Usually not against your employer, but sometimes against someone else. If your job is covered by Montana's Workers' Compensation Act, comp is the exclusive remedy against your employer (MCA § 39-71-411). If a person or company other than your employer or co-workers caused the injury, such as a driver who hit you on a work trip, you keep your comp benefits and can also bring a damages claim against them (MCA § 39-71-412). This page compares the two. It is part of the Compare section of our Montana Injury Claim Guide.
Comp and a Third-Party Claim, Side by Side
| Workers' compensation | Third-party claim | |
|---|---|---|
| Who it is against | Your employer's workers' compensation insurer. | Someone other than your employer or co-workers: another driver, an equipment maker, another company. |
| Fault | Not the question. The system provides wage-loss and medical benefits without regard to fault (MCA § 39-71-105). | You must prove the other party was at fault, and your own share of fault counts (MCA § 27-1-702). |
| What it pays | The benefits the Workers' Compensation Act provides. | Damages, which can include losses comp does not pay. |
| Deadlines | Notice to the employer or insurer within 30 days; a written claim within 12 months (MCA §§ 39-71-603, 39-71-601). | Generally 3 years for an injury lawsuit (MCA § 27-2-204). |
| How they connect | The comp insurer can be repaid from a third-party recovery. | Subrogation is a first lien on the recovery, with limits (MCA § 39-71-414). |
Why You Usually Cannot Sue Your Employer
Montana's Workers' Compensation Act is a trade. For covered employment, the Act's provisions are exclusive, and an employer is not subject to "any liability whatever" for an employee's injury or death, apart from the exceptions the Act provides, including those for uninsured employers (MCA § 39-71-411). The next section also leaves your employer's servants and employees out of the third parties you can sue (MCA § 39-71-412), which is why a careless co-worker generally cannot be sued either.
There is one narrow exception for deliberate harm. If your employer or a fellow employee intentionally injures you by an intentional and deliberate act, you can bring a damages claim against the person whose act caused it, in addition to comp (MCA § 39-71-413). The definition is strict: the act must be specifically and actually intended to cause injury, with actual knowledge that injury is certain to occur, proved by clear and convincing evidence. An employer is not vicariously liable for a co-worker's deliberate act under that section.
When Someone Else Caused the Injury
The exclusive remedy protects your employer, not everyone else. Section 39-71-412 says the right to comp is not affected when the injury is caused by a third party other than the employer or its employees, and that the employee, in addition to comp, has the right to pursue any claim for damages against those persons or corporations (MCA § 39-71-412). Common examples:
- A driver who hits you while you are driving or walking for work.
- The maker of a defective tool, machine, or vehicle.
- Another company working on the same site whose employees caused the injury.
A third-party claim is an ordinary injury claim. You have to prove the other party was at fault, your own share of fault reduces the recovery (MCA § 27-1-702), and the general 3-year deadline applies (MCA § 27-2-204). It can cover losses that comp does not.
How Comp and a Third-Party Recovery Interact
When you bring a third-party claim, the comp insurer is entitled to subrogation for the compensation and benefits it has paid or will pay, and that right is a first lien on the claim, judgment, or recovery (MCA § 39-71-414). The statute also sets these rules:
- You must give the insurer reasonable notice that you intend to bring the action, and you may ask it to pay a proportionate share of the cost, including attorney fees.
- If the insurer elects not to share in the cost, it waives 50% of its subrogation rights.
- If you bring the action, you are entitled to at least one-third of the amount recovered, less a proportionate share of reasonable costs including attorney fees, even when paying the insurer in full would leave you less than that.
- The insurer is entitled to full subrogation unless you can show damages greater than the comp benefits and the third-party recovery combined.
- If you do not bring the action within 1 year of the injury, the insurer may bring it in your name.
These rules change what a settlement is worth to you, so the comp file and the third-party claim need to be handled with each other in mind.
The Comp Deadlines Come First
Whatever else you do, protect the comp claim. Notice of the time, place, and nature of the injury must reach your employer or its insurer within 30 days of the accident; an employer's actual knowledge counts as notice (MCA § 39-71-603). A written claim, signed by you or your representative, must be presented to the employer, the insurer, or the Department of Labor and Industry within 12 months, and the insurer may extend that by up to 24 months for lack of knowledge of disability, a latent injury, or equitable estoppel (MCA § 39-71-601). Our page on when to hire an injury lawyer puts these next to the other deadlines.
Choosing Help for a Work Injury
A claim for comp benefits and a third-party injury claim are different kinds of work, handled in different forums. When you call a lawyer, ask which of the two they handle themselves and whether they would refer any part of your matter to another lawyer. Our list of questions to ask an injury lawyer includes that one.
Our workplace injury page is the next step: it explains how comp benefits work in Montana and when a third-party claim may exist alongside them.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your situation, and occupational disease claims follow different rules.