Suing Over a Work Injury in Montana
When Montana law lets an injured worker sue the employer, suing a third party such as a driver or equipment maker, and what to do if the employer has no workers' comp.
Short answer: Generally no: for covered employment, workers' compensation is the exclusive remedy and an insured employer is not otherwise liable for an employee's injury or death. Mont. Code Ann. §§ 39-71-411, 39-71-413
| Suing your employer | Generally no: for covered employment, workers' compensation is the exclusive remedy and an insured employer is not otherwise liable for an employee's injury or death. Exceptions: an uninsured employer can be sued under the uninsured-employer provisions, and a worker who is intentionally injured by a deliberate act of the employer or a co-worker may sue that person in addition to receiving benefits. Intentional injury means an act specifically and actually intended to injure the worker with actual knowledge that injury is certain, proven by clear and convincing evidence; the employer is not vicariously liable for a co-worker's intentional act. Intentional injury: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0040/section_0130/0390-0710-0040-0130.html |
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| Suing someone other than your employer | Yes. A worker injured by someone other than the employer or co-workers may sue that party in addition to receiving workers' compensation. The insurer has a first-lien subrogation right on the recovery for benefits paid or to be paid, but gets full subrogation only if the worker cannot show damages beyond the benefits and recovery combined; if the insurer declines to share the costs of the suit, it waives 50% of its subrogation. The worker must give the insurer reasonable notice before filing, and if the worker does not sue within 1 year of the injury, the insurer may sue in the worker's name. Subrogation: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0040/section_0140/0390-0710-0040-0140.html |
| If your employer has no workers' comp | Montana's Uninsured Employers' Fund pays an injured employee of an uninsured employer the benefits the worker would have received had the employer been insured (no lump-sum payments of future benefits, and medical benefits are limited to $100,000 per claim). The worker also has an independent lawsuit against the uninsured employer for the compensation that would have been due, plus attorney fees and costs, and in a damages suit the employer loses defenses such as the worker's ordinary negligence or assumption of risk. The department can assess the employer a penalty of up to double the premium it should have paid (or $200, whichever is greater) and recovers all benefits the fund pays. A dispute over fund benefits must go to mediation within 90 days of the department's decision. Lawsuit: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0050/section_0150/0390-0710-0050-0150.html ; defenses: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0050/section_0090/0390-0710-0050-0090.html ; penalties: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0050/section_0040/0390-0710-0050-0040.html ; 90-day mediation: https://mca.legmt.gov/bills/mca/title_0390/chapter_0710/part_0050/section_0200/0390-0710-0050-0200.html |
Where to get help in Montana
More Montana workers' compensation
- Filing a Workers' Comp Claim in Montana
- How Much Workers' Comp Pays in Montana
- Workers' Comp Settlements in Montana
- Retaliation for Filing Workers' Comp in Montana
- Appealing a Denied Workers' Comp Claim in Montana
- All Montana workers' compensation rules
FAQ
Can you sue your employer for a work injury in Montana?
Generally no: for covered employment, workers' compensation is the exclusive remedy and an insured employer is not otherwise liable for an employee's injury or death. Exceptions: an uninsured employer can be sued under the uninsured-employer provisions, and a worker who is intentionally injured by a deliberate act of the employer or a co-worker may sue that person in addition to receiving benefits. Intentional injury means an act specifically and actually intended to injure the worker with actual knowledge that injury is certain, proven by clear and convincing evidence; the employer is not vicariously liable for a co-worker's intentional act.
Can you sue a third party for a work injury in Montana?
Yes. A worker injured by someone other than the employer or co-workers may sue that party in addition to receiving workers' compensation. The insurer has a first-lien subrogation right on the recovery for benefits paid or to be paid, but gets full subrogation only if the worker cannot show damages beyond the benefits and recovery combined; if the insurer declines to share the costs of the suit, it waives 50% of its subrogation. The worker must give the insurer reasonable notice before filing, and if the worker does not sue within 1 year of the injury, the insurer may sue in the worker's name.
What if my employer doesn't have workers' comp insurance in Montana?
Montana's Uninsured Employers' Fund pays an injured employee of an uninsured employer the benefits the worker would have received had the employer been insured (no lump-sum payments of future benefits, and medical benefits are limited to $100,000 per claim). The worker also has an independent lawsuit against the uninsured employer for the compensation that would have been due, plus attorney fees and costs, and in a damages suit the employer loses defenses such as the worker's ordinary negligence or assumption of risk. The department can assess the employer a penalty of up to double the premium it should have paid (or $200, whichever is greater) and recovers all benefits the fund pays. A dispute over fund benefits must go to mediation within 90 days of the department's decision.
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.