Trankel v. State, Dept. of Military Affairs

Citation938 P.2d 614,282 Mont. 348
Decision Date30 April 1997
Docket NumberNo. 96-026,96-026
PartiesJames B. TRANKEL, Plaintiff and Appellant, v. STATE of Montana, DEPARTMENT OF MILITARY AFFAIRS, Montana Army National Guard, Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Page 614

938 P.2d 614
282 Mont. 348
James B. TRANKEL, Plaintiff and Appellant,
v.
STATE of Montana, DEPARTMENT OF MILITARY AFFAIRS, Montana
Army National Guard, Defendants and Respondents.
No. 96-026.
Supreme Court of Montana.
Submitted Oct. 22, 1996.
Decided April 30, 1997.

Page 615

Erik B. Thueson and James T. Towe (argued), Thueson & Lamb, Helena, for Plaintiff and Appellant.

Joseph P. Mazurek, Attorney General, James M. Scheier and Thomas G. Bowe (argued), Assistant Attorneys General, Agency Legal Services, Helena, William Gianoulias, Risk Management and Tort Division, State of

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Montana, Helena, for Defendants and Respondents.

Mike T. McCabe, Staff Judge Advocate, Helena, for Defendant and Respondent Montana National Guard.

TRIEWEILER, Justice.

The plaintiff, James B. Trankel, commenced this action in the District Court for the First Judicial District in Lewis and Clark County to recover damages for personal injuries sustained while working on property owned and controlled by the defendant, State of Montana, through its Department of Military Affairs. The State moved to dismiss Trankel's complaint pursuant to Rule 12(b)(6), M.R.Civ.P. After considering the arguments of the parties, the District Court concluded that Trankel's claim was barred by the U.S. Supreme Court's decision in Feres v. United States (1950), 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and our prior decision in Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. The District Court granted the State's motion to dismiss. Trankel appeals from the District Court's order granting the State's motion. We reverse the judgment of the District Court.

Trankel raises the following issues on appeal:

1. Can a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment with the United States Army, sue the State of Montana to recover damages for those injuries?

2. Did the District Court err when it concluded that the plaintiff's allegations of statutory violations failed to state a claim?

STANDARD OF REVIEW

The District Court dismissed Trankel's claim pursuant to Rule 12(b)(6), M.R.Civ.P., based on the court's conclusion that it failed to state a claim for which relief could be granted.

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. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.

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.

Lockwood, [272 Mont. at 207,] 900 P.2d at 317 (quoting Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Lockwood, [272 Mont. at 207,] 900 P.2d at 317.

Common Cause of Montana v. Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427.

FACTUAL BACKGROUND

The following facts were alleged in the plaintiff's complaint. For the reasons set forth above, we assume that they are true for the purpose of reviewing the plaintiff's appeal.

The Army National Guard of the State of Montana operates under the supervision and direction of the Department of Military Affairs for the State of Montana which is established pursuant to Titles 2 and 10 of the Montana Code Annotated.

James B. Trankel enlisted in the Montana Army National Guard on March 28, 1991. However, in 1992, after assuming full-time employment in the Guard, he was called to active duty in the United States Army pursuant to Title 10 of the United States Code.

In early 1992, the Guard began a program known as Southwest Asia Vehicle Rebuild Program (SWAREB), the function of which was to repair and rebuild vehicles that had been damaged in the Gulf War and then distribute them for use to National Guard units, including Montana's unit. That program was based out of facilities at Fort

Page 617

Harrison in Montana. In October 1992, while still in full-time service to the United States Army, Trankel was assigned to that section of the SWAREB program responsible for body repair and undercoating of vehicles. He performed his duties in a building located at Fort Harrison and designated as the paint and body shop.

During the course of his duties, Trankel was required to work with and around toxic and hazardous materials and stand in a pit below the ground surface while spraying these materials on the undersides of vehicles. However, the facilities were not properly vented and he was not provided with adequate equipment, including respirators and proper clothing. Trankel became drenched with toxic chemicals and inhaled dangerous levels of toxic substances because the State failed to implement and enforce safe operating procedures.

As a result of his exposure to toxic materials, Trankel has been treated for bronchitis and sinusitis, and has suffered permanent physical injuries, including injury to his brain and internal organs. He contended that his injuries were a result of the State's negligent failure to implement safe operating procedures for the SWAREB activities that were performed on its premises.

Trankel also contended, in Counts II, III, and IV of his complaint, that the State violated the Occupational Health Act of Montana found at §§ 50-70-101 to -118, MCA; the Montana Safety Act found at §§ 50-71-101 to -334, MCA; and the Employee and Community Hazardous Chemical Information Act found at §§ 50-78-101 to -402, MCA.

The State moved to dismiss Trankel's complaint pursuant to Rule 12(b)(6), M.R.Civ.P., based on its contention that his claim was barred as a matter of law by the U.S. Supreme Court's decision in Feres v. United States (1950), 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and our prior decision in Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. It was and is the State's position that the Feres doctrine bars claims which arise from activities "incident to military service" regardless of the substantive law upon which the claim is based, the status of the plaintiff at the time he is injured, or the status of the party against whom the claim is made. In addition, it is the defendant's contention that the acts upon which Counts II, III, and IV were based do not provide private causes of action, but can be enforced only by means of the administrative remedies provided for in those Acts.

The District Court agreed with the State. It held that because Trankel's injuries were incident to his service in the National Guard, it is immaterial whether he was serving in a state or federal status at the time of his injuries, and therefore, that his claims were barred by the prior decisions in Feres and Evans. It also concluded that the Acts relied on in Counts II, III, and IV do not create private causes of action for recovery of damages, but instead must be enforced by the various agencies to whom responsibility is given within the Acts. Trankel's complaint was, therefore, dismissed with prejudice and judgment was entered for the State of Montana.

ISSUE 1

Can a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment with the United States Army, sue the State of Montana to recover damages for those injuries?

Essential to an understanding of Trankel's employment status at the time of his injury is an understanding of the statutory framework pursuant to which members of the United States Army Reserve forces are required to serve.

The "Army National Guard" refers to the organized militia of the several states. 32 U.S.C. § 101(4) (1994). The "Army National Guard of the United States" is a reserve component of the United States Army. However, its members are required to be members of the "Army National Guard." 32 U.S.C. § 101(5) (1994).

The President of the United States may call into "Federal service" members of the Army National Guard of any state when he deems it necessary and it is appropriate,

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based on circumstances provided by law. 10 U.S.C. § 12406 (1994).

However, when a member of the "Army National Guard" is ordered to active federal duty, he or she is relieved from duty in the National Guard of his or her state, from the effective date of the order to active duty in the federal military. 32 U.S.C. § 325 (1994). Members of the "Army National Guard of the United States" who have been ordered to active duty become reserves of the Army, 10 U.S.C. § 12403 (1994), and are, thereafter, subject to the laws and regulations governing the United States Army. 10 U.S.C. § 12405 (1994).

The practical effect of this statutory framework was explained by the U.S. Supreme Court in Perpich v. Department of Defense (1990), 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312. There, the Court stated that:

Thus, under the "dual enlistment" provisions of the statute that have been in effect since 1933, a member of the Guard who is ordered to active duty in the federal service is thereby relieved of his or her status in the State Guard for the entire period of federal service.

....

The unchallenged validity of the dual enlistment system means that members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the state militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the...

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