MONTANA SUPREME COURT DECISIONS
v. BMC West Corporation, 2004
MT 187 Under section 39-71-413, MCA (1999), Sherner
v. Conoco, Inc., 2000 MT 50, and the definition of malice codified
at section 27-1-221(2), MCA, to meet the intentional act exception to
the exclusivity provisions of the Workers’ Compensation Act, an
employee must demonstrate that the employer or fellow employee had knowledge
of facts or intentionally disregarded facts that create a high probability
of injury to the plaintiff and: (a) deliberately proceeded to act in
a conscious or intentional disregard of the high probability of injury
to the plaintiff; or (b) deliberately proceeded to act with indifference
to the high probability of injury to the plaintiff.
 Olszewski v. BMC West Corporation, 2004 MT 187 Summary judgment properly granted to employer under exclusivity provisions of Workers’ Compensation Act where there was no evidence co-employee actually knew trusses would fall on injured worker, nor that trusses would probably fall. Possibility that co-employee could foresee that it was possible trusses would fall (and acted carelessly) does not create the high probability of injury necessary to meet the threshold for suit outside the workers’ compensation system.
WORKERS' COMPENSATION COURT DECISIONS