Blain v. Stillwater Mining Co., 2004 MT 141 Under the 1999 version of section 39-71-413, MCA, in order to prosecute a cause of action against an employer or co-employees who allegedly caused the death of a worker, the plaintiff must pass the “conjunctive test” of proving that the decedent’s employer or co-employees intentionally and maliciously acted or omitted to act. A malicious act or omission must be shown in accordance with the definition of “actual malice” found in section 27-1-221(2), MCA (1999). Where there was no evidence to show employee moving train knew of or intentionally disregarded facts creating a high probability of injury to decedent, district court correctly granted defendants’ motion for summary judgment. See also, Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990.