NO. 90-306 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

199 1 

KENNETH P. SCOTT, 

Plaintiff and Appellant, 

STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward K. Duckworth, Ronan, Montana 

For Respondent: 

Marc Racicot, Attorney General 

Norman J. Peterson; Asst. Atty. General; Agency 

Legal Services Bureau; Helena, Montana 

- .. 4 L- Submitted on Briefs: December 13, 1990 JAN 24 1991 

~ecided: January 24, 1991 

Filed: a CLERK OF SUPREME COURT 

STATE OF i'd610NTAN.A 
Justice R. C. McDonough delivered the Opinion of the Court. 

The plaintiff, Deputy Sheriff Kenneth P. Scott, appeals the 

order of the Montana Twentieth Judicial District Court, Lake 

County, granting summary judgment to the defendant State of Montana 

on Scott's personal injury claim on the grounds of the fellow 

servant rule and thereby limiting Scott's remedies to worker's 

compensation benefits. We affirm. Scott now appeals raising the 

following issue: 

 id the ~istrict Court err in granting summary judgment to the 

State on the grounds that its employee, Highway Patrolman Mike 

Roth, was by operation of law acting as a fellow servant of Deputy 

Scott when he injured him? 

The undisputed facts are that on December 10, 1987, Scott, in 

his capacity as a Lake County Deputy Sheriff, received a call from 

the sheriff's office dispatcher reporting a prowler at the Polson 

Auto Salvage on Highway 93 south of Polson. As Scott was preparing 

to leave the cafe where he had ,been taking a break with Highway 

Patrolmen Mike Roth and Ray Brander, he asked Roth to back him up. 

Upon arriving at the salvage yard, Scott slowed down to make a 

right turn into the yard, and the vehicle driven by Roth ran into 

the rear of Scott's vehicle, injuring him. Roth admits his 

negligence in operating the patrol car when he rear-ended Scott. 

Scott filed a complaint and demand for jury trial against the 

State on November 18, 1988. Subsequently, on April 10, 1990, Scott 

filed his motion for summary judgment on the issue of liability. 

The State filed its similar motion the following day, alleging that 

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Patrolman Roth was the fellow servant of Deputy Scott at the time 

of the collision, and that Scott's exclusive remedy was worker's 

compensation benefits. On May 15, 1990, the District Court entered 

its order denying the plaintiff's motion for summary judgment on 

liability and granting summary judgment for the State. Scott now 

appeals only that portion of the order granting summary judgment 

to the State. 

Scott contends that the District Court's order granting 

summary judgment to the State abrogates his constitutional right 

to sue a third party for injury incurred in employment. We 

disagree. Article 11, Section 16 of the Montana Constitution 

provides that no person shall be deprived of his right of access 

to the courts and remedy for injury "except as to fellow employees 

and his immediate employer who hired him if such immediate employer 

provides coverage under the Workmen's Compensation Laws of this 

state. I' Here, Scott seeks redress in addition to worker's 

compensation benefits from Roth as a third party and from Roth's 

employer the State of Montana under the theory of respondeat 

superior. The plain language of the Constitution provides such 

recovery can be denied if Roth is Scott Is fellow employee. In this 

regard, 5 44-11-101, MCA, as amended, provides in pertinent part: 

44-11-101. Mutual assistance authorized--powers and 

duties of assisting officers. A peace officer or any law 

enforcement entity of any county or municipality or a 

state government law enforcement entity may request the 

assistance of a peace officer from another law 

enforcement entity within the state of Montana. A peace 

officer, while in the jurisdiction of the requesting 

officer or entity and while on such request for 

assistance, has the same powers, duties, rights, 

privileges, and immunities as a peace officer of the 
requesting entity and is under the authority of the 

reauestins officer or entity. (Emphasis added.) 

The underscored language was added in a 1985 amendment. Under the 

plain language of this statute, Roth is entitled to the same 

immunities as a Lake County deputy sheriff and was acting under the 

authority of Scott or the Lake County Sheriff's Department. Thus, 

by operation of this statute, Roth was acting as a fellow servant 

of Scott when he injured Scott. 

The case of Garcia v. City of South Tucson (Ariz. 1981), 640 

P.2d 1117, cited by Scott as persuasive, differs from the case here 

in several important respects. In Garcia, a mutual assistance 

agreement provided that the control given the requesting police 

department was limited to directing the assisting police 

department to a place where it was needed and neither the 

requesting department nor the assisting department had the right 

to control the forces of the other in any other respect. The 

court held that a joint venture did not arise when the assisting 

department rendered aid to the requesting department by virtue of 

such agreement. Thus, worker's compensation was not the sole 

remedy of an assisting officer who was shot in the back by a member 

of the requesting department while trying to flush a gunman out of 

a residence. Here, the situation is controlled by statute rather 

than agreement. Such statute specifically gives authority to the 

requesting agency over the assisting officer and specifically 

provides the assisting officer with the same immunities granted an 

employee of that entity, in this case the immunity of the fellow 

servant rule. 

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Furthermore, plaintiff's argument that 5 44-11-101, MCA, only 

applies if an officer is assisting in another jurisdiction also is 

misplaced. The statute makes no reference to the situation where 

there is concurrent jurisdiction; it simply gives authority to the 

requesting officer while the assisting officer acts upon his 

request and within the requesting officer's jurisdiction. And 

finally, Scott's contention that the State's voluntary payment to 

Lake County for the damage to Scott's patrol car constitutes a 

waiver, is without merit. The uncontested facts as shown by the 

affidavit of John Maynard, the administrator of the State's tort 

claims division, show that the payment was merely made in the 

interest of maintaining the mutual assistance relationship between 

the State and Lake County; it was not intended to relinquish the 

State's defenses from suit. 

In light of the above discussion, and there being no disputed 

material fact issues, the order of the District Court granting 

summary judgment to defendant is 

AFFIRMED. 

We Concur: 

I