*1 83 MARIA TORRES, ANA Appellant, Plaintiff v.
STATE OF MONTANA,
Respondent.
Defendant and
No. 94-505.
July 6,
Submitted
1995.
19,
Rehearing Denied October
1995.
August
Decided
1995.
St.Rep.
833.
For Michael D. Brown, Bozeman; Wheat & Stephen Pohl, Attorney Law, C. Bozeman. Respondent:
For Steven J. Harman and Michael P. Heringer, Brown, Gerbase, Cebull, Fulton, Ross, P.C., Harman & Billings.
CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. Ana Maria Torres an appeals order of the District Court for the District, Eighteenth County, Judicial Gallatin dismissing negli- her gence complaint against State of Montana. The granted court summary, in judgment State, favor of the ruling that the exclusive Disease Act barred Torres from bringing against suit the State successfully after she hаd pursued an claim occupational injury against it. We affirm.
The issue is whether the entering summary court erred in judg- ment. (MSU) University
Torres admitted to Montana was State in 1985 pursue her doctorate of philosophy chemistry. She continued her February 1988, studies until when she failing withdrew because of health. pursued degree,
While Torres her doctorate she employed was also teaching MSU as a and research paid $6,500 assistant. She was per year per quarter and received in out-of-state fee $360 waivеrs. provided compensation coverage. She was with workers’ 1988, in the beginning quarter Torres claims winter she problems exposure to suffer medical as a result of to toxic began claimed All her to toxic substances occurred exposure substances. campus she in Gaines Hall on the MSU as either a student while an employee. for filed a claim workers’ February Torres In caused problems medical were benefits, that her asserting claim, Torres stated she for MSU. In activities work-related and research working teaching as a damage brain while organic suffered 1985 to Febru- September period Hall at Gaines assistant week, days eight hours per worked five indicated that she ary 1988. She and therefore suffered injured over time claimed she was day. She per working at MSU. as a result of occupational disease compensation. How- initially denied Torres’s claim The State $47,500 disputed Torres entered a 2,1993, the State and ever, July on Act. The settle- liability under settlement Relations Division Employment of the order approved ment was Industry. of Labor & Department complaint, In her August 30, 1993. filed this suit on to toxic exposure as a result of her injuries sustained that she alleged Studies as College the MSU of Graduate attending substances while 1985 and 1988. between a student After May 1994. summary judgment moved
The State
its order and memorandum
hearing,
the court issued
briefing and
The court reasoned:
the motion.
granting
exposure
primarily
that the toxic
occurred
now claims
[Torres]
important.
are not
however
pеrcentages
a student. The
*3
remedy
exclusive
applicability
to the
of the
speak
The act does not
related
both work and non-work
injury
the
claim arose from
where
[Torres], by
repre-
her own
remains that
The fact
activities.
in her
Division and
Compensation
the Workers’
sentations before
injured
claimed
in the course and
affidavit,
that she was
present
compensation
for workers’
applied
when she
ofher
scope
con-
negotiated
paid
and was
benefits. She
ocсupational disease
or
result,
remedy
a
the exclusive
this claim. As
upon
based
sideration
at this time.
the State of Montana
suing
her from
provision bars
determination,
appeals.
From this
summary
entering
judgment?
the court err in
Did
summary
is
judgment
of a
of review
This Court’s standard
and as set forth
district court
initially
by
used
as that
the same
(1993), 257 Mont.
Roundup
City
Minnie v.
56(c), M.R.Civ.P.
Rule
at
there
determine whether
431,
In his well-known Professor Larson the policy discusses remedy reasons behind the exclusive in compen- workers’ sation law:
Once a workmen’s act has become compensation applicable either compulsion election, it through or affords the exclusive injury employee dependents against his the emplоyer part quid This is in pro quo insurance carrier. which the gains employees employers sacrifices are to some extent balance, for, put employer while the a liability assumes new fault, prospect large without he is relieved of the damage verdicts. (1995). Compensation Law,
2A Larson’s Workmen’s 65.11 This policy explanation: Court has made similar The purpose Compensation protect the Workers’ Act is to both employee by incorporating pro and the employer quid quo for employer. employer acts negligent given immunity job from suit who is on the employee injured return for his relinquishing common law defenses. is assured injuries, foregoes for his but recourse legal against *4 employer. his (1986), 304, 307-08, 718 657, 659. 221 P.2d
Sitzman v.Schumaker
Mont.
action
in this
is that she became ill because of her
position
Torres’s
fifty
sixty
spent
chemicals
hours she
exposure to
each
of her
chemistry laboratory
pursuit
as a student
week
remedy provisions do not
that
the exclusive
contends
degree. She
scope
injurеd
not
in the course
case because she was
in this
apply
this case
argument
distinguish
She uses
employment.
doctrine,
parties
both
capacity
the dual
which
concerning
cases
from
that
capac-
Torres admits
the dual
universally
disfavored.
describe
by this Court in Herron v. Pack
Co.
rejected
ity doctrine was
429,
Torres injured could be person pre- so that an doctrine compensation workers’ recovering damages under both vented from forth, as a example, She sets negligence. and in an action off, who, day slips on his of a convenience store hypothetical at the convenience store. shopping falls while Unlike the worker in her point. is not on hypothetical Torres’s injuries may that her have been sus- Torres concedes hypothetical, scope employment. within the and course of part tained at least in previous the critical factor of a Moreover, the leaves out hypothetical lаw, for under workers’ parties, between settlement injury at issue. large part claims resulted in from injuries which Torres now very are the she a student at Gaines Hall exposure toxic while her claim for workers’ she filed and settled injuries for which same action, that her of this Torres states purposes For compensation. exposed she was outside of from a hazard to which disease arose compen- claim she filed her for workers’ when employment. any portion of her disease was benеfits, allege she did not sation Instead, employment. through than by exposure other caused in the course of her out of and her disease arose claimed that compen- claim for workers’ had, the time she filed her If Torres i.e., contending that her she is sation, revealed what now— relation- outside the primarily chemicals occurred to the benefits not have been entitled she would appears ship —then 39-72-408(4), MCA. She Disease Act. See under the injuries. for her cause of action negligence a pursued have could then Occupational remedy under the pursue chose to has obtained under that Act. She to enter a settlement Act and Occupation- under $47,500 settlement injury remedy for her —the al Disease Act. *5 that a argument, position jury ought
At oral Torres took to be injuries her apportion the causation of between that which allowed scope employment in the course and and that which occurred argue ofher she chose not to occurred outside compensation, her claim for workers’ and she did dual causation in negotiating apportionment the issue of workers’ not raise compensation settlement. that the State failed to introduce evi-
Torres further claims to the cause her injury her assertions of fact as of disprove dence proof summary judg- of and therefore failed to meet its burden Court’s conclusion that she has con- ment. She denies the District from her injuries resulted, part, employment at least ceded that determination has made on that no factual been argues at MSU. She issue, a material issue of fact. and that it is has material fact. Torres concedes There is no issue of Disease Act from the a settlement under accepted complains. she here injury State for the of which necessity to the for affirmative exceptions There are several plaintiff employee was an entitled [that the defense proof of employer- One occurs when the only compensation]. to workers’ Another occurs plaintiff’s complaint. is shown in employee relation injuries arose out ofhis admits that his plaintiff when And, course, the most reliable exception defendant. with the of of Note that the acceptance compensation the actual all is benefits. by declaring this action escape consequences cannot plaintiff negli- to his prejudice” “without accepting that he was benefits claim. gence (1995) Law, (emphasis 65.12 Compensation §
2ALarson’s Workmen’s added). compensation the workmen’s “[B]y accepting benefits of injuries asserting from now that his is foreclosed employee] [the law Hensley v. United employment.” in the course of his did not arise (D.Mont. 548, 1968), F.Supp. 279 551. States is that of actual establishing exclusiveness fact in operative ... coverage. ... is res unappealed award
... valid and [A] binding on the court in coverage, and is on the issue judicata suit. his common-law attempts bring which (1995). Law, 65.14 Compensation Workmen’s 2A Larson’s theory contends, rely upon a necessary, Torres It is nоt theory in this controlling legal our conclusion. to reach estoppel case is law workers’ compen- sation. reply brief,
In her argument, voices a new that the State’s interpretation remedy provision of the exclusive violates her right to equal protection by classifying negligence victims of according to negligent whether the tortfeasor is the victim’s employer. Because argument she did not raise this before the District Court or in her appeal, initial brief on we do not cоnsider it. See 23(c), Rule M.R.App.P.; Denend v. & Roofing Insulation (1985), 218 Bradford 505, 509, Mont. P.2d 63-64. that, law, hold as a matter
We Torres is not entitled to bring this action because she has already been accorded remedy for her injury under the Disease Act. We therefore affirm the decision *6 of the District Court granting summary judgment to the State of Montana. GRAY,
JUSTICES NELSON and WEBER concur. LEAPHART,
JUSTICE dissenting. respectfully I dissent. The Court that, has concluded since Torres filed and settled a claim under Act, any further tort claim precluded by is exclusivity provisions of Section 39-72-305(1), MCA. 39-72-305(1), MCA, Section prоvides as follows: right compensation pursuant recover to the provisions of chapter for occupational diseases sustained an employee arising out of and in the employment, course of whether
resulting not, in death or is the remedy therefor against the employer properly who is insured under the Workers’ Compen- sation Act and Disease Act of Montana. [Empha- added.] sis my view,
In the Court has ignored the fact that both Torres and the University wear more than one hat. In the context ofher occupational claim, disease Torres was wearing the hat of an employee asserting (MSU). against employer, claim Montana State University In present claim, the context of her tort she wears the hat of a student asserting against a claim her educational institution. Section 39-72- 305(1), MCA, by terms, its own provides an employee with an “exclu- remedy against sive therefor the employer.” As we acknowledged Ridenour v. Equity Supply (1983), 473, Co. Mont. 665 P.2d 783, 786, legislature only “[t]he intended that an not have аgainst common law action employer.” Having his settled her occupational claim, Torres, disease employee, as clearly precluded against capacity further claims MSU in its as her asserting from not, however, Torres, in her role preclude The statute does employer. against a claim MSU as her educational student, asserting from institution. be, may difficult as it given opportunity, be
Torres should prove she can marshall to that she was evidence whatever present opposed as a student as to her acting toxic chemicals while exposed employment. She would also have during the course of her resulting from these two dis- damages apportioning task of may be, it is a daunting As as this burden exposures. chemical tinct by summary judgment. not be foreclosed which should proof matter of to chemi- exposed claimed she was previously fact that Torres not inconsistent with her ofher during the course cals student, while a outside exposed that she was also cоntention present provides law that her The fact that the scope employer against is exclusive as disease such as her educa- against non-employers, not foreclose a claim does tional institution. summary and allow Torres entry judgment
I would reverse to trial. proceed of JUSTICE foregoing in the dissent joins HUNT JUSTICE LEAPHART. dissenting. TRIEWEILER
JUSTICE majority opinion. from the I dissent Ana Torres’ disease can the cause of evidence from which With no time and the spent the time she work between apportioned bе student, majority simply concludes chemistry as a lab spent in the *7 benefits, disease occupational claim for prior made a because she that equally another claiming that there was now from barred stating, so the condition. Without cause for her greater significant theory estoppel. of based on Torres’ claim bars majority opinion case, in this as a defense been asserted has never However, estoppel Furthermore, pled, if it had been even therefore, аpplicable. is not and record which would of the the current state in is no evidence there any estoppel. form of of the elements support may there any recognition of is devoid opinion majority The analysis of any and avoids injury the same causes concurrent be the to applied exclusivity provision, Act’s Disease Occupational the case. in this facts essence, majority’s
Distilled to its the simply that, conclusion is money “you paid going you were some before. We’re not to let have may satisfy majority’s punish more.” This need to Torres for However, as inconsistent positions. what construes legal terms of analysis court, presented majority of issues to this opinion to be leaves a lot desired.
The issue this case is whether Torres’ claim is barred exclusivity Occupational of Montana’s provision Disease Act. It is important keep in may mind what she have believed or said on some other occasion is different issue and is not determinative majority’s the first issue. of the because preoccupation what it concludes was representation with Torres’inconsistent on an occasion, necessary analyze earlier it is this case on two levels. 1. provision Is Torres’ claim barred exclusivity of the Occu- Act? pational Disease
2. prior What is effect Torres’ claim that her disability was caused or contributed to the conditions of her employment?
ISSUE Occupational Montana’s Act is Disease found at 39-72-101 to §§ -714, remedy provision MCA. in the Occupational 39-72-305(1), Disease Act is found at MCA, provides: right compensation pursuant recover to the provisions chapter diseases sustained an arising out employment, in the course whether not, resulting remedy in death or against the exclusive therefor who is employer properly insured under the Workers’ Compen- and the Occupational sation Act Disease Act of Montana. added.) (Emphasis
Therefore, by Act, plain language only pertains the exclusive to those diseases which a рerson’s employment. 39-72-408, MCA, out of’ Section spe- “arise cifically states that certain do not “arise out of’ diseases It states that: diseases shall be to arise out employ deemed .... only if:
ment (4) not from a the disease does come hazard which workmen exposed employment.... would been outside of equally have *8 case, very there is little evidence. There is the of In this affidavit However, a college and affidavit from administrator. plaintiff the an spent to that at affidavit is uncontroverted the effect she plaintiff’s (“outside as much time in Gaines Hall as a least three times student employment”) teaching as did as a she assistant. alleges, If is able to she and if prove what some causal chemicals atmosphere connection between and the of Gaines Hall and disability established, be has proven her can then she that present by employment,” caused a hazard “outside of the her disease was therefore, therefore, employment, not “arise out of’ her that did by her not the exclusive found at claim is barred 39-72-305, MCA. § majority very plaintiff previously is much concerned that has disability of the benefits to which she would have portion
received during employment. caused her been entitled had disease been disease, definition, However, occupational pro- an occurs over a time, longed injury, may of and unlike an industrial be caused period only workplace, the but from conditions that existed not elsewhere. Act, unlike the why is the Disease Workers’ Thаt Act, of specifically provides apportionment disabil- Compensation percent given disability on the of a disease or that ity benefits based during employ- to that occurs the course of exposure is attributable 39-72-706(1), MCA, provides in specifically Section relevant ment. part that: disability compensable from other cause not itself ...
[I]f accelerated, any way prolonged, or in contributed aggravated, disease, occupational compensation payаble under only of the proportion must be reduced and limited such chapter if the payable occupational that be disease would as disability... such disease were the sole cause disability .... factor bears to all the causes such as a causative Act, words, a claimant under In other disability his only portion that benefits to recover entitled that arose disability his or her out represents portion which employer to disclaim Act allows for an employment. specifically disаbility which is unrelated any portion person’s of a liability Therefore, previously mentioned stat- upon based disability by the exclusive not be covered utes, would portion 39-72-305, MCA. remedy provision found at First, fact this case. to be resolved in many are issues There plaintiff injured was chemical needs to decide whether finder so, fact exposure Gaines Hall. If finder needs to what decide occurred ofher portion during employment, course student, opposed whether, the time which determinatiоn, based her claim is barred on remedy provision. *9 none of these issues can be resolved statutory with the consistent framework ofthe Act on plaintiff. based the uncontroverted affidavit of the
ISSUE 2 statutory framework within which to decide whether the remedy provision applies is not discussed in the majority opinion. Its is fact previous discussion limited to the that on a occasion claim plaintiff the made a for occupational disease benefits based on disability her that her was contentiоn caused or to contributed the during employment. chemical course her The second then, question, prior is what is the effect of her claim. That issue sub-questions. two involves
First, prior was her claim inconsistent with her current claim. I agree Leaphart with Justice that it was not. Because of the nature of disease, an occupational opposed as to an injury, industrial an occu- can, pational disease the Occupational recognizes, Disease Act Therefore, occur over time and at more than one location. it not at is all with Torres’current claim that her may disease have inconsistent been to contributed the course of during her Neither is it unreasonable at the litigation fully outset of before facts are allege to that developed a condition is attributable more than one cause, then let clearly and causation be more established as result discovery Ideally, preparation. plaintiff should have been able to alternate claims in the plead same suit. that was jurisdiction not possible because of the exclusive of Workers’ Compensation claims, Court for disease and the fact third-party brought that claims have to be in the district court. Furthermore, it kept agreed must be in mind that had the State plaintiff’s occupational that disease arose out of and was related to her she employment, was entitled several times the amount of actually majority received. Following logic benefits why claim opinion, defending is the State not barred from this on the previous basis of her claim when it saved more than she received her previous denying claim that disease was work related? claim sub-question is, prior if The second Tbrres’ is deemed inconsis- claim, prior tent with her current then what is the effectofher claim? estoppel statutory estoppel apply Judicial not do because her part any judicial claim not made as prior proceeding. was Equitable estoppel does not it has not apply pled, because been argued appeal, pled has not been on and even if it had been there is a argued appeal, proof on total absence of of its several Furthermore, there question elements. substantial about standing whether the State Montana has to raise the defense of equitable estoppel. most, disability that plaintiff’s prior
At claim her was caused arguably course of her is an employment inconsistent can the fact рresented statement which be finder consideration majority with her current contention that the in combination her employment. prior outside the course of Her exposure occurred prior can of what was said prove claim be used truth on occasion, may impeachment. However, be offered it does not time, as a matter of law what she claims even establish inconsistent, Likewise, prior Fund’s position if is untrue. State disability arguably not caused position its current that her claim is inсonsistent with barred *10 Disease Act. Both of simply are evidence submit the fact finder prior positions these plaintiff’s it the issues of whether for consideration when resolves exposed at caused chemicals to which she was Gaines disease was Hall; so, occurred as an greater and if whether her as a student. fact Torres received majority preoccupied
The too the State Fund on her some benefit from her settlement with based disability during caused of her contention that cоurse hand, problem on has no with employment. majority, the other than probably paid fact the State Fund saved more caused that her condition was course denying unjustified. Even suc- majority’s concern is if Torres recovery. claim, no The State is she would receive double ceeds any recovery in this case for the an offset from received entitled to claim. pursuant previous Fund to Torres’ paid by the State amount opinion. I reasons, majority would I dissent from For these summary ofthe District Court and remand this judgment reverse the of the factual issues raised District Court for resolution case to the complaint. Torres’