                                                                                             April 1 2008


                                             05-701

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 108



GENE NELSON,

              Plaintiff and Appellant,

         v.

CENEX, INC.; FARMERS UNION CENTRAL
EXCHANGE, INC.; HARVEST STATES
COOPERATIVE, INC.; HAROLD WILLIAMS;
LOUIS DAY; and DOES A-Z, inclusive,

              Defendants and Appellees.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis And Clark, Cause No. BDV-2003-543
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        J. David Slovak, Mark M. Kovacich, Lewis, Slovak & Kovacich, P.C.,
                        Great Falls, Montana

                For Appellees:

                        John G. Crist, Eric Edward Nord, Crist Law Firm, LLC, Billings, Montana



                                                      Submitted on Briefs: August 23, 2006

                                                                 Decided: April 1, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Gene Nelson appeals an order of the District Court for the First Judicial District,

Lewis and Clark County, granting summary judgment in favor of Appellees and

dismissing Nelson’s cause of action stemming from his asbestos-related injury. We

reverse and remand for further proceedings consistent with this Opinion.

¶2    Nelson raises the following issues on appeal:

¶3    1. Did the District Court err when it declined to apply Gidley and the pre-1979

Montana Occupational Disease Act1 (the MODA) to afford Nelson a remedy in tort when

no remedy exists under the workers’ compensation system?

¶4    2. If the 1983 version of the MODA applies, did the District Court err when it

denied Nelson a tort remedy for his asbestos-related disease when no remedy exists under

the workers’ compensation system?

¶5    3. Did the District Court err when it dismissed Nelson’s tort claims founded on

the intentional and malicious acts exception to workers’ compensation exclusivity?

¶6    Because we find Issue 1 to be dispositive, we do not address Issues 2 and 3.

                         Factual and Procedural Background

¶7    CHS, Inc. (CHS) is the successor in interest to Cenex, Inc., Cenex Harvest States

Cooperative, Inc., and Farmers Union Central Exchange, Inc. Nelson worked full-time at

the CHS refinery in Laurel, Montana, from August 18, 1952, until February 1, 1967.

During the course and scope of this period of his employment with CHS, Nelson was


1
  In 2005, the Montana Legislature merged the Occupational Disease Act into the
Workers’ Compensation Act.

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required to work with and around asbestos and materials containing asbestos. At that

time, CHS did not provide its workers with any protection from asbestos exposure. As a

result, Nelson was exposed to, inhaled, and ingested asbestos fibers. Nelson left CHS in

1967 to pursue other employment opportunities.

¶8     On September 22, 1980, Nelson returned to CHS and worked sporadically on a

part-time basis during 1980, 1982, 1983, 1984 and 1985. Nelson did not work with or

around asbestos during this time.

¶9     In February 2002, Nelson was diagnosed with asbestos-related lung disease.

Because Nelson’s diagnosis occurred well past the deadline for filing a claim for

occupational disease benefits, Nelson filed suit against CHS on September 19, 2003, for

damages stemming from his asbestos-related disease. In his complaint, Nelson claimed

multiple theories of liability including negligence, strict liability for abnormally

dangerous activity, failure to provide a safe place to work, and negligent and/or

intentional infliction of emotional distress.    Nelson’s complaint also included an

intentional acts claim based on the intentional and malicious acts exception to workers’

compensation exclusivity. In its answer to Nelson’s complaint, CHS raised a number of

affirmative defenses including immunity from suit premised on workers’ compensation

exclusivity.

¶10    Nelson filed a motion for partial summary judgment in July 2005 requesting that

the District Court strike CHS’s affirmative defense regarding exclusivity. At about the

same time, CHS filed its own motion for summary judgment seeking to dismiss Nelson’s




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tort claims on the basis of exclusivity and to dismiss Nelson’s intentional acts claim for

failure to provide proof to support the claim.

¶11    The District Court entered an Order granting CHS’s summary judgment motion

and dismissing Nelson’s claims on October 7, 2005. Two weeks later, the court issued a

memorandum outlining its rationale for granting summary judgment and dismissing the

complaint. In its memorandum, the court concluded that the 1983 version of the MODA

applied in this case and, as such, the MODA was the exclusive remedy for Nelson’s

claims. The court also rejected Nelson’s theory of liability predicated on the intentional

and malicious acts exception to workers’ compensation exclusivity.

¶12    Nelson appeals from the District Court’s order granting summary judgment in

favor of CHS and dismissing his complaint.

                                   Standard of Review

¶13    We review an order granting summary judgment de novo using the same

M. R. Civ. P. 56 criteria applied by the district court. Lee v. USAA Cas. Ins. Co., 2001

MT 59, ¶ 24, 304 Mont. 356, ¶ 24, 22 P.3d 631, ¶ 24 (citing Spinler v. Allen, 1999 MT

160, ¶ 14, 295 Mont. 139, ¶ 14, 983 P.2d 348, ¶ 14). Summary judgment is proper only

when no genuine issues of material fact exist and the moving party is entitled to judgment

as a matter of law. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16,

92 P.3d 620, ¶ 16 (citing M. R. Civ. P. 56(c)).

¶14    To determine the existence or nonexistence of a genuine issue of material fact, we

look to the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits. Lee, ¶ 24 (citing Erker v. Kester, 1999 MT 231, ¶ 17, 296 Mont. 123, ¶ 17,


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988 P.2d 1221, ¶ 17). In addition, all reasonable inferences that might be drawn from the

offered evidence will be drawn in favor of the party opposing the summary judgment

motion. Lee, ¶ 25.

¶15   The party seeking summary judgment has the burden of demonstrating a complete

absence of any genuine factual issues. Lee, ¶ 25. Where the moving party is able to

demonstrate that no genuine issue as to any material fact remains in dispute, the burden

then shifts to the party opposing the motion. Lee, ¶ 26. To raise a genuine issue of

material fact, the party opposing summary judgment must present material and

substantial evidence rather than merely conclusory or speculative statements. Lee, ¶ 26.

As this Court has previously observed, “proof is required to establish the absence of

genuine issues of material fact; a party may not rely on the arguments of counsel.”

Montana Metal Buildings, Inc. v. Shapiro, 283 Mont. 471, 476, 942 P.2d 694, 697 (1997)

(citing City of Bozeman v. AIU Ins. Co., 262 Mont. 370, 378, 865 P.2d 268, 273 (1993)).

¶16   In addition, we review a district court's conclusions of law to determine whether

they are correct. Montana Pet. Tank Comp. Bd. v. Crumleys, 2008 MT 2, ¶ 32, 341

Mont. 33, ¶ 32, 174 P.3d 948, ¶ 32 (citing State Farm Mut. Auto. Ins. Co. v. Gibson, 2007

MT 153, ¶ 9, 337 Mont. 509, ¶ 9, 163 P.3d 387, ¶ 9).

                                      Discussion

¶17   Did the District Court err when it declined to apply Gidley and the pre-1979
      MODA to afford Nelson a remedy in tort when no remedy exists under the
      workers’ compensation system?

¶18   The District Court determined that the 1983 version of the MODA applied to

Nelson’s claims because his last day of employment with CHS was in 1985, and the


                                           5
statute in effect on the last day of work controls. Consequently, the court determined that

Nelson’s tort claims were barred because the 1983 version of the MODA provides that

the MODA is Nelson’s exclusive remedy.

¶19    Nelson argues that the District Court erred in applying the 1983 version of the

MODA because the time period from 1980 to 1985 when he returned to work part-time

with CHS had no connection to his industrial disease. Nelson contends that the District

Court should have followed the “last injurious exposure doctrine” and applied the version

of the MODA in effect when he was actually exposed to the asbestos.

¶20    Section 39-72-305, MCA (1983), the statute the District Court determined applied

in this case, provides, in pertinent part:

              Right to compensation exclusive remedy – uninsured employers.
       (1) The right to recover compensation pursuant to the provisions of this
       chapter for occupational diseases sustained by an employee and arising out
       of and in the course of employment, whether resulting in death or not, is the
       exclusive remedy therefor against an employer who is properly insured
       under the Workers’ Compensation Act and the Occupational Disease Act of
       Montana. [Emphasis added.]

However, the 1983 version of the MODA also contained the following statute of repose:

               39-72-403. Time when claims must be presented. (1) When a
       claimant seeks benefits under this chapter, his claims for benefits must be
       presented in writing to the employer, the employer’s insurer, or the division
       within 1 year from the date the claimant knew or should have known that
       his total disability condition resulted from an occupational disease. When
       a beneficiary seeks benefits under this chapter, his claims for death benefits
       must be presented in writing to the employer, the employer’s insurer, or the
       division within 1 year from the date the beneficiaries knew or should have
       known that the decedent’s death was related to an occupational disease.
               (2) The division may, upon a reasonable showing by the claimant or
       a decedent’s beneficiaries that the claimant or the beneficiaries could not
       have known that the claimant’s condition or the employee’s death was



                                             6
      related to an occupational disease, waive the claim time requirement up to
      an additional 2 years.
             (3) Notwithstanding the provisions of subsections (1) and (2) of this
      section, no claim to recover benefits under this chapter may be maintained
      unless the claim is properly filed within 3 years after the last day upon
      which the claimant or the deceased employee actually worked for the
      employer against whom compensation is claimed. [Emphasis added.]

Consequently, under the 1983 version of the MODA, Nelson has no remedy at all for his

claims.

¶21   Nelson argues that pursuant to Gidley v. W.R. Grace & Co., 221 Mont. 36, 717

P.2d 21 (1986), the pre-1979 version of the MODA applies to his claims and, as such, his

common law right of action has been preserved.

¶22   In Gidley, we held that, upon expiration of the deadline for filing a claim under the

MODA, the injured employee could pursue a tort action against the employer under the

provisions of the MODA in effect prior to its amendment in 1979. Gidley, 221 Mont. at

39-40, 717 P.2d at 23-24. In that case, Louise Gidley (Louise) filed a wrongful death

action against W.R. Grace & Company (W.R. Grace) on behalf of the estate of her

deceased husband James, who died from asbestos-related cancer in May 1982. Louise

alleged that James had been exposed to asbestos while at his job with W.R. Grace.

Gidley, 221 Mont. at 37, 717 P.2d at 22.

¶23   W.R. Grace maintained workers’ compensation coverage for its employees.

However, to obtain workers’ compensation benefits, the applicable MODA provisions

required that a claim be filed within three years of the employee’s final day of work.

James’ last day of work was in July 1977. He was not diagnosed with work-related

asbestos disease until June 1981, eleven months after the expiration of the claim filing


                                            7
deadline. Consequently, James was not eligible for compensation under the MODA.

Gidley, 221 Mont. at 37, 717 P.2d at 22.

¶24    Louise filed an action against W.R. Grace in June 1984 alleging wrongful death

and misrepresentation. W.R. Grace asserted workers’ compensation exclusivity as a

defense to civil liability. The District Court dismissed the tort action on the grounds that

the MODA provided the exclusive remedy. Gidley, 221 Mont. at 37, 717 P.2d at 22.

¶25    The issue on appeal in that case was whether the MODA afforded the exclusive

remedy for Louise’s claims against W.R. Grace. However, before deciding that issue, the

Court had to determine which MODA statutes controlled the claim: those in effect on

James’ last actual day of work in July 1977; those in effect at the time he was diagnosed

in June 1981; or those in effect when Louise filed a claim for benefits under the MODA

in July 1982. Since this question was a novel one under the MODA, the Court in Gidley

looked to workers’ compensation cases for guidance as that question had been considered

a number of times in that context. The Court concluded that, under the WCA, the statute

in effect on the date of the accident or injury controls. The Court further concluded that

the same rationale should be applied in MODA claims, thus the Court determined that the

MODA statutes in effect on James’ last actual day of work in July 1977 were controlling.

Gidley, 221 Mont. at 37-38, 717 P.2d at 22.




                                              8
¶26   The MODA was originally enacted in 1959. The following sections of the MODA

governed an employee’s rights of suit at common law until 1979, when § 92-1308, RCM,

was amended and § 92-1331, RCM, was repealed:2

              92-1308. Right to compensation exclusive remedy. The right to
      recover compensation pursuant to the provisions of this act for occupational
      diseases sustained by an employee and arising out of and in the course of
      his employment, whether resulting in death, or not, shall be the exclusive
      remedy therefor against the employer electing to be bound by and subject to
      this act, except as to such employees as shall reject this act as provided
      herein.

              92-1331. Rights of suit at common law. There shall be no
      common-law right of action for damage from occupational disease against
      an employer who elects to come under the provisions of this act, excepting
      for those employees not eligible for compensation under the terms of this
      act, or who reject coverage of this act.

The Court concluded in Gidley, that these statutes were at least ambiguous, if not

contradictory, stating that “[o]ne statute makes MODA the exclusive remedy unless

affirmatively rejected. The other statute makes MODA the exclusive remedy unless

MODA is rejected or the employee is not eligible for compensation under the terms of

MODA.” Gidley, 221 Mont. at 38, 717 P.2d at 23-24. Hence, while § 92-1308, RCM,

purported to limit an employee’s remedy to the MODA, § 92-1331, RCM, allowed the

employee to pursue a common law right of action when the employee was not eligible for

compensation under the MODA.

¶27   Acknowledging the contradiction created by §§ 92-1308 and -1311, RCM, the

Court examined the legislative history of both statutes and applied the liberal rule of

2
 In 1978, § 92-1308, RCM, was recodified as § 39-72-305, MCA, and § 92-1311, RCM,
was recodified as § 39-72-308, MCA.


                                           9
construction mandated by the MODA to hold that, under the pre-1979 provisions of the

MODA, upon expiration of the deadline for filing an occupational disease claim, an

injured employee may pursue a tort action against the employer. Gidley, 221 Mont. at

39-40, 717 P.2d at 23-24.

¶28    CHS argues on appeal that Gidley does not apply in this case, because this Court’s

decisions in Lockwood v. W.R. Grace & Co., 272 Mont. 202, 900 P.2d 314 (1995), Grenz

v. Fire and Cas. of Connecticut, 278 Mont. 268, 924 P.2d 264 (1996), and Hardgrove v.

Transportation Ins. Co., 2004 MT 340, 324 Mont. 238, 103 P.3d 999, specifically state

that the last day of work is controlling. However, CHS fails to recognize that the

holdings in all of these cases stem from our holding in Gidley. Furthermore, none of

these cases dealt with a scenario similar to the instant case where there were two separate

and distinct periods of employment with the same employer.

¶29    Nelson worked for CHS during two different periods of time separated by almost

thirteen years. It is undisputed that it was during Nelson’s first period of employment

with CHS (from 1952 to 1967) that he was exposed to asbestos. By his second period of

employment with CHS (from 1980 to 1985), he was not exposed to asbestos as CHS had

taken steps to remove the asbestos from the refinery. Thus, Nelson’s injury occurred

only during his first period of employment with CHS. This Court made it clear in Gidley

that we were applying to the MODA the same rationale used in the WCA—i.e., that the

date of accident or injury controls. However, because an occupational disease does not

occur on one single day or at one exact time, but rather, is ongoing, we used the

employee’s last day of work—the last day the employee could possibly have been


                                            10
exposed to asbestos—as the point in time from which the occupational disease claim

would flow. Thus, we determined, in effect, that liability for and administration of a

claim should correspond with the period in which the injurious exposure occurred.

¶30    Nelson points out in his brief on appeal, that had he been employed by anyone

other than CHS from 1980 to 1985, the District Court would have had little trouble

applying the pre-1979 MODA to his claim as his subsequent employment would have

had no relevance to the causal exposure and resulting disease. Nelson maintains that the

result should not change simply because he returned to employment with CHS in an

unrelated capacity some thirteen years later. We agree that, as with the case of an

unrelated employer, Nelson’s subsequent employment with CHS bears no relevance to

the exposure and disease at issue.

¶31    Moreover, in support of this argument, Nelson relies on the “last injurious

exposure doctrine,” which, he asserts, places the focus of the inquiry on the injurious

mechanism. The “last injurious exposure doctrine,” as codified in Montana, provides in

pertinent part:

               Where compensation is payable for an occupational disease, the only
       employer liable is the employer in whose employment the employee was
       last injuriously exposed to the hazard of the disease.

Section 39-72-303(1), MCA (2003) (repealed in 2005 and merged within the WCA at

§ 39-71-407, MCA).

¶32    CHS argues that this doctrine has nothing to do with which version of the MODA

applies to a worker’s claim. Instead, CHS maintains that the “last injurious exposure

doctrine” is applied to determine which employer or which insurance carrier is


                                           11
responsible to pay benefits on a workers’ compensation claim. While CHS is correct that

this doctrine is applied to determine who is responsible to pay benefits, the statute is

illustrative of the rationale that existed under the MODA after Gidley that liability for and

administration of a claim should correspond with the period in which the injurious

exposure occurred.

¶33    Based on the foregoing, for purposes of determining which version of the MODA

applies to Nelson’s claims, we conclude that his employment with CHS from 1980 to

1985 bears no relevance to his injurious exposure to asbestos and the occupational

disease claim at issue here. Consequently, the correct version of the MODA to apply in

this case is the version of the MODA in effect in 1967, when the period of Nelson’s

employment that included his injurious exposure to asbestos, ended. As such and as

determined by this Court’s decision in Gidley, under the pre-1979 version of the MODA,

the MODA is not Nelson’s exclusive remedy.

¶34    Accordingly, we hold that the District Court erred in granting CHS’s motion for

summary judgment and in dismissing Nelson’s claims.

¶35    Reversed and remanded.


                                                  /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS



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