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Onstad v. Payless ShoeSource8/24/2000
mployees' safety in the affected stores by such means as double-staffing and supplying employees with personal alarm signal devices. Payless took the position that the attack on Onstad was a random, unpredictable event.
13 The jury uniformly and unanimously found in favor of Onstad and against Payless. In a special verdict, the jury found that Payless was negligent; that Onstad suffered serious or severe emotional distress and that Payless's negligence was a cause of that distress; that there was no superseding, intervening cause that cut off Payless's liability; that Onstad sustained $500,000 in compensatory damages; and that Payless's conduct amounted to malice, thereby making it liable to Onstad for punitive damages. After presentation of further evidence addressed to the punitive damage issue, the jury awarded Onstad an additional $1 million in punitive damages. The District Court affirmed that award and denied Payless's motion for a new trial.
Issue 1
14 Did the District Court err in rejecting Payless's workers' compensation exclusive remedy defense?
15 Section 39-71-411, MCA, provides that an employer is not liable for the death of or injury to an employee covered by the Workers' Compensation Act.
However, in 1987, Montana's legislature amended the workers' compensation statutes to expressly exclude from workers' compensation coverage claims for injury arising from "emotional or mental stress" or "a nonphysical stimulus or injury." See ยง 39-71-119(3), MCA. Moreover,
t is the intent of the legislature that stress claims, often referred to as "mental-mental" claims and "mental-physical claims," are not compensable under Montana's workers' compensation and occupational disease laws. . . . ot all injuries are compensable under the present system[.] Section 39-71-105(5), MCA.
The viability of Payless's exclusive remedy defense hinges upon whether Onstad's injury was covered by workers' compensation, in which case this tort action would be prohibited.
16 As a threshold argument on appeal, Payless asserts that the Workers' Compensation Court, not the District Court, should have made the initial determination of whether Onstad's injuries were covered by workers' compensation. Payless points out that because Onstad never filed a workers' compensation claim, the Workers' Compensation Court has not had the opportunity to consider the present case.
17 This Court has stated that a district court has jurisdiction to hear tort claims as well as any affirmative defenses thereto, including the defense of workers' compensation exclusivity. Brown v. Ehlert (1992), 255 Mont. 140, 145-46, 841 P.2d 510, 514. Payless distinguishes Brown from the present case on the basis that Brown involved failure to plead the exclusivity defense, resulting in its waiver. However, Payless has not shown any reason why the foregoing rule stated in Brown would not remain good law. Nor has Payless cited authority which would require Onstad to seek and be denied workers' compensation benefits before her tort claim may be heard.
18 Payless has cited authority from other jurisdictions which would support a ruling that the Workers' Compensation Court must make the initial determination of compensability. See Bubnell v. Holmes Ambulance Service Corp. (N.Y. App. Div. 1990), 562 N.Y.S.2d 533 (it is "well-settled" that where there exists a mixed question of law and fact concerning the applicability of workers' compensation law, the matter should be decided by the Workers' Compensation Board); Yount v. Davis (Mo. Ct. App. 1993), 846 S.W.2d 780 (a trial court lacked subject matter jurisdiction to determine whether an empl
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