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Lockwood v. W.r. Grace & Co.8/3/1995
52 St.Rep. 705
Submitted on Briefs January 26, 1995.
Ruth Lockwood appeals from orders of the Nineteenth Judicial District Court, Lincoln County, granting W.R. Grace & Company's motion to dismiss her complaint with prejudice and denying her motion to alter or amend the judgment. We affirm in part, reverse in part and remand.
We restate the issues on appeal as follows:
1. Did the District Court err in concluding that Gidley v. W.R. Grace & Co. does not permit Lockwood to escape the exclusivity of the Occupational Disease Act of Montana?
2. Did the District Court err in granting Grace's motion to dismiss and in denying Lockwood's motion to alter or amend?
Darrell Lockwood (Darrell) worked for W.R. Grace & Company (Grace) in its vermiculite mine and mill for approximately ten years until he retired in 1984. Six years later, he was diagnosed with mesothelioma, an asbestos-specific cancer of the lining of the lungs. Darrell died in 1991. Ruth Lockwood (Lockwood), Darrell's widow, submitted a claim for beneficiaries' occupational disease benefits with Crawford & Company (Crawford), the adjuster for Grace's Occupational Disease Act of Montana (MODA) insurer. Crawford denied the claim on the basis that the three-year statute of limitations contained in § 39-72-403, MCA (1983), had run. Lockwood did not formally file a claim or petition for MODA benefits after Crawford's denial.
Lockwood filed survival and wrongful death actions against Grace. Grace moved to dismiss Lockwood's complaint. It asserted that, taking Lockwood's allegations as true, her complaint stated an occupational disease claim for which compensation under the MODA was the exclusive remedy pursuant to § 39-72-305, MCA (1983). After full briefing and oral argument, the District Court granted Grace's motion to dismiss. The court concluded that Gidley v. W.R. Grace & Co. (1986), 221 Mont. 36, 717 P.2d 21, does not preserve Lockwood's common law actions and thereby allow her to avoid MODA exclusivity.
Lockwood subsequently moved to alter or amend the judgment pursuant to Rules 52(b) and 59(g), M.R.Civ.P. The District Court denied the motion, concluding that Lockwood's complaint was insufficient to avoid MODA exclusivity via allegations that Grace committed an intentional tort. Lockwood appeals.
1. Did the District Court err in concluding that Gidley v. W.R. Grace & Co. does not permit Lockwood to escape the exclusivity of the Occupational Disease Act of Montana?
The MODA generally provides for compensation by an employer to an employee disabled by reason of occupational disease arising out of the course of employment. See, e.g., §§ 39-72-302 and 39-72-401, MCA. It applies to all employers and employees subject to Montana's Workers' Compensation Act. Section 39-72-301, MCA. The MODA statutes in effect on an employee's last day of work govern resolution of an occupational disease claim. Gidley, 717 P.2d at 22. Because Darrell's last day of employment with Grace was in 1984, the 1983 version of the MODA is applicable here.
Section 39-72-305(1), MCA (1983), provides that the right to recover compensation for an employment-related occupational disease, whether resulting in death or not, is the exclusive remedy against a properly insured employer. In granting Grace's motion to dismiss, the District Court concluded that Lockwood's claim "is governed exclusively by the Occupational Disease Act."
Lockwood argues that, under Gidley, her causes of action are not barred by the MODA exclusivity provision. Her reliance on Gidley is misplaced.
The sole iss
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