Harris v. State, Dep't of Corrections [01/29/13] 2013 MT 16 The employer’s knowledge that the possibility of serious injury existed from voluntarily tasering the claimant as part of his SWAT training was insufficient to show an intentional and deliberate act by his employer.  A chance of injury is not the same as a deliberate act to injure under § 39-71-413, MCA, and a risk of injury does not establish actual knowledge of certain injury as required by the statute.  Claimant’s suit is therefore barred by the exclusive remedy provision of the WCA, § 39-71-411, MCA.

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.

[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] 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.