INTENTIONAL TORTS OF AN EMPLOYER DEFINED

By: Duncan A. Peete

(as published in the Western Business Journal)

On February 29, 2000, in the case of Sherner v. Conoco, Inc., the Montana Supreme Court clarified the standard for determining whether an employer's act or omission is "intentional or malicious" for purposes of allowing an injured employee to bring a tort action against his employer under Section 39-71-413 of the Montana Code Annotated.

Section 39-71-413 offers an exception to the exclusive remedy provisions of the Workers' Compensation Act for injury to or death of an employee who is covered by the Act. It specifically states:

If an employee receives an injury 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 the case of his death his heirs or personal representatives shall, in addition to the right to receive compensation under the Workers' Compensation Act, have a right to prosecute any cause of action he may have for damages against the servants or employees of his employer causing the injury.

In 1986, the Montana Supreme Court extended this exception to the exclusive remedy rule under the Workers' Compensation Act to a cause of action that an injured employee brings against the employer.

In previous decisions involving the application of Section 39-71-413, the Montana Supreme Court has looked at either the nature of the harm to the employee or the nature of the employer's act or omission. In one decision, the Court interpreted Section 39-71-413 as requiring a showing that the employer maliciously and specifically directed harm at the employee and such specific intentional harm was a proximate cause of the employee's injuries. In another decision, the Court construed Section 39-71-413 as permitting an employee to bring a cause of action against an employer who commits an intentional act, irrespective of whether the employer intended the results of the act.

In Sherner, the Montana Supreme Court focused its attention entirely on the nature of the employer's acts or omissions. Specifically, the Court examined the plain language of Section 39-71-413 to determine a standard under which courts can decide when an employer's act or omission is intentional and malicious. Because the words, "intentional," "malicious," "act" and "omission," are not defined under the Workers' Compensation Act, the Court construed such words according to their plain meanings. Specifically, the Court adopted definitions for "intentional", "act" and "omission" that appear in The American Heritage Dictionary of the English Language, Third Edition, 1996. In construing the meaning of "malicious," the Court adopted the definition of "actual malice" that appears in Section 27-1-221(2) of the Montana Code Annotated. That statute says:

A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

In conclusion, the Court held that the plain language of Section 39-71-413 of the Montana Code Annotated only requires that an injured employee show that the act or omission which caused his injury was an intentional and malicious act or omission.

The new standard that the Montana Supreme Court has adopted in determining whether an employer's acts or omissions are intentional and malicious places less burden on the employee who is trying to apply Section 39-71-413 to his particular situation. An employee no longer has to show that the employer maliciously and specifically directed intentional harm at him. An injured employee who establishes that the employer should have known about certain facts that created a high probability of injury to the employee and that the employer acted in disregard or with indifference to the high probability of injury to the employee is now likely to be successful in a separate cause of action against the employer.