PATRICIA MAREK, an Idaho resident, individually and as personal representative of the ESTATE OF LARRY "PETE" MAREK; MICHAEL MAREK, an Idaho resident; JODIE MAREK, an Idaho resident; HAYLEY MAREK, a Washington resident, Plaintiffs-Appellants.
HECLA, LIMITED, a Delaware corporation; HECLA MINING COMPANY, a Delaware corporation; SILVER HUNTER MINING COMPANY, a Delaware corporation; PHILLIP S. BAKER, JR., ("Baker"), an Idaho resident; JOHN JORDAN, an Idaho resident; DOUG BAYER, an Idaho resident; RON KRUSEMARK, an Idaho resident; SCOTT HAGAMIER, an Idaho resident; CINDY MOORE, an Idaho resident; DALE STEPRO, an Idaho resident, Defendants-Respondents, and DOES I-10 AND XYZ, INC. 1-10,
Opinion No. 132
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Benjamin R. Simpson, Senior
court order granting summary judgment, affirmed.
Scanlan & Hall, PLLC, Boise, for appellants. Keely Duke
Ramsden, Marfice, Ealy & Harris, LLP, Coeur d'Alene,
for respondents. Michael E. Ramsden argued.
Patricia Marek, et al. (Mareks) appeal the judgment entered
by the Kootenai County District Court granting Hecla Mining
Company, et al. (Hecla) summary judgment. On April 15, 2011,
Larry "Pete" Marek was fatally injured in a large
rock fall in the Lucky Friday Mine, which is owned and
operated by Hecla. Mareks contend that Hecla's decision
to remove a pillar from the mining area constituted
sufficiently egregious conduct that Mareks should be allowed
to pursue their claims outside of the Idaho Worker's
Compensation Act. On cross motions for summary judgment, the
district court ruled that because Hecla's conduct did not
amount to "willful or unprovoked physical aggression"
under Idaho code section 72-209(3) the claims were barred by
the exclusivity provision of the Worker's Compensation
Act. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Larry "Pete" and Mike Marek (Pete and Mike) were
both employed as miners for Hecla at the Lucky Friday Mine.
On April 15, 2011, Pete and Mike were assigned to work in the
spray chamber outside of the 6150-15-3 stope. Prior to their
arrival, mine workers, at the direction of Hecla, undercut
the waste pillar in the 6150-15-3 west stope.
arriving at the 6150-15-3 stope, rather than work in the
spray chamber, Pete and Mike decided to water down the muck
in the stope. Pete watered the muck in the 6150-15-3
west stope and Mike watered the muck in the 6150-15-3 east
stope. On April 5, 2011, at approximately 5:30 p.m., Mike
observed Pete rolling up the hose he had been using to water
the muck when the 6150-15-3 west stope collapsed on top of
Pete. Mareks allege that the failure of the stope was caused
by Hecla's decision to undercut the waste pillar. The
cave-in was approximately 90 feet long, 20 feet wide and 30
feet high. Despite his efforts, Mike was not able to rescue
Pete, and a search for Pete over the next nine days recovered
Pete's body on April 24, 2011. Pete's cause of death
was determined to be blunt force trauma. The U.S. Mine Safety
& Health Administration (MSHA) found that Hecla's
conduct in removing the waste pillar "constituted more
than ordinary negligence" and issued three citations
related to the removal of the waste pillar in the 6150-15
filed a complaint on April 12, 2013. In its answer, Hecla
asserted that worker's compensation law was the exclusive
remedy for Mareks' claims. Both parties then filed
motions for summary judgment. The court heard oral argument
on the parties' cross motions for summary judgment on
April 14, 2015. Following oral argument, the court took the
matters under advisement and issued its Memorandum Decision
and Order granting Hecla summary judgment on April 21, 2015.
In its decision, the district court ruled that because Mareks
failed to present any evidence that the injuries suffered
were caused by Hecla's "willful or unprovoked
physical aggression, " Hecla was entitled to summary
judgment as a matter of law. Specifically, the court pointed
to a lack of evidence that Hecla harbored any ill will
towards Mike or Pete or that Hecla had actual knowledge the
stope would collapse. Without such evidence, the district
court ruled that the exclusivity exception under section
72-209(3) did not apply and that the Worker's
Compensation Act was Mareks exclusive remedy. The district
court entered its final judgment on May 5, 2015.
filed a motion for reconsideration on April 29, 2015, and
filed an affidavit and memorandum in support of their motion
on June 22, 2015, and August 4, 2015, respectively. The
district court heard oral argument on the motion and
subsequently denied the motion on September 1, 2015.
STANDARD OF REVIEW
review a district court's grant of summary judgment de
novo, and apply the same standard used by the district court
in ruling on the motion. Grazer v. Jones, 154 Idaho
58, 64, 294 P.3d 184, 190 (2013). Summary judgment is
appropriate when "the pleadings, depositions, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." I.R.C.P. 56(c). All reasonable
inferences that can be drawn from the record are to be drawn
in favor of the nonmoving party, and disputed facts are
liberally construed in the nonmoving party's favor.
Mackay v. Four Rivers Packing Co., 145 Idaho 408,
410, 179 P.3d 1064, 1066 (2008).
the district court grants summary judgment and then denies a
motion for reconsideration, this Court must determine whether
the evidence presented a genuine issue of material fact to
defeat summary judgment. This means the Court reviews the
district court's denial of a motion for reconsideration
de novo." Massey v. Conagra Foods, Inc., 156
Idaho 476, 480, 328 P.3d 456, 460 (2014) (quoting Bremer,
LLC v. E. Greenacres Irrigation Dist., 155 Idaho 736,
744, 316 P.3d 652, 660 (2013)).
main argument is that Hecla's failure to have an engineer
review and approve the pillar removal, failure to heed
warnings from experienced employees about the removal of the
pillar, and failure to perform a safety review and follow
safety standards promulgated by MSHA when removing the pillar
constituted "willful or unprovoked physical
aggression" such that the district court erred in ruling
that the exclusivity exception under Idaho Code section
79-209(3) did not apply.
The district court did not err by granting Hecla summary
The district court did not err in ruling that Mareks bore
the burden of proof in establishing whether the exclusivity
exception under Idaho Code section 72-209(3) applies.
argue that "the district court erred in ruling that the
Mareks-rather than Hecla- bore the burden regarding
worker's compensation exclusivity on summary
judgment." Mareks are incorrect.
Roe v. Albertson's Inc., 141 Idaho 524, 530, 112
P.3d 812, 818 (2005), we stated: "Albertson's, as
the moving party, must show there is no genuine issue as to
any material fact that Doe would have been covered by
worker's compensation and that it is therefore entitled
to judgment as a matter of law." Thus, when an employer
claims it is protected from civil suit by the worker's
compensation exclusivity rule the employer bears the burden
of proving the injury suffered falls within the worker's
compensation statutes. In Kearney v. Denker, we
stated that to show an injury falls under the section
72-209(3) exception to exclusivity the employee must prove
the injury was "caused by the willful or unprovoked
physical aggression of the employer." 114 Idaho 755,
757, 760 P.2d 1171, 1173 (1988). Thus, the original burden of
showing the injury is the type of injury generally covered by
the Worker's Compensation Act falls on the employer,
however, after establishing the Worker's Compensation Act
applies, the burden of showing the injury falls under the
section 72-209(3) exception falls on the employee.
Hecla presented a prima facie case that the injuries suffered
by Mike and Pete were covered by the Worker's
Compensation Act. Mareks responded that the injuries
suffered fell under the section 72-209(3) exclusivity
exception. Thus, Mareks bore the burden of showing
Hecla's conduct constituted "willful or unprovoked
physical aggression, " and the district court did not
err in so ruling. See, e.g., Id.;
DeMoss v. City of Coeur D'Alene, 118 Idaho 176,
179, 795 P.2d 875, 878 (1990); McVicker v. City of
Lewiston, 134 Idaho 34, 37, 995 P.2d 804, 807 (2000)
("Once the movant has established a prima facie case
that, on the basis of uncontroverted facts, the movant is
entitled to judgment, the opposing party must set forth
specific facts showing that there is a genuine issue for
trial . . . .").
The district court did not err by ruling that the
exclusivity exception under Idaho Code section
79-209(3) did not apply.
Idaho Worker's Compensation Act is a compromise between
injured workers and their employers that provides a limit on
liability for employers in return for providing sure and
certain relief for the injured worker. Blake v.
Starr, 146 Idaho 847, 851, 203 P.3d 1246, 1250 (2009);
Yount v. Boundary Cty., 118 Idaho 307, 307, 796 P.2d
516, 516 (1990) ("Such being the quid pro quo
for eliminating the previous remedy of seeking a tort
recovery from employers."). To this end, Idaho Code
section 72-209(1) states: "the liability of the employer
under this law shall be exclusive and in place of all other
liability of the employer to the employee, his spouse,
dependents, heirs, legal representatives or assigns."
However, there is an exception to this rule "where the
injury or death is proximately caused by the willful or
unprovoked physical aggression of the employer, its officers,
agents, servants or employees." I.C. § 72-209(3).
of this case rests on the meaning of the phrase "willful
or unprovoked physical aggression." When interpreting
statutory language, we have stated numerous times: "The
objective of statutory interpretation is to give effect to
legislative intent. Because the best guide to legislative
intent is the words of the statute itself, the interpretation
of a statute must begin with the literal words of the
statute." Gordon v. Hedrick, 159 Idaho 604,
609, 364 P.3d 951, 956 (2015) (quoting State v.
Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187
(2007)). "Moreover, unless a contrary purpose is clearly
indicated, ordinary words will be given their ordinary
meaning when construing a statute." Corp. of
Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Ada Cty., 123 Idaho 410, 415, 849 P.2d 83, 88
(1993). "To ascertain the ordinary meaning of an
undefined term in a statute, we have often turned to
dictionary definitions of the term." Arnold v. City
of Stanley, 158 Idaho 218, 221, 345 P.3d 1008, 1011
Kearney, we considered the term "willful or
unprovoked physical aggression." 114 Idaho at 757, 760
P.2d at 1173. In that case, an employee argued the
employer's failure to install certain safety devices on a
lawnmower amounted to willful or unprovoked physical
aggression. Id. at 756, 760 P.2d at 1172. Focusing
on the word "aggression" we stated: "The word
'aggression' connotes 'an offensive action'
such as an 'overt hostile attack.' "
Id. at 757, 760 P.2d at 1173 (quoting
Webster's Third New Int'l Dictionary 41
(1969)). Relying on that definition, we further noted:
"To prove aggression there must be evidence of some
offensive action or hostile attack, " and ultimately
concluded: "§ 72-209(3) require[s] an intention to
injure the employee." Id. at 757-58, 760 P.2d
at 1173-74. We reaffirm our statements in Kearney.
To prove aggression there must be evidence of (1) an
offensive action or hostile attack and (2) intention to
injure an employee.
from our decision in Kearney, however, is a
discussion of the terms "physical" and
"willful or unprovoked." These terms modify the
term aggression. Physical directly modifies aggression and is
defined as "of or relating to the body-often opposed to
mental." Webster's Third New Int'l
Dictionary 1707(1969). Accordingly, physical identifies
the type of aggression that will satisfy the standard: only
offensive actions or hostile attacks aimed at the bodily
integrity of the employee-opposed to mental, emotional,
pecuniary, or other types of aggression-are implicated.
turn, the terms "willful or unprovoked" modify the
phrase "physical aggression." However, these terms,
rather than modify the type of aggression at issue, modify
the level of intent required in effectuating the act of
physical aggression. At the outset, we note that these terms
are separated by the disjunctive conjunction "or."
Use of the disjunctive clearly indicates that the meaning of
the words "willful" and "unprovoked" are
distinct from one another. E.g., State v.
Herren, 157 Idaho 722, 726, 339 P.3d 1126, 1130 (2014)
("The word 'or' is disjunctive, meaning that it
is a conjunction used to introduce an alternative.").
Thus, conduct amounting to either "willful physical
aggression" or "unprovoked physical
aggression" is sufficient, standing alone, to trigger
the exclusivity exception under section 72-209(3).
is defined in Webster's Third New International
Dictionary as "done deliberately: not accidental or
without purpose." Webster's Third New
International Dictionary 2617 (1969). Black's
Law Dictionary defines willful as "[v]oluntary and
intentional, but not necessarily malicious." 1630 (8th
ed. 2004). Thus, the term "willful" when applied to
"physical aggression" requires that an employer
deliberately or purposefully commit an act of physical
aggression against an employee.
"unprovoked" is defined as "to rid of a
motive, desire, or capability." Webster's Third
New Int'l Dictionary 2506 (1969).
Consequently, an act of "unprovoked physical
aggression" is one where an act of physical aggression
is committed without a deliberate or specific purpose in
effectuating the act.
difference between the two terms is in the level of intent
required in committing the act of physical aggression. An act
of "willful physical aggression" requires a level
of intent that is deliberate and ...