NO. 83-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

EDPJARD MASSEY and .LUCILLE MASSEY, 

his wif el 

Plaintiffs and Appellants, 

-vsRAY SELENSKY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Knight, Dahood, McLean & Everett; Bernard Everett 

argued, Anaconda, Montana 

For Respondents : 

Poore, Roth & Robinson; Donald C. Robinson argued, 

Butte, Montana 

Submitted: June 5, 1984 

~ecided: August 17, 1984 

Filed: i4~G .L ! i$84' 

Clerk 
4. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This case arises out of an accident in which appellant 

Edward Massey was injured after being struck by respondent 

Roy Selenskyls pickup. Since Masseyls injuries were 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 this ruling. 

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 they were neighbors, Massey and Selensky made 

a practice of riding to work together in Selenskyls pickup. 

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 shifts did not 

begin until 7:30 a.m. 

When they arrived at the 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 the boundaries of the Anaconda Company property. The 

two would then leave the pickup to punch in. After doing 

so, Massey would walk to the "machine shop" where he changed 

clothes and visited with co-workers until his shift began. 

On January 8, 1980, the parties' day began in the 

above described manner; the men drove to work, parked the 

pickup and entered the building which housed the time clock. 

Massey punched in, exited the building and began walking to 
the 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 investigation was 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, 

Selensky moved 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 case 
was 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 

decide what 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 his employer" which such person's acts may have 

caused a compensable injury. However, the simple fact that 

two persons have the same employer would not necessarily 

cause this rule to apply. We must therefore determine when 

a co-worker is an "employee" as that term is used in section 

39 

w-71-412, MCA, for purposes of applying the co-employee 

immunity rule. 

We note that this is a question of first impression 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 facts of the present 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 there must be some connection between the acts of 

the employee and his work for the immunity to apply. There 
rnust be a test which can be applied by trial courts to 

determine whether an employee's actions were so work related 

so as to make him immune from suit under 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 

application of this test as it is the same used to determine 

whether a claimant's injuries are work 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 fellow workers. 

However, courts should bear in mind the theory of 

Workers1 Compensation. 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 related 
injuries, 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. As noted above, this test has 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 facts of 

this case are much closer than any prior case and the trial 

court must expressly address the issue of whether the fellow 

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 to express 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 to adjudge whether he was acting 

within the course and scope of his employment at the time of 

the alleged negligence. 

Reversed and remanded for further proceedings 

consistent with this opinon. 
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 

Montana Workers' Compensation Act. 

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 action by the District Court, the majority have 

ignored the fundamental purpose and structure of Montana's 

Workers' Compensation Act. 

We have previously expressed that purpose and structure 

in this language: 

"The foregoing purposes a.nd structure 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 from his 

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 the Act 

places it, to a fellow employee, where 

the Act does not place it. It also would 

defeat the ultimate payment of injury 

cost by the public purchasing the product. This result would follow if section 

92-204 were interpreted as urged by 

plaintiff because of the suit rights, 

subrogation rights, and lien rights 

granted the employer by 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. It would 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 to permit any such action. 
"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 substitution of 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 since Madison, 

the amendments are irrelevant to the foregoing principles and 

analysis. Ch. 550, Laws of Montana (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. This makes 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 (Madison v. Pierce, supra). No 

hair splitting and remand should render a co-employee liable 

in a damage action. 

a~~$L

Chief JCTStic& 

Mr. Justice Fred J. Weber: 

I concur in the foregoing dissent of Mr. Chief Justice 

Haswell.