NO. 83-363 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1984

EDPJARDMASSEY and .LUCILLEMASSEY, his wifel PlaintiffsandAppellants,

-vsRAY SELENSKY, Defendantand Respondent.

APPEAL FROM: DistrictCourtof the Third JudicialDistrict, Inand for the County of Deer Lodge, TheHonorableRobert J. Boyd,Judgepresiding.

COUNSELOF RECORD:

ForAppellants: Knight, Dahood,McLean & Everett;Bernard Everett argued, Anaconda,Montana

ForRespondents: Poore,Roth & Robinson;Donald C. Robinson argued, Butte,Montana

Submitted: June 5,1984 ~ecided:August 

### 17,1984

Filed: 

### i4~G .L !

## i$84'

Clerk4.Justice John Conway Harrison delivered the Opinion of theCourt.
This casearisesout of an accidentinwhich appellant Edward Massey was injured after being struck by respondent Roy Selenskylspickup. SinceMasseylsinjurieswere covered under the provisions of the Montana Workers1 Compensation Act, the District Court granted Selenskyls motion for summary judgment and dismissed the cause of action. Massey appeals from thisruling. At the time of the accident which gave rise to this action, both Massey and Selensky were employees of the Anaconda Company and worked at the smelter in the City of Anaconda. As theywere neighbors, Massey and Selenskymade

a practice of riding towork together inSelenskylspickup. This practice had begun long before the accident occurred. Typically, the two would leave home at approximately 6:40

a.m. and arrive at the smelter at approximately 6:50 to "punch in" on the company time clock. Their shiftsdid not begin until7:30 a.m. When they arrived atthe smelter, Selensky would park his pickup on a hill where the building which housed the time clock was located. This building is located well inside theboundaries of theAnaconda Company property. The two would then leave the pickup topunch in. After doing so, Massey would walk tothe "machine shop" where he changed clothesand visitedwith co-workers untilhisshiftbegan. On January 8, 1980, the parties' day began in the above described manner; the men drove to work, parked the pickup and entered the buildingwhich housed the time clock. Massey punched in, exited thebuilding and began walking tothe machine shop. While he was en route, the pickup either slid or rolled down the hill and struck Massey causing the injuries complained of. The pickup was unoccupied at the time, and as yet what caused the pickup to move remains unknown. On February 7, 1980, Massey filed a claim with the Workers' Compensation Division, seeking compensation for the injuries. An investigationwas conducted by Harry McKernan, who is the personnel representative in charge of benefits for Anaconda Minerals Company. McKernan found the facts as set forth above, and initiated the claim on behalf of Massey. The Division recognized and allowed the claim. Massey has been receiving disability benefits since the date of the accident, and his related medical bills and expenses have all been paid. This action was commenced on December 15, 1980, by Massey and his wife Lucille seeking damages from Selensky. The complaint alleged negligence on the part of Selensky which caused his injuries. After a period of discovery, Selenskymoved for summary judgment, alleging that since the injury was compensable under the Workers

### ' Compensation Act, Selensky was immune from suit. The issue was briefed and oral arguments were heard. The motion was granted and judgment for Selensky was entered. From this ruling Massey appeals. In reviewing an appeal from summary judgment, the function of the Supreme Court is to determine whether the moving party is entitled to judgment in light of the law applicable to the facts of the case. Jordon 

### v. Elizabethan Manor (1979)

### , 181 Mont. 424, 593 P.2d 1049. As this casewas essentially submitted on agreed facts, on appeal we are only concerned with questions of law. State v. North American Car Corporation (1945), 118 Mont. 183, 164 P.2d 161. A corollary of these rules is that we first must decidewhat the applicable law is. It is well settled in Montana that a co-employee is immune from liability for negligent acts resulting in injuries which are compensable under the Workers' Compensation Act. Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860. The basis of this rule is section 39-71-412, MCA, which allows an injured worker to bring an action against one "other than his employer or the servants or employees of hisemployer" which suchperson's actsmay have caused a compensable injury. However, the simple fact that two persons have the same employer would not necessarily

cause this rule to apply. Wemust therefore determine when

a co-worker is an "employee" asthatterm is used in section 

### 39 w-71-412, MCA, for purposes of applying the co-employee immunity rule. Wenotethatthis

### is a questionof firstimpression in Montana. Though we have applied the co-employee immunity rule on several occasions, under the prevailing facts of those cases the rule obviously applied as the workers were
on shift and doing their employer's business. See Madison



### v. Pierce, supra, and Baird 

### v. Chokatos (1970), 156 Mont. 32, 473 P.2d 547. Under the factsof thepresent case it is not clear that the rule applies. Neither man had begun work yet, though they were in the midst of preparing for work. Obviously theremust be some connection between the actsof the employee and hiswork for the immunity toapply. There

### rnust be a test which can be applied by trial courts to determinewhether an employee's actions were sowork related

so as tomake him immune from suitunder section 39-71-412. We hold that the proper test is whether the co-worker

was acting within the course and scope of his employment at the time the negligent acts occurred. If the allegedly negligent co-worker was acting within the course and scope of his employment at the time he engaged in the purported negligent acts, then he is an "employee of his employer," and immune from suit by the injured claimant. There is a wealth of case law in Montana to aid trial courts in their applicationof this test as it is the same used to determine whether a claimant's injuriesarework related. See section 39-71-407,MCA. We note that the often quoted rule of liberal construction in favor of claimants is inapplicable here. The Workers1 Compensation Act should not be liberally construed to extinguish the right to maintain a third party
cause of action, nor should it be liberally construed to allow a third party cause of action if it has been expressly abolished. The statutory provision of the Act and this Court's interpretations of the same have been slanted away from insurers in favor of the injured claimant. This inequity has no place in determining the apportionment of liability between fellowworkers. However, courts should bear in mind the theory of Workers1Compensation. It is recognized that injuries will
occur in the workplace, and will be the fault of both employers and fellow workers. In return for immediate and assured compensation for work or employment relatedinjuries, the injured claimant gives up his right to maintain an action against the employee or fellow worker. See Vol. 2A, Larson's FJorkmenls Compensation Law, section 72.22.The test adopted by this opinion should be administered with the above in mind. An injured claimant has given up his right to maintain an action against a fellow worker for work or employment related injuries, if the fellow worker was acting within the course and scope of his employment. Asnoted above, this testhas been tacitly applied by trial courts many times where they have found co-employees immune from suit. See, Madison v. Pierce, supra, and Baird v. Chokatos, supra. However, the factsof this case aremuch closer than any prior case and the trial courtmust expresslyaddressthe issueof whether thefellow worker was a co-employee for purposes of the immunity statute. It is not our intent to create any exception to the co-employee immunity statute, but simply toexpress the test which has been and should be used to answer this question. We note that the trial court dismissed the action based on a finding that Selensky was within the scope and

course of his employment at the time of injury. The case must therefore be returned toadjudge whether he was acting within thecourseand scopeof hisemployment atthetimeof the allegednegligence. Reversed and remanded for further proceedings consistentwith thisopinon.We concur:



## -- Chief Justice



### - justices

### Mr. Chief Justice Frank I. 

### Haswell,dissenting: I 

### respectfully dissent. I would affirm the District Court's summary judgment dismissing the Masseys' action against Selensky on the ground that it is barred by the MontanaWorkers' CompensationAct. Massey has been accorded full benefits under the Workers' Compensation Act. He now seeks damages from his co-employee, Selensky. In declining to affirm the dismissal of the damage actionby the DistrictCourt, the majority have ignored the fundamental purpose and structure of Montana's Workers' CompensationAct. We have previously expressed that purpose and structure in this language: "The foregoing purposes a.ndstructure of the Montana Workmen's Compensation Act demonstrate its foundation of enterprise liability for injury to its employees, paid directly by the employer in the first instance and ultimately passed on to the public in the price of its product. To permit an injured employee to collect compensation for injury fromhis employer under the Act and additionally sue a negligent coemployee of the same enterprise for the same injury,with the employer recouping his compensation payments, destroys the purposes and structure of the entire Act. 

### We do not believe the legislature intended such result. "If section 92-204 

### were construed to withhold immunity to a coemployee from a negligence action, the cost of injury to an employee of the business would be shifted from the employer,where theAct places it, to a fellow employee, where theAct doesnotplace it. Italsowould defeat the ultimate payment of injury cost by the public purchasing the product. This resultwould follow if section 92-204 

### were interpreted as urged by plaintiff because of the suit rights, subrogation rights, and lien rights granted the employerby this section. We cannot believe the legislature intended to permit the ultimate costs of employee injury to be borne by fellow employees, whether negligent 

### or not. Itwould 

### be a sad.spectacle, indeed, for a workman to find his home taken and his future earnings subjected to payment of a judgment in such a suit; nor did the legislature intend topermitany suchaction.

### "The purposes and provisions of the Act can be fully effectuated by permitting negligence actions, in addition to compensation, only against strangers to the business enterprise. There is no reason why negligent strangers to the business should not pay the cost of injury to employees of the enterprise. The suit rights, subrogation rights, and lien rights granted to the employer under the Act, together with the compensation rights and suit rights granted the employee, permit ultimate collection of injury costs from a negligent stranger to the business enterprise. The Act does not cover strangers, only employees. There is no substitutionof rights under the Act for common law remedies as between strangers on the one hand and employers and employees of the business on the other." Madison v. Pierce (1970), 156 Mont. 209, 215-216, 478 P.2d 860, 864. Although the Act has been amended twice sinceMadison, the amendmentsare irrelevantto the foregoing principlesand analysis. Ch. 550,Laws ofMontana (1977);Ch. 397,Laws of Montana (1979). Additionally, section 92-204, R.C.M. 1947, has been recodified as sections 39-71-411 through 39-71-414, MCA

# . The District Court found that Selensky was acting in the course and. scope of his employment at the time of Massey's injury. Thismakes him a co-employee immune from a damage action by Massey by statute (sections 39-71-411 and 39-71-412,MCA) and case law (Madisonv. Pierce, supra). No hair splitting and remand should render a co-employee liable in a damage action. 

# a~~$L~d~~
Chief JCTStic&



### Mr. JusticeFred J. 

### Weber: I 

### concur in the foregoing dissent of Mr. Chief Justice Haswell.