No. 94-505

IN THE SUPREME COURT OF THE STATE OF MONTANA

ANA MARIA TORRES,

Plaintiff and Appellant,

v.

STATE OF MONTANA,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael D. Cok, Cok, Wheat &Brown, Bozeman, Montana

Stephen C. Pohl, Attorney at Law, Bozeman, Montana

For Respondent:

Steven J. Harman and Michael P. Heringer,

Brown, Gerbase, Cebull, Fulton, Harman &Ross, P.C.,

Billings, Montana

Filed:

Heard: June 1, 1995

Submitted: July 6, 1995

Decided: August 24, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Ana Maria Torres appeals an order of the District Court for

the Eighteenth Judicial District, Gallatin County, dismissing her

negligence complaint against the State of Montana. The court

granted summary judgment in favor of the State, ruling that the

exclusive remedy provision of the Occupational Disease Act barred

Torres from bringing suit against the State after she had successfully pursued an occupational injury claim against it. We affirm.

The issue is whether the court erred in entering summary

judgment.

Torres was admitted to Montana State University (MSU) in 1985

to pursue her doctorate of philosophy in chemistry. She continued

her studies until February of 1988, when she withdrew because of

failing health.

While Torres pursued her doctorate degree, she was also

employed by MSU as a teaching and research assistant. She was paid

$6,500 per year and received $360 per quarter in out-of-state fee

waivers. She was provided with workers' compensation coverage.

Torres claims that beginning in the winter quarter of 1988,

she began to suffer medical problems as a result of exposure to

toxic substances. All of her claimed exposure to toxic substances

occurred while she was in Gaines Hall on the MSU campus as either

a student or an employee.

In February 1992, Torres filed a claim for workers' compensation benefits, asserting that her medical problems were caused by

her work-related activities for MSU. In her claim, Torres stated

2
she suffered organic brain damage while working as a teaching and

research assistant at Gaines Hall during the period of September

1985 to February 1988. She indicated that she worked five days per

week, eight hours per day. She claimed she was injured over time

and therefore suffered an occupational disease as a result of

working at MSU.

The State initially denied Torres's claim for compensation.

However, on July 2, 1993, the State and Torres entered a $47,500

disputed liability settlement under the Occupational Disease Act.

The settlement was approved by order of the Employment Relations

Division of the Department of Labor & Industry.

Torres filed this suit on August 30, 1993. In her complaint,

she alleged that she sustained injuries as a result of her exposure

to toxic substances while attending the MSU College of Graduate

Studies as a student between 1985 and 1988.

The State moved for summary judgment in May 1994. After

briefing and a hearing, the court issued its order and memorandum

granting the motion. The court reasoned:

[Torresl now claims that the toxic exposure occurred

primarily as a student. The percentages of exposure

however are not important. The act does not speak to the

applicability of the exclusive remedy where the injury

claim arose from both work and non-work related activities. The fact remains that [Torresl, by her own

representations before the Workers' Compensation Division

and in her present affidavit, claimed that she was

injured in the course and scope of her employment when

she applied for workers' compensation or occupational

disease benefits. She negotiated and was paid consideration based upon this claim. As a result, the exclusive

remedy provision bars her from suing the State of Montana

at this time.

From this determination, Torres appeals.

3
Did the court err in entering summary judgment?

This Court's standard of review of a summary judgment is the

same as that initially used by the district court and as set forth

at Rule 56(c), M.R.Civ.P. Minnie v. City of Roundup (1993), 257

Mont. 429, 431, 849 P.2d 212, 214. This Court must determine

whether there is a genuine issue of material fact and whether the

State is entitled to judgment as a matter of law, based upon the

facts set forth in the pleadings and in the depositions, answers to

interrogatories and requests for admissions, and affidavits in the

record.

When a worker is injured on the job, his or her rights are

governed by the statutory scheme of the Workers' Compensation Act

or the Occupational Disease Act. Both acts provide that the

remedies thereunder are exclusive. The exclusivity provision of

the Workers' Compensation Act is codified at § 39-71-411, MCA. The

only exception to the exclusive remedy provision of the Workers'

Compensation Act is set forth at § 39-71-413, MCA. That exception

relates to intentional or malicious acts or omissions by the

employer or a co-employee.

Because Torres settled her claim for benefits under the

Occupational Disease Act, the exclusivity provision of that Act

applies here and was relied upon by the District Court. It states:

The right to recover compensation pursuant to the

provisions of this chapter for occupational diseases

sustained by an employee and arising out of and in the

course of employment, whether resulting in death or not,

is the exclusive remedy therefor against an employer who

is properly insured under the Workers' Compensation Act

and the Occupational Disease Act of Montana.

4
Section 39-72-305(l), MCA.

In his well-known treatise, Professor Larson discusses the

policy reasons behind the exclusive remedy provision in workers'

compensation law:

Once a workmen's compensation act has become applicable

either through compulsion or election, it affords the

exclusive remedy for the injury by the employee or his

dependents against the employer and insurance carrier.

This is part of the quid pro quo in which the sacrifices

and gains of employees and employers are to some extent

put in balance, for, while the employer assumes a new

liability without fault, he is relieved of the prospect

of large damage verdicts.

2A Larson's Workmen's Compensation Law, § 65.11 (1995). This Court

has made a similar policy explanation:

The purpose of the Workers' Compensation Act is to

protect both the employer and the employee by incorporating a quid pro quo for negligent acts by the employer.

The employer is given immunity from suit by an employee

who is injured on the job in return for relinquishing his

common law defenses. The employee is assured of compensation for his injuries, but foregoes legal recourse

against his employer.

Sitzman v. Schumaker (1986), 221 Mont. 304, 307-08, 718 P.2d 657

659.

Torres's position in this action is that she became ill

because of her exposure to chemicals during the fifty to sixty

hours she spent each week in the chemistry laboratory as a student

in pursuit of her degree. She contends that the exclusive remedy

provisions do not apply in this case because she was not injured in

the course and scope of her employment. She uses this argument to

distinguish this case from cases concerning the dual capacity

doctrine, which both parties describe as universally disfavored.

Torres admits that the dual capacity doctrine was rejected by this

5
Court in Herron v. Pack and Co. 11985), 217 Mont. 429, 705 P.2d

587.

Torres maintains that the District Court's order expands the

exclusive remedy doctrine so that an injured person could be

prevented from recovering damages under both workers' compensation

and in an action for negligence. She sets forth, as an example, a

hypothetical of a convenience store employee who, on his day off,

slips and falls while shopping at the convenience store.

Torres's hypothetical is not on point. Unlike the worker in

her hypothetical, Torres concedes that her injuries may have been

sustained at least in part within the scope and course of her

employment. Moreover, the hypothetical leaves out the critical

factor of a previous settlement between the parties, under workers'

compensation law, for the injury at issue.

The injuries which Torres now claims resulted in large part

from toxic exposure while she was a student at Gaines Hall are the

very same injuries for which she filed and settled her claim for

workers' compensation. For purposes of this action, Torres states

that her disease arose from a hazard to which she was exposed

outside of employment. However, when she filed her claim for

workers' compensation benefits, she did not allege that any portion

of her disease was caused by exposure other than through her

employment. Instead, she claimed that her disease arose out of and

in the course of her employment.

If Torres had, at the time she filed her claim for workers'

compensation, revealed what she is contending now--i.e., that her

6
exposure to the chemicals occurred primarily outside the employment

relationship--then it appears she would not have been entitled to

any benefits under the Occupational Disease Act. See § 39-72-

408(4), MCA. She could then have pursued a negligence cause of

action for her injuries.

Torres chose to pursue a remedy under the Occupational Disease

Act and to enter a settlement under that Act. She has obtained a

remedy for her injury--the $47,500 settlement under the Occupational Disease Act.

At oral argument, Torres took the position that a jury ought

to be allowed to apportion the causation of her injuries between

that which occurred in the course and scope of her employment and

that which occurred outside of her employment. However, she chose

not to argue dual causation in her claim for workers' compensation,

and she did not raise the issue of apportionment in negotiating her

workers' compensation settlement.

Torres further claims that the State failed to introduce any

evidence to disprove her assertions of fact as to the cause of her

injury and therefore failed to meet its burden of proof for summary

judgment. She denies the District Court's conclusion that she has

conceded that her injuries resulted, at least in part, from her

employment at MSU. She argues that no factual determination has

been made on that issue, and that it is a material issue of fact.

There is no issue of material fact. Torres concedes that she

has accepted a settlement under the Occupational Disease Act from

the State for the injury of which she here complains.

7
There are several exceptions to the necessity for

affirmative proof of the defense [that the plaintiff was

an employee entitled only to workers' compensation]. Olle

occurs when the employer-employee relation is shown in

plaintiff's complaint. Another occurs when plaintiff

admits that his injuries arose out of his employment with

the defendant. And, of course, the most reliable

exception of all is the actual acceptance of compensation

benefits. Note that the plaintiff cannot escape the

consequences of this action by declarinq that he was

acceptinq the benefits "without preiudice" to his

neqliqence claim.

2A Larson's Workmen's Compensation Law, 5 65.12 (1995) (emphasis

added). " EBly accepting the benefits of the workmen's compensation

law [the employee] is foreclosed from now asserting that his

injuries did not arise in the course of his employment." Hensley

v. United States (D.Mont. 1968), 279 F.Supp. 548, 551.

The operative fact in establishing exclusiveness is that

of actual coverage. .

. . . [Al valid and unappealed award for compensation . . . is res judicata on the issue of coverage, and

is binding on the court in which the employee attempts to

bring his common-law suit.

2A Larson's Workmen's Compensation Law, 5 65.14 (1995).

It is not necessary, as Torres contends, to rely upon a theory

of estoppel to reach our conclusion. The controlling legal theory

in this case is the exclusive remedy provision of the law of

workers' compensation.

In her reply brief, Torres voices a new argument, that the

State's interpretation of the exclusive remedy provision violates

her right to equal protection by classifying victims of negligence

according to whether the negligent tortfeasor is the victim's

employer. Because she did not raise this argument before the

District Court or in her initial brief on appeal, we do not

8
consider it. See Rule 23(c), M.R.App.P.; Denend v. Bradford

Roofing & Insulation (1985), 218 Mont. 505, 509, 710 P.2d 61, 63-

64.

We hold that, as a matter of law, Torres is not entitled to

bring this action because she has already been accorded a remedy

for her injury under the Occupational Disease Act. We therefore

affirm the decision of the District Court granting summary judgment

to the State of Montana.

Chief Justice

We concur:

Justices

9
Justice W. William Leaphart, dissenting.

I respectfully dissent. The Court has concluded that, since

Torres filed and settled a claim under the Occupational Disease

Act, any further tort claim is precluded by the exclusivity

provisions of Section 39-72-305(l), MCA. Section 39-72-305(l),

MCA, provides as follows:

The right to recover compensation pursuant to the

provisions of this chapter for occupational diseases

sustained bv an emnlovee and arising out of and in the

course of employment, whether resulting in death or not,

is the exclusive remedy therefor aqainst the emclover who

is properly insured under the Workers' Compensation Act

and the Occupational Disease Act of Montana. [Emphasis

added.1

In my view, the Court has ignored the fact that both Torres

and the University wear more than one hat. In the context of her

occupational disease claim, Torres was wearing the hat of an

employee asserting a claim against her employer, Montana State

University (MSU). In the context of her present tort claim, she

wears the hat of a student asserting a claim against her

educational institution. Section 39-72-305(l), MCA, by its own

terms, provides an employee with an "exclusive remedy therefor

against the employer." As we acknowledged in Ridenour v. Equity

Supply Co. (1983), 204 Mont. 473, 478, 665 P.2d 783, 786, "[tlhe

legislature only intended that an employee not have a common law

action against his employer." Having settled her occupational

disease claim, Torres, as employee, is clearly precluded from

asserting any further claims against MSU in its capacity as her

employer. The statute does not, however, preclude Torres, in her

10
role as student, from asserting a claim against MSU as her

educational institution.

Torres should be given the opportunity, difficult as it may

be, to present whatever evidence she can marshal1 to prove that she

was exposed to toxic chemicals while acting as a student as opposed

to her exposure during the course of her employment. She would

also have the task of apportioning the damages resulting from these

two distinct chemical exposures. As daunting as this burden may

be, it is a matter of proof which should not be foreclosed by

summary judgment.

The fact that Torres previously claimed she was exposed to

chemicals during the course of her employment is not inconsistent

with her present contention that she was also exposed while a

student, outside the scope of her employment. The fact that the

law provides that her occupational disease remedy is exclusive as

against her employer does not foreclose a claim against nonemployers, such as her educational institution.

I would reverse the entry of summary judgment and allow Torres

to proceed to trial.

Justice William E. Hunt, Sr., joins in the foregoing dissent of

Justice Leaphart.
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion.

With no evidence from which the cause of Ana Torres' disease

can be apportioned between the time she spent at work and the time

she spent in the chemistry lab as a student, the majority simply

concludes that because she made a prior claim for occupational

disease benefits, she is barred from now claiming that there was

another equally significant or greater cause for her condition.

Without so stating, the majority opinion bars Torres' claim based

on a theory of estoppel. However, estoppel has never been asserted

as a defense in this case, and therefore, is not applicable.

Furthermore, even if it had been pled, there is no evidence in the

current state of the record which would support the elements of any

form of estoppel.

The majority opinion is devoid of any recognition that there

may be concurrent causes for the same injury and avoids any

analysis of the Occupational Disease Act's exclusivity provision,

as applied to the facts in this case.

Distilled to its essence, the majority's conclusion is simply

that, "you were paid some money before. We're not going to let you

have any more." This may satisfy the majority's need to punish

Torres for what it construes as inconsistent positions. However,

in terms of legal analysis of the issues presented to this court,

the majority opinion leaves a lot to be desired.

The issue in this case is whether Torres' claim is barred by

the exclusivity provision of Montana's Occupational Disease Act.

12
It is important to keep in mind that what she may have believed or

said on some other occasion is a different issue and is not

determinative of the first issue. However, because of the

majority's preoccupation with what it concludes was Tones I

inconsistent representation on an earlier occasion, it is necessary

to analyze this case on two levels.

1 . Is Torres' claim barred by the exclusivity provision of

the Occupational Disease Act?

2 . What is the effect of Torres' prior claim that her

disability was caused or contributed to by the conditions of her

employment?

ISSUE 1

Montana's Occupational Disease Act is found at §§ 39-72-101 to

-714, MCA. The exclusive remedy provision in the Occupational

Disease Act is found at 5 39-72-305(l), MCA, and provides:

The right to recover compensation pursuant to the

provisions of this chapter for occupational diseases

sustained by an employee and arisinc out of and in the

course of emnlovment, whether resulting in death or not,

is the exclusive remedy therefor against an employer who

is properly insured under the Workers' Compensation Act

and the Occupational Disease Act of Montana.

(Emphasis added.)

Therefore, by the plain language of the Occupational Disease

Act, the exclusive remedy provision only pertains to those diseases

which "arise out of" a person's employment. Section 39-72-408,

MCA, specifically states that certain diseases do not "arise out

of" employment. It states that:

13
Occupational diseases shall be deemed to arise out of the

employment only if:

i4i .the disease does not come from a hazard to

which workmen would have been equally exposed outside of

the employment . .

In this case, there is very little evidence. There is the

affidavit of the plaintiff and an affidavit from a college

administrator. However, plaintiff's affidavit is uncontroverted to

the effect that she spent at least three times as much time in

Gaines Hall as a student ("outside of her employment") as she did

as a teaching assistant.

If Torres is able to prove what she alleges, and if some

causal connection between chemicals and the atmosphere of Gaines

Hall and her present disability can be established, then she has

proven that her disease was caused by a hazard "outside of the

employment," and therefore, that it did not "arise out of" her

employment, and therefore, her claim is not barred by the exclusive

remedy provision found at § 39-72-305, MCA.

The majority is very much concerned that plaintiff has

previously received a portion of the disability benefits to which

she would have been entitled had her disease been caused during her

employment. However, an occupational disease, by definition,

occurs over a prolonged period of time, and unlike an industrial

injury, may be caused from conditions that existed not only in the

workplace, but elsewhere. That is why the Occupational Disease

Act, unlike the Workers' Compensation Act, specifically provides

for apportionment of disability benefits based on the percent of a

14
given disease or disability that is attributable to exposure that

occurs during the course of employment. Section 39-72-706(l), MCA,

specifically provides in relevant part that:

[Ilf disability . . . from any other cause not itself

compensable is aggravated, prolonged, accelerated, or in

any way contributed to by an occupational disease, the

compensation payable under this chapter must be reduced

and limited to such proportion only of the compensation

that would be payable if the occupational disease were

the sole cause of the disability . . . as such occupational disease as a causative factor bears to all the

causes of such disability . . .

In other words, under the Occupational Disease Act, a claimant

is entitled to recover only that portion of his or her disability

benefits which represents the portion of his or her disability that

arose out of employment. The Act specifically allows for an

employer to disclaim liability for any portion of a person's

disability which is unrelated to employment. Therefore, based upon

the previously mentioned statutes, that portion of disability would

not be covered by the exclusive remedy provision found at

5 39-72-305, MCA.

There are many issues to be resolved in this case. First, the

fact finder needs to decide whether the plaintiff was injured by

chemical exposure at Gaines Hall. If so, the fact finder needs to

decide what portion of exposure occurred during the course of her

employment, as opposed to the time during which she was a student,

and whether, based on that determination, her claim is barred by

the exclusive remedy provision. However, none of these issues can

be resolved consistent with the statutory framework of the

15
Occupational Disease Act based on the uncontroverted affidavit of

the plaintiff.

ISSUE 2

The statutory framework within which to decide whether the

exclusive remedy provision applies is not discussed in the majority

opinion. Its discussion is limited to the fact that on a previous

occasion the plaintiff made a claim for occupational disease

benefits based on her contention that her disability was caused or

contributed to by chemical exposure during the course of her

employment. The second question, then, is what is the effect of

her prior claim. That issue involves two sub-questions.

First, was her prior claim inconsistent with her current

claim. I agree with Justice Leaphart that it was not. Because of

the nature of an occupational disease, as opposed to an industrial

injury, an occupational disease can, as the Occupational Disease

Act recognizes, occur over time and at more than one location.

Therefore, it is not at all inconsistent with Torres' current claim

that her disease may have been contributed to during the course of

her employment. Neither is it unreasonable at the outset of

litigation before facts are fully developed to allege that a

condition is attributable to more than one cause, and then let

causation be more clearly established as a result of discovery and

preparation. Ideally, the plaintiff should have been able to plead

alternate claims in the same suit. However, that was not possible

because of the exclusive jurisdiction of the Workers' Compensation

16
court for occupational disease claims, and the fact that

third-party claims have to be brought in the district court.

Furthermore, it must be kept in mind that had the State agreed

that plaintiff's occupational disease arose out of and was related

to her employment, she was entitled to several times the amount of

benefits she actually received. Following the logic of the

majority opinion, why is the State not barred from defending this

claim on the basis of her previous claim when it saved more than

she received in the previous claim by denying that her disease was

work related?

The second sub-question is, if Torres' prior claim is deemed

inconsistent with her current claim, then what is the effect of her

prior claim?

Judicial estoppel and statutory estoppel do not apply because

her prior claim was not made as part of any judicial proceeding.

Equitable estoppel does not apply because it has not been

pled, it has not been argued on appeal, and even if it had been

pled and argued on appeal, there is a total absence of proof of its

several elements. Furthermore, there is a substantial question

about whether the State of Montana has standing to raise the

defense of equitable estoppel.

At most, plaintiff's prior claim that her disability was

caused during the course of her employment is an arguably

inconsistent statement which can be presented to the fact finder

for consideration in combination with her current contention that

the majority of her exposure occurred outside the course of her

17
employment. Her prior claim can be used to prove the truth of what

was said on the prior occasion, or may be offered for impeachment.

However, it does not establish as a matter of law that what she

claims at this time, even if inconsistent, is untrue. Likewise,

the State Fund's prior position that her disability was not caused

by her employment is arguably inconsistent with its current

position that her claim is barred by the exclusive remedy provision

of the Occupational Disease Act. Both of these prior positions are

simply evidence to submit to the fact finder for consideration when

it resolves the issues of whether plaintiff's disease was caused by

chemicals to which she was exposed at Gaines Hall; and if so,

whether her greater exposure occurred as an employee or as a

student.

The majority is too preoccupied by the fact that Torres

received some benefit from her settlement with the State Fund based

on her contention that her disability was caused during the course

of her employment. The majority, on the other hand, has no problem

with the fact that the State Fund probably saved more than it paid

Torres by denying that her condition was caused during the course

of her employment. The majority's concern is unjustified. Even if

Torres succeeds in this claim, she would receive no double

recovery. The State is entitled to an offset from any recovery

received in this case for the amount paid by the State Fund

pursuant to Torres' previous claim.

For these reasons, I dissent from the majority opinion. I

would reverse the summary judgment of the District Court and remand
this case to the District Court for resolution of the factual

issues raised by Torres' complaint.

19
August 24, 1995

CERTIFICATE OF SERVICE

I hereby certify that the fc

following named:

sllowinr!- certified order was sent by United States mail, prepaid,

Michael D. Cok,

COK, WHEAT & BROWN

Box 1105

Bozeman MT 59771-1106

Stephen C. Pohl

Attorney At Law

1700 West Koch Street, Suite 5.

Bozeman MT 59715

Steven J. Harmen

Brown, Gerbase, Cebull, Fulton,

Harman & Ross, P.C.

Box 849

Billings MT 59103-0849

ED SMITH

CLE

STA

!RK OF THE SUPREME COUR’I

,TE OF MONTANA

BY:

to the