in
treatment
Power,
contained
v. Montana
Ashcraft
.156
recognized
Mont.
It view that the makes departure from application narrow it when considers the man- date of a criminal satisfy requirements statute to placed employer, Act on the Beartooth' Electric, they wish responsibilitiy their employees avoid of the independ- respond ent party contractor to third to a action.
MR. concurs JUSTICE HASWELL foregoing. dissent *8 DALY. of MR. JUSTICE