SENATE BILL NO. 323
INTRODUCED BY W. MCNUTT, ELLIS, BECK, BITNEY, R. BROWN, DEPRATU, EKEGREN, G. FORRESTER, MAHLUM, D. MOOD, SLITER, SOMERVILLE, SPRAGUE, F. THOMAS
AN ACT AMENDING THE EXCLUSIVE REMEDY PROVISION IN THE WORKERS' COMPENSATION ACT TO PROVIDE AN INJURED EMPLOYEE WITH A CAUSE OF ACTION FOR DAMAGES AGAINST AN EMPLOYER OR A FELLOW EMPLOYEE WHO CAUSES INTENTIONAL INJURY; DEFINING "INTENTIONAL INJURY"; AMENDING SECTION 39-71-413, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
WHEREAS, Montana's workers' compensation law is the exclusive remedy for an employee injured or killed in the scope of employment, as included in Article II, section 16, of the Montana Constitution and implemented by the Legislature in section 39-71-411, MCA; and
WHEREAS, the exclusive remedy provision of workers' compensation can be described as a quid pro quo exchange of rights and remedies, which is intended to relieve an injured employee of the responsibility of undertaking lengthy and expensive legal action to recover compensation for job-related injuries by proving an employer's negligence while relieving the employer of the burden of defending against work-related claims through the traditional common-law defenses of contributory negligence, assumption of risk, and the fellow servant rule to defeat the employee's claim; and
WHEREAS, in 1973, the Montana Legislature enacted section 39-71-413, MCA, which allowed an injured employee to sue a servant or employee of the employer when the injury was the result of an intentional or malicious act by the servant or employee of the injured employee's employer; and
WHEREAS, in a 2000 decision, Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401 (2000), the Montana Supreme Court revisited the standard used for determining whether an employer's act or omission was protected under the exclusive remedy; and
WHEREAS, the court applied section 39-71-413, MCA, to employers and held that actual malice, as described in section 27-1-221, MCA, which provides that a person acts with malice if an employer has knowledge of facts or intentionally disregards facts that create a high probability of injury and deliberately acts with conscious or intentional disregard or indifference to that high probability, would be the standard applied; and
WHEREAS, the exclusive remedy provision in the Workers' Compensation Act should provide that an injured employee has a cause of action for damages against an employer or the employer's employee only if the employer or fellow employee causes an intentional injury.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 39-71-413, MCA, is amended to read:
"39-71-413. Liability of employer or fellow employee for intentional and malicious and deliberate acts or
omissions -- additional cause of action -- intentional injury defined. (1) If an employee receives an injury 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 while performing the duties of his employment and the injury or injuries so received by the employee
are caused by the intentional and malicious act or omission of a servant or employee of his employer, then, the employee or
in case of his death his the employee's heirs or personal representatives shall, in addition to the right to receive
compensation under the Workers' Compensation Act, have a right to prosecute any have a cause of action he may have for
damages against the servants or employees of his employer causing the injury person whose intentional and deliberate act
caused the intentional injury.
(2) An employer is not vicariously liable under this section for the intentional and deliberate acts of an employee.
(3) As used in this section, "intentional injury" means an injury caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur."
Section 2. Effective date -- applicability. [This act] is effective on passage and approval and applies to injuries that occur on or after [the effective date of this act].
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Latest Version of SB 323 (SB0323.ENR)
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