No. 94-558

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

SUSAN KORTES, Personal Representative on

behalf of the Estate of RICHARD JON KORTES,

on behalf of RAYMOND JON KORTES and

CASSANDRA EILEEN KORTES, the minor

children of RICHARD JON KORTES,

Plaintiff and Appellant,

v.

POOL COMPANY and JOHN DOE MANUFACTURER A, and

JOHN DOE MANUFACTURER B, jointly and severally,

Defendants and Respondents.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jerrold L. Nye, Nye & Meyer

Billings, Montana

For Respondents:

Joe C. Maynard and Lori A. Harper,

Crowley, Haughey, Hanson, Toole & Dietrich,

Billings, Montana
Justice Terry N. Trieweiler delivered the opinion of the Court.

Plaintiff Susan Kortes filed a complaint in the District Court

for the Seventh Judicial District in Richland County in which she

alleged that her son Richard's death was caused by the negligence

of his employer, Pool Company. Pool Company moved to dismiss

Susan's complaint pursuant to Rule 12 (b) (6), M.R.Civ.P. The

District Court granted Pool Company's motion to dismiss based on

its conclusion that the Workers' Compensation Act provided Susan's

exclusive remedy. Susan appeals. We affirm the judgment of the

District Court.

Susan raises the following issue on appeal:

Should. an exception to the exclusivity provision in the

Montana Workers' Compensation Act be created when a worker is

killed and the accident causing death is the result of the

employer's failure to install, or the removal of, a safety device

which was designed to prevent the accident?

FACTUAL BACKGROUND

Because this is an appeal from an order of dismissal pursuant

to Rule 12(b) (6), M.R.Civ.P., we accept the allegations in the

complaint as true and limit our discussion to those facts. Wilkon

v. Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182.

Richard Jon Kortes was killed on December 30, 1993, in an oil

rig accident while working for Pool Company. The accident occurred

when a traveling block fell on him as a result of Pool Company's

negligent removal of, or failure to install, the appropriate safety

2
shut-off device. Pool Company carried workers' compensation

insurance and its carrier is paying benefits to Richard's minor

children. Susan Kortes is the personal representative of his

estate.

On August 17, 1994, Susan filed a complaint in the District

Court in Richland County to recover damages sustained by Richard

prior to his death, and for his wrongful death. Susan's complaint

states that pool Company's neglect caused her son's death. The

nature of the conduct that she complained of is specifically set

forth in the following paragraphs of her complaint:

1) Pool Company was the employer of Richard Jon Kortes

and owned and operated the drill rig on which he was

killed.

2) The facts which set in motion the events and cause

of death was the absence of an appropriate safety shut

off device at the crown of the drill rig to prevent the

traveling block from hitting the crown.

3) Pool Company assembled the drill rig and failed to

install the safety device or removed the existing safety

device.

4) By neqliqentlv failing to install or bv removing the

safetv device, Pool Company failed in its duty to provide

a safe work place and subjected Richard Jon Kortes to an

unreasonable and wrongful risk of harm in operating of

the drilling equipment.

5) Pool Company allowed the drill rig to be operated by

a person or persons not properly or fully trained and who

allowed the traveling block to hit the crown of the drill

rig, breaking the cable, and allowing the traveling block

to hit Richard Jon Kortes.

6) Pool Company's neqliqent conduct created a condition

likelv to cause serious bodilv harm or death, making

Richard Jon Kortes' death or serious injury foreseeable

and preventable by installing the proper maintenance

safety device.

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(Emphasis added.) Nowhere in Susan's complaint does she allege

that Richard's injury or death was caused by intentional and

malicious conduct on the part of Pool Company.

On September 15, 1994, Pool Company filed a motion pursuant to

Rule 12(b) (6), M.R.Civ.P., for an order dismissing Susan's

complaint. On November 4, 1994, the District Court granted Pool

Company's motion to dismiss. It held that § 39-71-411, MCA,

limited Susan's remedy to the provisions of the Workers'

Compensation Act. The District Court's order was certified as

final pursuant to Rule 54(b), M.R.Civ.P., and this appeal followed.

DISCUSSION

Should an exception to the exclusivity provision in the

Montana Workers' Compensation Act be created when a worker is

killed and the accident causing death is the result of the

employer's failure to install, or the removal of, a safety device

which was designed to prevent the accident?

Susan's complaint was dismissed for failure to state a claim

pursuant to Rule 12(b) (6), M.R.Civ.P. We have previously held

that:

A complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. A motion to

dismiss under Rule 12(b) (6), M.R.Civ.P., has the effect

o f admitting all well-pleaded allegations in the

complaint. In considering the motion, the complaint is

construed in the light most favorable to the plaintiff,

and all allegations of fact contained therein are taken

as true.
Willson, 634 P.Zd at 1182 (citations omitted). Therefore, we treat

the facts set forth in Susan's complaint as true.

Susan acknowledges that § 39-71-411, MCA, provides that

workers' compensation is her exclusive remedy, but suggests that we

carve out a judicial exception where: (1) a worker is killed

(2) due to a failure to install or maintain a required safety

device which is designed to prevent the accident which causes

death. She suggests that an employer has duties pursuant to

§§ 50-71-201 and -203, MCA, to maintain a safe work place and

provide proper safety devices which would be circumvented if it was

shielded by the exclusivity provision of the Act. Susan suggests

that such a result is contrary to Montana statutes, as well as

public policy.

Pool Company counters that allegations of negligence, or even

gross negligence, are insufficient to eliminate the exclusive

remedy provision found in § 39-71-411, MCA, which provides:

For all employments covered under the Workers'

Compensation Act or for which an election has been made

for coverage under this chapter, the provisions of this

chapter are exclusive. Except as provided in part 5 of

this chapter for uninsured employers and except as

otherwise provided in the Workers' Compensation Act, an

employer is not subject to any liability whatever for the

death of or personal injury to an employee covered by the

Workers' Compensation Act or for any claims for

contribution or indemnity asserted by a third person from

whom damages are sought on account of such injuries or

death. The Workers' Compensation Act binds the employee

himself, and in case of death binds his personal

representative and all persons having any right or claim

to compensation for his injury or death, as well as the

employer and the servants and employees of such employer

and those conducting his business during liquidation,

bankruptcy, or insolvency.

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The only exception created by the legislature to this

exclusive remedy provision is found at 5 39-71-413, MCA, which

provides:

If an employee receives an injury while performing the

duties of his employment and the injury or injuries so

received by the employee are caused by the intentional

and malicious act or omission of a servant or employee of

his employer, then the employee or in case of his death

his heirs or personal representatives shall, in addition

to the right to receive compensation under the Workers'

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 injury.

In the past, this Court has been divided over the meaning of

"intentional and malicious" as used in § 39-71-413, MCA, and the

degree of culpability necessary to bring an employer's conduct

within its exception to the exclusive remedy provision found at

5 39-71-411, MCA. See Blythe v. Radiometer America, Inc. ( 19 9 3 ) , 2 6 2 Mont .

464, 866 P.2d 218 (Trieweiler, J., Harrison, J., and Hunt, J.,

dissenting); and Noonan v. Spring Creek Forest Products (1985) , 216 Mont.

221, 700 P.2d 623 (Sheehy J., Hunt, J., and Harrison, J.,

dissenting).

However, there is no disagreement that, based on the plain

language of these provisions, something more than mere negligence

must be alleged to avoid the exclusive remedy provision in

§ 39-71-411, MCA.

Susan's complaint does not allege that Richard's death was

caused by an intentional and malicious act. Her complaint merely

asserts that Richard's death was caused by Pool Company's neglect.

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A1 though Susan makes reasonable public wlicy arguments in support 

of her position, OUT role is not to substitute our judgment for 

that of the legislature on matters of public policy. We are bound 

by the legislative determination that absent intentional and 

malicious conduct employees cannot sue their employers for injuries 

sustained during the course of their emplqment which are covered 

by the Workers' Compensation Act. 

We conclude that Susan's complaint fails to allege facts which 

would entitle her to relief under the laws of this state. 

Therefore, we affirm the judgment of the District Court. 

We concur: 
CERTIF

I hereby certify that the following cert

to the following named:

ICATE OF SERVICE

ified order was sent by United States mail, prepaid,

JERROLD L. NYE

JOEC. MAYNARD

LORI A. HARPER

Crowley, Haughey, Hanson, Toole & Dietrich

P.O. Box 2529

Billings, MT 59103-2529

Nye & Meyer

3317 Third Avenue North

Billings, ,MT 59101

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:&

Deputy u