No. 85-45 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

LINDA HERRON, individually and as heir to the Estate of ROBERT W. HERROM,

Plaintiff and Appellant,

PACK AND COMPANY, a Montana corporation, Defendant and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Murray, Kaufman, Vidal & Gordon; Daniel W. Hileman argued, Kalispell, Montana

For Respondent: Stephen C. Berg argued, Kalispell, Montana

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Submitted: June 18, 1985 Decided: August 29, 1985

Filed: AUG 2 9 1985

Clerk M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court.

Linda Herron a p p e a l s from a summary judgment ~ n t e r e dby

t h e D i s t r i c t Court o f t h e Eleventh J u d i c i a l District Flathead

County. The D i s t r i c t Court refused t o recognize t h e dual

c a p a c i t y d o c t r i n e which would have a l l o w e d Herron t o m a i n t a i n

a n a c t i o n i n n e g l i g e n c e a g a i n s t Pack and Company, Inc. We

affirm.

Robert Herron was employed by Pack and Company,

h e r e i n a f t e r r e f e r r e d t o a s t h e Company. On J u l y 21, 1984,

R o b e r t H e r r o n was k i l l e d i n a s i n g l e v e h i c l e a c c i d e n t w h i l e

r i d i n g back from work on U.S. Highway no. 2, near Essex,

Montana. It i s a l l e g e d t h a t t h e a c c i d e n t was p r o x i m a t e l y

c a u s e d by negligent, improper and i n s u f f i c i e n t maintenance

upon t h e t r u c k ' s b r a k i n g s y s t e m p e r f o r m e d by employees o f t h e

Company. The Company p r o v i d e d Workers' Compensation c o v e r a g e

t h r o u g h t h e S t a t e Fund and H e r r o n ' s h e i r s r e c e i v e d b e n e f i t s .

On November 15, 1984, Linda Herron filed a wrongful

death and survival a c t i o n i n District Court. The Company

f i l e d a motion t o d i s m i s s a l l e g i n g t h a t § 39-71-411, MCA, t h e

e x c l u s i v e remedy p r o v i s i o n , barred t h e action a s a matter of

law. The District Court granted the Company's motion to

dismiss, ruling that the dual capacity doctrine was

i n c o n s i s t e n t w i t h Montana law.

The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l :

(1) Whether an employee can sue his employer for

n e g l i g e n c e where it i s a l l e g e d t h a t t h e employer o p e r a t e s i n

a d u a l c a p a c i t y and h a s a n e x t r a employer r e l a t i o n s h i p t h a t

is separate and distinct from that of employer/employee.

(2) Whether n e g l i g e n t and i n s u f f i c i e n t m a i n t e n a n c e o f

a v e h i c l e ' s braking system c o n s t i t u t e s an intentional t o r t

f o r p u r p o s e s o f t h e Workers' Compensation A c t . The exclusive remedy limitation embodied in S 39-71-411, MCA is both clear and unambiguous. Section 39-71-411, MCA provides: For all employments covered under the Workers' Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers' Compensation Act, employer is not subject to any liability whatever for the death of or personal injury to an employee over 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. This appeal presents a question concerning the dual capacity exception to the exclusivity provision of the Workers' Compensation Act. In an attempt to circumvent the exclusive remedy limitation, Herron invokes the dual capacity doctrine. This doctrine, however, has been subject to misapplication and abuse by plaintiffs. See Mercer v. Uniroyal, Inc. (Ohio 1977), 361 N.E.2d 492; Profilet v. Fallonite (Ill. 1977), 371 N.E.2d 1069; Rosales v. Verson Allsteel Press Co. (Ill. 1976), 354 N.E.2d 553; Neal v. Roura Iron Works (Mich. 1975), 238 N.FT.2d 837. The emergence of the dual persona doctrine is an attempt to correct the looseness and overextension of the dual capacity doctrine. "In a sense, a single legal person may be said to have many 'capacities,' since that term has no fixed legal meaning." Stretching this doctrine to cover the numerous possible relationships or theories of liability can destroy employer immunity and "go a long way toward destroying the exclusive remedy principle." 2A Larson, Workmen's Compensation - Law S 72.81 (1982). Herron argues it was not the intent of the Montana Legislature in adopting the Workers' Compensation Act to insulate a grossly negligent employer who assigned extra duties to its employees simply by strict adherence to the exclusivity rule. By operating its own separate service department, appellant maintains that the Company had generated a different set of obligations to its employees and had acted in a dual capacity with respect to its employees. Montana has no line of cases construing $ 39-71-411, MCA, relative to the dual capacity concept. Herron submits a United States Supreme Court decision, Reed v. Steamship Yaka (1963), 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, which has facts almost identical to the facts of the present case. In Reed, the plaintiff was a longshoreman who was injured while loading a vessel that had been leased under a bare-boat charter by the defendant employer. In addition to being entitled to compensation benefits, the employee also was permitted to bring an action against the employer, as charterer, alleging unseaworthiness of the vessel. The Supreme Court ruled that the defendant/employer owed a "traditional, absolute and non-delegable" duty to the employee that could not be circumvented by the exclusive remedy provision of the longshoremens' act. 373 U.S. at 415. The Reed holding has been followed in subsequent United States Supreme Court cases, as well as several appellate court decisions. See Jackson v. Lykes Brothers Steamship Co. (1967), 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488; Griffith v. Wheeling Pittsburgh Steel Corporation (3rd. Cir. 1975), 521 F.2d 31, cert. den'd., (1976) 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643; Longmeir v . S e a d r i l l i n g C o r p o r a t i o n ( 5 t h

Cir. 1 9 8 0 ) , 610 F.2d 1342.

The C a l i f o r n i a c o u r t s have been the forerunners i n a

minority of jurisdictions adopting the dual capacity

doctrine. I n a r e c e n t C a l i f o r n i a c a s e , h e a v i l y r e l i e d upon

by Herron, a d r i v e r was injured in a fire that developed

while he was transferring propane from his truck to

holding-tanks. The p l a i n t i f f employee was p e r m i t t e d t o b r i n g

a n a c t i o n a g a i n s t t h e employer u n d e r t h e d u a l c a p a c i t y t h e o r y

a l l e g i n g t h a t h e had b e e n i n j u r e d a s a p r o x i m a t e r e s u l t o f

d e f e c t s i n t h e t a n k t r u c k and o t h e r e q u i p m e n t t h a t had b e e n

m o d i f i e d by t h e employer. Bell v. I n d u s t r i a l Vangus, Inc.

( C a l . 19811, 637 P.2d 266.

The Company m a i n t a i n s t h a t B e l l h a s no a p p l i c a t i o n t o

t h e present matter. The B e l l d e c i s i o n c o n c e r n s a n employee

injured as a r e s u l t o f d e f e c t i v e e q u i p m e n t m a n u f a c t u r e d by

the employer. In the instant case, the Company argues,

respondent d i d not manufacture t h e v e h i c l e nor t h e d e f e c t i v e

b r a k i n g equipment which f a t a l l y i n j u r e d M r . Herron.

The Company u r g e s t h i s C o u r t t o a d o p t t h e r u l i n g o f a n

Illinois Supreme Court decision, Romo v. Allin Express

Service, Inc. (Ill. 1982), 436 N.E.2d 20. In Romo, the

e s t a t e o f a n employee b r o u g h t a w r o n g f u l d e a t h a c t i o n a g a i n s t

employer, a l l e g i n g negligence i n t h e maintenance o f a t r u c k .

The I l l i n o i s Supreme C o u r t d i s m i s s e d t h e a c t i o n , h o l d i n g t h a t

t h e a c t i o n b a s e d on d u a l c a p a c i t y was b a r r e d by t h e e x c l u s i v e

remedy p r o v i s i o n o f t h e I l l i n o i s Workers' Compensation A c t .

The c o u r t found s i g n i f i c a n c e i n t h e f a c t t h a t t h e employer

f u r n i s h e d t h e t r u c k t o t h e employee. Because t h e o p e r a t i o n

of t h e t r u c k was a n i n c i d e n t o f h i s employment, the court

r e j e c t e d t h e d u a l c a p a c i t y argument. W e agree. Herron also argues that the Company's failure to

p r o p e r l y m a i n t a i n t h e v e h i c l e ' s b r a k i n g s y s t e m c o n s t i t u t e s an

intentional tort. However, i n a r e c e n t d e c i s i o n , w e d e c l i n e d

t o r e c o g n i z e a s i m i l a r t o r t a c t i o n by a lumber m i l l employee

against his employer for failing to maintain a safe

workplace. Noonan v. S p r i n g Creek Forest Products, Inc.

(Mont. 1 9 8 5 ) , 7 0 0 P.2d 623, 4 2 St.Rep. 759. Although t h e

hazardous and dangerous nature of the workplace was

recognized, t h i s Court s t a t e d , "to translate this situation

into an inference of tortious intent on behalf of the

employer would r e q u i r e a s t a n d a r d o f law t h i s C o u r t h a s t h u s

f a r refused t o adopt ... " I n a c c o r d w i t h Noonan, w e h o l d

Herron's a c t i o n i n t o r t i s foreclosed.

The summary judgment o f t h e D i s t r i c t C o u r t i s a f f i r m e d .

We c o n c u r : /' i