HERRON v PACK COMPANY

Annotate this Case

Download PDF

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 -- - -- Submitted: Decided: Filed: AUG 2 9 1985 Clerk June 18, 1985 August 29, 1985 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 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. and 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. near 2, Essex, 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 Montana. It 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 . O n death November and 15, survival 1984, Linda Herron a c t i o n i n District Court. 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 e x c l u s i v e remedy p r o v i s i o n , law. District The dismiss, ruling filed Court that a wrongful The Company 39-71-411, § MCA, t h e barred t h e action a s a matter of granted the dual the Company's capacity motion doctrine to 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 (2) a and distinct from that of employer/employee. 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 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 S 39-71-411, MCA remedy limitation embodied is both clear and unambiguous. in 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 Workers' Compensation Act. exclusivity provision of the In an attempt to circumvent the exclusive remedy limitation, Herron invokes the dual capacity doctrine. This doctrine, misapplication and Uniroyal, Inc. however, abuse by has been plaintiffs. (Ohio 1977), 361 N.E.2d Fallonite (Ill. 1977), 371 N.E.2d the dual persona doctrine is an See Mercer to v. 492; Profilet v. 1069; Rosales v. Verson Allsteel Press Co. (Ill. 1976), 354 N.E.2d Iron Works (Mich. 1975), 238 N.FT.2d subject 837. 553; Neal v. Roura The emergence of 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 2A Larson, Workmen's Compensation Law remedy principle." 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 By operating its own separate service exclusivity rule. 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 MCA, relative to the dual capacity concept. $ 39-71-411, 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. entitled to compensation benefits, the employee also was permitted to bring charterer, alleging Supreme In addition to being Court "traditional, ruled an action against the employer, as unseaworthiness of the vessel. that absolute and the The defendant/employer owed non-delegable" duty to a the employee that could not be circumvented by the exclusive remedy provision of the longshoremens' act. The Reed holding has been 373 U.S. at 415. 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 1 9 8 0 ) , 610 F.2d Cir. 1342. The C a l i f o r n i a c o u r t s have been minority of jurisdictions the adopting forerunners i n a 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 a Herron, while he d r i v e r was was holding-tanks. injured transferring in a propane fire from that developed his truck to 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. ( C a l . 19811, 637 P.2d Bell v. I n d u s t r i a l Vangus, Inc. 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 The B e l l d e c i s i o n c o n c e r n s a n employee t h e present matter. injured the 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 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 Service, Inc. Court (Ill. decision, 1982), 436 Romo N.E.2d v. 20. Allin In Express 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. of t h e t r u c k was a n i n c i d e n t o f Because t h e o p e r a t i o n h i s employment, 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. the court 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 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 intentional tort. 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 Noonan workplace. (Mont. v. 1 9 8 5 ) , 7 0 0 P.2d hazardous and recognized, into employer an for failing S p r i n g Creek 623, dangerous nature of maintain Forest 4 2 St.Rep. t h i s Court s t a t e d , inference to of 759. the a safe Products, Inc. Although t h e workplace was "to translate this situation 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

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.