Alexander v. Bozeman Motors Inc

• Citation: 356 Mont. 439,2010 MT 135,234 P.3d 880
• Decision Date: 09 June 2010
• Docket Number: No. DA 09-0550.,DA 09-0550.
• Parties: Nicole ALEXANDER, as personal representative of the Estate of Mike Alexander, Burt Ostermiller, and Helen Alexander, Plaintiffs and Appellants,v.BOZEMAN MOTORS, INC., d/b/a Bozeman Ford, David A. Wallin, Bob Snedeker, and Roger Beverage, Defendants and Appellees.
• Court: Montana Supreme Court

356 Mont. 439

234 P.3d 880

2010 MT 135

Nicole ALEXANDER, as personal representative of the Estate of Mike Alexander, Burt Ostermiller, and Helen Alexander, Plaintiffs and Appellants,v.BOZEMAN MOTORS, INC., d/b/a Bozeman Ford, David A. Wallin, Bob Snedeker, and Roger Beverage, Defendants and Appellees.

No. DA 09-0550.

Supreme Court of Montana.

Submitted on Briefs April 8, 2010.

Decided June 9, 2010.

COPYRIGHT MATERIAL OMITTED

For Appellants Nicole Alexander and Burt Ostermiller: Shandor S. Badaruddin, Moriarity, Badaruddin & Booke, LLC, Missoula, Montana.

For Appellant Helen Alexander: Gig A. Tollefsen, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana.

For Appellees: Donald R. Herndon, Herndon Law Firm, P.C., Billings, Montana.

For Intervenor State of Montana: Bradley J. Luck, Special Assistant Attorney General, Garlington, Lohn & Robinson, Missoula, Montana, Hon. Steve Bullock, Montana Attorney General, Chris D. Tweeten, Chief Civil Counsel, Helena, Montana, Curtis E. Larsen, Special Assistant Attorney General, Montana State Fund, Helena, Montana.

For Amicus Montana Chamber of Commerce: John W. Bennion, Attorney at Law, Helena, Montana.

For Amicus Liberty Northwest Insurance Corporation: Larry W. Jones, Law offices of Larry W. Jones, Employees of Liberty Mutual Group, Missoula, Montana.

For Amicus Montana Contractor Compensation Fund, Montana Association of Counties, Sisters of Charity of Leavenworth Health System, Montana Region, Montana School Group Insurance Authority, and Montana Municipal Interlocal Authority: Oliver H. Goe, Christy S. McCann, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellants Nicole Alexander, Burt Ostermiller, and Helen Alexander (collectively Employees), appeal from an order of the Eighteenth Judicial District Court granting summary judgment in favor of Appellees Bozeman Motors, Inc., David A. Wallin, Bob Snedeker, and Roger Beverage (collectively Bozeman Motors). We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Burt Ostermiller (Ostermiller) worked for Bozeman Motors in August 2003, at Bozeman Motors's satellite office at the Four Corners intersection in Bozeman, Montana, selling recreational vehicles. Defendants Snedeker, Wallin, and Beverage all worked at Bozeman Motors and held either managerial or supervisory duties. The office in which Ostermiller was working during this time was a 12' by 24' prefabricated building which had been placed on an empty lot. Employees claim that Snedeker, Wallin, and Beverage decided to open the office, and knew its size and approximate volume. The office had just enough room for two desks, and had two windows and a door. The office did not have a heat source when purchased. Snedeker bought a propane gas stove for the office in order to heat it.

¶ 3 After the gas stove was installed and operating, Ostermiller claims that the stove leaked propane into the office and caused a build up of carbon monoxide. Ostermiller claims he became ill as a result of the inhalation of propane and/or carbon monoxide. He asserts that friends noticed a chemical smell in the office, and that he was told by friends that his body was beginning to stink of a chemical order when he was not at work. Ostermiller maintains that he complained about smells in the office and his resulting symptoms, but that Bozeman Motors did nothing in response. On or about November 1, 2003, Ostermiller lost consciousness while in the office. Ostermiller was discovered at the office by his girlfriend and taken home. He did not return to work at Bozeman Motors after this time.

¶ 4 Michael Alexander (Alexander) began working in the satellite office sometime around November 2003. Employees claim that Bozeman Motors sent Alexander to work in the satellite office without conducting a proper investigation into the stove, and without giving him any warnings. Employees claim that Alexander complained to Beverage about headaches and upset stomach, telling him that the office was not properly ventilated and was making him sick. Alexander claimed that his dog got sick from visiting the office as well, and subsequently refused to enter the office with him. Employees claim that when Alexander complained to Bozeman Motors about the conditions and his physical symptoms, nothing was done about the stove. Employees assert that Alexander was sickened by the propane and carbon monoxide in a manner similar to Ostermiller.

¶ 5 Employees claim that Alexander's health and condition deteriorated to the point where he was unable to come to work.¹ Alexander and Ostermiller both claimed that they suffered physical, mental and emotional symptoms as a result of the exposures. Employees claim that Alexander was unable to care for himself as a result of his physical and emotional injuries and had to be cared for by his mother. Alexander and Ostermiller were later diagnosed by Raymond Singer, Ph.D., as suffering from chronic effects of acute and chronic workplace exposures to a faulty ventless space heater which affected a number of neurobehavioral functions including memory, cognition and perception. Dr. Singer concluded that Ostermiller and Alexander were permanently disabled.

¶ 6 After he quit working at the office, Alexander arranged for an inspection of the office by Greg Brainerd (Brainerd), the owner and operator of Brainerd Home Inspection. Employees claim that Brainerd determined the stove was leaking, forwarded the results of his inspection to Bozeman Motors and told the defendants not to use the stove. After Brainerd's inspection in April 2004, the Employees claim the stove was not used again. Bozeman Motors later conducted its own investigation of the stove, but this investigation did not reveal any issues with the stove. Employees claim this investigation was inadequate in several respects.

¶ 7 Employees claim that Ostermiller and Alexander continued to suffer various symptoms well after their exposure. In February 2006, Alexander and Ostermiller filed suit against Bozeman Motors. Later that same month, Alexander died at Deaconess Hospital in Bozeman. Alexander's mother, Helen Alexander, and sister Nicole Alexander were later joined in the suit. The complaint set forth claims of negligence, intentional battery, and negligent infliction of emotional distress and punitive damages against the defendants.

¶ 8 On March 1, 2007, Bozeman Motors moved for summary judgment against the Employees. A hearing was held on September 17, 2007. The District Court granted the motion and dismissed the complaint on March 25, 2008. The District Court held that Employees' claims were barred by the “ exclusivity provision” of the Workers' Compensation Act (WCA), Title 39, chapter 71, MCA (2003).² In Wise v. CNH Am., LLC, 2006 MT 194, 333 Mont. 181, 142 P.3d 774, this Court described the scope of the exclusivity provision as follows:

The Workers' Compensation Act generally provides the exclusive remedy for an employee who suffers an injury in the scope of his or her employment. Section 39-71-411, MCA. An employee may bring an action against an employer or fellow employee, however, “[i]f an employee is intentionally injured by an intentional and deliberate act of the employee's employer or by the intentional and deliberate act of a fellow employee.” Section 39-71-413(1), MCA. The statute defines intentional injury as “an injury caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee.” Section 39-71-413(3), MCA.

Wise, ¶ 7.

¶ 9 Under Wise, therefore, “an employee ... must allege that he or she has been intentionally injured by the intentional act of an employer or fellow employee in order to avoid the exclusivity provision of the Workers' Compensation Act.” Wise, ¶ 11. In response to Bozeman Motors' motion for summary judgment, Employees argued they had presented evidence demonstrating that Bozeman Motors intentionally injured them, allowing them to avoid the exclusivity provision of the WCA. Employees claimed that Bozeman Motors knew that the stove was too big for the office and that it was ruining the air and sickening Ostermiller, and knew the specific symptoms he was experiencing but did nothing to protect or warn him. Then, after Ostermiller passed out in the office, Bozeman Motors sent Alexander into the same conditions without any warning, and ignored his complaints until he too was permanently injured. In addition, Employees argued in their brief opposing summary judgment that the evidence with respect to Ostermiller was not as compelling, but adequate to proceed to trial.

¶ 10 The District Court rejected Employees' arguments, concluding they had failed to show that Bozeman Motors had deliberately intended to cause specific harm to Alexander or Ostermiller. The District Court concluded that at best, Employees had demonstrated that Bozeman Motors' conduct and omissions amounted to wanton negligence, which was insufficient as a matter of law under Calcaterra v. Mont. Resources, 1998 MT 187, 289 Mont. 424, 962 P.2d 590 overruled on other grounds by Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, 338 Mont. 423, 166 P.3d 451, to avoid the WCA's exclusivity provision. See Calcaterra, ¶ 13 (internal quotations omitted) (stating that “allegations of negligence, no matter how wanton, are insufficient to avoid the exclusive remedy of the Workers' Compensation Act.”). Furthermore, the District Court concluded that Bozeman Motors' conduct was not akin to an “intentional left jab to the chin,” and therefore failed to meet the level of intentionality required to escape the WCA's exclusivity provision under Enberg v. Anaconda Co., 158 Mont. 135, 137, 489 P.2d 1036, 1037 (1971).

¶ 11 Employees also argued that § 39-71-413, MCA, was unconstitutional because it: (1) violates equal protection under Art. II, Section 4 of the Montana...