39-71-413, MCA

MONTANA SUPREME COURT DECISIONS

Alexander v. Bozeman Motors, Inc., 2010 MT 135 Direct proof that the employer or fellow employee intended to cause an intentional injury is not required, since criminal intent is rarely susceptible of direct or positive proof.  Deliberate and intentional conduct may be inferred from factual allegations indicating that an employer knew an employee was being harmed, failed to warn the employee of the harm, and intentionally continued to expose the employee to the harm.  Also, as required by § 39-71-413(3), MCA, the employee must allege and demonstrate that the employer had “actual knowledge” of the certainty of injury.

Alexander v. Bozeman Motors, Inc., 2010 MT 135 To avoid the exclusivity provision of the WCA, a claimant must prove the two required elements of an intentional injury under § 39-71-413(3), MCA: (1) an intentional and deliberate act specifically and actually intended to cause injury; and (2) actual knowledge of the injury’s certainty.  Summary judgment was properly granted against one claimant, who failed to show actual knowledge by the employer of certain injury. A second claimant raised genuine issues of material fact when he showed he was sent by the employer to work at the office where the prior claimant complained the air was making him sick, the employer failed to investigate the cause of the prior employee’s sickness, and withheld information about the prior employee’s sickness.

Wise v. CNA America, 2006 MT 194, 333 Mont. 181, 142 P.3d 774 In order to state a claim under § 39-71-413, MCA (2001), an employee must allege that he or she has been intentionally injured by the intentional act of an employer or fellow employee in order to avoid the exclusivity provision of the Workers’ Compensation Act. Where a claimant alleged that his employer failed to provide safe working conditions and negligently failed to comply with state laws and federal regulations, he fails to disclose the elements necessary to bring his claim within the ambit of § 39-71-413, MCA.
Wise v. CNA America, 2006 MT 194, 333 Mont. 181, 142 P.3d 774 The Legislature intended to modify the “intentional injury” standard in 2001 so that “an injured employee has a cause of action for damages against an employer or the employer’s employee only if the employer or fellow employee causes an intentional injury.” 2001 Mont. Laws Ch. 229 (Preamble).
[1999] Roy v. Blackfoot Telephone Cooperative, Inc., 2004 MT 316 To avoid the exclusive remedy provisions of section 39-71-413, MCA (1999), as explained in Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990, employee injured through fall off ladder must prove that employer “must have known there was a high probability that [he] would be injured in working on an aerial ladder without a safety belt.” If there was not a high probability that the employee would fall off the ladder, or if the employer did not know there was such a probability, then plaintiff does not satisfy the Sherner standard.

[1999] Olszewski v. BMC West Corporation, 2004 MT 187 The standard for avoiding the exclusivity provisions of the Workers’ Compensation Act requires that the employer actually knew of, or intentionally disregarded, a probability of injury that is higher than that caused by gross negligence.

[1999] Olszewski v. BMC West Corporation, 2004 MT 187 Evidence that employer saved money by cutting corners does not alone show malice sufficient to defeat the exclusivity provisions of the Workers’ Compensation Act.
[1999] 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.
[1999] Olszewski 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.

[1999] 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 Monot. 401, 995 P.2d 990.

 
WORKERS' COMPENSATION COURT DECISIONS