DAYTON v. BOEING COMPANY

OPINION AND ORDER

RUSSELL E. SMITH, Chief Judge.

The question, submitted upon an agreed statement, is whether by reason of workmen's compensation and occupational disease coverage plaintiff may maintain this action.

Plaintiff James Dayton (Dayton) seeks damages for injuries sustained by him as a result of his exposure to electromagnetic pulses and laser radiations while employed by the defendant. His wife, Gwen Dayton, seeks damages for loss of consortium.

Dayton was employed in Montana from 1968 to October 18, 1971, and in Missouri from about October 18, 1971, to June 16, 1972. The major part of the exposure took place in Montana. The defendant was covered under the workmen's compensation laws and occupational disease laws of both Montana and Missouri and defends this action on the ground that Dayton's remedies are under those laws and are exclusive.

It is unnecessary to decide whether what happened to Dayton could be deemed to be an industrial accident in the absence of an occupational disease law. The Montana legislature obviously endeavored to distinguish between accidents and occupational diseases, and Dayton does suffer from an industrial disease as distinguished from an accident.1 See Summer v. Victor Chemical Works, 298 F.2d 66 (9th Cir. 1961).

It is Dayton's position that, since he was only partially disabled, no compensation was payable to him under R.C.M.1947 § 92-13222 and that his common-law remedies are not barred by R.C.M.1947 §§ 92-1308 and 92-1331.3 The language of § 92-1308 makes the remedy of the occupational disease law exclusive and would, without more, bar the common-law remedies. Any possible confusion as to the effect of § 92-1331 on § 92-1308 is resolved, so far as this court is concerned, by the decision of the Supreme Court of Montana in Anaconda Co. v. District Court, 161 Mont. 318, 506 P.2d 81 (1973), which in this, a diversity case, is controlling. The result of that decision is that an employee suffering an occupational disease has no common-law remedy against the employer if the disease is covered by the Act, and both the employer and employee are bound by the Act. It is not requisite to the bar that in a particular situation the employee be entitled to benefits.

The disease suffered by the plaintiff here is clearly covered by the Workmen's Compensation Law of Missouri. V.A.M.S. § 287.067-1.4 However, § 287.067-3 defines the term "radiation disability"5 and Dayton urges that:

There is no suggestion in the language of § 287.067-3 that its purpose is to limit the kinds of radiation diseases which are compensable, and it would be difficult to find any purpose in covering one kind of radiation disability and not another. § 287.063-5 provides that in the case of "radiation disability" as distinguished from other disabilities liability falls on the last employer only if the employee had been employed by him a period of 90 days or more. The purpose of § 287.067-3 is simply to make meaningful the term "radiation disability" as used in § 287.063-5.

It is likewise urged that, since no benefits are paid for partial disability under the Missouri law, the provisions of § 287.120-2:

do not apply. Dayton misapprehends the Missouri law. Occupational disease coverage was added to the Missouri Workmen's Compensation Law by amendment and became an integral part of it. While some ambiguities were created by the failure of the legislature to accommodate the language of the then existing compensation law to the new occupational disease coverage, the Missouri courts have made it clear that, unless the context requires otherwise, the contraction of an occupational disease lies within the definition of the word "accident" and damages suffered result from an "injury." Staples v. A. P. Green Fire Brick Co., 307 S.W.2d 457 (Sup.Ct. of Mo., En Banc (1957)); Marie v. Standard Steel Works, 319 S.W.2d 871 (Sup.Ct. of Mo., En Banc (1957)). Dayton's partial disability was compensable under § 287.180 if temporary and under § 287.190 of permanent. See Banks v. Krey Packing Co., 479 S.W.2d 188 (Mo.Ct. of Appeals, St. Louis District (1972)), affirming an award for permanent partial disability to the victim of an occupational disease.

In any event, Dayton's argument founders on § 287.120-2, which bars the common-law remedy. See Marie v. Standard Steel Works, supra; King v. Monsanto Chemical Co., 256 F.2d 812 (8th Cir. 1958).

It is therefore ordered that the plaintiffs be denied all relief.

Let judgment be entered accordingly.