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Marek v. Hecla, Limited

Supreme Court of Idaho

November 18, 2016

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.
v.
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,

         2016 Opinion No. 132

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, Senior District Judge.

         District court order granting summary judgment, affirmed.

          Duke Scanlan & Hall, PLLC, Boise, for appellants. Keely Duke argued.

          Ramsden, Marfice, Ealy & Harris, LLP, Coeur d'Alene, for respondents. Michael E. Ramsden argued.

          OPINION

          BURDICK, Justice

          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[1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Brothers 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.[2] Prior to their arrival, mine workers, at the direction of Hecla, undercut the waste pillar in the 6150-15-3 west stope.

         Upon 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.[3] 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 stope.

         Mareks 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.

         Mareks 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.

         II. STANDARD OF REVIEW

         We 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).

         "[W]hen 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)).

         III. ANALYSIS

         Mareks' 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.

         A. The district court did not err by granting Hecla summary judgment.

         1. 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.

         Mareks 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.

         In 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.

         Here, Hecla presented a prima facie case that the injuries suffered by Mike and Pete were covered by the Worker's Compensation Act.[4] 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 . . . .").

         2. The district court did not err by ruling that the exclusivity exception under Idaho Code section 79-209(3) did not apply.

         The 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).

         Resolution 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 (2015).

         In 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.

         Absent 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.

         In 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).

         "Willful" 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.

         Conversely, "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.

         The 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 ...


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