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Calcaterra v. Montana Resources7/29/1998
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow, The Honorable John W. Whelan, Judge presiding.
Submitted on Briefs: April 9, 1998
Karen Calcaterra (Karen) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order granting the motion for summary judgment filed by Montana Resources. We affirm.
The issue on appeal is whether the District Court erred in granting summary judgment to Montana Resources on the basis that Karen's claims are barred by the exclusivity provision of Montana's Workers' Compensation Act.
BACKGROUND
Carl J. Calcaterra (Carl) was employed by Montana Resources as a maintenance technician at its Continental Mine. When Carl reported to work on the morning of June 9, 1995, he and his fellow employee Wayne Wenger (Wenger) received a work assignment from temporary foreman Don Gates (Gates). The assignment was to repair a hinge pin keeper on a Wabco 170-D haul truck which, at the time, was located at the mine's crusher apron. Carl and Wenger proceeded to the crusher apron where they temporarily replaced the damaged hinge pin so the haul truck could dump its load. Because it recently had been raining and was muddy outside, they moved the haul truck into the shop to complete the repairs. They did not wash the truck before beginning the repairs and, as a result, the truck's undercarriage and tires were covered with slippery mud.
The tires on a Wabco 170-D haul truck measure 10 feet in diameter and the hinge pin keeper is situated 12 inches above the rear tires. Thus, it was necessary for Carl and Wenger to be elevated in order to repair the hinge pin keeper. Rather than using the scaffolding that was available to shop workers for such tasks, Carl and Wenger elected to use ladders to reach the hinge pin keeper. Carl leaned a 10-foot ladder against the haul truck's right suspension cylinder and an 8-foot ladder was positioned to the left of the 10-foot ladder. Neither ladder was secured in any manner. Carl climbed the 10-foot ladder to begin cutting away the damaged hinge pin keeper. Employee Lonnie Hoppe (Hoppe) climbed the 8-foot ladder to assist Carl while Wenger used a forklift to raise the haul truck's bed so Carl could access the hinge pin keeper. Neither Carl nor Hoppe used safety belts and lanyards to secure themselves while on the ladders.
After Hoppe assisted Carl with removing the damaged hinge pin keeper and installing a new one, he returned to his other work. The new hinge pin keeper did not fit properly, however, and Carl descended from the ladder to locate Gates for assistance. Gates climbed the 10-foot ladder to inspect the repairs Carl was making, suggested how Carl should complete the repairs, descended from the ladder and left the area. Carl again climbed the 10-foot ladder to continue his work.
By this time, Wenger had moved around the other side of the haul truck and did not see the subsequent events; nor were there any other witnesses to the accident. Wenger heard the ladder rattle and then heard a "thump." When Wenger came back around the side of the haul truck, he saw Carl lying unconscious on the floor. Carl apparently had fallen from the ladder or had slipped when moving from the ladder to the muddy tire of the haul truck in an attempt to get closer to the hinge pin keeper. Wenger summoned help and Hoppe administered first aid until Carl was taken by ambulance to St. James Community Hospital. Carl never regained consciousness and he died on June 13, 1995.
Karen, Carl's wife and the personal representative of his estate, brought wrongful dea
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