No, 12402 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE ANACONDA COMPANY, 

a Montana Corporation, 

Petitioner, 

THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT 

OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF 

SILVER BOW, and THE HONORABLE JOHN B. McCLERNAN, 

a Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Petitioner: 

Douglas D. Dasinger argued, Bozeman, Montana. 

James A, Robischon, Butte, Montana, 

For Respondents: 

Burgess, Joyce, Prothero, Whelan and ~'~eary, 

Butte, Montana. 

Thomas F. Joyce argued, Butte, Montana. 

A, G, Shone, Butte, Montana, 

Submitted: November 29, 1972 

Decided : JAN 3 1 7973 

Filed: JAN 3 1 1973 
Mr. Chief Justice James T. Harrison delivered the Opinion 

of the Court. 

This is an original proceeding commenced by the Anaconda 

Company. It is seeking a writ of supervisory control over the 

district court of Silver Bow County, the Hon. John B. McClernan 

presiding. The petition for the writ alleges Judge McClernan 

acted contrary to the laws of Montana in overruling petitioner's 

request for summary judgment. \ 

The petition is based upon the following facts. The 

Anaconda Company is the defendant in a lawsuit filed by Charles 

Marchlik. Mr. Marchlik complains that: 

"Plaintiff was employed by defendant as a miner 

and from August 26, 1969 to November 7, 1969, 

plaintiff worked underground on the 4,000, 4100, 

and 4400 foot levels and while so working he 

necessarily came into close contact with extreme 

heat, gas, metallic and nonmetallic substances, 

sulphur and copper dust compounds impregnated 

with silicon particles and other injurious substances caused through the negligent operations 

of defendant and arising out of and in the course 

of plaintiff's employment. Plaintiff was exposed 

to and forced to inhale and breath (sic) in said 

injurious substances with the result that he became diseased, sick, poisoned, and his internal 

organs, particularly his lungs, were affected 

and weakened so as to cause, and it did cause, 

plaintiff to suffer with a disease or condition 

as the proximate result of the negligence of 

defendant, so that on November 7, 1969 he became totally disabled and incapacitated from 

work of any kind." (Emphasis added). 

A motion to dismiss for failure to state a claim upon which relief could be granted was made by the petitioner. Its support 

for the motion was the assertion both parties were bound by 

the Workmen's Compensation Act and the Occupational Disease Act, 

which provided an exclusive remedy for the plaintiff. The motion 

was overruled. A motion for summary judgment was then made 

alleging essentially the same grounds. Again the motion was overruled resulting in this original proceeding. 

The position of the petitioner in this Court is the same 
as it advanced in the district court, that the lawsuit is 

barred by the terms of the Workmen's Compensation Act and 

the Occupational Disease Act. The Workmen's Compensation Act 

in section 92-204, R.C.M. 1947, provides: 

"Where both employer and employee have elected 

to come under this act, the provisions of this 

act shall be exclusive, and such election shall 

be held to be a surrender by such employer and 

the servants, and employees of such employer and 

such employee, as among themselves, of their 

right to any other method, form or kind of compensation, or determination thereof * * * or 

cause of action, action at law, suit in equity, 

or statutory or common-law right or remedy, or 

proceeding whatever, for or on account of any 

personal injury to or death of such employee * * *.It 

The Occupational Disease Act in section 92-1308, R.C.M. 

1947, provides: 

"The right to recover compensation pursuant to 

the provisions of this act for occupational 

diseases sustained by an employee and arising 

out of and in the course of his employment, 

whether resulting in death, or not, shall be the 

exclusive remedy therefor against the employer 

electing to be bound by and subject to this act, 

except as to such employees as shall reject this 

act as provided herein.i (Emphasis added). 

The petitioner further points out, that the claim now 

being prosecuted in the lawsuit has been presented to the Industrial Accident Board and disposed of. As the result of a hearing held in Butte, Montana, on December 17, 1970, the Board in 

an order dated February 24, 1971, held: 

"That Charles Marchlik, the claimant herein, 

has not sustained the burden of proof in establishing an industrial injury within the meaning 

of the Workmen's Compensation Act nor an occupational disease within the meaning of that Act, 

and therefore, his claim for benefits must be 

denied. " 

The basis for the ruling insofar as the claim for benefits resulting from silicosis appears to be the statement of the 

hearing officer for the Board, Mr. Carden, who referred to the 

number of shifts worked by Marchlik as being 368.042 shifts 
and then said: 

"That seems to preclude immediately the possibility of any recovery under the Occupational 

Disease Act, irregardless of what his medical 

findings are. * * * Claim has to be presented 

within a certain period of time, must establish 

silicosis, and must have worked the minimum 

number of shifts, so unless you have anything 

else, it would seem to me we should pursue then 

the claim that he has filed for benefits under 

the Workemn's Compensation Act." 

Counsel for the claimant then remarked: "Very well." 

It is argued by the respondent that because of this 

ruling by the Industrial Accident Board, Marchlik was an employee 

not covered by the Occupational Disease Act, therefore he may 

maintain his lawsuit against the petitioner. As authority for 

that proposition, respondent cites section 92-1331, R.C.M. 1947, 

which reads: 

"There shall be no common-law riqht of action 

for damage from occupational disease against an 

employer-who elects to come under the provisions 

of this act, excepting for those employees not 

eligible for compensation under the terms of this 

act, or who reject coverage of this act." (Emphasis 

added) . The issue before this Court is to determine whether the 

claim presented in Marchlik's complaint is covered under terms 

of the Occupational Disease Act and whether Marchlik is an 

employee excluded from coverage of the act by section 92-1331, 

R.C.M. 1947. The facts of the case show both parties elected 

to come under the Act. Marchlik's election came about by his 

submission of a claim to the Industrial Accident Board as heretofore recited. 

Boiling the complaint down to its basic elements and 

taking the statements made by counsel for respondent in oral 

argument, Marchlik is claiming he was poisoned by sulphur and 

copper compounds and conkacted silicosis while working for the 

Anaconda Company. The poisoning by the sulphur and copper 
compounds and the silicosis are specifically covered by the 

Occupational Disease Act in section 92-1304, R.C.M. 1947, before 

its amendment in 1971: 

"The following diseases only shall be termed 

occupational diseases. 

"1. Silicosis 

"2. Poisoning by 

"(1) Sulphur or its compounds. 

'I (m) Copper or its compounds. " 

Therefore the claim presented by Marchlik is covered by the 

terms of the Occupational Disease Act. The result of this is 

that if Marchlik is an eligible employee to receive benefits 

of the Act he cannot maintain his lawsuit. As pointed out 

earlier under section 92-1308, R.C.M. 1947, this Act is the 

exclusive remedy for an employee whose employer has elected to 

be covered by the Act. 

had 

This is the first opportunity this Court has/to construe 

the effect of section 92-1331, R.C.M. 1947. The section was 

discussed in a suit arising in Montana in the Federal- Court. 

The result of that suit was to allow a workman to sue his employer on the basis he was an employee excluded under the terms 

of section 92-1331, R.C.M. 1947. The critical fact in that case 

was that the employer had chosen not to elect one of three plans 

of the Act. Summer v. Victor Chemical Works, 298 F.2d 66, (9th 

Cir. 1961). Under the terms of the Act all employers who are 

subject to the Workmen's Compensation Act will be subject to the 

Occupational Disease Act. 

Section 92-1307, R.C.M. 1947, states: 

"This act shall apply to and only to, all 

employers and employees who now are or hereafter 

will be subject to the provisions of the Workmen's 

Compensation Act of the state of Montana. * * *" 
To be subject to the Workmen's Compensation Act an employer 

engaged in a hazardous occupation must make an election of one 

of three plans or lose his common law defenses. Section 92-207, 

R.C.M. 1947. Section 92-303, R.C.M. 1947, would include copper 

mining within the definition of a hazardous employment. The 

record here shows that the Anaconda Company is subject to provisions of the Workmen's Compensation Act and therefore it is 

subject to provisions of the Occupational Disease Act. Therefore Marchlik being an employee of Anaconda was eligible for 

compensation under the Act. 

The determination by the Industrial Accident Board that 

he could not receive benefits was not an exclusion of him from 

the Act but a finding he had not proved a claim for which he <'- 

-> <02>, Ji 

could receive benefits. Section 92-1311(3), R.C.M. 1947, of 

the Act reads: 

"Compensation shall be paid to every employee 

who becomes disabled by reason of occupational 

disease arising out of his employment, subject 

to the following conditions; and when claims 

are presented and notices given in accordance 

with the limitations of sections 92-1312 and 

92-1313. * * * 

"3. No compensation shall be paid in case of 

silicosis unless during the eight years 

immediately preceding the disablement the injuned employee has been exposed to harmful 

quantities of silicon dioxide dust for a total 

period of not less than one thousand (1,000) 

workshifts in employment in this state and 

unless total disability results within four 

years from the last day upon which the employee 

actually worked for the employer against whom 

compensation is claimed." 

This statute points out under what conditions an eligible 

employee will be entitled to recover. In the opinion of the 

Board Marchlik did not fulfill all the conditions. As to the 

claim for the poisoning by copper and sulphur he did not produce any evidence before the Board that he was poisoned by 

those compounds. The result is that Marchlik was not an 
employee who falls within the class of employees mentioned in 

section 92-1331, R.C.M. 1947, and therefore he cannot bring a 

law suit to recover for his alleged ailments. 

This is a proper case for this Court to exercise its 

powers of supervisory control under Article VIII, Section 2 

of the 1889 Constitution of Montana and section 93-1106, R.C.M. 

1947. Therefore a writ of supervisory control is ordered to 

issue directing the district court to vacate its order overruling the motion for summary judgment by petitioner and enter 

judgment favor petiti 

Chief Justice 

sociate Justices 

/ 
Mr. Justice Gene B. Daly and Mr. Justice Frank I. Haswell 

dissenting: 

We dissent. 

The majority opinion sets forth section 92-1308, 

R.C.M. 1947 of the Occupational Disease Act and section 92-204, 

R.C.M. 1947 of the Workmen's Compensation Act in their own 

language and establishes that employees who elect to come under 

the Act and qualify to receive benefits under the Act have no 

action at law against their employer. The language of section 

92-1308, R.C.M. 1947, uses the words: "The riqht to recover 

compensation pursuant to the provisions of this act for occupational diseases * * *", which in itself is a clear indication 

that they have exchanged the right of recovery under the Act, 

a statutory right, for their common law right of action against 

the employer. This quid pro quo basis for granting immunity to 

the employer from common law liability is well recognized, most 

recently in State ex rel. First National Bank v. District Court, 

- Mont . -1 - P.2d - , 30 St.Rep. 25. This is a well 

recognized principle of law but it never has been viewed as 

denying the employee both remedies, i.e., in the context that 

if you fail to gualifx under the Act, as opposed to having no 

injury, you lose both rights of recovery. 

Section 92-1331, R.C.M. 1947, quoted by the majority 

further strengthens this doctrine in this language: 

"There shall be no common-law right of action 

for damage from occupational disease against 

an employer who - elects to come under the provisions of this act, excepting for those 

employees not eligible for compensation under 

the terms of this act * * *.I' (Emphasis added). 

This is merely a negative statement of the principle in 

section 92-1308, R.C.M. 1947. If you are not eligible under 

the Act, you have preserved your common law remedies. 
At the Industrial Accident Board hearing the examiner 

found that under the Occupational Disease Act, section 92-1311(3), 

R.C.M. 1947, that a claimant during a time period certain must 

have worked not less than 1,000 work shifts -- claimant here had 

worked only 368.042 work shifts. The examiner immediately said: 

"That seems to preclude immediately the possibility of any recovery under the Occupational 

Disease Act, irregardless of what his medical 

findings are * * *." 

This terminated the hearing insofar as it related to the Occupational Disease Act. 

While making no comment regarding the merits of the 

cause of action, claimant under the Act nonetheless has his 

common law right of action. If he is denied this as the majority holds, he has no remedy at all. This is not the intent 

of this Act. 

In our view, the judgment of the trial court should be 

affirmed accordingly. 

Associate Justices