*1
McKINNON,
LANCE
Appellant,
Plaintiff
COOPERATIVE
SUGAR
WESTERN
CORPORATION,
Appellee.
Defendant
DANo.
09-0330.
2009.
on Briefs November
Submitted
February 5, 2010.
Decided
MT
For James P. and Micheál F. Appellant: Carey Lamb & Carey, Helena; Halverson, Halverson, Plath, & Sheehy Victor R. P.C., P.C., Billings; Moyers, Law, Jon M. Moyers Billings.
For E. Appellee: Ward, Chad Adams and Leo S. Browning, Hoven, P.C., Kaleczyc, Berry & Helena. Opinion
JUSTICE MORRIS delivered the Court. (McKinnon) appeals Lance McKinnon order ¶1 First Court, Judicial County, dismissing District Lewis and Clark his complaint for failure denying to state claim and his constitutional challenge on notify based McKinnon’sfailure to Attorney General’s office. We reverse. following We review the on appeal: issues
¶2 Did the District Court dismiss ¶3 McKinnon’s intentional injury claim to state a ? failure for 24(d) Did correctly apply M. R. Civ. P. when ¶4 dismissed McKinnon’s challenge? constitutional
FACTUAL AND PROCEDURAL BACKGROUND A traumatically railcar amputated legs both of McKinnon’s while ¶5 (Western working he was Sugar Cooperative for Western Corporation Sugar) 15, on February 2005. McKinnon received workers’ compensation his benefits for original complaint filed his February 9, 2007,
¶6 on sought which he to circumvent provision of the Compensation 39-71-411, Workers’ Act. Section MCA. McKinnon initially did not Sugar. serve Western alleged in his complaint Sugar engaged that Western had inherently dangerous, practice ultra-hazardous work and had violated its non-delegable duty provide a safe workplace. McKinnon Sugar’s claimed Western actions had proximately injuries. caused his This Court issued opinion Brady Montana, its v. PPL ¶7 177, 405, 330, P.3d after McKinnon filed had his complaint. Brady this incomplete came to Court with an factual record question on certified pursuant to M. R. P. 44 App. from U.S. Court of Appeals for the Ninth Brady Circuit. We declined in address Compensation exclusivity the Workers provision in Brady, a “factual vacuum.” 6.¶ his complaint McKinnon amended of Brady to include a 39-71-413, challenge constitutional to § MCA.McKinnon filed his first alleged July 18, specifically 2008. McKinnon complaint on amended statutory exception to Workers’ met the Sugar’s that Western argued exclusivity. McKinnon also Compensation him. applied and as MCA, on its face was unconstitutional both 12, September on 2008. timely served Western matter subject for lack of a motion dismiss filed 1,2008. McKinnon a claim on October and failure state jurisdiction of his first amended Attorney copy General with a served acknowledged The General on 2008. October did October receipt of service on file a motion to intervene. granted motion to dismiss The District Court argument. The court found that following
all counts oral statutory within fit claims did not McKinnon’s exclusivity. court also dismissed with Workers’ challenges provide failing for prejudice McKinnon’s had his at the time that he filed first General with notice Sugar. he had served Western amended and before appeal on June 2009. McKinnon McKinnon filed a notice Attorney General of his on the same date. The notified the its to intervene on June Attorney General filed notice of intent substantive 2009. Western moved dismiss *3 Western motion challenges. granted Court procedural issue that the would be limited to the extent 24(d). correctly M. R. P. interpreted Court Civ. of whether District The notice McKinnon concurred. General withdrew its of intervention.
STANDARD OF REVIEW complaint We construe a most favorable ¶12 reviewing dismissing complaint a under M. R. plaintiffs when an order 12(b)(6). 82, 15, 337 Univ. Mont. Sys., ¶ Civ. Jones Mont. 1, 155 a failure P.3d 1247. A court should not dismiss for beyond plaintiff appears a claim unless it doubt that can state him support of his claim that would entitle prove no set facts Jones, that relief. 15. A district court’s determination a ¶ Jones, a of law. 15. We presents failed to state claim conclusion ¶ Jones, oflaw. 15. ¶ review for correctness a district court’s conclusions
DISCUSSION the District Court dismiss McKinnon’s Did to state a claim? claim for failure The that McKinnon had failed to state determined Compensation exclusivity a claim under the the Workers’ 39-71-413, agreed forth provision set MCA. court with § alleged by that had no caused “an Western Sugar. Section part intentional and deliberate act” Western 39-71-413, that had MCA. The District Court found set merely allegations forth a series of that had failed to Western determined workplace. using ensure a court that safe “without has negligence, alleged negligence against word The court further determined that McKinnon had Sugar.” MCA, 39-71-413, failed a claim in light to state under of McKinnon’s § allege part failure to “an intentional and deliberate act” on the Western Sugar. CNH Am., LLC, MT 194, argues that Wisev. 774, provides 142 P.3d Mont. the standard for dismissal in plaintiffs allege
McKinnon’s case. We held in Wise that the failure to than anything ordinary negligence more proved satisfy insufficient 39-71-413, the requirements rejected arguments MCA.We § Wise’s only that allege he needed to actions would that have constituted “intentional and satisfy statutory malicious” in order to Wise, requirement. 9. We noted that the 2001 ¶ amendment 39-71- § 413, MCA, replaced had Wise, “malicious”with “deliberate.” 11; 39-71-413, The legislature ¶ MCA. also had defined § injury” “intentional as one “caused specific deliberate act with the causing Wise, 11; 39-71-413(3), intent of an injury.” MCA. We ¶ following concluded in that MCA, Wise amendment of § “an employee now must that he or intentionally she has been injured by the intentional of an employer employee act or fellow order to the exclusivity provision avoid of the Workers’ Wise, Act.” ¶ alleged Wise had only his employer negligently failed to
provide working safe conditions and negligently comply failed to Wise, state and regulations. federal allegation 12.Wise made no ¶ the employer intentionally Wise, had acted deliberately. 12. Wise merely claimed that the specific allegations negligence in his claim satisfied pleading requirement by constituting “intentional and part deliberate” conduct on the ofhis employer. 12. Wise never made the alleged negligence connection of how the constituted *4 part intentional and deliberate conduct employer. on the of his claim, contrast, by alleges specific McKinnon’s intentional and on the part Sugar. deliberate acts of Western McKinnon claims that Sugar’s an constituted “intentional and deliberate act 124 moving in an of railcars ongoing policy practice in an engaging manner, necessary safety equipment.” without
uncontrolled sufficiently alleged an that his claim McKinnon asserts 12(b)(6). Civ. scrutiny under M. R. P. act to survive develop the record he was not allowed to McKinnon claims that sufficiently necessary prove the facts through discovery establish plain must contain “a short and statement claims. A his relief.” M. R. Civ. pleader is entitled to showing the claim that 8(a). pleading that liberal rules of allow principle Our reflect the cases rigid of the law rather than compliance spirit with the intent for See R.H. Schwartz Constr. specific to formula or words. adherence (1983). Hanrahan, 207 672 P.2d This v. Mont. Specialties may discovery also that further constitute has determined remedy complaint. lack of Willson v. appropriate specificity for (1981). 123, 128, 1180, 1183 Mont. 634 P.2d Taylor, 194 “ ‘[t]his that Court does not favor principle determination reflects the circuiting stage the initial unless a litigation pleading the short ” any facts.’ a cause of action under set of complaint does state Willson, River (quoting Mont. at 634 P.2d at Tobacco (1978)). 577 P.2d Yoppe, Lbr. Co. Mont. alleges Sugar’s McKinnon specifically that Western conduct fit exclusivity at 39-71- exception Compensation within to Workers’ Sugar’s conduct in alleges McKinnon further that Western MCA. moving proper in an uncontrolled manner without regularly railcars out safety points was intentional and deliberate. McKinnon equipment this primarily interpretation that Western relies Court’s holding that our pre-2001 statutory provision. asserts 39-71-413, MCA, Brady the 2001 has indicates that amendment to § by to be this Court. yet interpreted comprehensively establish requires plaintiff Wise that a facts sufficient to employer injury intended cause to the deliberate acts Sugar’s practice employee. alleges safety procedures moving proper equipment railcars without alleges deliberate conduct. McKinnon further his constituted practice. Thus, a certain outcome of this severe was the intended outcome of Western represents claims that his acts. deliberate McKinnon’s presents question the initial ofwhether his sufficient to establish intentional and complaint alleges conduct satisfy deliberate conduct that would Act. The Dissent characterizes
provision of Workers’ as masquerading negligence
125 allegation argument attenuates the basic of intentional of notice underlying concept pleading denies principles discovery. the record develop through McKinnon the We opportunity can set of facts in say beyond prove cannot doubt that McKinnon no support of that would him to relief under these his claim entitle Jones, minimum, Court circumstances. 15. At a the District should through afforded the record opportunity develop have discovery to to show and deliberate action on the attempt Sugar. Willson, 128, Mont. at P.2d at part Western 1183. may summary stage fail if judgment McKinnon’s claim at the he fails through discovery further sufficient to support establish evidence allegations. his 24(d) correctly apply Did the Court M. R. when District Civ. P.
¶21 challenge? dismissed McKinnon’s constitutional The District concluded McKinnon to provide Court that had failed ¶22 Attorney challenge General notice of his constitutional the time that he filed his amended with complaint compliance first M. R. Civ. 24(d). 24(d) requires P. Rule party raising a constitutional issue party notify Attorney where the State is not a General with “contemporaneously filing or other document 24(d). in which the constitutional issue M. is raised.” R. Civ. P. 18,2008. his July filed first amended on ¶23 He 11, served the on September Western on 2008. Attorney 7, McKinnon served and notified General October Attorney 2008. General’s office acknowledged notice of the 10, complaint on Attorney appear October 2008. The General did not or seek to May intervene before the District Court’s order granting motion to dismiss. incorrectly McKinnon claims that the District dismissed prejudice challenges.
with argues his constitutional that no authority dismissal, which predicate especially exists on such a Attorney acknowledged of the fact proper General had day notification and had chosen not to intervene within the 20 window 24(d). allowed Rule 24(d). We previously have not had to apply occasion Rule
District Court accepted Sugar’s argument that it should apply precedent our former App. under M. R. P. 38. Rule like M. R. Civ. 24(d), required P. party challenging of a statute file notice with the “contemporaneously General with the filing of the appeal filing original notice of or with the of an proceeding (1999). supreme in the App. court.” M. R. P. 38 Mont., We Inc., determined Russell v. Home Masonic failure to appellant’s P.3d MT than three Attorney General for more timely on the serve notice “procedurally was a failure to after a notice filing months precluding thus this precedent, condition with essential comply Russell, challenge.” reaching the constitutional court from Russell, notwithstanding the distinguishable case from is arguments contrary. Dissent’s challenge with the notice of constitutional Russell filed her opening week that she filed her brief on
Attorney General the same to file notice with the General neglected Russell had appeal. 24(d) dilatory filing Court. M. R. Civ. P. Russell’s under App. provide R. 38 failed under M. challenge. respond to the constitutional
meaningful opportunity *6 shortly challenge filed after he McKinnon his notice constitutional Sugar. party had complaint his amended on Western Neither served motions, or in discovery, any engaged in filed otherwise engaged Attorney the pretrial litigation by the time that McKinnon had notified challenge. of his General constitutional Attorney to have served the General before Requiring McKinnon ¶28 through discovery his case serving opposing party developing the 24(d). The Rule purpose not further the M. R. Civ. intends does where a Attorney party allow the General to intervene a case constitutionality challenges the a statute. The Rule served its Attorney here. General could have intervened had purpose that the prejudice Attorney to do so. The fact no accrued to chosen allegedly from McKinnon’s late notice further illustrates that General and the rule The Dissent purpose spirit the were violated. would apply regard purpose. us rule without to its intended have ignores the fact that “this Court has refused to abide such approach strict, statutory approach interpretation ha[s] a formalistic and readily applied respects the maxim ‘The law form less than 264, 35, 18,MT McKirdy Vielleux, v. 19 substance.’” MCA). (quoting P.3d argues McKinnon also that this Court held that substantial
¶29 App. proved with M. R. P. 38 sufficient where such compliance Attorney opportunity compliance respond allowed the General challenge. Mfg. Corp. & the constitutional See U.S. Distrib. Great (1976). Falls, 298, 302, 546 agree 524-25 We must P.2d Attorney that on the fact General with based 24(d) acknowledged receipt of notice. M. R. Civ. P. seeks to proper Attorney appear that the General have the chance to in the ensure will in a constitutionality of a statute case district court defend Attorney is not party. Nothing prevented which the State a litigation. General’s participating General from acknowledged statutory timely notice declined exercise its office days. right to within 20 intervene We cannot determine McKinnon’s notice constituted precedent”
failure of a as had the case in Russell. “condition been complied spirit prejudice with the of the rule and no allegedly compliance. to the General due to his late accrued procedure rules of the strict “place spirit Our of civil law above compliance Oxygen Supply letter of the law.” State Medical & Co., Oxygen v. American Medical Mont. 750 P.2d (1988). Reversed. LEAPHART, COTTER and JUSTICES NELSON concur. RICE, dissenting.
JUSTICE To state a claim under provision Act, Compensation of Workers’ must employer’s employee’s or fellow intentional act caused an intentional (2003). 39-71-413(1), MCA Additionally, Section in order to challenge Act, of the Workers’ plaintiff “contemporaneously” notify must claim,
writing of the specifying the section of the code or 24(d) (2005). chapter of being challenged. the session law M. R. Civ. P. that, with neither of complied requirements. Despite these the Court both I reverses issues. believe the District Court dismissed McKinnon’s complaint, therefore dissent. reviewing action, In the District Court’s dismissal of the we
construe the in the most plaintiff. favorable to the Wise *7 CNH America, LLC, 181, 142 v. 2006 MT 333 Mont. P.3d 774. ¶ only A “put will survive a motion to dismiss if it a defendant on notice of plaintiff prove; the facts intends to must the facts claim; disclose necessary the elements to make the and the Wise, must demand judgment sought by plaintiff.” for relief 8¶ 1). 71, (citing Pass, 35, 264, Kunst v. 1998 MT 288 Mont. ¶ 957 P.2d A Compensation fundamental tenet of the Workers’ Act is the remedy “exclusive” it provides injuries. for work-related 39-71- Section 411, MCA. A exclusivity provided narrow to Act’s is when “an employee intentionally injured by is an intentional and deliberate employee’s employer act or ... a employee fellow ....” Section 39- added). 71-413(1), (emphasis MCA injury” “Intentional is defined as injury by “an an caused intentional and deliberate is act specifically actually and to injury employee intended cause
128 to is certain injury knowledge that actual there is injured and added). Thus, satisfy 39-71-413(3), (emphasis MCA Section occur.” the act and the that both clearly requires the statute exception, intended.1 actually and be resulting injury this Court upon not lost amendment was 2001 Legislature’s The says, holding mean what it 2006, the statute and, interpreted we 39-71-413, MCA, employee must under a claim § order to state “[i]n by the intentionally injured has been allege that he or she now in order avoid employee fellow employer or act of an intentional Wise, 12 Act.” ¶ of the Workers’ exclusivity provision added). (emphasis true, Count I fails complaint as allegations ofthe Accepting injury. act an intentional element of an either the him; (1) “duty” protect had a that: Western alleges him with
(2) duty by failing provide “breach[ed]”that Western (3) training, equipment;” and “direction, supervision, appropriate (4) “Mr. injuries;” Mr. McKinnon’s “caused Western Thus, alleges breach of damages.” sustained McKinnon has damages. As the caused him by Sugar which duty negligence, using the word “without correctly recognized, See Sugar.” negligence against alleged a McKinnon has 540, 189 P.3d Eichhorn, 250, 23, Mont. MT 344 ¶ 2008 e.g. Peterson breach, cause, and duty, negligence elements of (delineating the 615 236, 14, Mont. Neumann, MT 344 (citing ¶ Wilden v. damages) 183, 14, 328Mont. Mont., 2005 MT 610; v. U. 407, 189 P.3d Bonilla 121, 30, 321 Mont. 2004 MT 41, 823; Thompson, Massee v. 116 P.3d 394). I for Count District Court dismissed 210, P.3d 39-71-411, MCA, as we did precisely a claim under § failure to state conduct, in a most viewed negligent employer’s] “[The Wise: conduct, not rise to the and does negligent remains favorable resulting is a specific the act and the requirement intent for both clearly context, intended standard, was one high the in its historical but when viewed 135, Co., 1971, decided Enberg 158 Mont. v. Anaconda Legislature. this Court In (1971), 1036, requiring an intentional 137, 489 P.2d through various statute then went act. The to an intentional addition (1973) (1977), 92-204.1, 92-204, its revisions, RCM before e.g. § RCM see (1978). remained in of the statute MCA The 1978 version at § recodification response in Sherner v. 2001, to this Court’s decision it was revised effect until Conoco, Inc., when 990, concluded that P.2d which Sherner, resulting injury. 38-39. ¶¶ See require to cause the provision an intent did not specific require intent for both response, Legislature amended the statute In 2001). (Apr. Leg., Reg. Sess. resulting 57th SB the act and the *8 injury an specifically designed of an intentional act to cause to level MCA). 39-71-413, (citing Wise.” 12¶ § may a claim relief Count II fails to state for which be likewise then allegations It restates the Count I and adds the granted. following assertions: injured by Sugar’s]
[McKinnon] intentional and [Western was and engaging ongoing policy practice deliberate act in an moving manner, necessary rail cars in an uncontrolled without safety or equipment, when it knew should have known that injury [McKinnon] eventual to was certain to occur-in that severe knowing regard, consequence a or intended ofits intentional acts. regard [Western conduct in Mr. Sugar’s] this caused McKinnon’s injuries. injuries by Sugar’s]
As a direct result of the caused [Western herein, conduct described Mr. has sustained as earnings damages including past capacity; and future lost and past and medical future expenses; past pain future and and and suffering; past enjoyment future loss of life. (1)
Taking allegations true, these as II Western Sugar Count asserts: intentionally deliberately in an engaged policy practice and unsafe and (2) cars; moving Sugar rail safety Western lacked appropriate (3) equipment; Western or should knew have known McKinnon (4) injured; would eventually injured. be and McKinnon was Even under lenient standards of notice pleading, has failed to state a claim under MCA. § McKinnon’s Sugar intentionally assertion that deliberately Western and “engag[ed] ongoing in an and policy practice” arguably stated an intentional and and, deliberate act by construing pleading in favor, McKinnon’s I accept However, would as such. fatal McKinnon’s claim his failure is also acted the specific and actual intention to cause resulting injury merely McKinnon. alleges that Western Sugar “knew or eventually should known would injured,” have be which treads nowhere near a that his was “caused an intentional and act actually deliberate that is intended employee injured,” by 39-71-413(3), to cause required added). (emphasis MCA Larson’s Workers’ Law explains regarding
allegations necessary to sustain such intentional claims: alleged goes
Even if the beyond aggravated negligence, knowingly and includes such permitting elements as exist, work knowingly ordering hazardous condition extremely job, wilfully failing dangerous
employees perform
statute,
work,
violating safety
wilfully
place
to furnish safe
crime, refusing
respond
from
failing
employees
to protect
restrictions,
withholding
medical needs
employee’s
hazards,
conduct still
short
worksite
information about
falls
*9
injury
the
injure
intention
robs
the kind
actual
of
of
accidental character.
of
as
an
an intent to harm well as
intent
requiring
[the
If
cases
strict, one must remind oneself that what is
act]
seem rather
degree
or
of the
being
gravity
depravity
is not the
of
tested here
conduct,
issue ofthe intentional
employer’s
but rather
narrow
producing
of
event
quality
precise
the accidental
versus
toleration
injury.
safety
removal
a
device or
The intentional
of
of
may may
stage
or
not set the
an
dangerous
a
condition
for
words,
any
use
injury later. But in
normal
accidental
of
said,
happen, that this was
cannot be
such an
does
if
comparable
jab
harm
deliberate
left
of
infliction
to the chin.
(Rev. ed.,
Compensation Law 103.03
Matthew
Larson’s Workers’
§
2009) (footnotes
added).
omitted, emphasis
Supp.
Bender
exactly
explains is insufficient
pled
McKinnon has
what Larson
39-71-413,
satisfy
MCA-that Western
requirements
of §
intentionally
deliberately implemented
dangerous
a
work
Sugar knew or should have known would
condition that Western
eventually
allegations
“specific
do not
cause an
These
contain
injure
as a
and actual” intent to
and are therefore insufficient
matter
specifically alleges
the Court reasons that “McKinnon
Although
oflaw.
fit within the
to Worker’s
that Western
conduct
MCA,”
exclusivity
39-71-413,
precise
this is
§
negligent
rejected
attempt
we
in Wise: “Wise’s
to characterize
tactic
bring
and deliberate’ fails to
his claim within
‘intentional
[The
does not
alleged conduct]
the ambit of
MCA....
rise
designed
cause
level
an intentional act
to the
of
omitted).
(citation
Court,
like other
to Wise.”
conclusory
courts,
steadfastly rejected the use
statements in a
has
Cowan,
97,MT
v.
pleading
the absence
factual basis. Cowan
(“Facts
13,
14,
provision. contemporaneously notify McKinnon did not in writing pleading. General of his claim when he filed his upon served amended on or around 2008. On October September moved dismiss McKinnon’s constitutional claims for failure to serve 24(d). required General as M. R. Civ. P. McKinnon then provided written notice to the on October 24(d) R.M. Civ. P. provides: any
When the act the Montana legislature question any action, is drawn in or proceeding suit to which any any agency neither state nor officer or employee thereof, employee, party, raising as such officer or the party is a *10 constitutionality notify attorney the of the act the shall Montana general and the of the court constitutional issue. The notice shall in writing, specify be shall the section code or the chapter of the of session law to be construed and shall begiven contemporaneously the filing with the or document the other in which of attorney general constitutional issue raised. may is within 20 24(c) days thereafter intervene as Rule provided in on behalf of the state. added.)
(Emphasis
Although
yet
we have not
addressed this provision,
is
impression.
this issue
not one of
interpreted
first
We
former M. R.
38,2
P.
a rule
App.
very
24(d),
similar to M. R.
P.
in
Civ.
Russell
Montana, Inc.,
Home
Masonic
¶
of
It shall be the challenges of a who the any of act of legislature any action, the Montana or suit proceeding in the supreme court to which neither the nor state any agency thereof, any employee or officer or as such officer or 2M.R.App.P. M.R.App.P. and was revised renumbered to 27. This uses Dissent language M.R.App.P. language interpreted the of 38 because was the the Court Russell. supreme the court and to give notice to party,
employee, is of attorney general of the existence the Montana specify writing, shall This notice shall be constitutional issue. law to or of the session be chapter the code the section of filing with the given contemporaneously and shall be construed of original proceeding filing notice supreme court. added.) requirement held in We Russell (Emphasis was “an Attorney notice to the “contemporaneously” providing Russell, 20. Russell had not Because precedent.” ¶ condition essential appeal, her we notified General of “contemporaneously” prohibited addressing this Court from App. that M. R. concluded Russell, 22. constitutional claims. ¶ her issue, being in Russell and Now, despite language the same “contemporaneously” failed to litigant has
the same facts-that completely Court reaches a notice to the General-the provide 24(d). The Court result under M. R. Civ. P. saves different purpose spirit that “the by reasoning claims However, Opinion, “purpose rule were violated.” wording of the rule. plain offered the Court contradicts spirit” (“[T]he Russell, simply is 22; judge MCA office the See is or in contained and declare what in terms substance to ascertain what has been therein, not to insert what has been omitted or omit added.)). followed, be or should (Emphasis The rule should inserted.” precedent. not be should our repealed, but it should ducked. Nor be McKinnon, Russell, “contemporaneously” provide like failed to challenge notice General of his constitutional written I pleading. he filed his believe when analyzed this issue as well. I affirm. would