McMillan v. United States

In the summer of 1989, a young woman, Michelle McMillan, wheeled her husband into our Lib-by office. Lowell was holding their newborn baby in his lap. Lowell’s 21st birthday had recently passed, and in the span of just a few weeks, he had become a father and experienced a profound tragedy. While working for a logging company contracted by the Kootenai National Forest, a standing dead tree struck him, severing his spine and paralyzing him. He also sustained a traumatic brain injury. Lowell and Michelle filed a worker’s comp claim, which paid the hospital and surgery bills, as well as disability benefits, but Michelle was now caring for her paralyzed husband at home, and they were struggling to make ends meet.

They’d asked several other firms for assistance in recovering additional damages, but nobody would take their case. On the surface, it was open-and-shut, due to the so-called exclusivity bar: If you’re injured at work, your exclusive remedy is worker’s comp, nothing more. But the nature of Lowell’s accident was so grievous we felt compelled to dig deep into the annals of Montana’s jurisprudence, and to use our legal imaginations to open the courthouse doors for the McMillans.

Montana generally follows the rule that a project owner is not liable for injuries sustained by employees of a subcontractor. But there is an exception under Montana law, which allows an employee to recover damages against the project owner if they can prove they were hired to do a job that’s considered “inherently dangerous,” which is defined as risky even when standard precautions are taken.

So, we wondered, could we prove that the job McMillan was hired to do was inherently dangerous? If so, could we convince a court to find the project owner—the United States government—liable for McMillan’s injuries?

The essential case facts were undisputed. It was July 1987. The U.S. Forest Service contracted Anderson Logging Company to clear a corridor opening up access to a new timber sale deep in the forest. It was a salvage sale, the result of a beetle infestation that left dead standing trees everywhere. The future road would travel through a narrow corridor of mountainous terrain.

One day on the job, when McMillan had finished cutting a strip of trees, he yelled to a nearby co-worker, Paul Scroggie, that he was going to walk through the corridor to reach the next strip he needed to cut. Scroogie, who was about to cut a dead standing tree, hollered for McMillan to wait out of the way. But when Scroogie felled his tree into the corridor, it struck another snag, which came crashing down onto McMillan.

Beneath those facts, the story was more complicated. While reviewing hundreds of pages of contract documents and federal regulation codes, we dug deep in the labyrinth of the U.S. Forest Service files. There, we uncovered the document that would prove our case: the Forest Service Handbook, which outlined the agency’s guidelines for timber felling. We realized we could make the argument that the project itself failed to comply to the standards established by the government.

A number of factors made this particular job site uncommonly dangerous. There was the narrowness of the future road corridor, in the confines within which the loggers were to drop the trees. The common rule of thumb to always work at least two tree-lengths apart is never more necessary than when standing dead trees are involved. Snags are called “widow-makers” because they’re inherently unpredictable, and the project contract showed that the forest composition in the corridor contained a significant percentage of dead standing trees.

Our expert from the University of Montana’s School of Forestry assessed these characteristics, and confirmed that the job would have been extraordinarily dangerous for even an advanced logger who took every safety precaution. Thus we were able to establish that the agency had a non-delegable duty to ensure that its own standards were being upheld. It was a bold theory, but premised on our solid research.

In two trials in federal court in Missoula, we prevailed. The United States appealed the decision to the Ninth Circuit, where we won on a 3 to 0 decision. The McMillans were awarded $3.2 mil-lion, which was, at the time, was Montana’s largest personal injury judgement.

But that’s not where this story ended. Based on the McMillan’s successful case against the Forest Service, the Montana State Fund then asserted a “subrogation” claim against the McMillans, seeking reimbursement for workers comp benefits paid. We in turn argued that under the “made whole” doctrine that underlies the theory of subrogation, the claim was without merit. In a seminal Montana Supreme Court decision, we prevailed once again.¹

Through combining creative legal theories with gritty pick-and-shovel trial advocacy, we were able to achieve a significant measure of justice for a family that had suffered a tragic accident. This is a longstanding tradition for our firm, and something we have done on numerous occasions.²

1. See State Comp. Ins. Fund v. McMillan, 2001 MT 168. We were also successful in advocating that the State fund pay for the domiciliary care Lowell was receiving from Michelle.
2. See, e.g., Steiner v. Dep’t of Highways, 269 Mont. 270, 887 P.2d 1228 (1994); Pierce v. ALSC Architects, P.S., 270 Mont. 97, 890 P.2d 1254 (1995).