Massey v. Selensky, 85-636

• Decision Date: 13 January 1987
• Docket Number: No. 85-636,85-636
• Citation: 225 Mont. 101,731 P.2d 906
• Parties: Edward MASSEY and Lucille Massey, his wife, Plaintiffs and Respondents, v. Ray SELENSKY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 906

731 P.2d 906

225 Mont. 101

Edward MASSEY and Lucille Massey, his wife, Plaintiffs and Respondents, v. Ray SELENSKY, Defendant and Appellant.

No. 85-636.

Supreme Court of Montana.

Submitted on Briefs Dec. 18, 1986.

Jan. 13, 1987.

Poore, Roth & Robinson, Butte, (Donald C. Robinson), for defendant and appellant.

Bernard J. Everett, Knight, Dahood, McLean & Everett, Anaconda, for plaintiffs and respondents.

GULBRANDSON, Justice.

This is an appeal from the District Court of the Third Judicial District in and for the County of Deer Lodge, Montana, granting plaintiff partial summary judgment. We reverse and remand.

This is the second time this case has been before the Court. See Massey v. Selensky (Mont.1984), 685 P.2d 938, 41 St.Rep. 1596. The parties have stipulated to the following facts: Plaintiff/respondent (Massey) and defendant/appellant (Selensky), both employed by the Anaconda Smelter, Anaconda, Montana, rode to work in Selensky's pickup truck the morning of January 8, 1980. They entered the employer's premises by the main gate and travelled some distance to the change house or clock house, a small building where the company time clock was located. The building was at an intersection from which various roads led to employee parking lots.

Selensky parked his truck on an inclined area near the clock house and both men walked into the building for the purpose of punching their time cards. Massey punched-in first, shortly after 6:30 a.m and left the building to walk to the machine shop, where he worked. The shift did not begin until 7:30, but it was his usual practice to punch-in early, drink coffee with fellow employees, change into work clothes, and generally prepare for work. The employer was aware of this practice. As Massey walked toward the machine shop, Selensky's unoccupied truck rolled backwards down the incline, struck and injured Massey. He filed a claim with the Workers' Compensation Division for compensation and medical expenses incurred for his injuries. The claim was allowed and Massey received compensation benefits and payment of medical expenses as allowed by law.

Massey and his wife also filed a complaint against Selensky in District Court. Both parties moved for summary judgment. Summary judgment was granted Selensky, and Massey appealed. We reversed and remanded in Massey, supra, ordering the District Court to determine whether Selensky was acting within the course and scope of his employment at the time of the alleged negligence, making him a co-employee immune from suit pursuant to Sec. 39-71-412, MCA.

Additional discovery was undertaken, and both parties again filed motions for partial summary judgment. Following oral argument, the District Court reversed its first decision and ordered partial summary judgment on the issue of co-employee immunity be entered for Massey. Selensky appeals.

It is appropriate first to emphasize the policy underlying the Workers' Compensation Act which is to compensate employees for injuries in the work place without regard to fault. In turn an employee relinquishes the right to bring a negligence action against his employer or a fellow employee. A majority of states provide this immunity from common law liability. The principle of enterprise liability was recognized by this Court long before enactment of the co-employee statutory protection. Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860; Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572; State ex rel. Morgan v. Indus. Accident Bd. (1956), 130 Mont. 272, 300 P.2d 954. Co-employee protection is a natural extension of enterprise liability and relieves the employee of justifiable apprehension about the possibility of a suit against him. Co-employee immunity is essential to the integrity of the Act.

Our previous decision required only that the District Court focus on Selensky's status at the time of the alleged negligence. After the first Massey case was handed down, the parties stipulated that Selensky's negligence occurred at the time he parked his vehicle near the change house, minutes before Massey was hurt. We said previously the proper test for the District Court to determine whether co-worker's actions were so work related as to make him immune from suit under Sec. 39-71-412, MCA, is whether he is acting within the course and scope of his employment at the time the negligent acts occurred. Massey, supra, 685 P.2d at 940, 41 St.Rep. at 1599.

To determine whether Selensky was acting within the course and scope of his employment at the time he parked his truck, the District Court applied the going and coming rule. Generally, travel by an employee to and from work is outside the course and scope of employment. Gordon v. H.C. Smith Construction Co. (1980), 188 Mont. 166, 612 P.2d 668. Findings of the District Court will be set aside only when they are clearly erroneous. Rule 52(a), M.R.Civ.P. We find it is error to apply the going and coming rule in this case. The parties already had travelled to and arrived at their place of work. Rather, the premises rule should be used. Compensable injuries include those sustained by employees having fixed hours and place of work who are injured while on the...