Montana Workplace Injury Lawyer | Third-Party Claims

Practice areaWorkplace Injury

Great Falls & Montana Workplace Injury Lawyers: On-the-Job Injuries, Work Accidents, Construction and Industrial Accidents

Boland Aarab PLLP.

Our attorneys: Caitlin Boland Aarab · Samir F. Aarab

As Montana workplace injury lawyers, we start with the question most injured workers are never asked: was someone other than your employer at fault? In Montana, workers’ compensation is usually your only remedy against your employer. But a manufacturer, another contractor, a property owner or a negligent driver can be sued for full damages.

Key Takeaways
Workers’ compensation is generally the exclusive remedy against a covered employer (§ 39-71-411, MCA).
You keep your workers’ comp benefits and can sue a third party whose negligence caused the injury (§ 39-71-412, MCA).
An employer or co-worker who intentionally injures you can be sued, but the bar is high: an act “specifically and actually intended” to injure, proved by clear and convincing evidence (§ 39-71-413, MCA).
The workers’ comp insurer has a lien on a third-party recovery, with important limits that protect the worker (§ 39-71-414, MCA).

On this page: Can you sue? · Exclusivity · Third parties · Suing an employer · Subrogation · Accidents we handle · What to do · Safety rules · Damages and deadlines · Why Boland Aarab · FAQ

Seriously hurt at work, or lost a family member to a workplace accident? Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

Can you sue after a workplace injury in Montana?

Often yes, but usually not your employer. Montana’s workers’ compensation system is a trade: injured workers get benefits without having to prove fault, and covered employers get protection from lawsuits. That protection belongs to the employer and its employees. It does not extend to everyone else whose carelessness contributed to the injury.

So the first job in any serious work-injury case is to look past the employer. Who made the machine? Who else was working on the site? Who owned the property, set up the scaffold, loaded the trailer or was driving the other vehicle? Each of those can be a separate claim for full damages. Our practice is built on those claims: third-party lawsuits and the other injury claims that arise from work.

How does workers’ compensation exclusivity work?

For covered employment, the Workers’ Compensation Act is the exclusive remedy against the employer. The statute says a covered employer “is not subject to any liability whatever” for an employee’s injury or death, apart from exceptions written into the Act (§ 39-71-411, MCA). The Act binds the worker, the worker’s family and the employer’s other employees.

Two exceptions in the statute matter most. The first is for uninsured employers. A worker whose employer was required to carry coverage and did not has an independent cause of action against that employer, for the benefits the worker would have received plus attorney fees (§ 39-71-515, MCA). The second is the intentional-injury exception discussed below. Some workers also fall outside the system entirely. Most railroad workers, for example, are excluded from Montana workers’ compensation (§ 39-71-401(2), MCA) and bring claims under the federal FELA instead. See our railroad injury and FELA page.

	Workers’ compensation claim	Third-party injury claim
Against whom	Your employer’s insurer	A company or person other than your employer or co-worker
Fault	Not required	Must be proved
Your own fault	Generally irrelevant	Reduces damages; bars recovery only if greater than the defendants’ combined (§ 27-1-702, MCA)
What you can recover	Scheduled medical and wage-loss benefits	Full damages, including pain and suffering and loss of earning capacity
Who decides	Insurer, then the Workers’ Compensation Court	A jury

Who can be held responsible for a work injury?

Anyone outside the employer’s protection whose negligence caused the injury. Montana law says the right to workers’ compensation benefits is not affected when a third party caused the injury, and the worker keeps a separate cause of action for damages against that third party (§ 39-71-412, MCA). Depending on the facts, that can include:

Equipment and machinery manufacturers. A seller of a product in a defective condition that is unreasonably dangerous can be held strictly liable for the physical harm it causes (§ 27-1-719, MCA). Missing guards, failed safety interlocks and defective lifts, forklifts and ladders are common examples.
Other contractors on a shared site. Construction projects, plants and oil fields bring many companies together. A subcontractor, general contractor or service company that is not your employer can be responsible for a hazard it created.
Property owners and operators who control a site and fail to address a known danger.
Drivers and trucking companies. If you were hurt in a crash while driving for work, the other driver and their employer can be sued. See our truck accident and car accident pages.
Maintenance, inspection and engineering firms whose work on equipment or a structure fell short.

Who counts as your “employer” is not always obvious. Montana law can make a company that contracts out work liable for workers’ compensation benefits in some situations (§ 39-71-405, MCA), and staffing and contract arrangements can blur the lines. Sorting out which companies are protected and which can be sued is one of the first things we do.

When can you sue your employer directly?

Rarely, and only for an intentional injury. Montana allows a lawsuit against an employer or a fellow employee whose “intentional and deliberate act” caused an intentional injury, in addition to workers’ compensation benefits (§ 39-71-413, MCA). The statute sets a demanding test:

The act must be “specifically and actually intended to cause injury to the employee injured,” and there must be “actual knowledge that an injury is certain to occur.”
It must be proved by clear and convincing evidence, a higher standard than in most civil cases.
An employer is not vicariously liable under this section for an employee’s intentional acts. The claim runs against the person whose act caused the injury.

Gross negligence or ignoring safety rules, however serious, generally does not meet this definition. We will tell you honestly whether the facts support an intentional-injury claim. More often, the stronger path runs through a third party.

What happens to your workers’ comp benefits if you win a third-party case?

You keep them, but the insurer has a right to be repaid from the recovery, with limits. This is called subrogation, and it is governed by § 39-71-414, MCA:

The insurer’s lien. The insurer is entitled to subrogation for benefits paid or to be paid, and its right is a first lien on the claim, judgment or recovery.
Notice and costs. The worker must give the insurer reasonable notice before filing, and may ask the insurer to pay its share of the costs of the case, including attorney fees. If the insurer declines, it gives up 50% of its subrogation rights.
A floor for the worker. When the worker brings the case, the worker is entitled to at least one-third of the recovery, less a proportionate share of costs and fees, if the recovery is not enough to provide that amount after subrogation.
The one-year rule. If the worker does not file a third-party action within 1 year of the injury, the insurer may file it in the worker’s name.
Made whole first. The insurer is entitled to full subrogation “unless the claimant is able to demonstrate damages in excess of the workers’ compensation benefits and the third-party recovery combined.”

That last rule is why the full value of the injury matters, even in a third-party case. Proving the real cost of the injury, over a lifetime, can reduce or defeat the lien. The statute also has special rules for wrongful-death settlements, and the insurer and worker can negotiate a compromise. Handling the lien is part of the case from the start, not an afterthought at settlement.

What kinds of workplace accidents do we handle?

We handle serious injuries and deaths from:

Falls from roofs, ladders, scaffolds, lifts and elevated work areas, and trip-and-fall injuries on unsafe surfaces.
Struck-by and falling-object accidents, including falling machinery and loads.
Caught-in and crush injuries from unguarded machinery, conveyors and heavy equipment.
Fires and explosions.
Exposure to toxic chemicals or fumes.
Forklift and work-vehicle crashes, and crashes on the road while driving for work.
Construction accidents, including trench collapses and crane and rigging failures.
Oil field and oil rig accidents. See our oil field and oil rig accident page.
Railroad injuries. See our railroad and FELA page.

These accidents cause broken bones, lacerations, burns, internal injuries, and head, neck and back injuries. The most serious are life-changing: traumatic brain injuries, spinal cord injuries, burns, amputations and wrongful death.

What should you do after a work injury?

Get medical care and tell every provider it happened at work.
Report the injury to your employer in writing within 30 days. A workers’ compensation claim for a non-fatal injury generally is not compensable without notice within 30 days of the accident, though the employer’s actual knowledge can count (§ 39-71-603, MCA).
File the workers’ comp claim within 12 months. Claims must be presented in writing within 12 months of the accident, with limited exceptions (§ 39-71-601, MCA).
Write down every company on the site, the equipment involved, and the names of witnesses.
Photograph the scene and equipment if you can do so safely. Ask that the equipment be kept, not repaired or scrapped.
Be careful with other companies’ insurers. A third party’s adjuster works for that company. Do not give a recorded statement or sign a release before getting advice.
Call a lawyer early. Machines get repaired, sites get cleaned up and job-site video gets overwritten. A written preservation demand should go out as soon as possible.

What role do OSHA safety rules play?

Federal safety rules show what a company was required to do. Montana does not run its own OSHA-approved State Plan, so most private-sector workers in the state are under federal OSHA jurisdiction (OSHA State Plans). The main rulebooks are the general industry standards (29 C.F.R. part 1910) and the construction standards (29 C.F.R. part 1926).

An OSHA citation, or the lack of one, does not decide a lawsuit. But the rules on fall protection, machine guarding, lockout/tagout, trenching and hazard communication often define the standard of care that a contractor, manufacturer or site operator ignored. We use the rules, inspection records and the company’s own safety program to show the jury the gap between what was required and what was done.

What can you recover, and how long do you have?

In a third-party case, you can seek full damages: medical care now and in the future, lost earnings and earning capacity, pain and suffering, and the loss of the life you expected to live. When a worker dies, the family and the estate can bring wrongful death and survival claims (§§ 27-1-513, 27-1-501, MCA).

Deadlines:

30 days to give your employer notice of a non-fatal injury for workers’ compensation (§ 39-71-603, MCA).
12 months to present a written workers’ compensation claim (§ 39-71-601, MCA).
1 year before the insurer may file the third-party case itself (§ 39-71-414(3), MCA).
3 years to file most injury and wrongful-death lawsuits (§ 27-2-204, MCA).

The Boland Aarab Way

We are trial lawyers. We build every serious case as if it will be tried and then appealed, because the companies on the other side of a work-injury case often have the resources to do both. That is the work behind our record in the Montana Supreme Court and the Ninth Circuit:

We protect verdicts. When a Phillips County jury’s $168,500 verdict for an injured driver was thrown out, we took it to the Montana Supreme Court and had it reinstated (Voegel v. Salsbery, 2023 MT 137).
We try cases. Our firm has tried more than a dozen jury trials, in Cascade, Phillips, Meagher and Yellowstone Counties, and our attorneys have spent more than 4,000 hours in the courtroom.
We know federal court. Our attorneys have handled more than 40 cases in the U.S. District Court for the District of Montana over the past nine years, and Samir Aarab has argued twice before the Ninth Circuit.
We handle the whole picture. The third-party case, the workers’ comp lien and the family’s long-term needs are handled together, by the attorneys you meet on the first call.

Both of our attorneys are members of the American Association for Justice and the Montana Trial Lawyers Association. See our results.

Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

Where do we handle workplace injury cases?

Our office is at 18 6th Street North, Suite 200, in downtown Great Falls. We handle workplace injury cases across Montana, including Great Falls, Billings, Missoula, Helena, Bozeman, Butte and Kalispell, and the oil fields of eastern Montana.

Workplace injury cases across Montana

We are based in Great Falls and handle workplace injury cases statewide. Local information for each city:

Frequently Asked Questions

Can I sue my employer for a work injury in Montana? Usually not. Workers’ compensation is the exclusive remedy against a covered employer (§ 39-71-411, MCA). The main exceptions are uninsured employers (§ 39-71-515, MCA) and intentional injuries (§ 39-71-413, MCA).

Can I get workers’ comp and still sue someone else? Yes. Your workers’ compensation benefits are not affected by a third party’s fault, and you can sue that third party for damages (§ 39-71-412, MCA). The insurer will have a lien on the recovery.

What counts as an intentional injury by an employer? An intentional and deliberate act specifically and actually intended to injure you, with actual knowledge that injury is certain to occur, proved by clear and convincing evidence (§ 39-71-413, MCA). Unsafe conditions or gross negligence alone usually do not qualify.

Does the workers’ comp insurer get paid back if I win? Generally yes, from the third-party recovery, but not in full if you can show your damages exceed the benefits and the recovery combined. The insurer also gives up half its lien if it refuses to share the cost of the case (§ 39-71-414, MCA).

What if I was hurt driving for work? You may have a workers’ compensation claim and a separate claim against the at-fault driver and their employer or insurer. Your own underinsured-motorist coverage may also apply.

What if a defective machine caused my injury? The manufacturer or seller can be held strictly liable for a product sold in a defective and unreasonably dangerous condition (§ 27-1-719, MCA). Keep the machine, or ask that it be preserved, so it can be inspected.

How long do I have to file a workplace injury lawsuit? Generally 3 years for a third-party injury or wrongful-death lawsuit (§ 27-2-204, MCA). Workers’ compensation deadlines are much shorter: 30 days to notify your employer and 12 months to file a written claim.

Can I be fired for filing a workers’ comp claim? An employer may not use the filing of a workers’ compensation claim as grounds for firing a worker (§ 39-71-317, MCA). Talk with a lawyer promptly if you were fired after an injury.

Talk to a Montana Workplace Injury Lawyer