No. 85-414 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

LOUISE N. GIDLEY, individually and 

as Personal Representative of the 

Estate of James I. Gidley, Deceased, 

Plaintiff and Appellant, 

W. R. GRACE & COMPANY, a Connecticut 

corporation, GRACE W. R. & COMPANYCONSTRUCTION PRODUCTS DIVISION, an 

unincorporated association, and JOHN 

DOES I THROUGH V., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murphy, Robinson, Heckathorn & Phillips; I. James 

Heckathorn argued, Kalispell, Montana 

For Respondents: 

Garlington, Lohn & Robinson; Gary L. Graham argued, 

Missoula, Montana 

Submitted: February 18, 1986 

Decided: April 15, 1986 

Filed: APR 1 5 4986 

Clerk 
Mr. 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 of wrongful death and misrepresentation. Upon 

motion by Grace, the Lincoln County District Court granted 

partial summary judgment dismissing the wrongful 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, husband worked 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 of work. In July 1982, wife filed for benefits under MODA. The claim was denied by Grace because it 

was not timely filed within 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 is which 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 is novel. However, it has been considered a 

number of times in workers' compensation cases and the Court 

has concluded that the statute in effect at the date of 
accident or injury controls. See Iverson v. Argonaut Insurance Company (1982), 198 Mont. 340, 342, 645 P.2d 1366, 1-367; 

Yurkovich v. Industrial Accident Board (1957), 132 Mont. 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 actual d-ay of work are controlling. 

MODA was originally enacted in 1959. Sections 92-1308 

and 92-1331 governed rights of suit at common law until 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 

. 4.- Ri ht to compensation exclusive 

The rlght to recover compensa- 

.rsuant 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 he bound by and 

subject to this act, except as to such 

employees as shall reject this act as 

provided herein. 

92-1331- Ri g hts - of - suit - at common -- - law. 

There shall be no common-law right of 

action for damage from occupational 

disease against an employer who elects to 

come under the ~rovisians of this act, 

excepting for thbse employees not eligii 

ble for compensation 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 only means by which an employee could step 

out from under MODA and preserve a common law right of action. In substance § 92-1331 provided for a common law right 

of action when either the employee rejected coverage or the 
employee was not eligible for compensation under 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. The other 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 Senate Bill #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 representatives presented objections that the employers were getting the benefit of waiver 

provisions at the expense of 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 1000 workshifts 

and also timely filed his claim within a prescribed period 

after his last actual day of work. 

After debate, the Senate Committee of the Whole (Committee) recommended that the bill be amended. The 
recommendation of the Committee regardin.q common law rights 

was approved by both the Sena.te and the House. Later, the 

bill was signed into law by 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 employer who 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.s amended, 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 that when MODA statutes are open to more 

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 legislative history on S 92-1308 and S 92-1331 

may not be 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 considered Anaconda, 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 

employer had elected to be bound by MODA, such an election 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 agree with 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 overrule Anaconda insofar as 

it is inconsistent with the holding of this opinion. 
Under the applicable MODA statutes, a claim was required 

to be timely filed within three years from Mr. 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. Gidley was not eligible under the terms of MODA 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 reverse the judgment of the District Court and direct 

the reinstatement of the plaintiff's claim for relief. 

We Concur: /