LAKE v STATE
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No. 96-095 IN THE SUPREME COURT OF THE STATE OF MONTANA DOROTHY J. LAKE, on her own behalf, and as the personal representative of the estate of CHARLES EDWARD LAKE, deceased,on behalf of his heirs, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent. ~~,i,\~ ;'I / I# MARK JEFFREY HODIK, a minor, in his own behalf, and by :,, MARY JO HODIK, his next friend and the personal representative I,> of the estate of JAMES D. HODIK, deceased, :y,l~.Ei-:,:-;.T ~ L ~~~~ ~-?w~~ ~ . i*i;>qi,iL~*ir v $+/~ tj? . $j#%&! Plaintiff and Appellant, V. STATE OF MONTANA, Defendant and Respondent APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD For Appellants: Ira D. Eakin (argued) and Michael G. Eiselein; Lynaugh, Fitzgerald, Eiselein & Eakin; Billings, Montana For Respondent: Anita Harper Poe (argued), Sherman V. Lohn, and William Evan Jones; Garlington, Lohn & Robinson; Missoula, Montana A Filed: Submitted: October 22, 1996 Decided: May 27, 1997 n A + Justice Terry N. Trieweiler delivered the opinion of the Court. The plaintiffs, Dorothy J. Lake and Mary Jo Hodik, individually and as personal representatives of the estates of Charles Edward Lake and James D. Hodik, commenced separateactions in the District Court for the First Judicial District in Lewis and Clark County to recover damages for personal injuries to and the wrongful deaths of their deceased husbands,whom they claim were injured while working on property owned and controlled by the defendant, State of Montana, through its Department of Military Affairs. After the caseswere consolidatedby the District Court, the Statemoved the court to dismiss plaintiffs complaints by summary judgment pursuant to Rule 56, M.R.Civ.P. After considering the arguments of the parties, the District Court concluded that both claims were barred by the U.S. SupremeCourt s decisionin Feres IL UnitedStates (1950), 340 U.S. 135,71 S. Ct. 153, 95 L. Ed. 2d 152, and the Ninth Circuit Court of Appeals decision in Stuuber v. Cline (9th Cir. 1988), 837 F.2d 395, cert. denied(1988), 488 U.S. 817. The District Court granted the State smotion to dismissboth complaints with prejudice. Both plaintiffs appealfrom the District Court s order. We reverse the judgment of the District Court. We consider the following issue dispositive: 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 as a civil service technician employedby the United StatesArmy, sue the State of Montana to recover damagesfor those injuries? 2 STANDARD OF REVIEW Summary judgment is governed by Rule 56(c), M.R.Civ.P., which provides, in relevant part, as follows: The judgment sought shall be renderedforthwith if the pleadings,depositions, answersto interrogatories, and admissionson file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court reviews an order which grants summaryjudgment de nova and appliesthe samecriteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 50910,922 P.2d 1183, 1184, In this case,the District Court s order is basedon its conclusions of law. We review conclusionsof law to determinewhether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459,469, 898 P.2d 680, 686. FACTUAL BACKGROUND Plaintiffs allegedby complaint that their deceased spouses,Charles Edward Lake and JamesD. Hodik, were injured on June7, 1989, while testing M-l Abrams tanks when those tanks collided on a test track at Fort Harrison near Helena, Montana. Hodik died from his injuries on the same date. Lake survived for a period of time, but subsequently died as a result of his injuries on August 9, 1991. 3 Plaintiffs allegedthat at the time of the collision which causedtheir husbands deaths, both Lake and Hodik were employed by the United StatesDepartment of Defense as civil service technician-mechanics, and had been employed to operate the tanks owned by the Department of Defense during a fielding program designedto test the tanks mechanical performance before turning over ownership of the tanks to the State of Montana and its Department of Military Affairs. Finally, the plaintiffs alleged that pursuant to its agreement with the Department of Defense, the Stateof Montana had a duty to provide a safe and suitable test area, but that it negligently failed to do so, and that the State sfailure was a cause of the collision which causedLake s and Hodik s injuries and deaths. In answer to the plaintiffs complaints,the Stateadmitted that at the time of Lake s and Hodik s injuries they were employed by the United StatesDepartment of Defense as civil servicetechnician-mechanicsand that the State,through its Department of Military Affairs, had entered into an agreement with the United States Department of Defense for the acquisition of severalM-l tanks, which Lake and Hodik were operating at the time of their collision. However, the State deniedthe remaining allegations of the plaintiffs complaints. After the two claims were consolidatedby the District Court, the State moved for summary judgment on several bases. Those baseswhich are relevant to this appeal were that: (1) the District Court lacked jurisdiction over the two claims because sovereign immunity had not been waived with regard to activities of the Montana Army National 4 Guard, basedon Evans v. Montana National Guard (1986), 223 Mont. 482,726 P.2d 1160; and (2) the State cannotbe suedfor injuries to National Guard members which are incident to military service, basedon Feres v. United States(1950) 340 U.S. 135,71 S. Ct. 153,95 L. Ed. 2d 152, and its progeny. In support of its motion for summaryjudgment, the State of Montana submitted affidavits from Gary Hindoien, Brigadier General, Montana National Guard; Doug Booker, Centralized Services Administrator of the Department of Military Affairs for the State of Montana; and Lieutenant Colonel Anthony Morrison. Those affidavits establishedthe following facts which are uncontradicted: At the time of their collision on June 7, 1989, Lake and Hodik were federal techniciansemployedpursuant to 32 U.S.C. 5 709 (1997) and were performing duties such 32 U.S.C. 3 709 provides, in relevant part, as follows: (a) Under regulationsprescribedby the Secretaryof the Army or the Secretary of the Air Force, as the casemay be, and subject to subsection (b) of this section persons may be employed as technicians in-(1) the administrationandtraining of the National Guard; and the maintenance and repair of supplies issued to the (2) National Guard or the armed forces. (b) Except as prescribed by the Secretary concerned, a technician employed under subsection(a) shall, which so employed-(1) be a member of the National Guard; (2) hold the military grade specified by the Secretary concerned for that position; and wear the uniform appropriatefor the member sgrade and (3) componentof the armed forces while performing duties as a technician. (c) The Secretary concerned shall designatethe adjutants general referred to in section3 14 of this title, to employ and administer the technicians authorized by this section. (d) A technician employed under subsection(a) is an employee of the Department of the Army or the Department of the Air Force, as the case 5 aswere contemplatedby 32 U.S.C. 5 709(a)(2), which included the maintenance and repair of federal equipment. As required by 32 U.S.C. 3 709(b), Lake and Hodik were also members of the Montana National Guard, but were not in active service of the Guard at that time and place. As technicians, they were consideredfederal employees and were paid by the federal government. Lake and Hodik, while performing as technicians,were supporting a federally funded mission to test federally owned tanks under the supervision of the Tank Automotive Command of the U.S. Army (TACOM). The tanks that they were operating at the time of their collision belongedto TACOM, which was under the jurisdiction of the Department of the Army. Hodik and Lake were part of the fielding team which performed under the direct supervisionof TACOM. The purposeof the fielding team was to test the tanks for the U.S. Army before turning them over to the Montana National Guard. Becausetheir deathswere causedby their collision, Lake s and Hodik s beneficiaries were eligible for various benefits pursuant to their status as federal employees. However, neither Lake nor Hodik, nor their beneficiaries,have received, nor are they eligible for, any benefits from the State of Montana, including state retirement benefits, life insurance, or workers compensationbenefits. may be, and an employeeof the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection(b) to be a member of the National Guard. 6 Lake and Hodik were members of a collective bargaining unit known as the Association of Civilian Technicians, and were covered by the terms of that Association s collective bargaining agreement with the State of Montana while serving as federal technicians. If they had had a complaint about the terms of their employment on the date of their injury, they would have been able to express that complaint through the labor managementgrievanceprocessdetailedin the labor-managementagreement. However, had they been on active duty for the Montana National Guard, the collective bargaining agreementand its grievanceprocesswould have beeninapplicable. In that event, they would have been subject to the Uniform Code of Military Justice. In support of its motion for summary judgment, the State contended, pursuant to Evans, that it had not waived sovereign immunity from claims against the National Guard. The State also contendedthat, pursuant to Evans, Feres, and Stuuber, the claims on behalf of Lake and Hodik were barred becausethey were basedon injuries sustained incident to military service. In opposition to the State smotion for summary judgment, the plaintiffs pointed out that Article II, Section 18, of the Montana Constitution, abolished sovereign immunity; Article II, Section32, of the Montana Constitution, subjects the Department of the Military to civilian power; and Article II, Section 16, of the Montana Constitution, provides that injured workers are entitled to full legal redressfor injuries causedduring the course of their employment by persons other than their employer or fellow employees. Plaintiffs also 7 contendedthat the Feres and Evans decisionsare distinguishablefrom the facts of this case, and that the District Court should follow decisionsfrom the State of Washington in Kirtley v. State (Wash. App. 1987), 748 P.2d 1128, and Emsley v. Army National Guard (Wash. 1986), 722 P.2d 1299. The District Court agreedwith the Stateof Montana andheld that pursuantto Stauber, the Feres doctrine, as adopted in Evans, also applied to the facts in this case. The District Court therefore held that Lake s and Hodik s injuries which caused their deaths were incident to military service and that it lacked subject matter jurisdiction to entertain the plaintiffs complaints. Based on these conclusions,the District Court found it unnecessary to discussthe other issuesraised in the State smotion for summaryjudgment. Neither do we review those issues. As stated,the issueon appealis simply whether a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the courseof his employment as a civil service technician employed by the United StatesArmy, can sue the State of Montana to recover damagesfor those injuries. The parties respective arguments on appeal mirror those which were made to the District Court. We conclude, based on the reasoning set forth in our recent decision in Trankel v. State ofMontana (Mont. April 30, 1997),No. 96-026, that Feres is inapplicable to the facts 8 in this case,and that the plaintiffs claims are not barred by our prior decision in Evans, nor by the Ninth Circuit s decision in Stauber. Our conclusion is compelled by Article II, Section 16, of the Montana Constitution, which provides as follows: Courts ofjustice shall be open to every person, and speedyremedy afforded for every injury of person, property, or character. No uerson shall be demived of this full leeal redress for iniurv incurred in emulovment for which another person mav be liable extent as to fellow emulovees and his immediate emulover who hired him if suchimmediate emulover urovides coverageunder the Workmen s Comuensation Laws of this state. Right andjustice shall be administered without sale, denial, or delay. (Emphasis added.) As we stated in Trankel, No. 96-026, slip op. at 19: We reaffirm that pursuant to the second sentencein Article II, Section 16, of the Montana Constitution, any statute or court decision which deprives an employeeof his right to full legal redress,as defined by the generaltort law of this state against third parties, is absolutely prohibited. That sentence is mandatory and self-executing, and leavesno room for erosion basedon what federal courts or the courts of other stateswould do pursuant to federal laws or the laws of other states. At the time of the injuries for which Lake s and Hodik s survivors seekcompensation, they were employed by the Department of the Army of the United States. The State of Montana was neither their employer nor a fellow employee, but instead, a third party for purposesof the application of Article II, Section 16, of the Montana Constitution. Therefore, pursuant to that constitutional provision, their right to full legal redress is preserved as a 9 matter of state constitutional law, notwithstanding the authorities relied on by the State and the District Court. For these reasons, the judgment of the District Court is reversed. This case is remanded to the District Court for further proceedingsconsistent with this opinion. We Concur:
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