Massey v. Selensky, 83-363

• Decision Date: 17 August 1984
• Docket Number: No. 83-363,83-363
• Citation: 685 P.2d 938,41 St.Rep. 1596,212 Mont. 68
• Parties: Edward MASSEY and Lucille Massey, his wife, Plaintiffs and Appellants, v. Ray SELENSKY, Defendant and Respondent.
• Court: Montana Supreme Court

Page 938

685 P.2d 938

212 Mont. 68

Edward MASSEY and Lucille Massey, his wife, Plaintiffs and Appellants, v. Ray SELENSKY, Defendant and Respondent.

No. 83-363.

Supreme Court of Montana.

Submitted June 5, 1984.

Decided Aug. 17, 1984.

Knight, Dahood, McLean & Everett, Bernard Everett argued, Anaconda, for plaintiffs and appellants.

Poore, Roth & Robinson, Donald C. Robinson argued, Butte, for defendants and respondents.

HARRISON, Justice.

This case arises out of an accident in which appellant Edward Massey was injured after being struck by respondent Roy Selensky's pickup. Since Massey's injuries were covered under the provisions of the Montana Workers' Compensation Act, the District Court granted Selensky's motion for summary judgment and dismissed the cause of action. Massey appeals from this ruling.

At the time of the accident which gave rise to this action, both Massey and Selensky were employees of the Anaconda Company and worked at the smelter in the City of Anaconda. As they were neighbors, Massey and Selensky made a practice of riding to work together in Selensky's pickup. This practice had begun long before the accident occurred. Typically, the two would leave home at approximately 6:40 a.m. and arrive at the smelter at approximately 6:50 to "punch in" on the company time clock. Their shifts did not begin until 7:30 a.m.

When they arrived at the smelter, Selensky would park his pickup on a hill where the building which housed the time clock was located. This building is located well inside the boundaries of the Anaconda Company property. The two would then leave the pickup to punch in. After doing so, Massey would walk to the "machine shop" where he changed clothes and visited with co-workers until his shift began.

On January 8, 1980, the parties' day began in the above described manner; the men drove to work, parked the pickup and entered the building which housed the time clock. Massey punched in, exited the building and began walking to the machine shop. While he was en route, the pickup either slid or rolled down the hill and struck Massey causing the injuries complained of. The pickup was unoccupied at the time, and as yet what caused the pickup to move remains unknown.

On February 7, 1980, Massey filed a claim with the Workers' Compensation Division, seeking compensation for the injuries. An investigation was conducted by Harry McKernan, who is the personnel representative in charge of benefits for Anaconda Minerals Company. McKernan found the facts as set forth above, and initiated the claim on behalf of Massey. The Division recognized and allowed the claim. Massey has been receiving disability benefits since the date of the accident, and his related medical bills and expenses have all been paid.

This action was commenced on December 15, 1980, by Massey and his wife Lucille seeking damages from Selensky. The complaint alleged negligence on the part of Selensky which caused his injuries. After a period of discovery, Selensky moved for summary judgment, alleging that since the injury was compensable under the Workers' Compensation Act, Selensky was immune from suit. The issue was briefed and oral arguments were heard. The motion was granted and judgment for Selensky was entered. From this ruling Massey appeals.

In reviewing an appeal from summary judgment, the function of the Supreme Court is to determine whether the moving party is entitled to judgment in light of the law applicable to the facts of the case. Jordon v. Elizabethan Manor (1979), 181 Mont. 424, 593 P.2d 1049. As this case was essentially submitted on agreed facts, on appeal we are only concerned with questions of law. State v. North American Car Corporation (1945), 118 Mont. 183, 164 P.2d 161. A corollary of these rules is that we first must decide what the applicable law is.

It is well settled in Montana that a co-employee is immune from liability for negligent acts resulting in injuries which are compensable under the Workers' Compensation Act. Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860. The basis of this rule is section 39-71-412, MCA, which allows an injured worker to bring an action against one "other than his employer or the servants or employees of his employer" which such person's acts may have caused a compensable injury. However, the simple fact that two persons have the same employer would not necessarily cause this rule to apply. We must therefore determine when a co-worker is an "employee" as that term is used in section 39-71-412, MCA, for purposes of applying the co-employee immunity rule.

We note that this is a question of first impression in Montana. Though we have applied the co-employee immunity rule on several occasions, under the prevailing facts of those cases the rule obviously applied as the workers were on shift and doing their employer's business. See Madison v. Pierce, supra, and Baird v. Chokatos (1970), 156 Mont. 32, 473 P.2d 547. Under the facts of the present case it is not clear that the rule applies. Neither man had begun work yet, though they were in the midst of preparing for work. Obviously there must be some connection between the acts of the employee and his work for the immunity to apply. There must be a test which can be applied by trial courts to determine whether an employee's actions were so work related so as to make him immune from suit under section 39-71-412.

We hold that the proper test is whether the co-worker was acting within the course and scope of his employment at the time the negligent acts occurred. If the allegedly negligent co-worker was acting within the course and scope of his employment at the time he engaged in the purported negligent acts, then he is an "employee of his employer," and immune from suit by the injured claimant. There is a wealth of case law in Montana to aid trial courts in their application of this test as it is the same used to determine whether a claimant's injuries are work related. See section 39-71-407, MCA.

We note that the often quoted rule of liberal construction in favor of claimants is inapplicable here. The Workers' Compensation Act should not be liberally construed to extinguish the right to maintain a third party cause of action, nor should it be liberally construed to allow a third party cause of action if it has been expressly abolished. The statutory provision of the Act and this Court's interpretations of the same have been slanted away from insurers in favor of the injured claimant. This inequity has no place in determining the apportionment of liability between fellow workers.

However, courts should bear in mind the theory of Workers' Compensation. It is recognized that injuries will occur in the workplace, and will be the fault of both employers and fellow workers. In return for immediate and assured compensation for work or employment related injuries, the injured claimant gives up his right to maintain an action against the employee or fellow worker. See Vol. 2A, Larson's Workmen's Compensation Law, section 72.22.

The test adopted by this opinion should be administered with the above in mind. An injured claimant has given up his right to maintain an action against a...