Bence v. Pacific Power and Light Co.

trial, (2) obtaining preliminary tion and for getting to length delay in of (8) hearing transcript pauperis. of in forma delay, the assertion reason for the during delay, rights by the defendant 5,May 1980-Appellant requested motion by defendant (4) prejudice suffered hearing. suppress to be set for as a result. 6, 1980-Hearing sup- on May motion to 12, press May 1980. was set for facts of this

Applying the factors to the case, 15, May I find: letter denied mo- 1980-Decision suppress. tion to filing

(1) length The time between the of 19, May on for trial but con- 1980-Come 7, 1980) (February of the information of tinued because case "stacked" ahead (June 16, 1980) was about a week the trial being it was tried. than four months. This was not un- more 21, 27,May set for May 1980-Trial 1980. long. in Estrada was eleven duly time months. 21, 1980-Appellant May filed motions trial, limine, to suspension for (2) for the rea- record indication to within dismiss for failure afford trial judge's delay is in the trial com- son for days specified in Rule 22. "calendar with ments that it concerned the 22, May 1980-Appellant filed motion for settings change previous and with the Judge Spangler. change judge Judge parties have not oth- business." argued the reason for 22, erwise set forth or for June May 1980-Case set trial on ongoing activity delay. The record reflects 16, 1980. and that it was to

in the case 13, granting motion for June 1980-Order inattention. change judge. objection 16, (8) not assert an held. Appellant did June 1980-Trial 21, 1980, May at which time delay until Applying the set forth in Estra- standard for failure to be he filed a motion to dismiss da, requirement I conclude that for days provided brought to trial within the 90 speedy in this case. trial was met (d) of Rule 22. At the same by subsection only. that basis I would affirm on motion, he filed a motion time he filed 7-13-301, pursuant suspension of trial days was held 26 The trial .1977.3 W.S objection, and appellant asserted his

after 26-day delay, days were occa change appellant's request for a

sioned judge. BENCE, Appellant (Plaintiff), Daniel J. (4) delay was not unrea- Inasmuch as the sonable, prejudice from an there can be no that, detriment delay. Beyond undue PACIFIC POWER AND LIGHT COMPA disadvantage appellant al., is not indicated. NY, Corporation, et a Maine Appellees (Defendants). complete analysis of the issue must

A conjunction chronology No. 5444. made in pertinent activity: case Wyoming. Supreme Court February 1980-Information filed. July 1981. set for trial on 1980-Case February

May 1980. 13, 1980-Appellant filed motions

March discovery inspec- suppress, life the court able death or imprisonment, 7-13-301, perti 3. Section W.S.1977 provides part: nent such defendant trial may suspend probation." "* * *~ of a defendant With consent crime, except punish- charged a crime with a Moriarity Shockey Spence, & Gary L. Jackson, ap- Schuster, signed the brief and appel- on behalf of peared argument in oral lant. Murphy of Day and Patrick J.

Richard E. Neville, Casper, Williams, Porter, Day & appellees; on behalf of signed the brief argument. in oral Day appeared RAPPER, ROSE, J., and THOM- C. Before BROWN, ROONEY, AS, JJ. BROWN, Justice. appeal presented by this sole issue appellees are entitled

whether Work- from suit virtue examining Compensation Act. After er's laws, we have con- pertinent Wyoming not immune from cluded that therefore, and, remand we reverse and suit proceedings. case for further Bence, brought per- appellant, Daniel injury against Pacific Power sonal Company and Idaho Power Com- Light seriously in- pany, appellees, after he was he fell from a scaffold- jured in 1974 when attempting to weld tubes ing he was while the time of a boiler. At on the waterwall occurrence, employed Benee was Corporation as a welder- Power Bechtel working the Jim he was at pipefitter and located near Rock Bridger Power Plant Corpo- Wyoming. Bechtel Power Springs, to do contracted ration had designing, with the en- in connection power gineering and construction Appellees are the owners of plant. power plant. worker's

Bence did receive However, injured. while both after he was appellees and Bechtel contracts between Bechtel Corporation Power "recoverable cost" was entitled to receive premiums included "net costs which the record does compensation," appellees con- any evidence that not contain hand, if the On the other law tort action. fund. worker's tributed to a party he is a third agreement, according to their any event In injuries for the sus- tort action common-law have been appellees would any payment employee. In tained by way of reimbursement contractor's indirectly made look question, we must order to answer to Bechtel.1 Wyoming. to the law of summary for motion filed a Appellees law not common at A landowner was an in- that Bechtel alleging judgment of a workman considered the pursuant to one of dependent whom the owner person with by the hired therefore, and, appellees did contracts two property. develop his to had contracted The trial appellant. duty to not owe a 27-60(D), that appellees § contend Here raised opinion letter tentative judge in his W.9.1957, Worker's Com- Wyoming of the question of whether first time for the statutory em- owners Act made pensation suit because appellees are immune workmen; therefore, appel- ployers of the statutory employers. Benee's they are David present action.' from the immune lees are request addition- on to judge went The trial immunity provi that court has held This issue and parties on this from the al briefs Compensa Worker's Wyoming sions in the appel- allow he would indicated that he also Mar Act, narrowly construed. tion will be to in order their answer lees to amend 621, Williamson, 624 Wyo., 518 P.2d v. kle that worker's defense allege the affirmative Wyo., 622 Doyle, v. (1974); Barnette and remedy. appellant's sole compensation is recently (1981). As this court 1349 P.2d judge received the addi- After the trial p. Doyle, supra, 1852: v. stated in Barnette their amended briefs and tional were enact- compensation laws "Worker's judgment answer, summary granted he the nine- during the later ed [sic] Light Company and Power favor of Pacific provide to social century in order teenth finding: Company Idaho Power acci- victims of industrial insurance "* * * were the defendants said [TJhat dents, compensation is not based plaintiff, 'statutory employers' duty owed breach of a upon or the fault workmen's plaintiff obtained that employee. injured employer to the by the through his em- benefits compensation abrogate to were not enacted These laws Corporation, and ployer, the Bechtel pro- remedies existing common-law * * *" is the sole compensation injured workers. tected against plaintiff remedy of the exclusive to abro- was not intended the Act Because the said defendants." remedies, court has gate common-law from that order. appealed Appellant has contain amending legislation must held language before common- precise clear and Pacific of whether question v. away. Markle be taken rights can law Idaho Pow Light Company and Power Williamson, supra. employers within Company er law meaning 27-60(D), supra, worker's of the find in difficult It is legislative intent to de- expression is an project of a If an owner one of law. is bring right worker's stroy remedy employee's sole employer, against negligence action employee common-law and the worker's find Nor do we premises. a common- owner to appellees' ulti- significance reim rather than ter, employer, the owner no 1. We attach mately pays Appel- for the worker's arrangement Bechtel. bursement be- difference premiums. can see little appellant's We cause limit Bechtel cannot lees and obli- at bar who in the case owners tween the against John contract. of action payments reim- gated to make themselves (1956); 348 288 S.W.2d Coleman, Ky., son v. express pursuant contractual to an bursement Elling Mont. Bank, 76 State Burden Am.Jur.2d, (1926) agreement where situations P. 46 A.L.R. con- consideration, surely as he takes into tractor v. Atlas Mitchell 711; Contracts, § 294, p. he Company, when Manufacturing Miss. costs Roofing would, worker's job. practical mat- construction As a a bid 149 So.2d 298 makes pertinent primarily directly to the industrial any of the other such intent obligations laws. fund for all accident work and for the payroll the total 10, 4, enacted, originally Art. As it, amounts due and the owner of the "[njo provides that Wyoming Constitution property affected the contract shall be limiting the amount of shall be enacted law surety payments." for such causing damages recovered for to be Section W.S.1957.3 any person." This injury see or death was amended in tion the constitution Appellees since the owner contend Wyoming Worker's Com so 27-60(D) obligated to contribute under § 27-12-805, Act, pensation 27-12-101 to §§ accident fund if the in- industrial W.S.1977, enacted. The constitu could be jured worker's fails to make the provides: tional amendment payment, the owner must be "* * * right of each employer statutory deemed the of the work- compen- from such fund compensation [a argument, appellees support er. In of this compensation sation fund out of which point to Professor Larson's treatise paid] benefits are shall be in lieu of and 2A, Compensation Workmen's Vol. place rights any shall take the of and all 72.31, (1976), p. he 14-47 in which states: § against any employer of action contribu- "Forty-three 'statutory- states now have ting required by as law to such fund in employer or contractor-under' statutes-i. any person persons by favor of or reason e., provide gener- statutes which injuries (Empha- death." any of such or compensa- al contractor shall be liable for added.) sis tion to the of a subcontractor Wyoming The sections of the Worker's him, usually under when the subcontrac- were in Compensation Act effect at tor is uninsured but sometimes without the time of the occurrence and that are reference to the insured status of the appeal are as follows: pertinent to this "* * * subcontractor, doing work which is right employee to 'The of each business, occupation trade or of the compensation compen funds from such [a principal general contractor. Since the in sation shall be lieu of and shall fund] effect, thereby, contractor in made the any rights take the of and all of employer purposes compen- for the against any employer contributing, statute, sation it is obvious that he should required by as law to such fund in favor enjoy regular employ- person persons by or reason * * *" (Em injury of such or er from third-party death. suit when the facts phasis added.) § W.S.1957.2 are such that he could be made liable for * ** "(D) [I)n compensation great private majority the contrac- and the work tor, prime cases so held." have general, responsible, shall 2. Section amended in "In 27-50, W.S.1957, a contractor who subcon- private any part tracts all or 27-12-103(a), of a contract is liable for section, 1975 and this now § in W.S.1977, to the provides pertinent part: payment compensation employ- ees of the subcontractor unless the subcon- rights provided "The and remedies in this act primarily payment tractor liable for the 27-12-8051, employ- 27-12-101 to for [§§ has secured payment injuries ee and his for incurred dependents for in this act. employments extrahazardous are in lieu of Any contractor or his carrier who becomes rights against all other and remedies liable recover making contributions employer required compensation paid amount of the neces- acting this or his within the act, employees sary expenses pri- from the subcontractor * * *" (Em- of their scope employment. marily liable therefor." phasis added.) 27-12-109(f) goes provide Section on to in certain instances specified "[the 27-60(D), W.$.1957, 3. Section was amended land shall be deemed a contractor when he 27-12-109(e), 1977; 1975 and now section, § contracts with another who shall be deemed a .1977, provides: W.S subcontractor." employ- carrier of his immediate insurance "Forty-three says Larson Professor When summary judgment affirming the In or con er. 'statutory-employer now have states in favor of the lower court apparently in statutes," has entered he tract-under' court appellate is not Wyoming principal because cluded section of page pertinent footnote found that under exception in listed as an Act, However, Maryland do not believe Worker's we 14-47. Wyoming as the contractor (1957), Art. correctly classified Code has Larson and, therefore, or con statutory-employer statutory was a that has a state 27-60(D), statutes, under This section from suit. immune tract-under law, Act, specifi- our own Maryland unlike W.S.1957. provides that: cally from states cite cases Larson does "* * is claimed [where "surety" nor owner is a that an provide are taken proceedings from that have from states to cases he refer does then, contractor, applica- principal provisions statutory constitutional article, prin- to the reference tion of employer con- "any immunity to granting shall be substituted cipal contractor such fund." by law to tributing, as (Em- *." reference therefore, cases cited that the appears, It v. W. C. & A. N. Honaker phasis immunity to granting support for Larson Company, supra, p. Development Miller of no value because statutory-employers 1016. statutory lan- constitutional Wyoming's states. that of other is different Likewise, Supreme Court the Utah while employee who has injured held that an goes on to has Larson Professor In addition compensation benefits received worker's note: * * "* action negligence maintain a may not the imperative to observe It is contractor, Utah's general the against language used to describe statutory exact substantially is compensation law worker's since it varies statutory employer, the 35-1- our own law. Section from different jurisdiction to an one significantly * * provided: 41 of the Act Larson, Workmen's *." 2A other. p. procures any n. 53. supra, employer "Where him a part for wholly or in to be done in his brief to states appellees' counsel As work he retains whose over contractor many different are as court "[TJhere control, is a such work and supervision or are employers as there statutory types of or business in the trade process Furthermore, have not states." contractor, all employer, such the provi- statutory or any constitutional cited him, all subcon employed persons enough are similar states that sions in other em persons under him tractors compensation law Wyoming's worker's subcontractors, shall by any such ployed has re- research own persuasive. Our be origi deemed, employees of be number of in a substantial vealed that text.) Adam (Italics in employer." nal con- principal a ruled that that have states Company, 29 v. Okland Construction son applica- employer, statutory tractor 805, 286, 807 P.2d 2d Utah specifically law ble worker's immunity. requires hand, Arkansas Su- other On the Company v. The Baldwin preme Court N. v. W. C. & A. example, in Honaker For (1954), Maner, 273 S.W.2d 224 Ark. Md. Company, Development Miller prime con- immunity to a grant refused injured (1979), an 401 A.2d 1013 had made whose subcontractor tractor brought a com roofing of a subcontractor payments principal against mon-law tort In so injured employee. subcontractor's roofing com had hired who contractor unlike other that court found holding, the a house. roof on install a pany to specifi- that statutes worker's com receive worker's employee did prime provide that cally paid by the were pensation benefits immunity surety, guarantor, general to a of its subcontractor's deemed did not. The employees, the Arkansas law contractor who has contracted reimburse immunity grant employer, actually pay- to read who makes the court refused Also, see Prive v. M. W. into the statute. ment. Co., Inc., 119 N.H. Goodell Construction immunity Were we to hold that extends (1979);

409 A.2d 1149 Lawrence Yamau extending surety, to a we would be immuni- (1968); chi, 50 Haw. 439 P.2d contributing ty to someone who is not Company, 65 Laffoon v. Bell & Zoller Coal required by potential law but has lia- Ill.2d 437, 715, 359 N.E.2d 125 3 Ill.Dec. bility construction to contribute. This (1976), where these courts have held that traditionally would violate what we have compensation laws respective their worker's said about construction the worker's immunity only upon immediate confer laws, is, immunity provi- employer. narrowly will construed. If the sions 27-60(D) provides own Our theory urged by appellees adopted were it payments "surety" the owner is the logically appellant's follow that im- would employer. are not made the immediate (Bechtel) mediate would not be protect This section was enacted to the in being immunity. entitled to The rationale irresponsible dustrial accident fund ultimately that Bechtel does not bear the by making itinerant subcontractors compensation premiums; cost of worker's general "primarily prime or contractors therefore, enjoy it should not directly" responsible to the fund. The in paid Appellees' theory not it has for. dustrial accident fund is further secured logical contrary extension its are property making "surety" the owner of the statutes. to the fund. It for all contributions does Therefore, judge we find that the trial provide that the owner is to be deemed erred when he ruled that workmen, original employer of the nor employers who are immune from statutory way specifically grant does it in suit. immunity from the owner suit. statute Reversed and remanded. grant responsi immunity does not to those making payments ble for to the fund nor say anything granting it about immu does RAPER, Justice, dissenting, with whom nity having potential liability to those to ROONEY, Justice, joins. grant immunity the fund. The of is set out I dissent. 27-50, W.S.1957, "any and extends to

§in It is to inconceivable me that the owner contributing, by as law." required and real contributor to the industrial acci- discussed, already As we have Markle and exposed dent fund is also to a further liabil- Barnette, supra, immunity provi hold that ity "third-party as a defendant" in a tort sions in the Worker's Act will by The reached majority action. result the narrowly Wyo Art. be construed. § unjust only basically contrary is not but to Constitution, 27-78,4 ming 27-50 and prevailing appellant law. The claim of is a 1957, speaking immunity, grant of W.S. biting case of the hand that feeds it. any employer contributing, such as re to issue, quired it, by law to such fund. Neither the as I understand is well sum- grant specifically by appellees: constitution nor statutes marized the * ** injured employee, any 4. "Each who shall be in accordance with sections 34 of this act, right of the extra-hazardous as here- and such and shall be in lieu of employments payment any rights and take the of and all of defined, in the defendant of family injured contributing, workman, who die as the as any employer injuries, except result of such in cases of this act, to the industrial accident by by person persons injuries negligence fund in favor of due to the solely culpable injuries injured reason of such or death." of such shall receive out of employee, > fund, the industrial accident in Management Services Construction "B. property of as owners Appellees, the "Are workman's construction perform an shall with "BECHTEL contract who contract, pay by requested who, by as services management and employer, BECHTEL Accordingly, premi- OWNERS. workmen's of costs who, by manage the agent, and employer, shall, as OWNERS' through ums payment the Project accordance statute, sureties in construction premiums specifi- drawings and approved workmen's the with 'employer' by as fund, considered furnished to be State The services cations. Constitu- managing the applicable the in under hereunder BECHTEL there- and statutory provisions include Project and shall tional construction protection to entitled following, as directed generally injured workman?" by an suits OWNERS: tioned this This Robles, issue because defense age had defendant. consider issue in district those understanding pellant proper district personal ter. pursuant Corporation appellees, in the Jim ny and ants Springs, appellant. engineering Among services More his set question Bridger Power court could in the found in Texas first employment disposition court, the Idaho background ownership and out Wyo., court Bence not other questions Wyoming. injuries to two generally Bechtel Pacific not has contract, case been So, (Bechtel) as though it was case. and it things, building brought of this be reached order was not separate Gulf since had plead arising Power construction Power recovery of Corporation majority P.2d Plant that unable previously dated gone to Sulphur timely raised in avoidance co-employees construction case facts this action Company, and Bechtel during the course contracts individual contract provide located appeal. October in fleetingly court opinion need to Bechtel welder-pipefit- Light in addition power trial that decision (1973) The damages for Company management consider considered near towas does a better provided: with the and partners working 17, 1969, Compa- defend- cover- Power men- allow plant. Rock not ap- to do der construct agreed to and construct tools with fied pay "ARTICLE ** * construction tion tion always to designated OWNERS' The second "E. in an economical struction tions, Under tering the construction "1. whole. "7. as ERS supply materials that: certain ^[*] # which compliance with labor, construction may be solely as OWNERS' BECHTEL * safety matters. Organizing, schedules Providing portions specified It is understood both contract acquire all # as an # it furnished. recoverable representatives. employed contract authorized V CONTROL work, BECHTEL required, on contracts * * and direction independent # ^[*] and items advice shall planning appellees, workmanlike while licenses management was dated drawings." Bechtel approved costs # # power appellees perform officers and Article that, equipment labor Bechtel program agent, and which coordination BY OWN- # # power plant. Un- shall func- control February relations adminis- specifica- II, speci- or their *" actually manner, connec- were to owners, permits towas includ- # ^[*] aas plant con- and in costs: personnel related BE and payroll TO ed III SERVICES "ARTICLE expenses in- BECHTEL BY related and "Payroll PERFORMED costs % # %* % La curred by BECHTEL in accordance injuries surgery, tive as well as to his policies including personnel its established elbow, shoulders, legs." wages personnel, salaries and all officers, engaged directly per- than appellant that question has been raised No services, employ- and all formance of the benefits of and been has not received vacation, allowances for ee benefits under the Workmen's paid his entitlements leave, holiday, social and retire- sick Compensation Law from monies the state benefits, taxes, payroll net cost ment appears There industrial accident fund. Compensa- premiums for Workmen's Be- dispute appellees no reimbursed Insurance, Liability Employers paid tion for monies chtel under their contract im- and benefits and other contributions fund for the industrial accident into the regulation posed by any applicable required by law or payroll the act. assessments added.) (Emphasis *." the contracts were entered At the time injured, 27- appellant into and parties into a all the entered Counsel for C.1967, 60(D), W.S.1957, the Workmen's statement which described joint pretrial provided: Compensation Law appellant's injury came about: how "* * * contractor, private work the injury is an industrial case. "This case responsible, prime general, shall be Bence, Plaintiff, Daniel J. was an primarily directly to the industrial Corporation. employee of the Bechtel obligations against fund for all accident job a welder-boilermaker. His was that of payroll total of the work and for the September early morning hours of In the it, amounts due and the owner of the 27, 1974, preparing to Dan Bence was property affected the contract shall be the No. 2 point start to work at a inside surety payments."1 for Bridger Power Plant near unit of the Jim Springs. preparing Rock He was judge comprehensive opin- The district in a piping which make welds on water wall opinion supplemental ion and determined workings part of the internal was a language, coupled the above with the working on a the boiler. He was wooden actually pay fact that did attached to some ver- scaffold which was coverage, has the get- While beams inside the boiler. tical giving contracting the owner effect of ting ready days to start his his tools be, purposes work to for all intents work, edge of Bence fell over the Mr. the Workmen's the em- through opening which scaffolding immunity ployer and entitled to the by a thin asbestos blan- had been covered from a suit. This material. He sustained substan- ket-like sense. makes chest, resulting injuries in a tial to his 27-60, supra, subsequent traumatic was discussed crushed chest and a Section v. aneurysm required correc- this court State Treasurer aortic which . Amended. ^[1] The district ment this court need not decide that ever, who shall be deemed a subcontractor: contractor when he work of the profession which is a soil, "(f) land; "(ii) "(A) "(B) "(i) changed The owner of land shall be deemed a rock or To have work performed To have work section provides: or judge of the owner or lessee. cutting removal, regular See minerals; trade, did not see that or removal 27-12-109(f), W.S.1977. or business, excavation contracts with another performed recurrent or question. of timber occupation consisting or the amend owner, drilling of This sub- a kind How from _ but of: before us would in that no tort action would be available. contracting would be made. such a statute a determination Anderson ny, lar For an sion. The owner ruing v. 196 Kan. of land section shall not Farleigh, provision fall interesting the Kansas statute with such a Va. principally if out Thorington 409 P.2d 786 F.2d 790 110 S.E.2d 396 get the work (f)(ii) statute See also Hanna case which discusses apply in a case such as the one the insurance used for under which to the owner or lessee Construction (10th were (1966) of his occupation agriculture." Cir.1972), applicable, and Hickman v. he con Cra, owner is paid Compa Under provi simi st Inc., for, see compensation. By imposition by workmen's (1965) with re Gimlin, Wyo., 403 P.2d due the obligation in for amounts relationship to an county's indus to a spect fund, that an owner of the I believe accident a contractor. trial employee of jured insight by the contract shall also property into affected gives some discussion per 27-60(D), payments, to surety § hire contractors be for such of those who status doing "statutory employer" the work supra, owner as a work rather than form There, third-party court said: from ac this also becomes immune themselves. "* * * particular employee. In the tions an Compensation 'The Workmen's us, appellees-owners situation before 198, 6, Law, Wyoming, S.L. § Ch. Bechtel for assess only reimbursed not Cum.Supp.), contem (§ W.S.1963 industrial accident payable to the county will en ments on occasion a plates that fund, pay, event Bechtel failed work in which but in the gage in 'extra-hazardous original primary liabil wages' an employed for had workmen 27-60(D), supra. In pay under an under may ity § work be done that such Williamson, provi Wyo., 518 P.2d 621 v. agreement with a contractor. Markle (1974) court held that there is reason make certain goes length sion to some engaged employee person in such work are as a fellow that workmen to include a coverage the law third-party brought under the whom a employ employer. The fact "is one who has con in that he maintained nothing fund." tributed to the engaged in an extra-hazardous er was agreement its performing occupation in gen "surety" when used in the The term bearing upon the status of had a definite here, defined has not been eral sense as of the fatal at the time the decedent Law, other the Workmen's (Em at 181-182. 403 P.2d accident." court. What 27- statutes added.) phasis 60(D), says is that if the immediate supra, were I am convinced undertaking to do employer of an they work and engaged in extra-hazardous his is unable to meet for the owner granted immunity against and insured were industrial accident responsibilities they paid when third-party actions fund, devolve responsibilities then those responsible and were insurance cost of injured workman is owner. The upon the only by contract but coverage not fault, for the regardless of both assured that thus by statute. property and the contractor the industrial acci and secure behind stand third-party concept view the When we of the workman. fund for the benefit dent appel- actions, immunity position prop and the Surely, since both more understandable. lees here becomes primarily liable to the indus Compen- erty owner are Workmen's said in 2A Larson's As payment of assess fund for trial accident 71.10, p. 14-2: sation ments, a suit immunity from stranger's if a "So, elementary that it is exchange. should inure injury to cause of negligence was the employment, the course of claimant apparently court has While this any degree not be in stranger should many courts have. "surety," defined pay obligation to of his normal absolved guaran- something more than a surety is A injury." damages for such original obli- surety is bound as an tor. A is bound guarantor gor, while Miners & "strangers" appellant's promise. Stensvad are not collateral Appellees Mont., 598 Roundup, Bank of coverage Merchants paid for his employment, but have Mcintyre's opinion and dis- parts Justice with be read must v. Williamson 2. Markle part. Parker dissented. Justice sented Justice 2-2-1 decision. it was care because Justice Mcintyre with whom its author Guthrie, with whom joined. rights Justice McEwan and rem- W.S.1977, deals 3. Title only in joined, concurred written instruments. Justice McClintock under edies of sureties 1083, guar employers of here is creat (1979). A contract of P.2d Constitution, 4, ed Art. undertaking princi § of anty secondary to 27-50, W.S.1957, implemented by C.1967: suretyship a contract of pal debtor while provided for "Compensation herein shall joint obligation gives rise to a and several persons injured in extra- payable be to surety. Beauchamp v. principal Mo.App., employments, as herein hazardous Association, Savings North American defined, dependent or families of (1976). The obli 43 S.W.2d 5 such, die, injuries, as the result of such as surety is direct not collateral. gation of a injuries except solely in case of due Rawleigh Warrington, W. T. Co. Del.Su injured culpable negligence em of per., Those defini 199 A. pay ployee. compensation shall be Said appear be universal. See 40A tions to treasury able from funds in state to Phrases, p. seq., 428 et West's Words and be accumulated and maintained in the surety guarantor are distin where provided. right herein manner guished. primary original, and direct to from such each appellees liability surety places of a shall in lieu of and funds shall take the obligation Their same status as Bechtel. any rights of action pay industrial accident assessments into the against any employer contributing, re as identical, fund are and it follows that their quired law to such fund in favor of immunity from tort actions is any person persons by such or reason of identical. any injury or such death. Sections 3-403 [1-1065], 3-404 and 57-427 It is created the who em [1-1066] [30- ployment appellant engaged. 141], Wyoming Compiled Statutes, 1945, in which extra-hazardous, designated parts relating and all laws or of laws This work is as injuries works," 27-56, damages inju or death from "engineering to-wit: W.S. * * * anywise ries or in conflict with this act 1957, C.1967, "any defined as work in hereby repealed, employ are as to the erection, installing, repairing, or remov ments, employers employees coming boilers, furnaces, ing engines power (Emphasis within the terms of this act." machinery added.) *." Sec I(g), W.S.1957, tion 27-49 C.1967. Appellees certainly statutory fall within the II, W.S.1957, C.1967, Section 27-49 employer definition of and are contributing defines words used in the act: employee, in favor of the Bence. Without "(a) 'Employer any person means or appellees, particular being done body persons, corporate incorporate, or by appellant taking not have would been legal representatives and the of a de- place, the funds to ceased or the receiver of a trus- ap- the industrial accident fund from which person, corporation, tee of a association pellant paid injuries. has been for his partnership, municipality, county, II(a), supra, 27-49 Section does not define state; district, school or the being the one under whom "(b) person means who 'Workmen' immediately the workman is hired to do the employment has entered into the of or extra-hazardous work. Section W.S. ap- services or works under contract of provides: C.1967 prenticeship employer, except with an employee, injured "Each who shall be person employment purely whose casu- any of the employments extra-hazardous purpose employ- al and not for the defined, dependent as herein or the fami- business, er's usual trade or those en- workman, ly injured who gaged work and not clerical injuries, die as the result of such *"* the hazards of the business. except injuries solely in cases of due subsection also states that as used culpable negligence [This of such act, "employee" in this "workman" and employee, shall receive out indus- fund, synonymous.] trial accident in ac-

23 State, by independent his or their con- 27-79], 85 34 with sections [§ cordance tractor, employee may then such also 27-82], 38 27-81], 87 [§ 86 [§ [§ proceed 27-85], investigation 41 in the same or case 27-84], 40 27-88], [§ 39 [§ [§ 27-88], against 44 If 27-87], principal employer. such it 48 27-86], [§ 42 [§ [§ 27-91], 47 27-90], shall appear proceed- 46 be made to in such 27-89], 45 [§ [§ [§ 27-94], 27-98], 50 ing 49 27-92], principal employer that the has failed 48 [§ [§ [§ act, require compliance a with this Act of this 51 and 27-95] [§ [§ 27-101] by his then be in contractor such shall right payment and and such independent all and take the lieu of and for all be liable employer shall principal rights of indepen- his employees of injuries to such act, to by this contributing, contractor, subcontractor or the dent *" * * favor of fund industrial accident the contractor. independent such of such by reason persons any person or Wyo- relationship. surety a This details injuries or death." says spell it out but ming's statute does par- to do employed Bechtel Appellees word, "surety." thing with one the same law are an by contract work and ticular that the concluded court The Oklahoma contributing to the indus- actually hazard- is that in a provision of that effect nothing in the There is fund. trial accident purview of the undertaking within the ous a subcon- or a contractor which defines act princi- the Compensation Workmen's employer. as an tractor in tort for (owner) is not liable pal employer relationship surety the In Oklahoma independent employee of an injury to an spelled is employer" "principal by workmen's covered when cover contractor whether to determine a test out say on to went been The court compensation. has compensation by workmen's ed liability of the Supreme existence Oklahoma that adopted. judicially upon con- dependent a owner, though followed even has, ever since Court conform to the v. liability to still a Line Co. tingency, Pipe is Mid-Continent In course. (1948), and, P.2d 586 193 when it Wilkerson, Law Compensation Okl. Workmen's in the engaged contractor, was company with its pipeline been conformed has through oil crude transporting exists. third-party suits immunity business from was case in that plaintiff pipelines. its subsequent Okla more clear is made It Line Service Pipe employed immediately the work test is that the homa cases install engaged been had which Company necessary part of be a must the contractor He was pipeline. trap" in "scraper a princi operations integral allegedly doing of in the the owner in order for (owner) pal employer Mid-Conti agent of negligence by the by participa granted immunity have the third- in a sued Mid-Continent nent. pro in the tion work claimed Mid-Continent suit. party tort action separate right to gram The Oklaho coverage. men's Court Creighton v. District abrogated. opinion set out ma statutes Okl., P.2d 581 County, of Seminole do, that: still time, apparently at Corp., 554 Mobil Oil In Huffman ** * * shall, independent 1977), law of Oklaho (5th Cir. F.2d 1361 times, for liable at concepts foregoing reviewed and ma em- employees, direct to his due Roofing, also, v. Hunn Baker adopted. See inde- of such any subcontractor ployees (W.D.Okl.1975). Inc., F.Supp. em- principal contractor, pendent manner be liable also shall ployer relationship is stat- surety Missouri In specified hereinafter A differently. somewhat expressed utorily employees. due all premises his done having work person - business usual operation is an employ- which principal appears If it The stat- employer. is an compliance on there require carried failed er has 1978) R.S.Mo., in effect 287.040, Law of (§ ute the Workmen's many years, referring to workmen's com- tion insurance benefits. In such a case the pensation participation, concludes: owner has suits. Owen v. Kaiser Aluminum Chemical preced- "4. In all cases mentioned in the Corp., (5th 1969); 417 F.2d 303 Cir. Roelofs subsections, ing the immediate contractor States, (5th v. United 1974), 501 F.2d 87 Cir. or subcontractor shall be as liable an em- 1402, reh. denied en banc 511 F.2d cert. ployer employees of the of his subcontrac- 830, 49, denied 423 U.S. 96 S.Ct. 46 L.Ed.2d persons may

tors. All so liable be made (1975), construing 47 Louisiana statutes. parties proceedings applica- on the any party. liability tion of The The facts of Slocum are similar to those employer primary, immediate shall be in the case before us. Bechtel is not secondary others their doing contractor constructing work in order, any compensation paid by power plant. Appellees engaged have secondarily those liable be recovered twenty separate over contractors to do vari liable, primarily from those with attor- ous building kinds of work in plant. ney's expenses fees and of the suit. Such validity approach of this is even more recovery may be had on motion in the striking by when we see the contract original proceedings. No such owners, appellees, furnishing are provided, shall be liable as in this section part materials for the project under employee if the was insured his imme- taken Bechtel. It would be reasonable employer." diate or intermediate appellees' to therefore consider partner added.) (Emphasis ship the contractor and Bechtel a subcon 27-60(D), tractor. supra, Under § it is con payment An owner in Missouri is liable for sistent be considered the of workmen's benefits as a prime general they do statutory employer. Superior Boatman v. actually pay bene Co., Advertising Mo.App., Outdoor 482 fits, though even through separate (1972). statutory 743 A S.W.2d accounts of various specialty firms. Fur protected under Missouri law is from an ther, construction under law is a negligence action based on and the exclu occupation. hazardous Section W.S. remedy sive worker is work 1957 C.1967. Maryland men's relief. Casu alty Dondlinger Co. v. & Sons Construction jurisdictions Other have followed a simi Co., (8th 1970). 420 F.2d 1368 Cir. approach. question lar of the owner's separate liability has been overcome jurisdictions owners, Other have held in a finding general the owner to be a contrac position similarly appellees, situated as are Hosvepian tor. Corpora v. Hilton Hotels general to be contractors and liable for tion, 768, (1978); Nev. 587 P.2d 1313 assessments of workmen's Santillo, Shackleton v. 50 A.D.2d payments, depending upon system (1975); Hawkins, N.Y.S.2d 298 Evans v. employers, effect in the As they state. thus Ga.App. (1966); 150 S.E.2d 324 Clen would not be liable in actions. dening Co., v. London Assurance 206 Tenn. example, Lamartinier, For see Slocum v. 535, (1960), 336 S.W.2d reh. denied 337 La.App., (1979) gro So.2d 201 where a 603; S.W.2d Brothers v. Dierks Lumber & cer undertook to rebuild a structure on his Co., Coal 217 Ark. 232 S.W.2d 646 account, using own specialty subcontractors. contractors, Because he hired several he was considered to be in the construction majority helpful does not find 2A business, business, a hazardous and was Larson's Compensation Law, Workmen's subject payment compensa- of workers' 72.314 many because of the different relationships between contractors and subcon- 4. One of the with citation of 2A problems Lar- tractors and not with situations in which the son's Workmen's 72.31 "statutory employer" pays on the is that the contribution to the industrial most of the cases there cited deal with the accident fund. We are concerned with those ute, them withdrawn phases all employers." "statutory creating statutes controversy, but private in different many statutes there While even for the master longer to look to no generally are based they most language, mandatory compensa- expressed in this the scheduled concept as same a fund fed only to to cover He must look intended tion. legislatively opinion employer, appellees. employers. When posture as various in the same owners fund, into this pays his share part, his creating a purposes chief One of the anybody is obligation on his owner is to liability for assessments * *" ended. financially irre- employees of protect before us and subcontractors in the case now contractors majority sponsible The relieving them- from prevent owners and to But insur- insurance. says provides the act compensa- workmen's liability for of selves also Insurance two-way street. ance is a through contrac- by going tion assessments premium. pays the the one who protects liability for By imposing tors. premium and paid the appellees The have owner, he is the on compensation benefits agonies from the protection entitled to are from by law insured in fact and in a colorfully described litigation, so of majority view. the liability. That tort at by court from Stertz quote further 542-543, 178 P. at 989: Wyo. 25 con- a liberal majority infers The "** * * Compen- great compro- given the Workmen's came of a act 'Our struction of the in favor sation Law employed. employers and mise between the immunity, but construing narrowly system; the old under had suffered Both guise of con- the free under court is not of heavy judgments employers the purposes beneficial booty; the opposing lawyers' to extend was struction which half reason- that do not act to situations defenses or through the old the workmen lan- legislative of reach the ably fall within Both litigation. wasteful exhaustion in American Part- Federal guage. Olson master, exchange peace. The wanted (1977) cases 710 ners, P.2d Wyo., 567 willing pay liability, was for limited cited. there future, past where some claims liability at all. no Co., had been there Coke Coal & v. Central In Zancanelli give up only to willing, not was servant (1918), this court 173 P. Wyo. less than accept far jury, but to trial innova explain the great lengths to went to court, he won in had often Compensa he of the Workmen's tive features without small sum get the evils the was sure to The court discussed tion Law. agreed that All fight for it. stating having was in it to cure was intended act of was the cost workman indus compromise between the blood of a the nature bear industry should production; "more to be It was held workers. try and class, This insurance." working of accident By the nature charge. a favorably from craved quote legislation was [sic] on to new then went court judicial trials. lawyers Commission Insurance horror of v. Industrial Stertz wanted, expressly 158 P. this act Wash. Washington, they of What section, compensa- (1916): in its first recites "** * * only safe, To win tion, but sure. only liability employers' is not an ours only after litigation, to collect compensa- after ordinary It is not even act. lawyers, to receive employment insurance is an industrial act. It tion delay, years months only sum after features All statute. indigent claim- comparatively was to the only are present. Not act are insurance nothing. The get than to better ant little servant master and between all remedies entirely new. system wanted workmen and, of the stat- abolished, the words special- work in their to do various contractors building power who are in business owners ty Workmen's Com- Larson's fields. See 1C in- work hazardous or any plants pensation 49.11. doing employ themselves stead they proposition had This It is but fair to admit illustrates further impatient courts of become with the law. actually statutory employers. knew, They pro- economists and and both impossible reasonably appel- It is divorcee out, jurists pointing gressive were what is lees from workmen's cover- conceded, generally genera- two now age deny immunity. them their ought tions never to have suffered from majority has not accorded judgments Abinger the baleful protection they pay. which Shaw." Fortunately, majority making law majority, places its footnote no only this case and others of the significance on the contract between the 27-60(D), falling same nature under § W.S. parties. disagree point I with that of view. 1957, €.1967, precedent and it cannot be appellees assuring Not were the appel- 27-12-109(f), supra (fn. 1). under § rights lant's to workmen's agree judge I with the district and would coverage by specific contract, and benefits have affirmed. 27-60(D) but also became a by operation contract of law. Laws that

subsist at the time and making performed

contract and where it is to be

enter part into and become a of the con- though

tract as expressly referred to and incorporated Tri-County in its terms. Elec- MURRY, Appellant Charles William Assoc., City Gillette, tric Wyo., Inc. v. (Defendant), P.2d 995 It was the contract between and Bechtel appel- employed. Specific lant was attention is Wyoming, Appellee The STATE of also language 27-60(D) called to the of § (Plaintiff). which refers to property the "owner of the 'by affected the contract." It is the con- No. 5458. tract that creates relationship of "statu- Supreme Wyoming. Court of

tory employer," along with the statute. I rely upon do not the contract alone but it July 1981. buttresses the statute. Aug. Rehearing Denied 1981. anomaly majority An is created inconsistency which demonstrates of its

position. any recovery is had If defendants, ap and the other

pellant repay will be the indus expenditure

trial accident fund for its statutory with the in accordance

his benefit 27-12-104(a)(i), W.S.1977.

formula. Section fund will within the account Bechtel's re its assessments accordingly and

credited contract the terms

duced. Under appellees, appellees between Bechtel and

reimburse Bechtel's "met" costs of work will, compensation. Appellees

men's there

fore, eventually be credited not with a pay of what it had to for workmen's might be but also what recov appel

ered in this action from them and co-workers,

lant's defendants.

Case Details

Case Name: Bence v. Pacific Power and Light Co.

Court Name: Wyoming Supreme Court

Date Published: Jul 16, 1981

Citation: 631 P.2d 13

Docket Number: 5444

Court Abbreviation: Wyo.