No, 12402 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE ANACONDA COMPANY, a Montana Corporation, Petitioner,

THE DISTRICT COURT OF THE SECONDJUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND 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 : 

## JAN317973 Filed: 

## JAN 311973Mr. Chief Justice James T. Harrison delivered the Opinion of the Court.

This is an originalproceeding commenced by theAnaconda 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 JudgeMcClernan acted contrary to the laws of Montana in overruling petitioner's request for summary judgment. \ The petition isbased upon the following facts. The Anaconda Company is the defendant in a lawsuit filed by Charles Marchlik. Mr. Marchlik complains that: "Plaintiffwas 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 soworking 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." (Emphasisadded). A motion to dismiss for failure to state a claim upon which relief could be granted wasmade by the petitioner. Its support for the motion was the assertion both parties were bound by the Workmen's CompensationAct and the Occupational DiseaseAct, 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 themotion was overruled resulting in this originalproceeding. The position of the petitioner in this Court is the sameas it advanced in the district court, that the lawsuit is barred by the terms of the Workmen's Compensation Act and the Occupational DiseaseAct. The Workmen's Compensation Act in section 92-204,R.C.M. 1947,provides: "Whereboth employer and employee have elected to come under this act, the provisions of this act shallbe 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

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## * * or cause of action, action at law, suit in equity, or statutory or common-lawright 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: "Theright 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 (Emphasisadded). The petitioner further points out, that the claim now being prosecuted in the lawsuithas 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 injurywithin themeaning of theWorkmen's CompensationAct nor an occupational disease within themeaning of thatAct, 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 statementof the hearing officer for the Board,Mr. Carden,who referred to the number of shifts worked by Marchlik as being 368.042 shiftsand then said: "That seems to preclude immediately thepossibility of any recoveryunder the Occupational DiseaseAct, irregardless of what hismedical findings are. 

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## * * Claim has to be presented within a certainperiod of time,must establish silicosis,and must have worked theminimum number of shifts, so unless you have anything else, itwould seem tome we should pursue then the claim that he has filed for benefits under the Workemn's CompensationAct." Counsel for the claimant then remarked: "Verywell." It is argued by the respondent that because of this ruling by the IndustrialAccident Board,Marchlik was an employee not covered by the Occupational DiseaseAct, therefore he may maintain his lawsuit against the petitioner. As authority for thatproposition, 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-whoelects 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 issuebefore this Court is to determinewhether the claimpresented inMarchlik'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 theAct. Marchlik's election came about by his submissionof a claim to the Industrial Accident Board as heretofore recited. Boiling the complaintdown 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 coppercompounds 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 occupationaldiseases. "1. Silicosis "2. Poisoning by

"(1) Sulphur or its compounds. 'I(m) Copper or its compounds.

### " Therefore the claimpresented by Marchlik is covered by the terms of the Occupational DiseaseAct. The result of this is that if Marchlik is an eligible employee to receivebenefits of theAct he cannot maintain his lawsuit. As pointed out earlier under section 92-1308,R.C.M. 1947, thisAct 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 suitwas 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 theAct. Summer v. Victor Chemical Works, 298 F.2d 66, (9th Cir. 1961). Under the terms of theAct all employers who are subject to the Workmen's Compensation Act will be subject to the OccupationalDisease Act. Section 92-1307,R.C.M. 1947,states: "Thisact 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 CompensationAct 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 CompensationAct and therefore it is subject to provisions of the Occupational DiseaseAct. Therefore Marchlik being an employee of Anaconda was eligible for compensationunder theAct. The determinationby 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: "Compensationshallbe 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 shallbe paid in case of silicosisunless during the eight years immediately preceding the disablement the injuned employee has been exposed to harmful quantities of silicon dioxidedust 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 actuallyworked for the employer against whom compensation is claimed." This statutepoints 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 thatMarchlik was not anemployee who falls within the class of employees mentioned in section 92-1331,R.C.M. 1947,and therefore he cannotbring 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 ArticleVIII, 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 themotion for summary judgment by petitioner and enter judgment favor petiti

Chief Justice

sociate Justices 

## /Mr. Justice Gene B. Daly and Mr. JusticeFrank I. Haswell dissenting: We dissent. The majority opinion sets forth section 92-1308, R.C.M. 1947 of the Occupational DiseaseAct and section 92-204, R.C.M. 1947 of the Workmen's CompensationAct in their own language and establishes that employees who elect to come under the Act and qualify to receivebenefits 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 compensationpursuant to the provisions of this act for occupational diseases

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## *", which in itself is a clear indication that they have exchanged the right of recovery under the Act, a statutoryright, 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 iswell recognized,most recently in State ex rel. FirstNational Bank v. District Court, Mont

# . - P.2d -1 

# - - , 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 gualifxunder 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: "Thereshall 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 ismerely 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 claimantduring a time period certain must have worked not less than 1,000work shifts

## -- claimanthere had worked only 368.042 work shifts. The examiner immediately said: "That seems to preclude immediately the possibility of any recoveryunder the Occupational Disease Act, irregardless of what his medical findings are

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## *." This terminated the hearing insofar as it related to the Occupational DiseaseAct. While making no comment regarding the merits of the

cause of action, claimantunder the Act nonetheless has his common law right of action. If he is denied this as themajority holds, he has no remedy at all. This is not the intent of thisAct. In our view, the judgment of the trial court should be affirmed accordingly.

Associate Justices