                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL BRADY; JOAN BRADY,                       No. 06-35007
            Plaintiffs-Appellants,                   D.C. No.
              v.                                  CV-02-00067-
PPL MONTANA, LLC,                                   BLG-RFC
             Defendant-Appellee.               District of Montana,
                                                     Billings
                                                     ORDER
                                                  CERTIFYING
                                                QUESTION OF
                                                 LAW TO THE
                                                   MONTANA
                                              SUPREME COURT


                     Filed February 14, 2007

     Before: Raymond C. Fisher and Richard C. Tallman,
      Circuit Judges, and Richard Mills,* District Judge.



                              ORDER

                                   I

  Pursuant to Rule 44(c) of the Montana Rules of Appellate
Procedure, we respectfully request the Montana Supreme
Court to exercise its discretion to adjudicate the following
question of Montana law:

   *The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

                                 1821
1822                    BRADY v. PPL MONTANA
      Is Mont. Code Ann. § 39-71-413, as amended,
      unconstitutional under any of the following provi-
      sions of the constitution of the State of Montana: (i)
      prohibition of special privileges and immunities, art.
      II, § 31; (ii) right to pursue life’s basic necessities, to
      seek safety, health, and happiness in all lawful ways,
      art. II, § 3; (iii) right to individual dignity and equal
      protection of the law, art. II, § 4; (iv) prohibition of
      special legislation, art. V, § 12; and (v) right to due
      process, art. II, § 17?

   The answer to the certified question will be determinative
of the appeal pending in our court in this diversity action. We
acknowledge that your Court may decide to reformulate the
question, and that our phrasing of the question is not intended
to restrict your Court’s consideration of the request. We
would be grateful for any guidance your Court can provide,
whether or not directly responsive to the question as we have
phrased it.

                                      II

   In this diversity action, plaintiffs Michael and Joan Brady
have appealed the United States District Court for Montana’s
grant of summary judgment in favor of defendant PPL Mon-
tana (“PPL”) on the Bradys’ state tort claims.1 PPL operates
a coal-fired generation power plant located in Colstrip, Mon-
tana. In 2001, Michael Brady was employed by PPL as a jour-
neyman mechanic/millwright with the fuel crew. The fuel
  1
   Because certain facts remain disputed at the summary judgment phase,
we include a brief summary of the relevant facts pursuant to Mont. R.
App. P. 44(f)(2) (permitting the certifying court to provide a statement of
facts if the parties cannot agree on one). Nevertheless, the facts in this case
are immaterial to resolving the facial challenge to the constitutionality of
§ 39-71-413. The Bradys have acknowledged at oral argument before us
and in their briefing to our court that if the statute is constitutional, they
lose on the merits. See Bradys Reply Br. at 4.
                   BRADY v. PPL MONTANA                  1823
crew maintains the running belts that transport coal to the
plant.

   On August 28, 2001, Brady was part of a five-member
crew sent to inspect a Surge Pile Dust Collector (“SPDC”), a
large depository for coal dust sucked from coal conveyor
belts. Because coal dust is highly combustible, the SPDC was
equipped with a fire-suppression system, which consisted of
large canisters of CO2. In the event of a fire, the canisters
were triggered and flooded the SPDC with gas, effectively
suffocating the blaze. The fire suppression system was
inspected every six months and was found to be in good
working order in June 2001.

   Early on the 28th, the head of PPL’s “fire crew,” Dan Pur-
selley, responded to reports that the fire suppression system
may have been triggered. Noting that only two of the twelve
CO2 canisters had been triggered, Purselley checked the alarm
light, which had not activated, and switched the system from
“main” to “reserve.” Later that morning, Walt Cournoyer
checked the SPDC, walking around the unit and inspecting
the exterior; he noticed no external heat.

   During a break, Brady and another employee agreed to
check the SPDC more thoroughly later that afternoon. Upon
returning to the SPDC, one of the five men, Max Blanchard,
climbed to the top of the unit, opened the top hatch, and
looked inside. He told the others that he saw no indication of
fire inside the unit. After climbing back down, Blanchard dis-
cussed with the other four men—including Brady—what
steps to take next, and the group decided to open the SPDC’s
lower door to locate the problem. The workers knew that
opening the lower door would result in coal dust being
“dumped” out of the unit. However, before opening the door,
Cournoyer, Blanchard, and Brady double checked the SPDC’s
exterior, once again detecting no unusual heat sources.

  Finally, Blanchard opened the bottom hatch, causing coal
dust to spill onto the deck beneath the SPDC. At this point,
1824                  BRADY v. PPL MONTANA
the men began exiting the deck (most likely because they
were not wearing protective clothing). As the men exited, the
purging coal dust ignited, burning Brady, who suffered burns
to 28% of his body. Although Brady recovered for his injuries
under Montana’s Workers’ Compensation Act, he initiated
this separate tort action against PPL, alleging malicious and
intentional harm in failing to train workers adequately, failing
to maintain a safe workplace by ensuring that the fire suppres-
sion system worked properly, and failing to respond appropri-
ately to SPDC alarms. Joan Brady joined the lawsuit, seeking
recovery for emotional distress, loss of consortium, and loss
of assistance and companionship. Subsequently, PPL removed
this action from the Thirteenth Judicial District in Yellow-
stone County to the United States District Court for the Dis-
trict of Montana.

                                  III

   Mont. Code Ann. § 39-71-413, as amended, provides a lim-
ited exception to employer immunity under Montana’s Work-
ers’ Compensation Act. Before the district court, the Bradys
conceded that they could not meet the standard set by the cur-
rent § 39-71-413; they maintain that concession on appeal. As
a result, the only issue remaining is a legal one: whether § 39-
71-413 is facially valid under the Montana state constitution
of 1972. To date, the Montana Supreme Court has not
addressed the constitutionality of this statute.2

   The Bradys contend that the statute violates art. II, § 4
(equal protection), art. II, § 31 (special privileges), and art. V,
§ 12 (special legislation) because, in their view, the statute
eliminates vicarious liability altogether while allowing
employers who are individuals to be sued for their own inten-
tional actions. As a result, relative to such employers, corpo-
  2
   The Montana Supreme Court has, however, applied the statute without
addressing its constitutionality. See Wise v. CNH Am. LLC, 331 Mont. 181
(2006).
                    BRADY v. PPL MONTANA                    1825
rate employers are unreasonably advantaged and their
employees unreasonably disadvantaged since corporate
employers may not be sued under any circumstances. The
Bradys also contend that the statute violates art. II, § 17 (sub-
stantive due process) because it is insufficiently related to any
permissible governmental objective. Finally, the Bradys argue
that § 39-71-413 infringes Montanans’ fundamental rights
under art. II, §§ 3-4 because the statute expands the scope of
employer immunity from suit.

   Previously, our district court twice sought certification of
this state constitutional issue to the Montana Supreme Court.
Each time the Court declined to answer the question, citing a
paucity of facts. Thereafter, the parties conducted discovery,
and our district court upheld the statute and entered summary
judgment against the Bradys. Once again, we seek the answer
of the Montana Supreme Court on this novel state constitu-
tional challenge.

                               IV

   The clerk of this court shall forward a copy of this order,
under official seal, to the Montana Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court. The parties shall notify the clerk of this court
within 14 days of any decision by the Montana Supreme
Court to accept or decline certification. If the Montana
Supreme Court accepts certification, the parties shall then
notify the clerk of this court within 14 days of the issuance of
that Court’s opinion. Submission of this appeal will be
vacated by a separate order pending the Montana Supreme
Court’s response to our request.

                               V

  The following is a list of counsel appearing in this matter:
1826               BRADY v. PPL MONTANA
Counsel for Plaintiffs:     A. Clifford Edwards
                            Roberta Anner-Hughes
                            Triel D. Culver
                            Edwards, Frickle, Anner-Hughes,
                            Cook & Culver
                            1601 Lewis Avenue, Suite 206
                            P.O. Box 20039
                            Billings, MT 59104-0039

Counsel for Defendants: Robert L. Sterup
                        Holland & Hart LLP
                        401 North 31st Street, Suite 1500
                        P.O. Box 639
                        Billings, MT 59103-7188

                            Carl Gilmore
                            Preston Gates & Ellis LLP
                            925 Fourth Avenue, Suite 2900
                            Seattle, WA 98104-7580

  Respectfully submitted,

  Raymond C. Fisher and Richard C. Tallman, United States
Circuit Judges, and Richard Mills, United States District
Judge.
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