No. 85-414 IN THE SUPREME COURT OF THE STATE

### OF MONTANA 1986

LOUISEN. GIDLEY, individually and as PersonalRepresentative of the Estate of James 

### I. Gidley, Deceased, Plaintiffand Appellant,



### W. R. GRACE & COMPANY,

### a Connecticut corporation, GRACE

### W. R. & COMPANYCONSTRUCTION PRODUCTSDIVISION,an unincorporated association,and JOHN DOES I THROUGHV., Defendantsand Respondents.

APPEAL FROM: District Courtof the Nineteenth JudicialDistrict, In and for the County of Lincoln, TheHonorable Robert Holter, Judgepresiding.

COUNSEL 

### OF RECORD:



### ForAppellant: Murphy, Robinson,Heckathorn & Phillips; I. James Heckathorn argued,Kalispell,Montana

ForRespondents: Garlington,Lohn & Robinson;Gary L. Graham argued, Missoula,Montana

Submitted:February 18,1986 Decided:April 15,1986
Filed: 

## APR

## 154986

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court. Louise Gidley (wife), personal representative of deceased husband who allegedly died from asbestosis-related cancer, sought judgment against W.R. Grace & Company (Grace) under theories ofwrongful death and misrepresentation. Upon motion by Grace, the Lincoln County District Court granted partial summary judgmentdismissing thewrongful death action

on the ground that the Montana Occupational Disease Act

(MODA) provided the exclusive remedy. Wife appeals. FJe

reverse and remand. The sole issue on appeal is whether MODA was Mr. Gidley's exclusive remedy against Grace. In July 1977,husbandworked his ,-ast day for Grace. He died. in May 1982. Wife alleges husband discovered he had cancer in June 1981,three years and eleven months after his last actual day ofwork. In July 1982,wife filed for benefits under MODA. The claim was denied by Grace because it

was not timely filedwithin three years after husband's last actual day of work under SS 39-72-403 and -406,MCA (1981). In June 1984, wife filed an action against Grace alleging wrongful death and misrepresentation. Later, the court dismissed the wrongful death action on the ground MODA provided the exclusive remedy. Was MODA Mr. Gidley's exclusive remedy against Grace? Our initial question iswhich MODA statutes control the claim; those in effect on Mr. Gidley's last actual day of work in July 1977,or those in effect at the alleged time of discovery of the disease in June 1981, or those in effect when the claim was originally filed in July 1982? As to MODA, this issue isnovel. However, it hasbeen considereda number of times in workers' compensation cases and the Court has concluded that the statute in effect at the date ofaccident or injury controls. See Iversonv. Argonaut Insurance Company (1982),198 Mont. 340, 342, 645P.2d 1366, 1-367; Yurkovich v. IndustrialAccident Board (1957), 132Mont. 77, 86, 314 P.2d 866, 872; Chisholm v. Vocational School for Girls (1936)

## , 103 Mont. 503, 510, 64 P.2d 838, 842-43. We conclude that the same rationale should be applied in MODA claims. Here, Mr. Gidley's last actual day of work was in July 1977. We therefore conclude t.hat MODA statutes in effect on his last actuald-ayofwork are controlling. MODA was originally enacted in 1959. Sections 92-1308 and 92-1331 governed rights of suitat common lawuntil 1979, when § 92-1308 was amended and S 92-1331 was repealed. As applicable here, SS 92-1308 and 92-1331 stated:

remedy. tion PU

# . Ri ht to compensation exclusive 

### 4.- The rlght to recover compensa- .rsuantto 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 he bound by and subject to this act, except as to such employees as shall reject this act as provided herein. Ri hts of suit at common law. 92-1331- g 

### - -- -- 

### - There shall be no common-law right of action for damage from occupational disease against an employer who elects to come under the ~rovisiansof this act, excepting for thbse employees not eligii ble forcompensation under the terms of this act, or who reject coverage of this act. Under § 92-1308,where an employer elected to be bound by MODA, the rights of an employee were limited to MODA unless an employee had rejected MODA. Affirmative rejection appeared to be the onlymeans by which an employee could step out from under MODA and preserve a common law right of action. In substance § 92-1331provided for a common law right of action when either the employee rejected coverage or theemployeewas not eligible for compensationunder the terms of MODA. Consequently, it appears the statutes are not 

### in agreement on the issue of common law rights. One statute makes MODA the exclusive remedy unless affirmatively rejected. Theother statute makes MODA the exclusive remedy unless MODA is rejected or the employee is not eligible for compensation under the terms of NODA. We conclude that the statutes are at least ambiguous, if not contradictory. We therefore review PODA's legislative history. See Dorn v. Bd. of Trust. of Billings Sch. Dist. (Mont. 1983), 661 P.2d 426, 40 St.Rep. 348. In 1959,MODA was introduced

as SenateBill #112. As originally introduced, section 

### 31 of Senate Bill #I12 prohibited a common lav~right of action stating: There shall be no common law right 

### of action for dama.ge from occupational disease against an employer who elects to come under the provisions of this act. This proposal was debated in the Senate Committee on Labor and Compensation. Employee representativespresented objections that the employers were getting the benefit of waiver provisions at the expenseof the common law rights of employees. As an example, under § 92-1330,if an employee failed a requested physical exam because the employee already had an occupational disease, then as a condition of employment the employer could request the employee to waive his rights to MODA benefits. In addition, even if an employee passed a requested medical examination, no benefits were granted unless the employee had worked a minimum of 1000workshifts and also timely filed his claim within a prescribed period after his last actual day ofwork. After debate, the Senate Committee of the Whole (Committee) recommended that 

### the bill be amended. Therecommendation 

### of the Committee regardin.qcommon law rights

was approved by both the Sena.teand the House. Later, the billwas signed into lawby the Governor and read:

92-1331. Rights

## of suit

## at common 

### law. There shall be no common-law right of action for damage from occupational disease against an employerwho elects to come under the provisions of this act, excepting 

## - for thbse employees 

## - not eligi- hie for compensation under the terms of 

### -

## -- 

## - this act, or who reject coverage of thz 

## ---- -- act (adopted amendment underscored)

# . Section 92-1368, RCM (1947) a.samended, provided that the MODA 

### is to be liberally construed. Although this Court has not previously considered 

### R 92-1368, it is directly comparable to a similar provision of the Workers' Compensation Act. Because both Acts involve the same employer-employee relationship, we conclude that the same rules of liberal construction which have been applied by the Court to Workers' Compensation Act cases should also be applied to MODA cases. We therefore conclude that MODA shall be liberally construed in favor of the claimant. Stokes v. Delaney & Sons, Inc. (1964), 143 Mont. 516, 519-20, 391 P.2d. 698, 700. We also conclude that MODA is to be administered

so as to give the employee the greatest possible protection within the purposes of the Act. Yurkovich v. Industrial Accident Board (1957), 132 Mont. 77, 83, 314 P.2d 866, 870. We further conclude thatwhen MODA statutes are open tomore than one interpretation, one of which is favorable to the employee and another against him, the Court may properly construe the statutes in a manner most favorable to the employee. Geary v. Anaconda Copper Mining Co. (1947), 120 Mont. 485, 

### 489, 188 P.2d 185, 186.

### While the legislativehistory on S 

### 92-1308and S 

### 92-1331 may notbe determinative of the issue,it does establish that the Committee carefully considered the question of common law rights of employees, and recommended an amendment that appears to allow common law action by an employee in two different circumstances. Notwithstanding the provisions of S 

### 92-1308, our question is whether S 

### 92-1331 allows a common law right of action in the present case because Mr. Gidley

was not eligible for compensation under MODA. Applying the above described liberal rule of construction, we conclude that wife has a 

### common law right of action in behalf of Plr. Gidley because he was not eligible for compensation under MODA.This conclusion contradicts Anaconda Co. v. District 

### C. of 

### S.J.D. In 

### and For C. of S.B. (1973), 161 Mont. 318, 506 

### P.2d 81, which was relied upon by the District Court. We have carefully consideredAnaconda, and have studied both the majority and the dissent. We note that the majority in Anaconda did not explain why it concluded that where the employerhad elected tobe bound by MODA, suchanelection of necessity bound the employee. As is indicated by our more extensive analysis of MODA, 

### we conclude that where the employee was not eligible for compensation because of the running of the limitation period, he comes within the statutory definition of an employee who is not eligible for compensation and is 

### therefore entitled to his common law right of 

### action. We essentially agreewith the dissent in Anaconda that pointed out that if an employee was not eligible for compensation under MODA then common law remedies were preserved. We therefore expressly overruleAnaconda insofar as it is inconsistent with theholding of this opinion.

### Under the applicableMODA statutes,a claimwas required to be timely filedwithin three years fromMr. Gidley's last actual day of work. Wife alleges that Mr. Gidley did not discover his occupational disease until three years and eleven months after his last actual day of work. As a result,Mr. Gidleywasnot eligible under the termsofMODA for compensation. F7e hold his common law right of action was preserved. In doing so, we make no comments regarding the merits of the case itself. We 

### reversethe judgment of theDistrictCourt and direct the reinstatementof theplaintiff's claim for relief.

We Concur: 

### /