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).
|Roy v. Blackfoot Telephone Cooperative, Inc., 2004 MT 316 Where injured employee seeks to avoid the exclusive remedy provisions of the Workers’ Compensation Act, and argues that industry standards and OSHA regulations gave notice to employer of high probability of injury through work on aerial ladder without safety belt, employee must not only establish that there was an industry standard, but also that employer knew of the standard, that there was high probability employee would be injured, and nevertheless did nothing to induce employee to wear safety belt. In this case, both industry standard and application of OSHA regulations was not clear.|
|Roy v. Blackfoot Telephone Cooperative, Inc., 2004 MT 316 Employer’s failure to instruct employee on the use of ladder safety belts might rise to the level of negligence, but it is not evidence that employer failed to train him in the face of knowledge that there was a high probability the he would be injured if he did not use a belt. Thus, claimant cannot avoid the exclusive remedy provisions of the Workers’ Compensation Act as articulated in Sherner v. Conoco, Inc, 2000 MT 50, 298 Mont. 401, 995 P.2d 990, and Olszewski BMC West Corp., 2004 MT 187, 322 Mont. 192, 94 P.2d 739.|
|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.|
|Olszewski v. BMC West Corporation, 2004 MT 187 Under section 39-71-413, MCA (1999), Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990, 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.|
|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.|
|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.|
|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 the 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.|
Okuly v. USF&G Insurance Company, 2003 MT 291 Following Hubbel v. Western Fire Ins. Co., 218 Mont. 21, 706 P.1d 111 (1985), and relying on section 39-71-411, MCA, the Montana Supreme Court held that the Workers’ Compensation Act provided the exclusive remedy for the heirs and personal representatives of decedent, who was killed in an automobile accident in a car driven by a co-employee in the course and scope of employment. Recovery was not permitted under the uninsured motorist provision of the employer’s general liability policy.