No. 13794 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

GERALD E. PIPER; and THE FONTANA INSURANCE 

FUND OF THE WORKBIENS' COWENSATION DIVISION 

et al., 

Flaintiffs and Appellants, 

-vsLOCKWOOD WATER USERS ASSOCIATION; et al., 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Lewis E. Brueggemann argued, Billings, Montana 

For Respondents: 

Crowley, Haughey, Hanson, Toole and Dietrich, 

Billings, Montana 

H. Elwood English argued, Billings, Montana 

Anderson, Symmes, Forbes, Peete & Brown, Billings, 

Montana 

Submitted: September 19, 1977 

Decided:JAN , . 1~78 dl 

. - . . ?'.: . ,: - IC?~?. ,-., - . .A:--. 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a summary judgment entered 

against plaintiff Gerald E. Piper in a personal injury action 

by the District Court, Yellowstone County. 

Plaintiff at the time of his injury was employed by 

Harold L. Mooney, painting contractor, and was and had been for 

years covered in his employment under Plan I11 of the Workers' 

Compensation Act. On April 30, 1971 plaintiff was working inside a huge water tank, owned by defendant Lockwood Water Users 

Association, on a scaffold leased by Lockwood, under written 

agreement, from Montana Powder & Equipment Co. Lockwood transported and erected the scaffold to be used by Mooney's paint 

crew. While working on the scaffold, it collapsed and plaintiff 

was injured. Lockwood did not by contract or otherwise require 

Mooney to conform to section 92-438, R.C.M. 1947. 

An action was filed joining defendant Lockwood and Montana Powder & Equipment Co. et al. Lockwood defended on contributory negligence and assumption of risk by plaintiff. Lockwood also cross-complained against Montana Powder & Equipment Co. 

On September 17, 1976, plaintiff moved to strike the defenses of contributory negligence and assumption of risk as improperly raised, as these defenses were in law foreclosed by 

Montana's Scaffold Act, section 69-1401, et seq., R.C.M. 1947. 

Defendants in turn each filed motions for summary judgment.On October 5 all motions were denied. 

On January 20, 1977, defendant Montana Powder & Equipment 

Co. filed the printed rental agreements, both of which contain 

"hold harmless" and "indemnifying" clauses inuring to its benefit. 

Both defendants renewed their motion for summary judgment. Plaintiff renewed his motion to strike the defenses of contributory 

negligence and assumption of risk. 
On March 2, 1977, the court denied plaintiff's motion 

to strike and denied P4ontana Powder & Equipment's motion for 

summary judgment. However, it granted defendant Lockwood Water 

Users Association's motion for summary judgment. Plaintiff 

appeals from the summary judgment. 

The issues presented on appeal are: 

1. Should plaintiff be precluded from a recovery against 

the landowner or occupier for injuries sustained by him by reason 

of the landowner or occupier's negligence, because plaintiff and 

his immediate employer elected to be covered by the Workers' 

Compensation Act? 

2. Was the granting of summary judgment as to defendant 

Lockwood Water Users Association improper as a matter of law? 

3. Did the District Court err in denying plaintiff's 

motion to strike the affirmative defenses of contributory negligence and assumption of risk? 

Harold Mooney orally contracted with defendant Lockwood 

to sandblast and paint the interior of its water storage tank. 

However, Lockwood rented, supplied and erected the scaffolding 

owned by Montana Powder & Equipment Co. inside the Lockwood water 

tank prior to plaintiff's arrival at the job site. The scaffolding was erected on wheels and the shafts from the wheels were 

inserted into each hollow metal leg of the scaffolding. A bolt 

or pin is normally inserted through the horizontal holes in the 

legs of the scaffolding, and through the hole in the shaft attached to the wheel. This safety measure prevents the wheel from 

falling out. No pins or bolts were inserted to hold the wheels 

in this scaffolding and plaintiff was not warned they were not 

properly secured. It was customary to move the scaffolding with 

the workmen remaining on it, because of the heavy equipment. 

When the scaffolding was rolled along the steel tank floor, a 
depression or dip was encountered and one or more wheels fell 

out because they lacked a horizontal pin. As a result the 

scaffolding tipped, plaintiff fell off the scaffolding and parts 

of the scaffolding fell on him. 

There is no serious fact dispute between the parties. 

The controlling issue is whether the injured workman can be 

denied his right to a third party action on these facts under 

the Workers' Compensation Act. 

Defendant Lockwood relies entirely on Fiscus v. Beartooth 

Electric (1974), 164 Mont. 319, 522 P.2d 87, to support its 

argument that it became a statutory employer and was immune to 

third party action. 

It would be well to recognize that this class of cases 

turns on some direct or indirect application or enlargement of 

the foundation case, Ashcraft v. Montana Power Company (1971), 156 

Mont. 368, 480 P.2d 812, which rendered an interpretation of 

section 92-438, R.C.M. 1947, as amended by Sec. 1, Chap. 49, Laws 

of 1965; and since repealed by Sec. 2, Chap. 251, Laws 1973 [as 

mandated by the 1972 Montana Constitution]. Therefore, any in 

depth discussion on points of disagreement, other than case 

references, would be an exercise in futility considering the entire matter except for this cause is moot and would be of no 

value to the Bar of Montana as precedent or otherwise. 

A reading of Ashcraft will set the stage for all of the 

bitter controversy that followed and the major points of disagreement. Whichever point of view to which litigants might subscribe 

does not alter the plain language of limitation the majority of 

this Court put on its holding in Ashcraft: 

"This rule of law * * * is strictly limited to 

circumstances in which the injured employee's 

immediate employer is an independent contractor 

who is required to carry workmen's compensation 

insurance by his qeneral employer. This rule of 
law does not apply to any other situation where 

the status of the injured employee's immediate 

employer - - is found to be other than an 'independent contractor,' or where the general contractor 

does not require an independent contractor to 

carry workmen's compensation insurance. * * *" 

(Emphasis supplied.) 156 Mont. 370, 371. 

Further, the statute and Ashcraft's interpretation 

thereof as they concern the elimination of the common law right 

of third party action must be strictly construed. Madison v. 

Pierce (1970), 156 Mont. 209, 478 P.2d 860. These legislative 

eliminations of the right must also be found within the Workers' 

Compensation Act and strictly construed. Kelleher v. State and 

Montana Aeronautics Comm. (1972), 160 Mont. 365, 503 P.2d 29. 

The majority in Ashcraft found an intent in section 92- 

438, R.C.M. 1947, to limit third party actions but, as demonstrated 

above, limited the application to a very select class of cases. 

We have followed the rule and its narrow application since that 

time in a series of cases beginning with Buerkle v. Montana 

Power Company (1971), 157 Mont. 57, 482 P.2d 564, through Poulson 

v. Walsh-Groves (1975), 166 Mont. 163, 531 P.2d 1335, with one 

notable exception, Fiscus v. Beartooth Electric (1974), 164 Mont. 

319, 522 P.2d 87. The majority in Fiscus agreed that it was not 

an Ashcraft case and proceeded to ignore the rationale it established in Ashcraft and its limitation as well. The majority 

reached a desired result and then backed into a long explanation 

to support this result and ended up with a classic example of judicial legislation. The contractual force of Ashcraft is replaced 

by an old misdemeanor statute, section 92-207, R.C.M. 1947, which 

was enacted to compel those in hazardous industry to come under 

the Workers' Compensation law. This hurdle having been overcome, 

it was easy then to proceed to overlook the limiting paragraph 

of Ashcraft and speak in broad general terms concerning section 

92-604 and section 92-204, R.C.M. 1947, which have no bearing on 
independent contractor situations. 

Fiscus violates Ashcraft and all other cases cited 

herein and its holding is best described by Lockwood Water 

Users in its brief on appeal in this manner: 

" * * * If the general employer is to be subject 

to such liability, the court reasons, it is only 

fair that he also have the same immunity under the 

Worker's Compensation Act if there is insurance 

to cover the workman." (Emphasis supplied.) 

This may be a very fine attitude and an equitable method 

for a final determination, however, the Workers' Compensation 

law does not lend itself to this kind of interpretation when the 

right to a third party suit is under consideration, as heretofore pointed out. 

This Court cannot affirm the rationale or result reached 

in Fiscus by giving it precedential recognition in this case. 

Therefore, we overrule in its entirety Fiscus v. Beartooth Electric 

(1974), 164 Mont. 319, 522 P.2d 87. 

The summary judgment entered in this cause is ordered 

vacated and the matter remanded to the District Court for further 

proceedings. 

Justice kl 

Chief Justice / \ 

Justices