NO. 92-333 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

MICHAEL BLYTHE

## , Plaintiff and Appellant,



### -v- 

# FD .; # RADIOMETER AMERICA, INC., &;

, ,- ;9 .,;A %. COMMUNITY MEDICAL CENTER, INC

# ., ij

### EC

### 22 1993 and MICHAEL BIGGINS, 

## <1j <,.$ 0

## -9 -;L?zf&L Defendants and Respondents. CLERKYEr;ii:-~m~ COURT STAXp. iwwrnrrA

APPEAL 

### FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD: For Appellant: Thomas W. Frizzell, Tipp, Frizzell & Buley, Missoula, Montana For Respondent: Charles McNeil, Garlington, Lohn & Robinson, Missoula, Montana

Filed: Submitted: May 25, 1993 Decided: December 22, 1993Justice Fred J. Weber delivered the Opinion of the Court.
PlaintiffMichael Blytbe appeals froman order of theDistrict Court of the FourthJudicial District,Missoula County,dismissing his complaint charging that defendants Community Medical Center, Inc. and Michael Biggins had injured him by requiringhim to use a defectivemedical device. plaintiff's complaintagainstRadiometer ~merica,Inc. has been dismissed and removed to United States District Court. We affirm. The issues presented for review are restated as follows: 1. Does the Workers' Compensation Act provide Blythe with the exclusive remedy for his injury resulting from his employer's decision to require its employees to use defective Arterial Blood Gas kits? 2. Does the exclusivityclauseapply toplaintiff's claim for breach of contract? In January 1989, Michael Blythe (Blythe) was employed by CommunityMedical Center, Inc. (CMC) as a Respiratory Therapist, a position he had held for ten years. Blythe worked with seriously ill patients, including those recovering from major heart surgery and those suffering from communicable diseases. Blythe's job duties included assisting patients with life support respirators andperiodically testing their arterial blood. Testing a patient's blood involved taking a blood sample from the patient using a device called an Arterial Blood Gas kit (ABGkit). An ABG kit is a syringe classified by the Food and Drug Administration (FDA) as a Class I1 medical device, defined by the

2FDA as a device involved in life-sustaining measures. The FDA regulates and monitors the manufacture of these devices. It is illegal to sell, receive, possess, or transport in interstate

commerce any Class I1 device which is adulterated, misbranded, or not manufactured according to standards. Defendant Michael Biggins (Biggins) was Blythetssupervisor and the head of the CMC respiratory care department. In late 1988 or early 1989, Biggins agreed with a Radiometer America, Inc.

(Radiometer) sales representative to accept certain ABG kits at little or no cost. These kits were defectively manufactured and could result in needle-stick injuriesto theuser if thehypodermic needle loosened. If that occurred, the user could be inoculated with the contents of the syringe. Blythe alleges that Radiometer's sales representative and Biggins explained to some but not all of the workers who used the ABG kits how the kitswere defective and how to use them to try to avoid injury. The following comments were handwritten on the box in which the kits were stored in inventory: "Free rejects?" "Yes" When using needle may screwpast it's mark into hub of serenge (sic)--can still use, but be aware of thisw These defective ABG kitswere the only ABG kits available for use in CMCVsrespiratory care unit. On January 29, 1989, Blythe received a sample of arterial blood from a co-worker which had been taken from a patient who was infectedwith the HIVvirus,had contractedAIDS and suffered 

### from 3other AIDS-related infections. As Blythe uncapped the needle from the syringecontaining thepatient's blood,he stuck himself in the hand with the needle. According to Blythe, he cleaned the wound and immediately went to CMC's emergency room,where the physician

on duty told him that he had probably five to six years before he

came downwithAIDS. As of the date of this appeal, Blythehad not tested positive for the HIV virus. Although Blythe continued to work after the injury, he began having psychological problems, including auditory hallucinations such as loud demonic voices. According to Blythe, he was losing touch with reality and developing hopelessness and depression because of his fear of contracting AIDS. Although CMC provided Blythe with the services of a company psychologist, his symptoms grew worse. Blythe consulted other professionals in addition to the CMC psychologist. In October 1989, he was diagnosed as psychotic. Blythe hasbeen unable towork sinceMarch 1991 and now receives medical and disability benefits under the Workers' CompensationAct. The District Court dismissed Blythe's complaint against CMC and Biggins based on the exclusivity clause of the Workerst Compensation Act. The standard of review for a district court's interpretations of the law is whether they are correct. Steer, Inc. v. Department of Revenue (1990),245 Mont. 470, 474, 803 P.2d 601, 603. ISSUE I Does the Workers' Compensation Act provide Blythe with the exclusive remedy for his injury resulting from his employertsdecision to require its employees to use defective Arterial Blood Gas kits? Section 39-71-411,MCA, of theWorkers' CompensationAct (the Act) provides that the provisions of the Act are the exclusive remedy available to a worker who is injured on the job. This is known as the l'exclusivityclause." The Act provides an exception which allows an injuredworker to sue in tort in certain limited circumstances,set forth in 

### 5 39- 71-413, MCA, as follows: Liability of fellow employee for intentional and malicious acts or omissions 

# -- additional cause of action. If an employee receives an injury while performing the dutiesofhis employmentand the injuryor injuries so received by the employee are caused by the intentionalandmalicious act or omissionof a servantor employee of his emplover, then the employee

# . . . shall, in addition to the right to receive compensation under theWorkers' Compensation Act, have a right toprosecute any cause of action he may have for damages against the servantsor employees ofhis employer causingthe injury. (Emphasis supplied.) While § 39-71-413,MCA, covers intentional acts of a servant

or employee,thisCourthasheld furtherthat employersmay be sued for workplace injuries under limited circumstances. See Great Western Sugar Co. v. Dist. Court (1980), 188Mont. 1, 610 

### P.2d 717. In Great Western, we also specified the degree of intent required tomeet the standard set forth in 

### 5 39-71-413, MCA:



# .

# .. "[Ilntentionalharmt1 which removes an employer from the protection of the exclusivity clause of the Workers' Compensation Act is such harm as it maliciously and specifically directed at an emplovee. or class of employee out of which such swecific intentionalharm the emplovee receives iniuries as a proximate result. Any incident involving 

### a lesser degree of intent or general degree of negligence not pointed specifically and directly at the injured employee is barred by theexclusivity clause as a basis for recovery against the employer outside the Workers' Compensation Act.

(Emphasis supplied.) Great Western, 610 P.2d at 720. This Court has allowed the employee to sue an employer for intentional torts in some cases. See, 

### m,Sitzman v. Shumaker (1986)

## , 221Mont. 304, 718 P.2d 657 (employeewar;thevictim of his employer's assault and battery): and Vesel v. Jardine Mining Co.

(1940) 110 Mont. 82, 100 P.2d 75 (employee received metal in eye and employer intentionally chose unqualified medical provider). Unless the harm is "maliciouslyand specifically directed at an employee or a class of employees," workers are limited to the remedyprovided under theAct. For example, theplaintiff inGreat Western had alleged that his employer "wantonly,maliciously and carelessly placed him in a position of danger, committing the equivalent of an intentionalharm." Because the complaint alleged

no more than negligence, this Court held that the Act provided the plaintiff's exclusive remedy. Great Western, 610 P.2d at 719-20. Grossly negligent conduct of an employer or a co-employee has not been classified as "intentional and malicious. 'I 

### See, e.9., Adsem v. Roske (1986), 224 Mont. 269, 728 P.2d 1352 (claimantwas killed by collapsed walls in a deep trenchwhich had no sloping or shoring); Enberg v. Anaconda Co. (1971), 158 Mont. 135, 489 P.2d 1036 (employerviolated its own safety standards as well as other statutes in mine blasting); and Dvorak v. Matador Sew., Inc. (1986) 223 Mont. 98, 727 P.2d 1306 (employee injured by toxic materials inside tank of a truck when employer knew a tank could

### contain matter contaminated with hydrogen sulfide and insisted employee enter the tank of a truck to do welding repairs). Before we consider Blythe's arguments on other theories,we emphasize that Blythehas failed tomeet therequirements set forth in Great Western and also in Noonan v. Spring Creek Forest Products, Inc. (1985), 

### 216 Mont. 221, 700 

### P.2d 623. Under Great Western, Blythe was required to show the presence of intentional harm which his employer maliciously and specifically directed at him, and thathe was injured as aproximate result of that specific intentionalharm. Blythehasnot demonstratedany intentionalharm maliciously and specifically directed at him or any of his coemployees. We therefore conclude that Blythe has failed to meet the standard of intentional harm required by Great Western. Noonan contains factual precedent which is helpful in the present case. InNoonan, the employer required the worker to run

a broken planer. The employerhad removed the safety guard on the planer, whichviolated OSHA 

### regulations. The on/off switch on the planer was broken and employees were required to run the machine continuously, even while retrievingwoodpieces which became caught in the planer. Other employees had asked the employer to repair the planer. The worker, a nineteen-year-old recent high school graduate who was startinghis first full-time job, was required to feed rough-cut lumber through the planer. In Noonan, the employer knew these facts and knew that other employees had been injured, yet it concealed the information from the worker. The worker's hand was drawn into the planer andseverely injured whenhe reached in to remove a piece of wood which had become stuck in the planer. Under these facts, this Court concluded that Noonan1semployer was not guilty of the type of intentional harm which removes an employer from the protection of the Act's exclusivity clause. We stated: We have reviewed each of the plaintiff's alleged facts set forth above and fail to discern how any of the specific facts could be interpreted to mean harm was specifically directed at Noonan. The factsdo establish that the owners of Spring Creek operated a hazardous and dangerous workplace. The number of injuries that occurred among a relatively small number of workers provides ample support forthisobservation. However, to translate this situation into an inference of tortious intent onbehalf of the employerwould require a standard of law that this Court has thus far refused to adopt. Where an emulovee's alleaations qo no further than to charse an emulover with knowledse of a hazardous machine, the comwlaintdoes not state a cause outside the purview of our exclusive remedv statute. (Emphasis supplied.) Noonan, 700 P.2d at 625-26. Blythe has failed to address this Court's holding in Noonan. InNoonan, this Court concluded that the complaint failed to state

a cause of action outside the purview of the exclusivity statute where the allegations only demonstrated an employer who had knowledge of a hazardousmachine. We conclude that this rationale applies to the present case. Here, the most that Blythe has demonstrated is that his employer knew of the defective and hazardous character of the medical devices which Blythe and other employees were required to use. We conclude that under Noonan, Blythe has failed to state a cause of action which removed his employer from theprotection of the exclusivity clause of theAct.In Noonan, we discussed a line of cases from a minority of jurisdictionswhich have recognized an intentional tort action for situations where the employee cannot show a specific intent to injure, but rather where the employer knows or believes that harm is a "substantially certain" consequence of the unsafe workplace. Noonan, 700 P.2d at 625-26. West Virginia,Ohio and someLouisiana courts have used this "substantially certain" test. In his treatise on workers1compensation,Professor Larson states:



# . . . [Tlhevarious efforts 

# . . . to stretch the concept of intentional injury are not undertaken in the name of discovering a truer and highermeaning of "intentionalv1; they are undertaken because these courts still cannot quite accept the non-fault nature of workers1 compensation, and have taken it on themselves to change the statutory scheme to conform more closely to their values. 

# . . .

. . . The most cogent argument against this type of holding is an intensely practical one: the difficulty of drawing an effective distinction,once thisdoor hasbeen opened, to prevent the virtual destruction of the exclusiveness principle, as evidenced by the experience of Ohio and Louisiana. 2AA. Larson,Workers1Com~ensation Law 5 68.15, at 13-58 to 13-59. Blythe recognizes that this Court reviewed the leading cases espousing the minority rule and that we declined to change our

course by adopting the vlsubstantially certainv1 test in Noonan and he professes thathe isnot arguing that this Court should adopt it

now. However, he presents several arguments which essentially reargue the "substantially certainwtheory. Blythe first contends that this case is different from other

cases involving willful violations of safety standardsbecause it is not the type of risk ordinarily undertaken in the workplace and

### because the employer specifically intended to violate the law. Thisargument attemptsto equate an employer's willful violationof the law to specific intent by employing the reasoning of the I1substantiallycertain" test which we have declined to adopt. Intent to violate the lawdoes not equate to intentional harm that ismaliciously and specifically directedat an employeeorgroup of employees. Blythe next contends that the leading treatise on workersf compensation law supportshis position that specific intent isnot required. This too is essentially an argument for the "substantially certain" test. We do not interpret the treatise's discussion of intent in thismanner. Professor Larson states: [I]t seemsprudent 

### tohold the line, as thevastmajority have done, in saying that "intentional injury" means "intended injury." 

# . . .This isby no means the only area of compensation law in which, to be administrable and kept within bounds, a rule must be so arbitrary that it produces some tlinjustice" on its fringes. 2A 

### A. Larson, Workers' Compensation Law 5 

### 68.15, at 13-68. Blythe framesa third argument forthe "substantiallycertain" testby claiming that he was subjected towhat he calls an "active injurious force"andwhich Larson would classifyas an exception to exclusivity under the majority rule. Blythe coined the phrase "active injurious force" from the following: [Tlheelementof uncertainty isnot whethertheworker is apt tobe exposed to the active force (whether cave-in or toxic fumes), but whether the active force to which the worker is knowingly exposed, proves to be injurious. 2AA. 

### Larson,Workers' Com~ensation Law § 

### 68.15, at 13-68. Larsondiscusses this active force in the context of distinguishing the majority and minority rules. Larson illustratesan intentional inflictionof harm causedby what Blythe calls an Itactive injurious forcell and which is actionable in tort by reference to the facts of People v. Film Recovery Sys. (Ill.App. 1990), 550N.E.2d 1090. See Beauchampv. Dow Chemical Co. (Mich. 1986), 398 N.W.2d 882, 892. Larsonpoints out that in Film Recoverv, the employer knew that the employees consistently inhaled fumes,knewthatinhaling fumes causedharmful consequences, and purposely withheld this information from the employees. The employer also knew that the employees would not continue to do the work if they were aware that they were being injured by inhaling the chemical fumes. Larson contrasts cases like FilmRecovery,where the employer knows the employee is being injured, to the situation where the employer exposes the employee to harm but does not know with certainty that the employee is being harmed or will be harmed. 2A A. Larson,Workers1Com~ensation Law 

### 5 68.15. Larsonuses the case 

### of an employee working in a ditch who is subsequently injuredby a cave-in of theditchwalls as an example of the latter. See, e.q., Adsem, 728 P.2d 1352 (forcing employee to work in trench which subsequently collapsed and killed employee was not intentional conduct with known consequences specifically directed at the employee). In the case before us, CMC provided only defective ABG kits for its employees to use. Although CMC may have been aware that

### there was risk of injury as illustrated by 

### the fact that it warned employees and trained some of them 

### on how to use them to avoid injury, CMC 

### did not force its employees to use the defective ABG kitswith knowledge that they would be 

### certain to sustain injury. Further, CMC 

### did not withhold information from employees that the ABG 

### kits were defective. We therefore conclude that Blythets injury is not analogous to the active force in FilmRecoverv where the employer knew the employee was being harmed and continued to expose the employee to 

### known ham 

### after failing to disclose 

### warnings on chemicals. We 

### reject all Blythetsarguments as 

### detailed above which attempt toreargue theminority rule

### by couching 

### it in other terms. Malice Blythe presents another argument concerning the meaning 

### of I1malicef* which this Court has not previously considered. He contends that his 

### injuries 

### now come within the 

### exception to the Acttsexclusivityclausebecause the definition of "actualmalicem in 1 27-1-221(2), MCA, 

### changes the Great Western standard. As set 

### forthabove,

### the type of 

### intentionalharmwhich exposes an employer to 

### tort liabilityunder Great Western is that which is maliciouslv and specificallydirected at the employee or class of employee. The 

### word 15maliciously'q as used by the 

### Court in Great 

### Western has 

### a well-known meaning in Montana. Section 1-1-204(3), 

### MCA, defines wmalicell as follows: RMali~ew and wmaliciouslyMdenote a

### wish to 

### vex, annoy, or 

### injure another person 

# . . .

### Miller's Mutual Ins. CO. 

### v. Strainer (1983), 204 Mont. 162, 168, 

### 663 P.2d 338, 341, referred to this statute in a workers' compensation case, concluding that intent to injure an employee does not require specific intent to cause the precise resulting injury. We emphasize again that the plaintiff has failed to demonstrate intentionalharmmaliciouslv and specifically directed at him or any class of employee, according to the Great Western standard. However, Blythe contends that the Great Western standard has been changedbecause thedefinition of malice in 5 

### 1-1-204(3), MCA, no longer applies to determine whether an injury is "intentional" within the meaning of 

### 5 39-71-413, MCA. He contends that this definition has been superseded by the legislature~s definition of Ivactualmaliceu in § 

### 27-1-221(2)

## , MCA, which applies to the Act through $3 

### 1-2-107,MCA. Section 1-2-107, MCA, provides that where the meaning of a word is defined in part of the code, the definition is applicable wherever it occurs throughout the code, except where a contrary intention is clearly apparent. This Court has not reviewed a case on exclusivity since that statute was enacted in 1987. Section 27-1-221, MCA, defines "actualmalicef1 as follows: Punitive damages--liability--proof--award. 

# . ..

(2)A defendant is guiltyof actualmalice ifhe has knowledgeof factsor intentionally disregards facts that create ahighprobability of injury to theplaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) 

### deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

### Blythe compares the above section to the definition of nknowinglyw 

### in 5 45-2-101 (33)

### , MCA, where proof that a person is



### aware of a 

### high probability of the 

### existence of a particular fact will establish an element of a criminal offense. Blythe further argues thatthe legislatureq s adoption

### of the definition

### of "actual 

### malicellin 

### 5 27-1-221(2), 

### MCA, from the criminal code's definition of vlknowinglyql rather than "purposelyNrejects the notion that the wrongdoer must have a specific intent to injure; rather, he contends that the level of certaintyrequirednow for exception

### to exclusivity under the Act 

### is the same as in the criminal code: 45-2-101. 

### General daf

### initions, 

# . .

# . (33) 

### lqKnowinglyll-- a 

### person acts knowingly with respect to 

### the result of conduct described by a statute defining an offense when the person 

### is aware that it is highly probable that the result will be caused by 

### the person's conduct. When knowledge of 

### the existence of a 

### particular fact is 

### an element of 

### an offense, knowledge 

### is established if a 

### person is aware of a high probability of 

### its existence. Blythe contends that the legislature has rejected the notion that thewrongdoer must have a specific intentto injurewhile retaining the distinction made by this Court when it held inMiller's Mutual that malice can be found where the acts are intended though the consequences are not. Blythe further contends that CMC 

### demonstrated its intent to do a wrongful act under the new definition of "actualmalice,"by acceptingand requiringemployees to use the unlawfully-possessed 

### ABG kits with knowledge of their defect and the possibility of injury. As 

### emphasized above, the conduct here does not qualify as malicious if 

### we use the definition of lvmalicew used 

### in prior exclusivitycases. Therationale ofNoonan appliesdirectly to the

### present case where the most that can be charged is that the employer knew of the defective and hazardous medical device which the plaintiff was required to use. The stated intent in House Bill 442 enacted by the 1987 legislature in revising §§ 

### 27-1-220 and 221, MCA (l985), was to revise the law relating topunitive damages--limiting the right to

recoverpunitive damages,restrictingthe award of

### punitive damages in contract actions and permitting insurance coverage of punitive damages. 1987Mont. Laws 1722. The legislature did not repeal the definition of malice in § 

### 1-1-204(3), MCA, or otherwise indicate that the changes in the punitive damages section applied to any other part of the code, including the chapter governing workers' compensation awards. It is our duty to restrict the meaning of general words whenever necessary so as to carry out the legislative intent. In re Takahashi's Estate (l942), 113 Mont. 490, 494, 129 

### P.2d 217, 220. The context inwhich theword is used must be considered,and the word, together with the context, then gives themeaning sought to be conveyed. Takahashi's Estate, 129 P.2d at 221. In addition to viewing the word within its context, we presume that the legislature enacts a law with full knowledge of all existing laws

on the same subject, includingworkers' compensation laws and does not intend to abrogate or interfere with another law on the same matter unless the repugnancy between the two is irreconcilable. Fletcherv. Paige (1950), 124Mont. 114, 119, 220 P.2d 484, 487.

### When an employee is injured on the job, 

### the Act 

### generally provides the exclusive remedy. If 

### the injury is compensatedunder 

### theAct, the employee is

### not allowed other remediesprovided forby other statutes, includingpunitivedamages. Section 27-1-221, MCA, 

### provides for 

### punitive damages 

### for injuries outside the limits of 

### the Act. We conclude that the legislature did not intend the definition of "actual malicew in § 27-1-221(2), MCA, 

### to apply to determine whether conduct qualifies as an exception to the exclusive remedy under the 

### Act. We 

### further conclude that the definition of ''actual maliceMset forth in § 27-1-221(2), MCA, was 

### intended for purposes of punitive damages awards and is specificallynot applicable to the Act. Wehold theWorkers1Compensation Act provides Blythewith the exclusive remedy for his injury resulting from his employer's decision to require its 

### employees to use defective ABG kits. ISSUE 11. 

### Does the exclusivity clause of the Workers1compensationAct apply 

### to plaintiff's claim for breach 

### of contract? Blythe contends that if his tort claim is barred by the exclusivity provision in the Act, he 

### shouldbe 

### allowed to bring an action for breach 

### of his employment contract. He contends thathis employment contract with CMC 

### carried 

### a duty of good faith in its 

### performance and CMC 

### is liable 

### in damages upon breach. Blythe maintains that his employer had the discretion to choose the equipment tobe used 

### andhe was required to do as hewas told by his employer. He 

### contends that CMC8sdecision to provide dangerously defective equipment which cannot be commercially sold 16

### was a breach which deprived Blythe of the benefit of his contract by eliminating his right to practice his profession and earn his living. Blythe contends that contract damages here, unlike most contract actions,would include emotional distress damagesbecause the action involves actual physical injury. If this attempt to create 

### a cause of action for breach of contract under these facts were toprevail,everyemployer/employee relationship might involve contractual issues, resulting in exposure of each employer beyond the Act. Such a result would undermine the workers1compensation system. Larsonlstreatise on workers1compensation states: The all-inclusive character of the exclusiveness principleresults inbarring actions for covered injuries even though theplaintiff casts his action in the formof a breach of some kind of contract. 2A A. Larson, Workers' Compensation Law 

### 5 65.38, at 12-37. We conclude that Blythe is further barred by the exclusivity provision in § 

### 39-71-411, MCA, from bringing an action for breach of the employment contract. We are supported in this decision by courts of numerous other jurisdictions which have addressed the issue. We hold plaintiff's claim for breach of contract, pled alternatively to the tort claim, fails to state a claim for which

elief can be aranted. /Justice Terry N. Trieweiler dissenting. I dissent from the majority's conclusion that the Workerss Compensation Act providesMichael Blythe with his exclusive remedy for the injury he sustained during the course of his employment with the Community Medical Center. Blythesscomplaint in this case was dismissed for failure to state a claim pursuant to Rule 12(b)(6), M.R.Civ.P. We have previously held that: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the lightmost favorable to the plaintiff, and all allegations of fact contained therein are taken as true. [Citations omitted.] Wilkonv.

### Taylor (1981), 194 Mont. 123, 126, 634 P.2d 1180, 1182. With that standard in mind, we assume the following facts to be true: Michael Blythewas employed as a respiratorytherapist for the Community Medical Center inMissoula duringJanuary 1989. Prior to that time, the Medical Center had been having financial difficulties, and therefore, the head of the respiratory care departmentaccepted free arterialblood gas kits,knowing that they

were defective. Patients, however, were charged the regularprice for this equipment Although the head of the respiratory caredepartment knew the 

### kits were defective, he did not advise all of the therapists whowould use those 

### kits during the course of their employment. Instead, the kits were placed with other equipment inventory for

use. The danger towhich employeeswere exposed from thedefective kits was the danger that the needle would come loose and cause a needle-stick injury to the employee. As 

### a result, the disease for which patients were being treated could be transmitted to the health care provider using the kit. Hospital administratorsknew that 

### a needle-stick injury resulting fromuse of thedefectivekits could transmit diseases, such as AIDS and hepatitis B to its employees. At about 6 a.m. on Sunday morning, January 29, 1989, Blythe

was using a defective arterial blood gas kit on a patient who suffered staph and strep infection, pneumonia, herpes, the AIDS virus, and hepatitis 3. Because of the defect in the kit,he was stuckby theneedle and exposed to contamination from thepatient s blood-born diseases. He was subsequently advised by an emergency

room physician that "well,you've got 

### five or six years before you come down with AIDS." As 

### a result of his 

### injury and the 

### mental strain from concern for his future health, Blythe has suffered severe and totally disabling mental problems. Blythe alleged, and therefore, we assume 

### it to be true, that when 

### his superiors

### provided him 

### with defectiveblood gas kits they acted intentionally and with actual malice. In other words, he alleged that thehospital intentionally provided its employees with

20

### defective blood gas kits,knowing that they were exposed to severe and terminal harm in the exact manner that Blythe alleges he was harmed, but disregarding that potential harm because of the economic benefit it hoped to realize from doing so. The majority discusses its prior decisions, language from a treatise, and a selected statutory definition of "malice" to support its conclusion. However, the rule which excepts intentional conduct on thepart of an employer fromthe exclusivity of the Workers' Compensation Act is statutory and is neither as restrictive nor demanding as this Court's prior decisions. It simply states that: If an employee receives an injury while performing the duties of his employment and the injury or injuries so received by the employee are caused by the intentional andmalicious act or omission of a servantor employeeof his employer, then the employee 

## . .

# . shall, in addition to the right to receive compensation under the Workers' CompensationAct, have a right to prosecute any cause of action he may have for damages against the servants or employees of his employer causing the injury. Section 39-71-413, 

### MCA. There is no question, based on the allegations in the complaint, that Blythe's supervisor acted intentionally when he purchased defective arterial blood gas kits from the hospital's supplier. The question iswhether,based on the allegations in the complaint, his act was also malicious. Stripping an employer from the protection provided by the Workers' Compensation Act based on intentional conduct is a punitive remedy intended to deter employers from intentionally harming their employees. Therefore, it is most logical to applythe statutory definition of malice found at 5 27-1-221(2), MCA, Montana's punitive damage statute. There, the Legislature has stated that: A defendant is guilty of actual malice if he has knowledge of factsor intentionallydisregards facts that createahighprobabilityof injuryto theplaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff. By thatdefinition ofmalice, Blythe8scomplaint satisfiesall of the elementsnecessary to overcomedefendantsfmotion todismiss pursuant to Rule 12(b)(6)

### , M.R.Civ.P. The majority relies on the definition of malice found at 5 1-1-204(3), MCA, but fails to distinguish its previous decision 

### inMillers

### MutualhwuranceCompanyv.SO-airzer (1983)

## , 204Mont

# . 162

## ,663 P.2d 338, where this Court applied the term "malicew in a workers1 compensation context much more expansively than it does here. In that case,

### we held that: Respondent argues that for one to act maliciously onemust necessarily intend the consequences of the act. Respondent relies on

### Boyerv.Kloepfer (1976), 170 Mont. 472, 554 P.2d 1116,wherein this Court equated malice with an intent to injure. However, the general definition of malice is more expansive, In Cashin 

### v. Northern Pac,R. Co.

(1934), 96 Mont. 92, 28 P.2d 862, this Court defined malice as "a wish to vex, annoy, or injure another person, 

### or an intent to do 

### a wrongful act. (Emphasis supplied). The Montana Supreme Court has also implied malice where the intentional acts of a defendant were committed without justifiable excuse, privilege or defense. 

### Poeppel

### v.Fisher (1977)

### , 175 Mont. 136, 572 P.2d 912. 

### We hold that malice can be found 

### where acts are intentional though the consequences are not.In summary, we hold that section 39-71-413, of 

### the Workersr Compensation Act, permits the filing of a third-party action where acts of an employee are intentional irrespective of whether the results of that act were intended. Strainer, 663 P.2d at 341-42 Our holding inStrainer suggests that for purposes of construing the term rlmalice," as it is used in 5 39-71-413,MCA, the statutory definition provided for in 

### 5 27-1-221(2), MCA, is much more appropriate than the restrictive language found at 5 1-1-204(3), MCA, which was specifically rejected in the Strainer decision. Themajority also relies on its prior decisions in GreatWestern Sugar Companyv. Dktrict Court (1980), 188 Mont. 1, 610 P.2d 717, and Noonan 

### v. Spring CreekForestProducts,Inc. (19 85)

### , 216 Mont

# . 2 21, 700 

### P.2d 623, for the principle that an intentional act which removes an employer from the protection of the exclusivity clause of the Workersr Compensation Act requires "intentional harm" and an act directedat the specific employee, or a class of employees towhich he or she belongs. However, those requirements clearly go beyond the plain terms of 5 39-71-413,MCA, and are inconsistent with this Court's prior decision inStrainer. While it is true that since 1987 the Court isnot required to construe theWorkersrCompensationAct liberally in favor of the employee, there certainly is no requirement that it be construed liberally in favor of the employer. That should be especially true where the issue iscompensation for an employee injured by an allegedly intentional and malicious act of his employer. Yet, that is the effect of our decisions in Great WesternSugar, Noonan, and the majority opinion in this case. Therefore, I conclude that the decisions relied on by the majority have misconstrued the plain terms of the Workers8 CompensationAct and have judicially legislatedrequirementswhich are not in the Act. For these reasons, 

### I would not follow those prior decisions. I conclude that the acts alleged in Blythetscomplaint were both "intenti~nal~~ and "malicious"as definedby statute inMontana and our prior case law. Therefore, Iwould reverse the judgment of the District Court and remand this case to the District Court for further proceedings to determine whether Blythelsallegations are true.

Justices John C. Harrison and William E. Hunt, Sr., join in the foregoing dissent.

Justices