                                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:     June 18, 1985
                                    Decided:     August 29, 1985


Filed:   AUG 2 9 1985




                                  Clerk
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         and    Company,

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.                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.     2,    near    Essex,

Montana.          It    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

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 .

          On     November      15,      1984,     Linda     Herron           filed    a wrongful

death     and     survival       a c t i o n i n District Court.                     The Company

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       §    39-71-411,         MCA, t h e

e x c l u s i v e remedy p r o v i s i o n ,    barred t h e action a s a matter of

law.       The     District        Court       granted       the       Company's          motion     to

dismiss,         ruling      that        the      dual       capacity             doctrine         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        and    distinct         from    that     of       employer/employee.

          (2)     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

a    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       remedy      limitation        embodied     in
S 39-71-411, MCA        is both clear and unambiguous.             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     exclusivity    provision    of    the
Workers' Compensation Act.           In an attempt to circumvent the
exclusive remedy limitation, Herron invokes the dual capacity
doctrine.
       This     doctrine,      however,     has      been     subject    to
misapplication and        abuse   by    plaintiffs.         See Mercer   v.
Uniroyal, Inc.        (Ohio 1977), 361 N.E.2d         492; Profilet v.
Fallonite (Ill. 1977), 371 N.E.2d            1069; Rosales v. Verson
Allsteel Press Co. (Ill. 1976), 354 N.E.2d            553; Neal v. Roura
Iron Works (Mich. 1975), 238 N.FT.2d          837.     The emergence of
the   dual    persona    doctrine is an      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
remedy principle."          2A Larson, Workmen's Compensation -
                                                              Law
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
exclusivity rule.          By operating its own separate service
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                    $   39-71-411,
MCA, relative to the dual capacity concept.                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.                 In addition to being
entitled    to compensation benefits, the employee also was
permitted    to    bring    an    action     against     the    employer, as
charterer, alleging         unseaworthiness of the vessel.                  The
Supreme    Court    ruled     that     the   defendant/employer owed          a
"traditional,      absolute      and    non-delegable"         duty    to   the
employee that could not be circumvented by the exclusive
remedy provision of the longshoremens' act.                373 U.S. at 415.
The Reed    holding has been           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

Cir.    1 9 8 0 ) , 610 F.2d      1342.

         The C a l i f o r n i a c o u r t s have been             the        forerunners i n a

minority         of     jurisdictions             adopting           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     Herron,     a    d r i v e r was    injured       in    a     fire       that    developed

while      he     was      transferring           propane           from        his    truck      to

holding-tanks.            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.             Bell    v.     I n d u s t r i a l Vangus,      Inc.

( C a l . 19811, 637 P.2d           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

t h e present matter.              The B e l l d e c i s i o n c o n c e r n s a n employee

injured      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

the     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         Court      decision,          Romo       v.     Allin     Express

Service,        Inc.     (Ill.      1982),      436     N.E.2d        20.        In    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.              Because t h e o p e r a t i o n

of    t h e t r u c k was a n i n c i d e n t o f        h i s employment,             the court

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.
          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

intentional tort.                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

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       employer         for       failing         to     maintain         a     safe

workplace.             Noonan       v.    S p r i n g Creek          Forest      Products,         Inc.

(Mont.       1 9 8 5 ) , 7 0 0 P.2d        623,      4 2 St.Rep.          759.      Although t h e

hazardous           and      dangerous             nature       of        the    workplace          was

recognized,           t h i s Court s t a t e d ,         "to translate this situation

into      an       inference        of     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 :        /'
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