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 2 2 1993 and MICHAEL BIGGINS, < 1 j <,.$ 0 -9 

-;L?zf&L 

Defendants and Respondents. CLERK YE r;ii:-~m~ COURT 

STAX p. 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, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff Michael Blytbe appeals from an order of the District 

Court of the Fourth Judicial District, Missoula County, dismissing 

his complaint charging that defendants Community Medical Center, 

Inc. and Michael Biggins had injured him by requiring him to use a 

defective medical device. plaintiff's complaint against Radiometer 

~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 exclusivity clause apply to plaintiff's claim for 

breach of contract? 

In January 1989, Michael Blythe (Blythe) was employed by 

Community Medical 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 and periodically 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 (ABG kit). 

An ABG kit is a syringe classified by the Food and Drug 

Administration (FDA) as a Class I1 medical device, defined by the 

2 
FDA 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 Blythets supervisor 

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 injuries to the user if the hypodermic 

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 kits were 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 screw past it's mark into hub of 

serenge (sic)--can still use, but be aware of thisw 

These defective ABG kits were the only ABG kits available for use 

in CMCVs respiratory 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 

infected with the HIV virus, had contracted AIDS and suffered from 

3 
other AIDS-related infections. As Blythe uncapped the needle from 

the syringe containing the patient'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 down with AIDS. As of the date of this appeal, Blythe had 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 has been unable to work since March 1991 and now 

receives medical and disability benefits under the Workers' 

Compensation Act. 

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 employerts 
decision to require its employees to use defective Arterial Blood 

Gas kits? 

Section 39-71-411, MCA, of the Workers' Compensation Act (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'exclusivity clause." 

The Act provides an exception which allows an injured worker 

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 duties of his employment and the injury or 

injuries so received by the employee are caused by the 

intentional and malicious act or omission of a servant or 

employee of his emplover, then the employee . . . shall, 

in addition to the right to receive compensation under 

the Workers' Compensation Act, 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. 

(Emphasis supplied.) 

While § 39-71-413, MCA, covers intentional acts of a servant 

or employee, this Court has held further that employers may be sued 

for workplace injuries under limited circumstances. See Great 

Western Sugar Co. v. Dist. Court (1980), 188 Mont. 1, 610 P. 2d 717. 

In Great Western, we also specified the degree of intent required 

to meet the standard set forth in 5 39-71-413, MCA: 

. . . "[Ilntentional harmt1 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 intentional harm 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 the 
exclusivity 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) , 221 Mont. 304, 718 P.2d 657 (employee war; the victim 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 "maliciously and specifically directed at 

an employee or a class of employees," workers are limited to the 

remedy provided under the Act. For example, the plaintiff in Great 

Western had alleged that his employer "wantonly, maliciously and 

carelessly placed him in a position of danger, committing the 

equivalent of an intentional harm." 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 (claimant was 

killed by collapsed walls in a deep trench which had no sloping or 

shoring) ; Enberg v. Anaconda Co. (1971), 158 Mont. 135, 489 P.2d 

1036 (employer violated 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 Blythe has failed to meet the requirements 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 that he was injured as a proximate result of that specific 

intentional harm. Blythe has not demonstrated any intentional harm 

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. In Noonan, the employer required the worker to run 

a broken planer. The employer had removed the safety guard on the 

planer, which violated OSHA regulations. The on/off switch on the 

planer was broken and employees were required to run the machine 

continuously, even while retrieving wood pieces 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 starting his 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 and 
severely injured when he reached in to remove a piece of wood which 

had become stuck in the planer. Under these facts, this Court 

concluded that Noonan1s employer 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 facts do 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 forthis observation. However, to 

translate this situation into an inference of tortious 

intent on behalf of the employer would 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 comwlaint does 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. 

In Noonan, 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 hazardous machine. 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 the protection of the exclusivity clause of the Act. 
In Noonan, we discussed a line of cases from a minority of 

jurisdictions which 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 some Louisiana 

courts have used this "substantially certain" test. In his 

treatise on workers1 compensation, Professor Larson states: 

. . . [Tlhe various efforts . . . to stretch the concept 

of intentional injury are not undertaken in the name of 

discovering a truer and higher meaning 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 this door has been 

opened, to prevent the virtual destruction of the 

exclusiveness principle, as evidenced by the experience 

of Ohio and Louisiana. 

2A A. Larson, Workers1 Com~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 that he is not arguing that this Court should adopt it 

now. However, he presents several arguments which essentially 

reargue the "substantially certainw theory. 

Blythe first contends that this case is different from other 

cases involving willful violations of safety standards because it 

is not the type of risk ordinarily undertaken in the workplace and 
because the employer specifically intended to violate the law. 

This argument attempts to equate an employer's willful violation of 

the law to specific intent by employing the reasoning of the 

I1substantially certain" test which we have declined to adopt. 

Intent to violate the law does not equate to intentional harm that 

is maliciously and specifically directed at an employee or group of 

employees. 

Blythe next contends that the leading treatise on workersf 

compensation law supports his position that specific intent is not 

required. This too is essentially an argument for the 

"substantially certain" test. We do not interpret the treatise's 

discussion of intent in this manner. Professor Larson states: 

[I]t seems prudent to hold the line, as the vast majority 

have done, in saying that "intentional injury" means 

"intended injury." . . .This is by 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 frames a third argument for the "substantially certain" 

test by claiming that he was subjected to what he calls an "active 

injurious force" and which Larson would classify as an exception to 

exclusivity under the majority rule. Blythe coined the phrase 

"active injurious force" from the following: 

[Tlhe element of uncertainty is not whether the worker is 

apt to be 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. 

2A A. Larson, Workers' Com~ensation Law § 68.15, at 13-68. Larson 
discusses this active force in the context of distinguishing the 

majority and minority rules. 

Larson illustrates an intentional infliction of harm caused by 

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), 550 N.E.2d 1090. See Beauchamp v. 

Dow Chemical Co. (Mich. 1986), 398 N.W.2d 882, 892. Larson points 

out that in Film Recoverv, the employer knew that the employees 

consistently inhaled fumes, knewthat inhaling fumes caused harmful 

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 Film Recovery, 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, Workers1 Com~ensation Law 5 68.15. Larson uses the case 

of an employee working in a ditch who is subsequently injured by a 

cave-in of the ditch walls 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 

kits with 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 Film Recoverv 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 Blythets arguments as detailed above which 

attempt to reargue the minority 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 

Actts exclusivity clause because the definition of "actual malicem 

in 1 27-1-221(2), MCA, changes the Great Western standard. 

As set forth above, the type of intentional harm which exposes 

an employer to tort liability under Great Western is that which is 

maliciouslv and specifically directed 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 wmaliciouslyM denote 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 intentional harm maliciouslv 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 changed because the definition 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 

Ivactual maliceu 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 "actual malicef1 as follows: 

Punitive damages--liability--proof--award. . . . (2) A defendant is guilty of actual malice if he has 

knowledge of facts or intentionally disregards facts that 

create a high probability of injury to the plaintiff 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 that the legislatureq s adoption of the definition of "actual 

malicell in 5 27-1-221(2), MCA, from the criminal code's definition 

of vlknowinglyql rather than "purposelyN rejects the notion that the 

wrongdoer must have a specific intent to injure; rather, he 

contends that the level of certainty required now 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 

the wrongdoer must have a specific intent to injure while retaining 

the distinction made by this Court when it held in Miller'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 "actual malice," by accepting and requiring employees 

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 

exclusivity cases. The rationale of Noonan applies directly 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 to punitive damages--limiting the right to 

recover punitive damages, restricting the award of punitive damages 

in contract actions and permitting insurance coverage of punitive 

damages. 1987 Mont. 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 in which the word is used must be considered, and 

the word, together with the context, then gives the meaning 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, including workers' 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. 

Fletcher v. Paige (1950), 124 Mont. 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 compensated under 

the Act, the employee is not allowed other remedies provided for by 

other statutes, including punitive damages. 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 maliceM set forth in § 27-1-221(2), MCA, was 

intended for purposes of punitive damages awards and is 

specifically not applicable to the Act. 

We hold the Workers1 Compensation Act provides Blythe with 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 Workers1 compensation Act 

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 should be allowed to bring an 

action for breach of his employment contract. He contends that his 

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 to be used and he was required to do as he was 

told by his employer. He contends that CMC8s decision 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 damages because 

the action involves actual physical injury. 

If this attempt to create a cause of action for breach of 

contract under these facts were to prevail, every employer/employee 

relationship might involve contractual issues, resulting in 

exposure of each employer beyond the Act. Such a result would 

undermine the workers1 compensation system. 

Larsonls treatise on workers1 compensation states: 

The all-inclusive character of the exclusiveness 

principle results in barring actions for covered injuries 

even though the plaintiff casts his action in the form of 

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 provides Michael Blythe with his exclusive remedy 

for the injury he sustained during the course of his employment 

with the Community Medical Center. 

Blythess complaint 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 light most 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 Blythe was employed as a respiratory therapist for the 

Community Medical Center in Missoula during January 1989. Prior to 

that time, the Medical Center had been having financial 

difficulties, and therefore, the head of the respiratory care 

department accepted free arterial blood gas kits, knowing that they 

were defective. Patients, however, were charged the regular price 

for this equipment 

Although the head of the respiratory care department knew the 

kits were defective, he did not advise all of the therapists who 
would use those kits during the course of their employment. 

Instead, the kits were placed with other equipment inventory for 

use. 

The danger to which employees were exposed from the defective 

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 administrators knew 

that a needle-stick injury resulting from use of the defective kits 

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 

stuck by the needle and exposed to contamination from the patient 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 defective blood gas kits they 

acted intentionally and with actual malice. In other words, he 

alleged that the hospital 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 the part of an employer from the 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 

and malicious act or omission of a servant or employee of 

his employer, then the employee . . . shall, in addition 

to the right to receive compensation under the Workers' 

Compensation Act, 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 is whether, 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 apply 
the 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 facts or intentionally disregards facts that 

create a high probability of injury to the plaintiff 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 that definition of malice, Blythe8s complaint satisfies all 

of the elements necessary to overcome defendantsf motion to dismiss 

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 

in Millers Mutual hwurance Company v. SO-airzer ( 19 83 ) , 2 04 Mont . 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 

one must 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 in Strainer 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. 

The majority also relies on its prior decisions in Great Western 

Sugar Company v. Dktrict Court (1980), 188 Mont. 1, 610 P.2d 717, and 

Noonan v. Spring Creek Forest Products, Inc. (19 8 5) , 2 16 Mont . 2 2 1, 7 00 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 

directed at the specific employee, or a class of employees to which 

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 in Strainer. While it is true that since 1987 

the Court is not required to construe the Workersr Compensation Act 

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 is 
compensation for an employee injured by an allegedly intentional 

and malicious act of his employer. Yet, that is the effect of our 

decisions in Great Western Sugar, 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 

Compensation Act and have judicially legislated requirements which 

are not in the Act. For these reasons, I would not follow those 

prior decisions. 

I conclude that the acts alleged in Blythets complaint were 

both "intenti~nal~~ and "malicious" as defined by statute in Montana 

and our prior case law. Therefore, I would reverse the judgment of 

the District Court and remand this case to the District Court for 

further proceedings to determine whether Blythels allegations are 

true. 

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

foregoing dissent. 

Justices