No. 85-259 85-260 IN THE SUPREME COURT OF THE STATE OF MONTANA

BARBARA SITZLriN, Petitionerand Appellant,

-vsJAKE SCHUMAKER, Respondent and Respondent.

JAMESH. SITZMAN, Petitionerand Appellant,

JAKE SCHUMAKER, Respondent and Respondent.

APPEAL FROM: District Court of the SeventhJudicialDistrict, In and for the County of Prairie, The Honorable R. C. McDonough,Judge presiding. COUNSEL OF RECORD: ForAppellant: Kelly & Kelly; PatrickJ. Kelly argued, Miles City, Monta.na Terry J. Hanson, Miles City,Montana For Respondent: Crowley, Haughey, Hanson,Toole & Dietrich;William J. Mattix argued, Billings, Montana

Submitted: January 30, 1986 Decided: May 15, 1986Mr. Justice John C. Harrison delivered the Opinion of the Court.

This is an appeal from a summary judgment of the District Court in the Seventh Judicial Districtof the State ofMontana, inand for PrairieCounty. We reverse and remand for trial. The plaintiff, James Sitzman,worked for the defendant, Jake Shumaker,performing general ranch labor. The two men did not get along. Shumaker often called Sitzman a "son-of-a-bitch" and "idiot." Sitzman did not respond to these names at first, but eventually began shouting back. The day Sitzman was injured, he and Shumaker were working together. Shumakerasked Sitzman if the calf feeders

were full. Sitzman responded by telling Shumaker that the first one was half full, the second about three-quarters full, and the third onewas about two-thirds full. Shumaker exploded, saying "Ibelieve you, you god damn idiot. Can't you just say 'yes'or 'no'?" Later in themorning, Shumaker asked Sitzman if he wanted to work on the tractor. Sitzman responded, "Yeah, sure,no problem. Let's go towork on it." Shumaker again exploded, saying, "you god damn son-of-a-bitch. Why can't you just say 'yes'or 'no'?" When Sitzman replied, "Don't call me an s.0.b. 

## ,"Shumaker walked

over to him and struck him several times in the face. Sitzman pushed Shumaker to the ground. Shumaker then picked up a four-foot length of two-inch pipe and held it over his head. Sitzman asked Shumaker not to hit him, and turned to walk away. Shumaker hit Sitzman on the back of the head and when Sitzman turned to protect himself, hit him on the front of the head, knocking him to the ground, unconscious.Sitzman suffered severe injuries, including a fractured skull. The extensive head injuries have altered the course ofhis life. Sitzman applied for and was granted temporary total disability wage and medical benefits under the Workers' Compensation Act. He brought this action in the District Court to recover damages caused by Shumaker's attack. His wife, Barbara, brought an action for loss of consortium, society, support, comfort and companionship of her husband due to his injuries. Shumaker moved for summary judgment. Judgment was granted in both actions for the stated

reason that because of Sitzman's application for and receipt of Workers

### ' Compensation benefits, their remedies were exclusive to theWorkers' CompensationAct. Upon stipulation of the parties, the Sitzmanslactions were consolidated for purpose of appeal. The issue presented for review by Sitzmans is whether receipt of Workers1Compensation benefits by them results in

an election pursuant to $ 39-71-411, MCA, thereby barring them from a common law tort action against employer Shumaker. Summary judgment is proper only when there is a genuine issue ofmaterial fact and themovant is entitled to prevail

as a matter of law. Cereck v. Albertsonls (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The lower court, in granting summary judgment, reasoned that by filing for benefits under the Workers' Compensation Act "Sitzmanbecame subject to the provision of theAct andmore specifically $ 39-71-411,MCA." The exclusivity clause, found in $ 39-71-411, MCA, provides inpertinent part: For all employments covered under the Workers' CompensationAct or forwhich an election hasbeenmade for coverage under+ this chapter, the provisions of this chapterare exclusive.. 

# .. The election referred to in § 39-71-411,MCA,however, is the election to come under the Act made by an employer not specifically covered by the Act pursuant to 5 39-71-401(2)

## , MCA. It has no reference to an employee seeking to recover for injuries suffered as a result of an assault and battery committed personally by the employer upon the employee who also may have filed for and received F70rkers1 Compensation benefits. Ordinarily, when an employee is injured in the work place due to negligence or accident, his remedy is exclusive to the Workers' Compensation Act. Noonan v. Spring Creek Forest Products (Mont. 1985), 700 P.2d 623, 625, 42 St.Rep. 759, 762. Common law damages are not available under 5 39-71-411, MCA, for injuries negligently or accidentally inflicted by an employer. Negligence claims should be dismissed on this ground. Such are not the facts in this case--Sitzmanlsinjuries are not the result of negligence or accident. The question then becomes whether there isa permissible exception under § 39-71-411, MCA, for the tort inflicted by Shumakerupon Sitzman. This Courthas said: The "intentional harm" which removes an employer from the protection of the exclusivity clause of the Workers

### ' Compensation Act is such harm as is maliciously and specifically directed at an employee

# . ..out of which such specific intentional harm the employee receives injuries as a proximate result. Great Western Sugarv. District Court (1980),188 Mont. 1, 7, 610 P.2d 717, 720. There is evidence that Sitzman suffered. intentionalharmmaliciously and specifically directed athimby Shumaker. It i.snot reasonableto suppose the legislature intended to give statutory protection in the form of immunity from suit to an employer who hits his employee in the head with apipe while the employee is carrying outhis employment duties. The egregiousness of these circumstances removes the exclusivity bar for an employee. In a manner similar to injury by a £el-lowemployee, 5 39-71-413, MCA, where the legislatureprovided for coverage froman intentional injury, under the facts of this case, we provide for such coverage where the injury isby the employer. There are sound policy reasons for reaching this decision. Thepurpose of theWorkers' CompensationAct is to protectboth the employer and the employeeby incorporating a quid pro quo for negligent acts by the employer. The employer is given immunity from suit by an employee who is injured on the job in return for relinquishinghis common law defenses. The employee is assured of compensation for his injuries, but foregoes legal recourse against his employer. To allow an employer to personally commit an assault and battery upon an employee and hide behind the exclusivity clause of the Workersf Compensation Act is to disregard the purpose of the Act. Other employers would have to pay for hisprotection. In effect,he would have bought the right to hit his employees. That isnota quid pro quo. The lawdoes not allow a wrongdoer to benefit fromhiswrongs. Consequently we hold that a narrow exception to the exclusiveness of the compensation remedy exists where the employer personally commits an assault and battery upon an employee.The summary judgment is reversed. and the case is remanded for trial consistent with the findings of this Court.

We concur: /