Mont. Code Ann. » TITLE 39. LABOR · CHAPTER 71. WORKERS' COMPENSATION · Part 4. Coverage, Liability, and Subrogation
Montana Code Annotated

Mont. Code Ann. § 39-71-413 (2026)

Liability Of Employer Or Fellow Employee For Intentional And Deliberate Acts -- Additional Cause Of Action -- Intentional Injury Defined

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 39
  3. CHAPTER 71
  4. Part 4
  5. 39-71-413 Liability of employer or fellow employee for intentional and deliberate acts -- additional cause of action -- intentional injury defined

TITLE 39. LABOR

CHAPTER 71. WORKERS' COMPENSATION

Part 4. Coverage, Liability, and Subrogation

Liability Of Employer Or Fellow Employee For Intentional And Deliberate Acts -- Additional Cause Of Action -- Intentional Injury Defined

39-71-413. Liability of employer or fellow employee for intentional and deliberate acts -- additional cause of action -- intentional injury defined. (1) (a) If an employee is intentionally injured by an intentional and deliberate act of the employee's employer or by the intentional and deliberate act of a fellow employee while performing the duties of employment, the employee or in case of death the employee's heirs or personal representatives, in addition to the right to receive compensation under the Workers' Compensation Act, have a cause of action for damages against the person whose intentional and deliberate act caused the intentional injury.

(b) For the purposes of this section, the standard of proof for an act to be determined to be intentional and deliberate is clear and convincing evidence.

(2) An employer is not vicariously liable under this section for the intentional and deliberate acts of an employee.

(3) As used in this section, "intentional injury" means an injury caused by an intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.

History: En. 92-204.1 by Sec. 1, Ch. 493, L. 1973; amd. Sec. 2, Ch. 550, L. 1977; R.C.M. 1947, 92-204.1(part); amd. Sec. 1, Ch. 229, L. 2001; amd. Sec. 1, Ch. 148, L. 2013.

Notes of Decisions
Cited in 35 cases (1 in the last 5 years), 1979–2021 · leading case: Alexander v. Bozeman Motors, Inc., 2010 MT 135 (Mont. 2010).
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Alexander v. Bozeman Motors, Inc., 2010 MT 135 (Mont. 2010). · cites it 154× “¶ 11 Employees also argued that § 39-71-413, MCA, was unconstitutional because it: (1) violates equal protection under Art.”
Sherner v. Conoco, Inc., 2000 MT 50 (Mont. 2000). · cites it 114× “¶ 2 The two issues on appeal are: I What standard should be used to determine whether an employers act or omission is "intentional and malicious,"thereby allowing an injured worker to bring a tort action against his employer under § 39-71-413, MCA? II Whether it was error for…”
McKinnon v. W. Sugar Coop. Corp., 2010 MT 24 (Mont. 2010). · cites it 100× “McKinnon also argued that § 39-71-413, MCA, was unconstitutional both on its face and as applied to him.”
Wise v. Cnh Am., LLC, 2006 MT 194 (Mont. 2006). · cites it 46× “Wise asserted at the end of his negligence claim that LHC’s actions and inactions constituted “intentional and deliberate conduct as defined by Section 39-71-413, MCA.” Section 39-71-413(1), MCA, states that an employee who is intentionally injured by an intentional and…”
Alexander v. Bozeman Motors, Inc., 2012 MT 301 (Mont. 2012). · cites it 40× “In response, Ostermiller and Alexander argued that they had been *405 intentionally injured by the intentional acts of Bozeman Motors and its employees, so their cause of action fell outside the exclusivity provision of the WCA, pursuant to § 39-71-413, MCA. 3 Ostermiller and…”
Blythe v. Radiometer Am., Inc., 866 P.2d 218 (Mont. 1993). · cites it 34× “" The Act provides an exception which allows an injured worker to sue in tort in certain limited circumstances, set forth in § 39-71-413, MCA, as follows: *221 Liability of fellow employee for intentional and malicious acts or omissions — additional cause of action.”
Harris v. Montana, 2013 MT 16 (Mont. 2013). · cites it 27× “¶14 Appellees counter that their actions did not create an intentional injury as defined by § 39-71-413, MCA, and Harris’s claims are thus subject to the exclusive remedy provision.”
Calcaterra v. Montana Resources, 1998 MT 187 (Mont. 1998). · cites it 24× “It asserted that Karen’s claims were barred by § 39-71-411, MCA, because Montana’s Workers’ Compensation Act (the Act) was the exclusive remedy for Carl’s injuries and death, and that § 39-71-413, MCA, which provides an exception to the Act’s exclusivity provision, was…”
Maney v. Louisiana Pac. Corp., 2000 MT 366 (Mont. 2000). · cites it 16× “¶ 27 Finally, Maney argues that her claim for intentional infliction of emotional distress is not barred by the Act's exclusive remedy provision because, pursuant to § 39-71-413, MCA, a separate cause of action may be brought against an employer when an employee is injured by an…”
Schmidt v. State, 951 P.2d 23 (Mont. 1997). · cites it 22× “The State contended that the exception set forth at § 39-71-413, MCA, does not apply unless there is an intent by a fellow employee to injure a co-worker and, in this case, that no such intent had been established.”
Blain v. Stillwater Mining Co., 2004 MT 141 (Mont. 2004). · cites it 16× “¶8 On October 22, 2001, Blain brought this action in the Thirteenth *406 Judicial District Court to recover damages for the death of her father, pursuant to § 39-71-413, MCA (1999). On July 5, 2002, pursuant to Rule 56(c), M.”
Cordier v. Stetson-Ross, Inc., 604 P.2d 86 (Mont. 1979). · cites it 6× “If the employer or the insurer does not elect to participate in the costs of the employee's action, then the insurer or the employer waives 50 percent of its subrogation rights, and that portion of the benefits may be kept by the employee over and above his recovery from the…”
Show all 35 citing cases →
— Mont. Code Ann. § 39-71-413(1) — 5 cases
McKinnon v. W. Sugar Coop. Corp., 2010 MT 24 (Mont. 2010). “McKinnon also argued that § 39-71-413, MCA, was unconstitutional both on its face and as applied to him.”
Alexander v. Bozeman Motors, Inc., 2010 MT 135 (Mont. 2010). “¶ 11 Employees also argued that § 39-71-413, MCA, was unconstitutional because it: (1) violates equal protection under Art.”
Wise v. Cnh Am., LLC, 2006 MT 194 (Mont. 2006). “Wise asserted at the end of his negligence claim that LHC’s actions and inactions constituted “intentional and deliberate conduct as defined by Section 39-71-413, MCA.” Section 39-71-413(1), MCA, states that an employee who is intentionally injured by an intentional and…”
Harris v. Montana, 2013 MT 16 (Mont. 2013). “¶14 Appellees counter that their actions did not create an intentional injury as defined by § 39-71-413, MCA, and Harris’s claims are thus subject to the exclusive remedy provision.”
Alexander v. Bozeman Motors, Inc., 2012 MT 301 (Mont. 2012). “In response, Ostermiller and Alexander argued that they had been *405 intentionally injured by the intentional acts of Bozeman Motors and its employees, so their cause of action fell outside the exclusivity provision of the WCA, pursuant to § 39-71-413, MCA. 3 Ostermiller and…”
— Mont. Code Ann. § 39-71-413(1)(a) — 1 case
Berns v. EnTrans Int'l, LLC (D. Mont. 2021).
— Mont. Code Ann. § 39-71-413(2) — 1 case
Alexander v. Bozeman Motors, Inc., 2012 MT 301 (Mont. 2012). “In response, Ostermiller and Alexander argued that they had been *405 intentionally injured by the intentional acts of Bozeman Motors and its employees, so their cause of action fell outside the exclusivity provision of the WCA, pursuant to § 39-71-413, MCA. 3 Ostermiller and…”
— Mont. Code Ann. § 39-71-413(3) — 5 cases
Alexander v. Bozeman Motors, Inc., 2010 MT 135 (Mont. 2010). “¶ 11 Employees also argued that § 39-71-413, MCA, was unconstitutional because it: (1) violates equal protection under Art.”
McKinnon v. W. Sugar Coop. Corp., 2010 MT 24 (Mont. 2010). “McKinnon also argued that § 39-71-413, MCA, was unconstitutional both on its face and as applied to him.”
Harris v. Montana, 2013 MT 16 (Mont. 2013). “¶14 Appellees counter that their actions did not create an intentional injury as defined by § 39-71-413, MCA, and Harris’s claims are thus subject to the exclusive remedy provision.”
Wise v. Cnh Am., LLC, 2006 MT 194 (Mont. 2006). “Wise asserted at the end of his negligence claim that LHC’s actions and inactions constituted “intentional and deliberate conduct as defined by Section 39-71-413, MCA.” Section 39-71-413(1), MCA, states that an employee who is intentionally injured by an intentional and…”
Alexander v. Bozeman Motors, Inc., 2012 MT 301 (Mont. 2012). “In response, Ostermiller and Alexander argued that they had been *405 intentionally injured by the intentional acts of Bozeman Motors and its employees, so their cause of action fell outside the exclusivity provision of the WCA, pursuant to § 39-71-413, MCA. 3 Ostermiller and…”
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