No. 82-379 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

MILLERS MUTUAL INSURANCE COMPANY, 

plaintiff and Respondent, 

vs. 

ANTHONY STRAINER, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Recodrd: 

For Appellant: 

Jacques, Gallagher & Murphy, Helena, Montana 

Leo J. Gallagher argued, Helena, Montana 

For Respondent: 

Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, 

Montana 

P. Keith Keller argued, Helena, Montana 

For Amicus Curiae: 

Utick, Grosfield & Uda, Helena, Montana 

Filed: 

Submitted: March 8, 1983 

Decided: May 19, 1983 

MAY 1 9 1983 
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of 

the Court. 

This is an appeal from a declaratory judgment entered by 

the District Court of the First Judicial District, State of 

Montana, determining that Millers Mutual Insurance Company 

(Respondent) had no liability for coverage or defense to 

Anthony Strainer (Appellant). We vacate the judgment of the 

District Court. 

On December 16, 1981, respondent brought a declaratory 

judgment action against appellant to determine the parties' 

rights, liabilities and duties under a homeowner's policy 

issued by respondent to appellant. Previously appellant had 

been named as a co-defendant with ASARCO, Inc., in a personal 

injury action brought by one Alfred Elwell. Respondent 

sought a declaration that it was not required to provide 

coverage or afford defense of the action because the 

allegations underlying the third party action were outside 

the scope of coverage of the issued policy. 

On October 18, 1979, in the ASARCO plant in East Helena, 

Alfred Elwell was allegedly injured when he was the object of 

a practical joke played by Strainer, a co-employee. Workers 

at the ASARCO plant are required to wear respirators in a 

portion of the plant. Due to complaints by the workers that 

the respirators were leaking, the respirators were being 

checked by means of a test which pumped air through a glass 

tube filled with a solid chemical. The forced air produced 

smoke which was then directed into the faces of the workers 

wearing respirators. After the tests were completed and 

without knowledge on the part of Elwell, the appellant 

removed a filter tube in Elwell's respirator and, according 

to the agreed facts, Strainer then: 

". . . squirted a puff of the smoke into the 

respirator's air chamber. Mr. Strainer knew the 
dust caused people to cough, but did not know the 

chemical contents of the glass tube, stanic 

oxychoride, was [sic] dangerous and did not know 

the smoke would cause any injury other than 

momentary discomfort as a result of coughing and 

inserted the smoke solely as a practical joke." 

Elwell inhaled the smoke and allegedly was seriously 

injured. On October 15, 1981, Elwell filed suit against 

ASARCO and appellant, claiming they were liable to him for 

his injuries. ASARCO subsequently moved for and was granted 

a summary judgment based upon the exclusive remedy afforded 

by workers' compensation. However, the action against 

appellant was premised upon an intentional act and therefore 

fell outside the exclusive remedy provisions of workers' 

compensation. 

The issue presented here is whether an intentional act 

sufficient to remove a case from the exclusive remedy 

provisions of the Worker's Compensation Act is the kind of 

intentional act which denies coverage in a third party action 

based upon the "intentional act" exclusions of an insurance 

policy. If the intentional act contemplated by workers' 

compensation law is the same type of intentional act 

contemplated by the insurance policy exclusion, then the 

appellant must fail. 

Respondent presents a second but related issue. 

Respondent contends that Elwell's complaint, in Paragraph VI, 

alleges that the appellant Strainer intended Elwell's 

injuries and that irrespective of what the stipulated facts 

show, there can be no coverage where the complaint invokes 

the policy exclusion. 

Paragraph V of Elwell's complaint alleged, in pertinent 

part, that the appellant Strainer "maliciously, wilfully, and 

intentionally . . . squirted hydrogen chloride gas, or other 

comparble acid and abrasive gases, into [Elwell's] respirator 
hoses, causing [Elwell] to go into convulsions and to he 

permanently and seriously injured." 

Paragraph VI of the complaint alleged: 

"That [Elwell ' s] serious and totally and 

permanently disabling injuries were the proximate 

result of [Strainer's] malicious, wilfull, and 

intentional acts; that [Strainer] is, despite his 

position as safety officer at ASARCO Inc.'s East 

Helena Smelter, known on the job as a 'clownf and 

'practical jokerf, which was known to Defendant 

ASARCO, Inc. both before and after the incident 

herein complained of, and ASARCO, Inc. failed both 

before and after this incident to take any measures 

to prevent [Strainer], its employee and agent, from 

causing injury to others; that since the incident 

complained of, ASARCO, Inc. has further ratified 

and approved the conduct of [Strainer] complained 

(Emphasis supplied) 

It was upon Paragraph VI, and specifically the 

emphasized language, that the trial court based its 

conclusion that the policy involved excluded coverage for 

damages or for defense of the third party action. The 

insurance policy provided for coverage for all damages 

appellant became legally obligated to pay "because of bodily 

injury or property damage . . . caused by an occurrence," but 

specifically excluded coverage for "bodily injury or property 

damage which is either expected or intended from the 

standpoint of the insured." 

For Elwell to bring a third party action, and not be 

barred by the exclusive remedy of workers' compensation, he 

must fall within the provisions of section 39-71-41.3, MCA, 

which provides as follows: 

"Liability of fellow employee for intentional and 

malicious acts or omissions--additional cause of 

action. If an employee receives an injury while 

performing the duties of his employment and - the 

injury or injuries so received & the employee are 

caused & the inteytional and malicious -- act or 

omission - of - a servant or employee of -- his employer, 

then the employee - - . . . shall, in addition to the 

right to receive compensation under the Workersf 

Compensation Act, have a right to prosecute any 

cause of action he may have for damages against the 
servants or employees of his employer causing the 

in jury. " (Emphasis added) 

The underlined language must be compared to the language 

of exclusion in the insurance policy. As previously noted 

the policy excluded coverage for "bodily injury or property 

damage which is either expected or intended from the 

standpoint of the insured. " The language of section 

39-71-413, MCA, refers to an intentional act without regard 

to intending the results of the act. The exclusion in the 

insurance policy does not exclude intentional acts but only 

excludes bodily injury which is intended. 

Respondent relies upon Enberg v. Anaconda Company 

(1971), 158 Mont. 135, 489 P.2d 1036 and Great Western Sugar 

Co. v. District Court (1980) , Mon t . , 610 P.2d 717, 

37 St.Rep. 874, for the proposition that section 39-71-413, 

MCA, requires intentional injury before a third party action 

may be brought. However, these two cases did not turn on the 

distinction between intentional act and intentional injury. 

Rather this Court determined that the conduct in question 

fell short of the type of intentional conduct necessary to 

create the third party action. In Great Western Sugar this 

Court concluded: 

" . . . the 'intentional harm' which removes an 

employer from the protection of the exclusivity of 

the Workers' Compensation Act is such harm as is 

maliciously and specifically directed at an 

employee, or class of employees, out of which such 

specific intentional harm the employee receives 

injuries as a proximate result. Any incident 

involving a lesser degree of intent or general 

degree of negligence not pointed specifically and 

directly at the injured employee is barred by the 

exclusivity clause as a basis for recovery against 

the employer outside the Workers' Compensation 

Act." Great Western Sugar, supra, 610 P.2d at 720, 

37 St.Rep. at 877. 

The above quoted language is more supportive of 

appellant's position than it is of respondent's. However, we 

find the case of Northwestern National Casualty vs. Phalen 
(1979), 182 Mont. 448, 597 P.2d 720, to be more nearly on 

point. In the Phalen case the plaintiff alleged in Count I, 

that the insured and one Harry Johnson wilfully, maliciously 

and wrongfully assaulted him, and in Count 11, alleged that 

the insured "negligently, carelessly, and wrongfully 

assault[edl [him], and . . . negligently and carelessly 

cause[d] [him] personal injuries." The court interpreted the 

provision which excluded from coverage bodily injury which 

"is either expected or intended from the standpoint of the 

insured." The court held that where the results of the 

insured's intentional acts are unexpected or unintended, the 

policy would provide coverage. 

Phalen clearly established that intentional acts are not 

excluded under an insurance policy unless the intentional act 

results in injuries which would be expected or intended. A 

person may act intentionally without intending or expecting 

the consequences of that act. 

Respondent argues that for one to act malicously one 

must necessarily intend the consequences of the act. 

Respondent relies upon Boyer v. Kloepfer (1976), 170 Mont. 

472, 554 P.2d 1116, wherein this Court equated malice with an 

intent to injure. However, the general definition of malice 

is more expansive. In Cashin v. Northern Pac. R. Co., 

(1934), 96 Mont. 92, 28 P.2d 862, this Court defined malice 

as "a wish to vex, annoy or injure another person, - or an 

intent to do a wrongful act." (Emphasis supplied) The 

Montana Supreme Court has also implied malice where the 

intentional acts of a defendant were committed without 

justifiable excuse, privilege or defense. Poeppel v. Fisher 

(1977), 175 Mont. 136, 572 P.2d 912. We hold that malice can 

be found where acts are intentional though the consequences 

are not. 
Respondent contends that Elwell's complaint pleads 

intentional injury and such an allegation is dispositive of 

this appeal. We do not agree. 

The language of the complaint is ambiguous. Paragraph V 

pleads that Strainer acted maliciously. Para.graph VI of the 

complaint, hereinbefore quoted, contains language which can 

be interpreted to mean that Strainer intended Elwell's 

injuries. However, the language found in Paragraph VI is 

belied by the stipulated facts. In the declaratory judgment 

action which forms the basis of this appeal the agreed facts 

show that the appellant Strainer intended only that Elwell 

would experience some coughing and discomfort and knew 

nothing of the dire consequences which allegedly followed. 

Under these circumstances facts admitted by the respondent 

insurance company foreclose application of the policy 

exclusion which only excludes expected or intended bodily 

injury. 

In summary, we hold that section 39-71-413, of the 

Workers' Compensation Act, permits the filing of a third 

party action where acts of an employee are intentional 

irrespective of whether the results of that act were 

intended. The agreed facts here stated form the basis for 

such a third party action. These same facts are - not excluded 

by insurance policy language referring to "bodily injury or 

property damage which is either expected or intended." 

We remand to the District Court with directions to enter 

declaratory judgment in favor of appellant affording both 

coverage and a defense to appellant under the terms of the 

subject policy. 
We concur: