NO. 14311 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

MICHAEL R. JACQUES, Plaintiff and Appellant,

THEODORE R. NELSON,THEANACONDA COMPANY, THE MONTANA NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS OF THE STATE OF MONTANA, and STATE OF MONTANA, Defendants and Respondents.

Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: Greg Skakles argued, Anaconda, Montana For Respondents: D. L. Holland argued, Butte, Montana

Submitted: December 18, 1978 Decided:

### FFr 7

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### &-I979Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff appeals from a judgment of the District Court of Deer Lodge County dismissing his damage action for personal injuries. Plaintiff was injured at his employer's Anaconda Reduction Works on February 6, 1977. The accident occurred when Larry Raver, a fellow employee of defendant Anaconda Company,dropped

a warhead which exploded, killing Raver and seriously injuring plaintiff. On March 7 plaintiff filed a claim for compensation with the StateWorkers' CompensationDivision. Defendant Anaconda Company did not file an employee's first report of injury. On April 5Anaconda Company notified the Division it was denying plaintiff's claim. Plaintiff alleges that he never received notice of this denial. On April 

### 7plaintiff filed a common law tort action for damages against his employer (theAnaconda Company) and the personal representativesof the estate of his fellow employee,Larry Raver (TheodoreR. Nelson). TheAnaconda Company filed a motion to dismiss the complaint on the grounds that plaintiff's exclusive remedy was under the Workmen's CompensationAct. The District Court granted Anaconda's motion, dismissed plaintiff's complaint,but no judgmentwas entered thereon. This Court dismissed plaintiff's appeal without prejudice on the ground that the appealwas premature where no judgmenthad been entered.Thereafterplaintiff filed an amended complaint in the District Court. On April 26 the District Court dismissed the amended complaint and entered final judgment for defendant Anaconda Company. Plaintiff appeals from this judgment. The underlying issue iswhether plaintiff's exclusive remedy for his injuries isunder theWorkmen's CompensationAct.Plaintiff contends that the Workmen's CompensationAct is not his exclusive remedy because his employer elected not to be bound by the Act by (1) failing to file the employer's first report of injury, and (2) failing to notify him that they

were denying his claim under the Act. DefendantAnaconda Company argues that theAct constitutes plaintiff's exclusive remedy for his injuries. The Company claims it was not required to file an employer's first report of injury since the explosion occurred outside the course and scope of plaintiff's employment and to do sowould be admitting this defense. The Company further contends that any failure on itspart to give plaintiff employee notice of rejection of his claim under the Act did not eliminateplaintiff's exclusive remedy under the Act. All Montana employments are covered by theWorkmen's CompensationAct unless excluded by statute. At the time of plaintiff's injury the controlling statuteprovided in pertinent part: "ThisAct applies

# .. . to all private employment not expressly exempted by section 92-202.1

# . .." Section 92-207.1, R.C.M. 1947, since repealed by Chapter 550, Section 9,1977 Session Laws. NO eremption of plaintiff's employment is contained in section

92-202.1, R.C.M. 1947. It is conceded that plaintiff's employer

was covered by the Act. TheAct requires the employer to file a first report of injury. Section 92-808,R.C.M. 1947,now section 39-71-307(1) MCA. Here,plaintiff's employer failed to do so. TheAct provides a civilpenalty of not more than $1,000 against the employer for failure to file the first report of injury. Section 41-1718(3), R.C.M. 1947, now section 50-71-325(3) MCA. Nowhere in the Act does such failure constitute an election by the employer not to be bound by the Act or subject him to a common law tort action.Themandatory coverage of all private employment not expressly exempted under theAct would be nullified were we to hold that such failure removesWorkmen's Compensationcoverage. TheAct further requires the employer to give written notice to the employee of denial of his claim. Section 92- 615,R.C.M. 1947,now section 39-71-606 MCA. Plaintiff alleges he never received such notice. The Act provides for the imposition of a 10% penalty if compensation is awarded by the Workers' Compensation Court. Section 92-849,R.C.M. 1947, now section 39-71-2907MCA. Nowhere in the Act does failure to give suchnotice remove the employee from coverageunder the Act or subject him to a common law tort action. If the law were otherwise, the purpose and intent of the mandatory coverage of the Act would be effectively subverted. The employer could eliminate the coverage of the Act over a particular employee or a particular accident at will simply by refusing to file an accident report or failing to notify its employee of denial of his claim. Thiswould indeed be a unique and unparalleled kind of Workmen's Compensation coverage. In summary,we hold that on the record before us the provisions of theWorkmen's Compensation provides the exclusive remedy for plaintiff's injuriesand that plaintiff's common law tort action for damages is barred by reason thereof. We retain continuing jurisdiction of this judgment for thepurpose of amendment,modification or alteration thereof to prevent plaintiff from being left without remedy for his injuries should the Workers' Compensation Court hereafter determine that the accident did not occur within the course and scope of plaintiff's employment. Affirmed.Chief Justice

Justices