NO. 14311 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

MICHAEL R. JACQUES, 

Plaintiff and Appellant, 

THEODORE R. NELSON, THE ANACONDA 

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 - &-I979 
Mr. 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 State Workers' Compensation Division. Defendant Anaconda 

Company did not file an employee's first report of injury. On 

April 5 Anaconda Company notified the Division it was denying 

plaintiff's claim. Plaintiff alleges that he never received 

notice of this denial. 

On April 7 plaintiff filed a common law tort action for 

damages against his employer (the Anaconda Company) and the personal representatives of the estate of his fellow employee, Larry 

Raver (Theodore R. Nelson). The Anaconda Company filed a motion 

to dismiss the complaint on the grounds that plaintiff's exclusive remedy was under the Workmen's Compensation Act. 

The District Court granted Anaconda's motion, dismissed 

plaintiff's complaint, but no judgment was entered thereon. This 

Court dismissed plaintiff's appeal without prejudice on the 

ground that the appeal was premature where no judgment had been 

entered. 

Thereafter plaintiff 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 is whether plaintiff's exclusive 

remedy for his injuries is under the Workmen's Compensation Act. 
Plaintiff contends that the Workmen's Compensation Act 

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. 

Defendant Anaconda Company argues that the Act 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 so would be admitting 

this defense. The Company further contends that any failure on 

its part to give plaintiff employee notice of rejection of his 

claim under the Act did not eliminate plaintiff's exclusive remedy 

under the Act. 

All Montana employments are covered by the Workmen's 

Compensation Act unless excluded by statute. At the time of 

plaintiff's injury the controlling statute provided in pertinent 

part : 

"This Act 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. 

The Act 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. The Act provides a civil penalty 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. 
The mandatory coverage of all private employment not expressly 

exempted under the Act would be nullified were we to hold 

that such failure removes Workmen's Compensation coverage. 

The Act 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 39-71-2907 MCA. Nowhere in the Act does failure to 

give such notice remove the employee from coverage under 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. This would 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 the Workmen's Compensation provides the exclusive 

remedy for plaintiff's injuries and that plaintiff's common law 

tort action for damages is barred by reason thereof. We retain 

continuing jurisdiction of this judgment for the purpose 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