Frontczak v. Continental Resources
Filing
110
ORDER and FINDINGS AND RECOMMENDATIONS. 80 MOTION to Certify filed by Daniel Frontczak is DENIED; it is recommended that 56 MOTION for Summary Judgment re Comparative Negligence filed by Daniel Frontczak be DENIED. Objections to F&R due by 10/18/2013. Signed by Magistrate Carolyn S Ostby on 9/30/2013. (JDH, ) Modified on 9/30/2013 to correct docket text (JDH, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
DANIEL FRONTCZAK,
Plaintiff,
vs.
CONTINENTAL RESOURCES,
INC.,
CV-11-75-BLG-SEH-CSO
ORDER and
FINDINGS AND
RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE
Defendant.
Plaintiff Daniel Frontczak (“Frontczak”) fell from elevated
equipment while working at an oil rig. He filed this action alleging
that Defendant Continental Resources, Inc. (“Continental”) breached a
non-delegable duty to maintain work site safety causing his injuries.
First Am. Cmplt. (ECF 23) at ¶¶ 1, 7-11.1
Pending is Frontczak’s motion seeking partial summary judgment
that Continental’s “affirmative defense of contributory or comparative
negligence in this case is unconstitutional as violating [Frontczak’s]
The ECF citation refers to the document as it is numbered in the
Court’s electronic filing system. Citations to page numbers refer to those
assigned by the ECF system.
1
fundamental right to full legal redress for injury incurred in
employment for which another person may be liable, pursuant to
Article II, Section 16 of the Montana Constitution.” ECF 56. Before
addressing the merits of Frontczak’s motion for partial summary
judgment, the Court first must decide whether to certify the question to
the Montana Supreme Court.
By way of background, Frontczak suggested in his reply brief that
it would be appropriate for the Court to certify the question to the
Montana Supreme Court. Frontczak’s Reply Br. (ECF 80) at 1-2. The
Court treated his suggestion as a motion to certify (ECF 80) and
allowed the parties to file additional briefs. Order Treating Suggestion
to Certify as Mtn. to Certify and Setting Briefing Sched. (ECF 104) at 34. On September 9, 2013, Continental filed a response brief. ECF 105.
On September 13, 2013, Frontczak filed his reply. ECF 106.
Having considered the parties’ briefs, the Court will not certify
this constitutional question. The parties agree that the Court has the
discretion both to determine whether to certify the question or to decide
the underlying issue in the first instance. ECFs 105 at 1-2 and 106 at
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1-2. And it appears that the constitutionality of the affirmative defense
of contributory or comparative negligence in a case such as this one
remains an open question. See Olson v. Shumaker Trucking and
Excavating Contractors, Inc., 196 P.3d 1265, 1275 (Mont. 2008)
(declining to address issue on appeal because plaintiff failed to raise
issue with the district court). But neither party here specifically
requests certification. Rather, both defer to the Court’s discretion.
Without a specific request, the Court is not inclined to certify the
question.
The Court turns next to the merits of Frontczak’s motion for
partial summary judgment. Having considered the parties’ arguments,
the Court enters the following Findings and Recommendation.
I.
Background and Legal Standard
The Court previously set forth this matter’s factual background
and the applicable summary judgment standard. ECF 86. The parties
are familiar with both. Thus, the Court repeats neither here except
where necessary to explain its reasoning.
II.
Parties’ Arguments
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Frontczak argues that Continental’s affirmative defense of
contributory or comparative negligence is unconstitutional. ECF 56 at
1. He argues that the affirmative defense violates his “fundamental
right to full legal redress for injury incurred in employment for which
another person may be liable, pursuant to Article II, Section 16 of the
Montana Constitution.” Id. He argues that the Montana Supreme
Court, in Olson v. Shumaker Trucking and Excavating Contractors,
Inc., 196 P.3d 1265 (Mont. 2008):
formulated a two-part contributory negligence test which is
only applicable in third-party liability cases such as this and
which cannot apply in any other liability situation under
Montana law . . . without considering [whether the defense]
constitutes a violation of the injured worker’s fundamental
constitutional right to full legal redress for injury incurred
in employment for which another person may be liable
pursuant to Article II, Section 16, of the Montana
Constitution.
Frontczak’s Supporting Br. (ECF 57) at 5 (emphasis and internal
quotation marks omitted).
Frontczak notes that the supreme court in Olson declined to
address the constitutional challenge to the contributory negligence
affirmative defense because the issue was not raised with the trial
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court. Id. He now argues that “this Court in this case[ ]” must “decide
the purely legal issue of whether the full legal redress guarantee of
Montana’s Constitution prohibits the Olson Court’s definition of
contributory negligence in cases, such as this, involving injury incurred
in employment for which another person may be liable.” Id. (emphasis
and internal quotation marks omitted).
Frontczak argues that: (1) the Olson contributory negligence test
does not fall within general tort law because it applies only in
contractor third-party liability cases and no others, id. at 8-9; (2) the
test improperly imposes upon the injured party the duty to “‘avoid the
hazard’ created by the contractor’s breach of its nondelegable duty[,]”
which is contrary to Montana law, id. at 9; (3) Article II, Section 16, of
the Montana Constitution was ratified specifically to extend protections
afforded by the nondelegable duty rule to injured employees of
independent subcontractors, id. at 10; (4) the right to full legal redress
under Article II, Section 16, is a “fundamental right” deserving of “the
highest level of court scrutiny and protection[,]” and is “mandatory,
prohibitive and self-executing[,]” which makes “any contrary
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subordinate law ... a nullity[,]” id. at 11; (5) Montana Supreme Court
decisions confirm that Article II, Section 16, prohibits any restriction or
limitation on an injured worker’s recovery obtained from a responsible
third-party other than his immediate employer or fellow employee, id.
at 11-16 (citing Meech v. Hillhaven, 776 P.2d 488 (Mont. 1989)
(reaffirming that Legislature could alter wrongful discharge from
employment remedies but precluding any restriction on full legal
redress in injured employee cases); Francetich v. State Fund, 827 P.2d
1279 (Mont. 1992) (invalidating workers’ compensation subrogation
statute because it restricted injured worker’s right to obtain full legal
redress against third-party tortfeasors); Trankel v. State, 938 P.2d 614
(Mont. 1997) (holding Feres doctrine could not operate to bar or limit
injured worker’s third-party claim against State); Connery v. Liberty
Northwest, 960 P.2d 288 (Mont. 1998) (finding statute that allowed
workers’ compensation insurer to reduce benefits by 30% in violation of
full legal redress guarantee); and Otto v. Montana, 15 P.3d 402 (Mont.
2000) (reaffirming that rule that specifically targets employees seeking
full legal redress for job injuries is prohibited)); and (6) the supreme
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court’s Olson test is unconstitutional because its application has the
effect of limiting and restricting an injured worker’s right to full legal
redress, id. at 16-18.
Continental advances two arguments in opposition to Frontczak’s
motion. First, Continental argues that the Montana Supreme Court
already determined in Olson that contributory negligence is available
as an affirmative defense in a workplace injury case such as this one.
Thus, it argues, this federal Court, sitting in diversity, must follow
Montana law and deny Frontczak’s motion. Continental’s Resp. Br.
(ECF 73) at 3-6.
Second, Continental argues that, even if the Court decides that
Frontczak’s constitutional challenge should be considered, the Court
still should deny Frontczak’s motion because the contributory
negligence defense is not unconstitutional. Continental argues that: (1)
the Montana Supreme Court would decide that contributory negligence
does not violate Article II, Section 16’s right to full legal redress
because that right encompasses only redress allowed under general tort
law and contributory or comparative negligence exists as a defense
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under Montana’s general tort law, id. at 6-10 (citing cases); (2) contrary
to Frontczak’s argument, the Olson decision does not place on a
plaintiff the burden to avoid hazards created by another’s breach but
rather excuses a plaintiff’s fault contributing to injury if the plaintiff
could not have avoided the hazard without endangering employment,
id. at 10; (3) the Olson decision also excuses a plaintiff from the general
duty to avoid harm to oneself under some circumstances because of the
plaintiff’s status as a worker, id. at 11; (4) the Montana Constitution
actually provides a fundamental right of access to the courts and not, as
Frontczak argues, a fundamental right to specific redress, id.; and (5)
the cases Frontczak cites do not support his position, id. at 11-13.
In reply, Frontczak argues that the supreme court in Olson
refused to consider the constitutional issue raised here and that this
Court, sitting in diversity, must “decide the issue in the first
instance[.]” Frontczak’s Reply Br. (ECF 80) at 1-2. Specifically,
Frontczak argues that: (1) the supreme court in Olson “created a
contributory negligence rule applicable only in third-party liability
cases . . . without considering the issue of whether the rule violates the
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full legal redress guarantee of Article II, Section 16[,]” and that this
Court “is not bound to follow an unconstitutional law or rule[,]” id. at 23 (emphasis omitted); (2) contrary to Continental’s position, the
Montana Constitution, not the courts or legislature, define what causes
of action are provided by law, id. at 3-6; (3) the Olson contributory
negligence rule is not part of Montana’s general tort law applicable to
all cases because it is “specifically directed and targeted only at
employees seeking full legal redress under Article II, Section 16, of the
[Montana] Constitution[,]” id. at 6-8 (emphasis omitted); and (4) the
Olson rule unconstitutionally shifts the risk of injury to the injured
worker, id. at 8-9.
III. Analysis
The Court’s analysis necessarily begins with the Montana
Supreme Court’s specific holding in Olson that Frontczak challenges
here:
Contributory negligence remains available as a defense to a
defendant who has been found to have breached its
nondelegable duty to provide a safe working environment if
evidence demonstrates that: (1) the worker has some
reasonable means or opportunity to avoid the hazard
without endangering his or her employment; or (2) the
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subject harm was not a reasonably foreseeable consequence
of the contractor's breach of the nondelegable safety duty.
Olson, 196 P.3d at 1277 (citing Stepanek v. Kober Const., 625 P.2d 51,
56 (Mont. 1981) and Shannon v. Howard S. Wright Const. Co., 593 P.2d
438, at 446 (Mont. 1979)).
As noted, Frontczak argues that the foregoing conclusion by the
Montana Supreme Court offends Article II, Section 16, of Montana’s
Constitution, which provides:
Courts of justice shall be open to every person, and speedy
remedy afforded for every injury of person, property, or
character. No person shall be deprived of this full legal
redress for injury incurred in employment for which another
person may be liable except as to fellow employees and his
immediate employer who hired him if such immediate
employer provides coverage under the Workmen's
Compensation Laws of this state. Right and justice shall be
administered without sale, denial, or delay.
As an initial matter, the Court must determine whether it is
appropriate at this juncture to address the issue Frontczak raises.
There has not been a determination that Continental had a nondelegable duty to provide a safe working environment or, if it did, that
it breached the duty and caused Frontczak damages. See Findings and
Recommendation (ECF 86) and Order (ECF 98) (adopting Findings and
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Recommendation). A jury could conclude that Continental was not
liable for Frontczak’s damages. If a jury so found, it would have no
reason to consider whether Frontczak’s own fault contributed to his
damages. Thus, it would be unnecessary to address the
constitutionality of the contributory negligence affirmative defense.
See, e.g., Horn v. Bull River Country Store Properties, LLC, 288 P.3d
218, 222 (Mont. 2012) (declining to address constitutionality of MCA §
27-1-703 where jury found defendant not negligent and did not proceed
to apportion fault).
On the other hand, Rule 562 was amended in 2010 “to improve the
procedures for presenting and deciding summary-judgment motions
and to make the procedures more consistent with those already used in
many courts.” Fed. R. Civ. P. 56, Advisory Comm. Notes, 2010
Amendments. The rule currently reads:
(a) Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment, identifying
each claim or defense – or the part of each claim or defense – on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine
References to rules are to the Federal Rules of Civil Procedure
unless otherwise indicated.
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dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the record
the reasons for granting or denying the motion.
Fed. R. Civ. P. 56(a). The first sentence was added “to make clear at
the beginning that summary judgment may be requested not only as to
an entire case but also as to a claim, defense, or part of a claim or
defense.” Fed. R. Civ. P. 56, Advisory Comm. Notes, 2010
Amendments, Sub. (a).
Based on the 2010 amendment to the rule, “district courts have
begun to recognize motions for summary judgment that are directed
towards matters of law that are less than all of a particular claim.”
Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1187
(E.D. Tex. 2011). In light of the 2010 amendment to Rule 56, the Court
finds that summary judgment is not procedurally improper respecting
Frontczak’s constitutional challenge to the supreme court’s
pronouncement in Olson. Having resolved that question, the Court
now turns to the merits of the motion.
“When interpreting state law, federal courts are bound by
decisions of the state’s highest court.” Trishan Air, Inc. v. Federal Ins.
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Co., 635 F.3d 422, 427 (9th Cir. 2011). Although the supreme court in
Olson clearly held, as quoted above, that contributory negligence is
available as a defense in a case similar to this one, it did decline to
address the issue of whether the defense violates an injured person’s
rights under Article II, Section 16 of Montana’s Constitution. Olson,
196 P.3d at 1275. Although the question thus remains unanswered,
this Court is quite reluctant to find unconstitutional a rule articulated
by the Montana Supreme Court.
Because jurisdiction is based on diversity of citizenship, the Court
applies the substantive law of Montana, the forum state. Medical
Laboratory Mgmt. Consultants v. American Broad. Companies, Inc.,
306 F.3d 806, 812 (9th Cir. 2002). “The task of a federal court in a
diversity action is to approximate state law as closely as possible in
order to make sure that the vindication of the state right is without
discrimination because of the federal forum.” Gee v. Tenneco, Inc., 615
F.2d 857, 861 (9th Cir. 1980). Federal courts “are bound by the
pronouncements of the state’s highest court on applicable state law.”
Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 778 (9th Cir.
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2003) (quoting Ticknor v. Choice Hotels Intl., Inc., 265 F.3d 931, 939 (9th
Cir. 2001)).
But when an issue of state law arises and “the state’s highest
court has not adjudicated the issue, a federal court must make a
reasonable determination of the result the highest state court would
reach if it were deciding the case.” Medical Laboratory, 306 F.3d at
812. The federal court also may look to other persuasive authorities,
including treatises and decisions from other jurisdictions, as guidance.
Strother v. Southern California Permanente Medical Group, 79 F.3d
859, 865 (9th Cir. 1996).
The Court has reviewed the relevant constitutional provision and
the Montana cases that Frontczak and Continental have presented in
support of their positions. Having done so, the Court predicts that the
Montana Supreme Court would decide that the contributory negligence
defense in the context of this case does not violate the right to full legal
redress provided in Article II, Section 16 of Montana’s Constitution.
Thus, the Court will recommend that Frontczak’s motion be denied.
First, the Court must examine the language of Article II, Section
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16 to resolve the issue of whether the supreme court’s holding in Olson
violates any rights under that provision. “In resolving disputes of
constitutional construction, [the Montana Supreme Court] applies the
rules of statutory construction. Under those rules, the intent of the
framers of the Constitution is controlling and that intent must first be
determined from the plain language of the words used.” State ex rel.
Racicot v. District Court of First Jud. Dist. in and for County of Lewis
and Clark, 794 P.2d 1180, 1183 (Mont. 1990) (citing Butte-Silver Bow
Local Gov’t. v. State, 768 P.2d 327, 330 (Mont. 1989)). “If that is
possible, [courts] apply no other means of interpretation.” Great Falls
Tribune Co., Inc. v. Great Falls Pub. Schools, Bd. of Trustees, 841 P.2d
502, 504 (Mont. 1992) (citation omitted). In construing a constitutional
provision, the Court also must “pay[ ] particular heed to the caveat that
neither statutory nor constitutional construction should lead to absurd
results if reasonable construction will avoid it.” Powder River County v.
State, 60 P.3d 357, 373 (Mont. 2002) (citing Grossman v. Dept. of
Natural Resources, 682 P.2d 1319, 1332 (Mont. 1984)).
Applying the foregoing standards for constitutional construction,
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the Court concludes that Frontczak misconstrues Article II, Section 16’s
plain language and, in doing so, overstates the scope of the right
provided. As noted, the provision provides:
Courts of justice shall be open to every person, and speedy
remedy afforded for every injury of person, property, or
character. No person shall be deprived of this full legal
redress for injury incurred in employment for which another
person may be liable except as to fellow employees and his
immediate employer who hired him if such immediate
employer provides coverage under the Workmen’s
Compensation Laws of this state. Right and justice shall be
administered without sale, denial, or delay.
Mont. Const., Art. II, § 16 (emphasis added). The modifier “this” before
“full legal redress” plainly refers to the rights described in the
preceding sentence – “[c]ourts ... open to every person, and [a] speedy
remedy ... for every injury[.]” Thus, “full legal redress” under this
provision’s plain language is an injured party’s right to open courts and
speedy remedies – and not, as Frontczak seems to urge, an absolute
right to recover for any claim made or a right to a particular remedy.
Nor do decisions of the Montana Supreme Court appear to
support Frontczak’s arguments. For example, in Francetich v. State
Compensation Mut. Ins. Fund, 827 P.2d 1279, 1282, 1285 (Mont. 1992),
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the Montana Supreme Court deemed unconstitutional MCA § 39-71414(6)(a). That statute entitled an insurer to full subrogation even if a
claimant could show damages in excess of workers’ compensation
benefits and third-party recovery combined. The supreme court
concluded that the second sentence of Article II, Section 16 does not
allow this restriction of an injured worker’s right to obtain full legal
redress against third-party tortfeasors. Id. at 1285. The supreme court
concluded:
We hold that in a case of reasonably clear liability where a
claimant is forced to settle for the limits of an insurance
policy which, together with claimant’s workers’
compensation award, do not grant full legal redress under
general tort law to the claimant, under workers’
compensation laws the insurer is not entitled to subrogation
rights under § 39–71–414, MCA.
Id.
Also, in Trankel v. State on Mont., Dept. of Military Affairs, 938
P.2d 614, 621 (Mont. 1997), the plaintiff claimed injury caused by the
State Military Affairs Department while he was in the course of his
employment with the U.S. Army. The state district court concluded
that his claim was barred under the U.S. Supreme Court’s decision in
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Feres v. U.S., 340 U.S. 135 (1950) and the Montana Supreme Court’s
decision in Evans v. Montana Nat’l Guard, 726 P.2d 1160 (Mont. 1986).
The Montana Supreme Court reversed, holding that Article II, Section
16 protects an employee’s right to recover compensation for workplace
injuries caused by someone other than the employer or a fellow
employee. Referring to its decision is Francetich, the supreme court
held:
We reaffirm that pursuant to the second sentence in Article
II, Section 16, of the Montana Constitution, any statute or
court decision which deprives an employee of his right to full
legal redress, as defined by the general tort law of this state
against third parties, is absolutely prohibited. That sentence
is mandatory and self-executing, and leaves no room for
erosion based on what federal courts or the courts of other
states would do pursuant to federal laws or the laws of other
states.
Trankel, 938 P.2d at 623.
Frontczak’s interpretation of these decisions as “absolutely
prohibit[ing] any restrictions” or limitations on an injured worker’s
claims is an overstatement in light of the two decisions’ language and
Montana’s general tort law. In concluding in Francetich and Trankel
that Article II, Section 16 prohibits depriving an injured worker the
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right to full legal redress, the Montana Supreme Court in both cases
specifically noted that a worker’s claim remains subject to the state’s
general tort law against third parties. Thus, the Court must examine
Montana’s general tort law.
It is well-settled under Montana law that “a plaintiff’s
contributory negligence may be raised as a defense to a negligence
claim.” Larchick v. Diocese of Great Falls-Billings, 208 P.3d 836, 850
(Mont. 2009). Contributory negligence has long been an available
defense to a claim based on a workplace injury against an entity
charged with job site safety. Olson, 196 P.3d at 1277 (citing Stepanek
v. Kober Const., 625 P.2d 51, 56 (Mont. 1981) and Shannon v. Howard
S. Wright Const. Co., 593 P.2d 438, at 446 (Mont. 1979)). It has been
deemed an available defense even in cases in which negligence per se
has been established. See Giambra v. Kelsey, 162 P.3d 134, 144 (Mont.
2007). Thus, it cannot be said that Montana’s general tort law
precludes contributory negligence as an affirmative defense.
Consequently, it cannot be said that Frontczak will be denied his right
to full legal redress if Continental is permitted to persist in asserting
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contributory negligence as a defense because full legal redress under
Montana’s general tort law includes consideration of contributory
negligence.
Also, Francetich and Trankel are fundamentally distinguishable
from this case in another way. In Francetich, as noted, the supreme
court deemed unconstitutional a statute that allowed an insurer full
subrogation against an injured worker’s recovery from a third-party
even if the worker was not made whole. In reaching this decision, the
supreme court prohibited the operation of a statute that interfered with
a worker’s recovery of damages after the worker was deemed to be
entitled to them. Such a situation is not present in this case.
And in Trankel, the supreme court held that an injured military
worker’s claim was not barred under Feres, 340 U.S. at 141-42, in
which the U.S. Supreme Court held that there was no liability against
the federal government for injuries sustained incident to military
service. The Montana Supreme Court in Trankel held that Article II,
Section 16 “precludes application of the Feres doctrine[.]” It reasoned
that the intention of Montana Constitutional Convention delegates in
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drafting the second sentence of that provision was to ensure “that
employees not be barred from third-party suits for injuries sustained
during the course of their employment.” Trankel, 938 P.2d at 621. In
this case, barring Frontczak’s lawsuit is not at issue.
Finally, the Court concludes that the supreme court’s decisions in
Connery v. Liberty Northwest Ins. Corp., 960 P.2d 288 (Mont. 1998) and
Otto v. Montana Dept. of Fish, Wildlife and Parks, 15 P.3d 402 (Mont.
2000) (superseded by rule as stated in Pesarik v. Perjessy, 194 P.3d 665,
667 (Mont. 2008)) provide Frontczak no support for his argument. In
Connery, the supreme court relied on Francetich in holding
unconstitutional a statute that gave “the insurer a separate right to
reduce benefits whenever an injured worker has obtained a third-party
settlement or award.” 960 P.2d at 290. In rejecting the statute, the
supreme court noted:
In the present case, as the Workers’ Compensation Court
correctly reasoned, § 39-71-416(1), MCA, facially ignores the
worker’s right to full legal redress. If an injured worker gets
anything, however short of full legal redress, the insurer is
entitled to reduce by 30 percent the benefits otherwise
payable to the injured worker. The net effect of the statute
is to transfer dollars recovered from the third-party
tortfeasor back to the insurer. That transfer is plainly
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contrary to the full legal redress provision.
Id.
Connery is distinguishable from this case. As noted above
respecting Francetich, the issue here is not a reduction, by statutory
operation, of an injured worker’s full recovery of damages to which the
worker was legally entitled. Thus, Connery is not relevant to the
Court’s analysis.
In Otto, the supreme court held that “a procedural rule which
applies equally to all litigants” does not offend Article II, Section 16’s
right to full legal redress. 15 P.3d at 407. The supreme court rejected
the plaintiff’s argument “that any rule which results in the dismissal of
an injured employee’s claim for damages is unconstitutional under
Article II, Section 16 of the Montana Constitution.” Id. The supreme
court noted:
[Plaintiff’s] interpretation of Article II, Section 16 would
preclude all dismissals of employee claims, even, for
example, those for failure to prosecute or based upon the
statute of limitations. We have not interpreted Article II,
Section 16 so broadly. Rule 41(e) is not a procedural rule
which specifically interferes with an employee’s vested right
to seek redress. [Plaintiff], like any other litigant, had the
right to pursue her claim but had to do so within the rules of
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civil procedure.
Id.
The same is true here. The defense of contributory negligence
does not interfere with Frontczak’s right to seek redress. He, like any
other worker claiming a third-party injury, has the right to pursue his
claim under Montana’s general tort law. That law includes the
affirmative defense of contributory negligence.
IV.
Conclusion
Based on the foregoing, IT IS ORDERED that Frontczak’s motion
to certify (ECF 80) is DENIED. Also,
IT IS RECOMMENDED that Frontczak’s motion for partial
summary judgment that Continental’s affirmative defense of
contributory or comparative negligence is unconstitutional (ECF 56) be
DENIED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Order and Findings and Recommendation of United
States Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
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recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 30th day of September, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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