Adsem v. Roske

Decision Date06 January 1987
Docket NumberNo. 86-226,86-226
Citation728 P.2d 1352,224 Mont. 269
PartiesDelores ADSEM, surviving spouse and Personal Representative of the estate of Richard Allen Adsem, Deceased, Plaintiff and Appellant, v. Richard ROSKE and R. H. Grover, Inc., a Montana Corp., Defendants and Respondents.
CourtMontana Supreme Court

Small, Hatch, Doubek & Pyfer, John C. Doubek, Helena, for plaintiff and appellant.

Worden, Thane & Haines, Martin S. King, Missoula, Alexander & Baucus, J. David Slovak, Great Falls, for defendants and respondents.

HUNT, Justice.

This is an appeal from a summary judgment entered by the First Judicial District, Lewis and Clark County in favor of the defendants, Roske and Grover, Inc. Plaintiff Delores Adsem appeals. We affirm.

There are two issues on appeal. Did the District Court err in granting summary judgment? Does the plaintiff have a remedy outside of the Montana Workers' Compensation Act?

Richard Adsem was killed in a construction accident at the Capital Hill Mall sewer line project in Helena, Montana. He was installing pipe in a trench 11-12 feet deep with no sloping or shoring of the walls when the walls of the trench collapsed and Adsem suffocated. Adsem maintains that the employer knew the trench was unsafe, and that a cave-in was likely and yet ordered him into the trench, which collapsed on him.

Delores Adsem, Richard Adsem's widow, filed this wrongful death suit against Richard Roske, a co-employee and foreman of the crew, and R. H. Grover, Inc., the company that employed both Adsem and Roske. The suit alleged that the "intentional and malicious acts and omissions" of the defendants caused Adsem's death.

The District Court granted summary judgment in favor of the defendants. The District Court held that there was "simply nothing in the record which would lead one to believe that Roske or his employer, Grover, intentionally inflicted the injuries upon Adsem of which he later died." (Emphasis in original.)

The District Court held that the Workers' Compensation benefits which Adsem had already received was her exclusive remedy and granted summary judgment.

Summary judgment is proper where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Noonan v. Spring Creek Forest Products, Inc. (Mont.1985), 700 P.2d 623, 42 St.Rep. 759; Herron v. Pack & Co. (Mont.1985), 705 P.2d 587, 42 St.Rep. 1303.

The two issues raised by appellant are two ways of stating the same issue: Did the District Court err in holding that Workers' Compensation is Adsem's exclusive remedy? We hold it did not.

The exclusivity provision of Workers' Compensation is first addressed in Art. II, Sec. 16, 1972 Mont. Const. which states:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under Workers' Compensation Laws of this state.... (Emphasis added.)

That constitutional mandate is implemented by Sec. 39-71-411, MCA as to employers and Sec. 39-71-413, MCA, as to employees. Section 39-71-411, MCA, as to employers provides:

... Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers' Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers' Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers' Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency.

Section 39-71-413, MCA as to employees provides:

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 or in case of his death his heirs or personal...

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8 cases
  • Tolliver v. Kroger Co.
    • United States
    • West Virginia Supreme Court
    • November 21, 1997
    ... ... by an employer upon an employee utilizing the substantially certain standard which is defined in the statute as a deliberate intent); Adsem v. Roske, 224 Mont. 269, 728 P.2d 1352 (1986) (holding the harm alleged must have been maliciously and specifically directed at the employee); ... ...
  • Hensley v. Mont. State Fund
    • United States
    • Montana Supreme Court
    • December 16, 2020
  • Walters v. Flathead Concrete Products Inc.
    • United States
    • Montana Supreme Court
    • March 16, 2011
    ...¶ 11 The Montana Constitution sets forth the basis for the workers' compensation exclusive remedy provision. Adsem v. Roske, 224 Mont. 269, 270–71, 728 P.2d 1352, 1353 (1986). Article II, Section 16 provides: The administration of justice. Courts of justice shall be open to every person, an......
  • Blythe v. Radiometer America, Inc.
    • United States
    • Montana Supreme Court
    • December 22, 1993
    ...negligent conduct of an employer or a co-employee has not been classified as "intentional and malicious." See, e.g., 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), ......
  • Request a trial to view additional results

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