                                         NO.    90-306
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                               1991


KENNETH P. SCOTT,
               Plaintiff and Appellant,


STATE OF MONTANA,
               Defendant and Respondent.



APPEAL FROM:          District Court of the Twentieth Judicial District,
                      In and for the County of Lake,
                      The Honorable C.B. McNeil, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Edward K. Duckworth, Ronan, Montana
               For Respondent:
                      Marc Racicot, Attorney General
                      Norman J. Peterson; Asst. Atty. General; Agency
                      Legal Services Bureau; Helena, Montana

                       -    .
                            .   4   L-




                                         Submitted on Briefs:     December 13, 1990
               JAN 2 4 1991
                                                          ~ecided: January 24, 1991
Filed:                                                a
         CLERK OF S U P R E M E COURT
            STATE OF i'd610NTAN.A
Justice R. C. McDonough delivered the Opinion of the Court.

     The plaintiff, Deputy Sheriff Kenneth P. Scott, appeals the
order of the Montana Twentieth Judicial District Court, Lake
County, granting summary judgment to the defendant State of Montana
on Scott's personal injury claim on the grounds of the fellow
servant rule and thereby limiting Scott's remedies to worker's
compensation benefits.   We affirm.   Scott now appeals raising the
following issue:
      id the ~istrictCourt err in granting summary judgment to the
State on the grounds that its employee, Highway Patrolman Mike
Roth, was by operation of law acting as a fellow servant of Deputy
Scott when he injured him?
     The undisputed facts are that on December 10, 1987, Scott, in
his capacity as a Lake County Deputy Sheriff, received a call from
the sheriff's office dispatcher reporting a prowler at the Polson
Auto Salvage on Highway 93 south of Polson. As Scott was preparing
to leave the cafe where he had ,been taking a break with Highway
Patrolmen Mike Roth and Ray Brander, he asked Roth to back him up.
Upon arriving at the salvage yard, Scott slowed down to make a
right turn into the yard, and the vehicle driven by Roth ran into
the rear of Scott's vehicle, injuring him.        Roth admits his
negligence in operating the patrol car when he rear-ended Scott.
     Scott filed a complaint and demand for jury trial against the
State on November 18, 1988. Subsequently, on April 10, 1990, Scott
filed his motion for summary judgment on the issue of liability.
The State filed its similar motion the following day, alleging that
                                1
Patrolman Roth was the fellow servant of Deputy Scott at the time
of the collision, and that Scott's exclusive remedy was worker's
compensation benefits. On May 15, 1990, the District Court entered
its order denying the plaintiff's motion for summary judgment on
liability and granting summary judgment for the State.    Scott now
appeals only that portion of the order granting summary judgment
to the State.
     Scott contends that the District Court's order granting
summary judgment to the State abrogates his constitutional right
to sue a third party for injury incurred in employment.           We
disagree.    Article 11, Section 16 of the Montana Constitution
provides that no person shall be deprived of his right of access
to the courts and remedy for injury "except as to fellow employees
and his immediate employer who hired him if such immediate employer
provides coverage under the Workmen's Compensation Laws of this
state.I'    Here, Scott seeks redress in addition to worker's
compensation benefits from Roth as a third party and from Roth's
employer the State of Montana under the theory of respondeat
superior.   The plain language of the Constitution provides such
recovery can be denied if Roth is Scott Is fellow employee.   In this
regard, 5 44-11-101, MCA, as amended, provides in pertinent part:
          44-11-101. Mutual assistance authorized--powers and
     duties of assisting officers. A peace officer or any law
     enforcement entity of any county or municipality or a
     state government law enforcement entity may request the
     assistance of a peace officer from another law
     enforcement entity within the state of Montana. A peace
     officer, while in the jurisdiction of the requesting
     officer or entity and while on such request for
     assistance, has the same powers, duties, rights,
     privileges, and immunities as a peace officer of the
     requesting entity and is under the authority of the
     reauestins officer or entity. (Emphasis added.)
The underscored language was added in a 1985 amendment. Under the
plain language of this statute, Roth is entitled to the same
immunities as a Lake County deputy sheriff and was acting under the
authority of Scott or the Lake County Sheriff's Department. Thus,
by operation of this statute, Roth was acting as a fellow servant
of Scott when he injured Scott.
     The case of Garcia v. City of South Tucson (Ariz. 1981), 640
P.2d 1117, cited by Scott as persuasive, differs from the case here
in several important respects.           In Garcia, a mutual assistance
agreement provided that the control given the requesting police
department      was   limited   to   directing the    assisting   police
department to a place where it was needed and neither the
requesting department nor the assisting department had the right
to control the forces of the other in          any other respect.   The
court held that a joint venture did not arise when the assisting
department rendered aid to the requesting department by virtue of
such agreement.       Thus, worker's compensation was not the sole
remedy of an assisting officer who was shot in the back by a member
of the requesting department while trying to flush a gunman out of
a residence.    Here, the situation is controlled by statute rather
than agreement.    Such statute specifically gives authority to the
requesting agency over the assisting officer and specifically
provides the assisting officer with the same immunities granted an
employee of that entity, in this case the immunity of the fellow
servant rule.
                                     3
     Furthermore, plaintiff's argument that 5 44-11-101, MCA, only
applies if an officer is assisting in another jurisdiction also is
misplaced.   The statute makes no reference to the situation where
there is concurrent jurisdiction; it simply gives authority to the
requesting officer while the assisting officer acts upon his
request and within the requesting officer's jurisdiction.      And
finally, Scott's contention that the State's voluntary payment to
Lake County for the damage to Scott's patrol car constitutes a
waiver, is without merit.     The uncontested facts as shown by the
affidavit of John Maynard, the administrator of the State's tort
claims division, show that the payment was merely made in the
interest of maintaining the mutual assistance relationship between
the State and Lake County; it was not intended to relinquish the
State's defenses from suit.
     In light of the above discussion, and there being no disputed
material fact issues, the order of the District Court granting
summary judgment to defendant is
     AFFIRMED.


We Concur:
 I
