Sherner v. Conoco

Can an Injured Montana Worker Sue the Employer Directly? Sherner v. Conoco, Inc., 2000 MT 50

Boland Aarab PLLP

In Sherner v. Conoco, Inc., 2000 MT 50, the Montana Supreme Court held that the “intentional and malicious” exception to workers’ compensation exclusivity reaches the employer itself, not just co-workers, and that “malicious” means the actual malice defined in § 27-1-221(2), MCA. The Court vacated summary judgment for Conoco and sent a refinery worker’s hydrogen sulfide injury claim back for trial. The 2001 Legislature then amended § 39-71-413, MCA, in response, so today’s standard is stricter than the one Sherner announced.

Key Takeaways

  • Workers’ compensation is normally an injured worker’s only remedy against the employer, but the Act has always carved out intentional wrongdoing (Sherner ¶¶ 17–20; § 39-71-411, MCA).
  • Sherner held that the employer, not just a fellow employee, can be sued under the intentional-act exception, because letting an employer “hide behind the exclusivity provision” would defeat the Act’s purpose (¶ 39).
  • The Court adopted the § 27-1-221(2) definition of actual malice: knowing of facts that create a high probability of injury and deliberately proceeding anyway (¶ 37).
  • The 2001 Legislature amended § 39-71-413 in reaction to Sherner, replacing “malicious” with “deliberate” and requiring an intentional injury (Wise v. CNH America, LLC, 2006 MT 194, ¶¶ 10–11).

In this case sheet: At a glance · What the Court held · What changed · Statutes · When it applies · How hard · Later decisions · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

CitationSherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990
CourtMontana Supreme Court. Opinion by Justice William E. Hunt, Sr., joined by Justices Regnier, Trieweiler and Nelson. Justice Nelson specially concurred, joined by Justice Leaphart. Justice Gray dissented, joined by Chief Justice Turnage.
DecidedFebruary 29, 2000 (argued November 30, 1999)
DocketNo. 98-630, on appeal from the Thirteenth Judicial District, Yellowstone County
ResultSummary judgment for Conoco vacated; remanded for trial
Counsel for the ShernersThomas E. Boland and Jeremiah C. Lynch, Great Falls, with Gene R. Jarussi, Jarussi & Bishop, Billings
Read the opinionOpinion of February 29, 2000 (PDF)

Case documents

Read the full opinion (PDF) →

What did the Montana Supreme Court hold in Sherner v. Conoco, Inc.?

In August 1995, Peter Sherner worked at the Conoco refinery in Billings. Management decided to shut down the Fluidized Catalytic Cracker (FCC) Unit to repair a leaking nozzle (¶ 3). Before workers could install metal “blinds” in the pipes, the unit had to be isolated from other units that could send hydrogen sulfide (H2S) gas into it (¶¶ 3–4). The opinion recites that:

  • one connected unit was idled but not depressurized, and another was still operating under pressure (¶ 5);
  • managers smelled a sour gas odor near the vessel and did not stop work (¶ 6);
  • blinding started about two hours after the gas test, although company policy called for it to begin within one hour of the work permit (¶¶ 6–7).

Mr. Sherner was exposed to H2S while installing a blind and was seriously injured. Conoco’s own investigation found a valve that did not seal (¶ 7). The district court granted summary judgment to Conoco, ruling that he had to show Conoco had actual knowledge he was being harmed (¶ 12).

The Supreme Court reversed. It acknowledged that its earlier cases had been inconsistent, sometimes focusing on the intentional act and sometimes on intentional harm (¶¶ 23, 33). Applying the statute’s plain language, it held:

  1. “Intentional” takes its ordinary meaning, “done deliberately; intended” (¶ 36).
  2. “Malicious” means actual malice under § 27-1-221(2), MCA (¶ 37).
  3. The exception applies to employers as well as co-employees (¶ 39).

Under that standard, genuine issues of material fact existed, so summary judgment was vacated and the claims against Conoco were remanded “for trial upon the merits” (¶¶ 41–42).

Justice Nelson, joined by Justice Leaphart, wrote separately that the employer’s liability also rests on the common law and the Act’s principle of “enterprise liability” (¶¶ 44–53). Justice Gray, joined by Chief Justice Turnage, dissented. In her view, Mr. Sherner had not asked the district court to adopt a plain-meaning standard or the § 27-1-221 definition, so the Court should not have decided the case on those grounds (¶¶ 55–60).

What did Sherner change in Montana law?

Sherner replaced a patchwork of tests with one plain-language standard. It did that in three ways:

  • It rejected the “actual knowledge of harm” requirement the district court had drawn from Calcaterra v. Montana Resources, 1998 MT 187 (¶¶ 12, 33–35).
  • It chose a single definition of malice. The Court declined “to weave together a patchwork of inconsistent definitions” and adopted § 27-1-221(2) (¶ 37).
  • It confirmed that an injured worker can sue the employer, not only the co-worker who acted (¶ 39; see ¶¶ 44–53, Nelson, J., concurring).

The Legislature responded in 2001. The Montana Supreme Court later explained that the Legislature amended § 39-71-413 “in reaction to our decision in Sherner,” and that the amendment’s preamble refers to Sherner by name (Wise v. CNH America, LLC, 2006 MT 194, ¶ 10, citing 2001 Mont. Laws ch. 229). The amendment:

  • removed “malicious” and substituted “deliberate”;
  • defined “intentional injury” as an injury caused by a deliberate act “specifically and actually intended to cause injury” (§ 39-71-413(3), MCA).

As a result, Sherner “no longer represents the standard” for injuries governed by the amended statute (Wise ¶ 11). The amended text still names the “employer or fellow employee,” so the point that an employer can be sued for its own intentional and deliberate acts survives in the statute itself (§ 39-71-413(1)(a), MCA).

Which Montana laws and rules apply?

  • § 39-71-413, MCA: the intentional-act exception. Amended in 2001 (ch. 229) in response to Sherner, and again in 2013 (ch. 148). The current text requires an “intentional injury” and proof by clear and convincing evidence, and bars vicarious employer liability. It is not the version the Court applied in 2000.
  • § 39-71-411, MCA: workers’ compensation as the exclusive remedy (¶ 19)
  • § 27-1-221, MCA: actual malice (¶ 37). This section has been amended since 2000 (including in 2003 and 2023).
  • § 1-1-204, MCA: the general code definition of “malice” the Court did not adopt (¶¶ 29, 37)
  • § 1-2-101, MCA: courts may not insert what has been omitted or omit what has been inserted (¶ 35)
  • Mont. Const. art. II, § 16: open courts and the workers’ compensation exception (¶ 18)
  • M. R. Civ. P. 56: summary judgment (¶ 10)

When might Sherner apply to you?

  • An injury on or before the 2001 amendment took effect. Sherner‘s actual-malice standard governed § 39-71-413 as it read before 2001. The effective date of the amendment and any case-specific timing questions need a lawyer’s review.
  • A serious workplace injury where management knew of the danger. Under current law, a claim against the employer requires an intentional and deliberate act and an intentional injury (§ 39-71-413(1), (3), MCA). Sherner and Wise explain how the standard got there.
  • Someone other than your employer caused the harm. Workers’ compensation exclusivity protects the employer and co-workers. It does not by itself protect outside contractors, equipment makers or other third parties.

Every case turns on its own facts and its own dates.

How hard is an intentional-injury claim against a Montana employer?

It is hard, and harder now than in 2000:

  • Summary judgment is reviewed fresh. The Supreme Court applies the same Rule 56 test as the district court, and all reasonable inferences are drawn for the party opposing summary judgment (¶¶ 9–10).
  • Negligence is not enough. The Court reaffirmed that “allegations of negligence, no matter how wanton, are insufficient” to avoid exclusivity (¶ 32, quoting Schmidt v. State).
  • Preservation matters. Conoco argued that Mr. Sherner never asked the district court for the standard he sought on appeal. The majority found the issue was raised (¶ 15). Two justices would have held it waived (¶¶ 55–60).
  • The current statute sets a higher bar. A worker must now show an injury “specifically and actually intended,” with “actual knowledge that an injury is certain to occur,” proved by clear and convincing evidence (§ 39-71-413(1)(b), (3), MCA).

Statutes and rules

Later decisions citing this case

The Boland Aarab Way

Thomas E. “Tom” Boland, with Jeremiah C. Lynch and Gene R. Jarussi, represented Peter and Deborah Sherner in this appeal. Tom was admitted to practice in 1974 and practiced in Great Falls from 1979. In 2017 his daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP as the successor to his practice. Sherner shows the work that practice was built on: a worker hurt on the job, a refinery record read closely, and an argument that made the Supreme Court go back to the words of the statute. We bring that same preparation to workplace injuries, catastrophic injury cases and serious trucking and injury cases.

Frequently Asked Questions

Can I sue my employer in Montana for a workplace injury? Usually not. Workers’ compensation is the exclusive remedy against a covered employer (§ 39-71-411, MCA). The exception is an intentional injury caused by the employer’s or a co-worker’s intentional and deliberate act (§ 39-71-413, MCA; Sherner ¶ 39).

Is Sherner v. Conoco still good law? Its reading of “malicious” was superseded when the Legislature amended § 39-71-413 in 2001 in reaction to Sherner (Wise v. CNH America, LLC, 2006 MT 194, ¶¶ 10–11). The statute still allows claims against an “employer or fellow employee.”

What did “actual malice” mean in Sherner? Knowing of, or intentionally disregarding, facts that create a high probability of injury, and then deliberately acting in conscious disregard of, or indifference to, that probability (Sherner ¶ 37; § 27-1-221(2), MCA).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm and the successor to Tom Boland’s practice. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.