COTTONWOOD STEEL CORPORATION, a Utah Corporation; Scott L. Bracken, Appellants (Defendants), v. Marie HANSEN, Personal Representative and Administratrix of the Estate of Erik Hansen, deceased, Appellee (Plaintiff).
No. 5715.
Supreme Court of Wyoming.
Dec. 21, 1982.
655 P.2d 1226
Here the trial court properly refused to impose separate sentences under the sexual assault statute and under the habitual criminal statute. He imposed one sentence for violation of the sexual assault statute, such sentence being enhanced because the defendant was determined to have been an habitual criminal. While the court‘s judgment and sentence provided for a single sentence, it did not specifically say that such sentence is for violation of the sexual assault statute.11 However, the court‘s analysis of the sentencing problem at the time of sentencing indicates that the court recognized that the defendant had only been convicted of sexual assault, and that the determination that he was an habitual criminal required an enhanced sentence mandated by the legislature to be life imprisonment.
Affirmed.
Claudette Olson and Laurel Olson, (Plaintiffs), Marie J. Hansen, the personal representative of the Estate of Erik Bundgaard Hansen, (Defendant), Federal Resources Corporation, American Nuclear Corporation and Federal American Partners, a Wyoming co-partnership, (Defendants), Gail L. Lucas, as Personal Representative for the Estate of Martin Floyd Lucas, deceased, (Plaintiff), Mary Arima, as Personal Representative for the Estate of Jack K. Arima, deceased, (Plaintiff), v. Marie HANSEN, Personal Representative and Administratrix of the Estate of Erik Hansen, deceased, Appellee (Plaintiff).
W.W. Reeves, of Vlastos, Reeves & Murdock, P.C., Casper, for appellants.
James W. Owens, of Murane & Bostwick, Casper, for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
ROSE, Chief Justice.
As a result of a two-vehicle accident which occurred between the workplace of the occupants of the workers’ vehicle and their home town of Riverton, suits were filed by the injured passengers and representatives of the deceased passengers of the automobile which was driven by Erik Hansen, the workers’ driver.1 The complaints were lodged against the estate of Hansen, Cottonwood Steel Corporation and its employee, Scott Bracken, who was driving the other vehicle. Suit was also filed against Federal Resources Corporation, American Nuclear Corporation and Federal American Partners but these companies are not parties to this appeal. Hansen and his passengers were co-employees at Pathfinder Mines Corporation and worker‘s compensation benefits had been paid to the survivors of Hansen and his two deceased passengers. Pathfinder paid a “daily vehicle maintenance allowance” to each of its employees in an amount determined by the distance between their residence and the mine where they worked. Cottonwood and Bracken settled these cases and obtained releases in their favor and in favor of their co-defendants, including Hansen‘s estate.
Cottonwood Steel and Scott Bracken responded with their own motion for partial summary judgment, averring that, under our holding in Beard v. Brown, Wyo., 616 P.2d 726 (1980), when the collision occurred, Hansen, being en route to his home from the workplace, was not in the “scope of * * * [his] employment” as that term is contemplated by the immunity provisions of
At the pre-trial conference, the court entered its order in which it was decided that “* * *
By agreement of the parties, the court took into account the settlements as well as the relevant worker‘s compensation files in which the survivors of Hansen and the survivors of the two deceased passengers had applied for and received worker‘s compensation benefits. Having previously found in the worker‘s compensation cases that Hansen was not culpably negligent, the court granted a summary judgment in favor of the Hansen estate. The effect of the judgment is to hold that at the time of the collision Hansen was in the “scope of * * * [his] employment,” as that term is employed in
We will affirm.
THE ISSUE
The sole question in this appeal asks whether the court erred in holding that, as a matter of law, the estate of Hansen was immune from suit by his fellow passengers and their estates under
Given the concession of all litigants that Cottonwood and Bracken—with respect to their claims for contribution against the estate of Hansen—stand in the shoes of the co-employee passengers of Hansen, and given the admission that “culpable negligence” is not relied upon by the appellants (two admissions of fact which, for purposes of this opinion, we consider to be the law of the case), we hold that
THE LAW
At the outset, it must be understood that the appellants Cottonwood and Bracken concede:
“* * * that if the provisions of
§ 27-12-103(a), W.S. (1977) were a bar to the passengers’ suit against Hansen, then they also operate to bar contribution claims for amounts paid to the passengers.” (From the appellants’ brief.)
The appellants then go on to identify the issue when they say:
“Hence, the very simple issue is whether Hansen could have defeated the suits brought against him by his passengers on the grounds that he was within the scope of his employment7 at the time of the accident and that he was not culpably negligent. That is to say, does this defense apply to workmen who are com-
muting home from work?” (Emphasis added.) (From the appellants’ brief.)
The appellants would have us answer this question in the negative according to the following reasoning:
“Cottonwood Steel and Bracken contend that in this case the distinction between the definition of compensable injuries on the one hand, [see
§ 27-12-102(a)(xii) ] and ‘scope of employment,’ [see§ 27-12-103(a) ] which is the key to determining when the immunity applies, must be maintained as was done in Beard v. Brown, 616 P.2d 726, 737 (Wyo.1980), where the Court repeatedly says that determining ‘scope of employment’ is an altogether different problem of proof from determining compensable injuries which are those ‘... arising out of and in the course of employment ...’§ 27-12-102(a)(xii), W.S. (1977) .” (Emphasis added.) (From the appellants’ brief.)
The appellants argue that it is consistent that the court could find that Hansen and his passengers were in the “course of employment” under
The appellee, on the other hand, contends that, except for culpable acts which are not at issue in this appeal, Hansen was in the “scope of * * * [his] employment” at the time of the collision and thus
We would describe the overriding issue in this appeal differently from the way the appellants have identified it. The question for our decision actually is: Does “scope of their employment” as that term is used in
In the days before and including Markle v. Williamson, Wyo., 518 P.2d 621 (1974), the law was that one employee could sue his fellow employee for ordinary negligence resulting in injury in the extrahazardous workplace where both were covered by worker‘s compensation and were employed by the same employer who was contributing to the worker‘s compensation fund in their
In 1975, and in response to the Markle decision,8 the legislature extended the immunity to all but “grossly” negligent employees (Ch. 149, § 27-312(a), 1975 S.L. of Wyoming), and in 1977 the legislature, evidently feeling that the term “grossly negligent” did not adequately describe its intent to see to it that co-employee suits were limited to the narrow category of willful acts, substituted the word “culpably” for the word “grossly.” It was in the Session Laws of 1975 that the terms “course of employment” and “scope of their employment” appeared on the worker‘s compensation laws for the first time. See Ch. 149, § 27-311(n) and § 27-312(a), 1975 S.L. of Wyoming.
We have said that the employee immunity amendments were adopted in response to what the legislature perceived to be the harm that would result in permitting co-employees to sue one another. Meyer v. Kendig, supra. Were we to hold in the case at bar that
“Given the basic thrust of the Worker‘s Compensation Act—speedy relief for the worker for work-related injuries without the difficulty, expense and delays of litigation, Stephenson v. Mitchell [569 P.2d 95], supra,—it would seem incongruous to make the same worker liable for his ordinary negligent acts during employment. Such a penalty would not only result in a work place of questionable harmony and in hundreds of legal actions, but it would subject the Worker‘s Compensation Act to a doubtful future.” (Emphasis added.) 641 P.2d at 1239.
We went on to say:
“Section 27-12-103(a) operates alike on all employees in the same circumstances and conditions. The classification is reasonable in view of the object to be obtained—harmony among employees, the maintenance of a sound worker‘s compensation fund, and the overall purpose and philosophy behind the Worker‘s Compensation Act. Ludwig v. Harston, 65 Wyo. 134, 197 P.2d 252 (1948); May v. City of Laramie, 58 Wyo. 240, 131 P.2d 300 (1942); Bazley v. Tortorich, La., 397 So.2d 475 (1981). To penalize the employee by making him liable for his ordinary negligent acts is inconsistent with the purpose of worker‘s compensation acts, i.e., such purpose is to abolish the common-law system relating to injuries to employees as
inadequate to meet modern conditions and conceptions of moral obligations * * *.” (Emphasis added.) 641 P.2d at 1240.
We have held, therefore, that given the immunity provisions of the Worker‘s Compensation Act, an ordinary negligence standard in tort claims between covered co-employees would be incompatible with the legislative purpose of the act which is “to abolish the common-law system relating to injuries to employees,” Meyer v. Kendig, supra. Even so, the appellants argue that Hansen should be found not to have been in the “scope of * * * [his] employment,” thus permitting suit by covered co-employees against his estate with its attendant ordinary-negligence standard of proof. This concept is sought to be buttressed with prior case authority (Beard v. Brown, Wyo., 616 P.2d 726 (1980)), where we drew a distinction between the concept of “scope of employment” in tort and the term “scope of their employment” as it appears in a worker‘s compensation statute. It is this authority that the appellants perceive to be supportive of their theory here. We cannot agree.
SCOPE OF EMPLOYMENT IN TORT AND IN WORKER‘S COMPENSATION
As we have said, even though worker‘s compensation awards have been made to the survivors of the deceased occupants of the Hansen vehicle, appellants would have us hold that, while the occupants of that automobile may have been in the “course of employment” at the time of the accident for purposes of identifying compensable injury under
This position is untenable.
We will readily agree that at the time of the accident all of the occupants of the Hansen vehicle were within the “course of [their] employment” because they were being paid travel expenses by their employer, and, under this court‘s precedent (In the Matter of Willey, Wyo., 571 P.2d 248 (1977)), the district judge could and evidently did conclude that this payment was a part of the employment contract. The record shows that Hansen had five passengers in his car that day. They all paid him $6.00 per day in exchange for their ride to and from work from their homes in Riverton. Pathfinder paid a daily vehicle maintenance allowance to each of its employees in an amount that was determined by the distance of their residence from the mine. Employees who lived in Riverton were paid $7.00 per day.
In In the Matter of Willey, supra, where the worker‘s compensation claim arose out of an accident that occurred when the employees were en route to the site of their employment at a mine some miles from Gillette, we had the forerunner to
“Although the language contained in
§ 27-311(n) , supra, is somewhat different from that contained in its predecessor, the meaning has remained the same. The provision acknowledges that injuries may occur on or off the premises of the employer. In either case, the injury is compensable if it arises out of and in the course of employment. This requirement emphasizes the need for a causal connection between the injury and the employment. Such a causal connection is supplied when there is a nexus between the injury and some condition, activity, environment or requirement of the employment. Parrott v. Industrial Commission of Ohio, 145 Ohio St. 66, 60 N.E.2d 660. See, Standard Oil Co. v. Smith, 56 Wyo. 537, 111 P.2d 132; In re Jensen [63 Wyo. 88, 178 P.2d 897], supra; Wyoming State Treasurer ex rel. Workmen‘s Compensation Department v. Boston, Wyo., 445 P.2d 548. Cf., White Ditching Company
v. Giddeon, Wyo., 413 P.2d 45. It is this requirement, and only this requirement, which is envisioned by the language contained in
§ 27-311(n) , supra.“This court subscribes to the almost universal rule that generally injuries sustained by an employee who is ‘going to or coming from’ the duties of his employment are not covered by worker‘s compensation. In re Jensen, supra. In fact, this rule was a part of the statutory definition of ‘injury’ until the recodification of the worker‘s compensation laws in 1975. Chapter 149, § 1, Session Laws of Wyoming 1975. An exception to the rule, which is particularly applicable to the instant case, was also recognized in Jensen where we said:
“‘... [W]hen other circumstances are injected such as where the employer himself as a part of the employment arrangement supplies transportation to and from the place where the duties of the employee actually commence, an exception to the general rule arises and a different result ensues.’ 178 P.2d at 900.
“In In re Jensen we approved the application of this exception to injuries sustained in a motor vehicle accident by employees who drove their own cars to and from an oil-well site and were reimbursed by the employer on a mileage basis for the distance driven.” (Emphasis added.) 571 P.2d at 250-251.
In Willey, we went on to hold that the facts and the law of that case supported the judge‘s conclusion that the travel arrangements were a part of the employment agreement and that the injured and deceased were within the “course of [their] employment” at the time of the accident, thus rendering the injury and death compensable under the Worker‘s Compensation Act.
But appellants say: Granted, when Hansen and his occupants were en route from the workplace to their homes with travel pay being a part of their employment arrangement, they were in the “course of [their] employment” for purposes of deciding whether their injuries were compensable; still, when it comes to ascertaining whether Hansen‘s estate was immune from all but his culpable acts, Hansen was not within the “scope of * * * [his] employment” according to the holding of this court in Beard v. Brown, 616 P.2d at 737. Therefore, conclude the appellants, the Hansen estate does not enjoy the immunity and culpable-negligence requirement of the worker‘s compensation law.
The facts in Beard v. Brown, supra, show that the collision occurred on driver Beard‘s side of the road in an impact with driver Buller. Buller‘s passenger Napier was killed and this estate was represented by Brown. Buller worked for Frailey as a clerk in the office, and, with her passenger Napier, was on the way home from work when the accident happened. Beard was employed by Champlin and was in the scope of his employment at the time of the collision so there is no question about the vicarious liability of Champlin.
Brown, for the estate of Napier, sued both drivers for their separate acts of negligence and he sued their employers under the doctrine of respondeat superior. It can thus be seen that the worker‘s compensation law was not a factor in this litigation. Frailey defended on the theory that at the time of the accident Buller was not within the scope of her employment and therefore the doctrine of respondeat superior was not applicable in such a way as would make him liable to Brown. Brown answered this contention averring that Buller was within the scope of employment because she received two extra hours of pay for driving to and from work. The jury found Buller to be within the scope of her employment at the time of the accident. We reversed, and held as a matter of law that at the time of the accident Buller was not within the scope of her employment and that Frailey was therefore not liable under the doctrine of respondeat superior.
In order to grasp the distinction that we will make between Beard v. Brown and the case at bar, it is important to keep in mind that Beard presents a tort question and in
In Beard v. Brown, we very carefully distinguished between the meaning of the term “scope of employment” when used in the law of tort as compared to its employment in worker‘s compensation law. After referring to opinions from this court in which we held that a worker going to and from work will be held to be in the “scope or course” (emphasis added) of employment where the employer pays for the time consumed in this work-related activity,9 we said, distinguishing Beard from this body of law:
“The rule stated in the above citation is considerably broader than was necessary to accommodate the facts of the cases in which it has been used. In two of the above-cited cases, the employer was either active in arranging or providing transportation for an employee. By saying this, we do not intend to overrule or limit in any way the holdings of those cases. It is sufficient to point out that they are all worker‘s compensation cases and, as such, their holdings are not generally applicable in the negligence area. To be injured within the course or scope of one‘s employment in the context of the worker‘s compensation system is not the same thing as to be in the course or scope of one‘s employment and cause injury to a third person who is foreign to the employee-employer relationship, which is the foundation of worker‘s compensation system. Worker‘s compensation is a creature of statute and one designed especially to protect workers injured in the course of their work. The statute is liberally construed to provide coverage to the worker. Within the context of the statute, the employer has a special duty vis-a-vis the employees who work for him. Under worker‘s compensation, an employee is covered for injuries which arise ‘* * * out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer, incurred while at work in places where the employer‘s business requires an employee‘s presence * *,’
§ 27-12-102(a)(xii), W.S.1977 . This states a problem of proof different from that which is encountered in the negligence area.“The rule which we have adopted for worker‘s compensation cases cannot be applied to a negligence case. Our general negligence theory is one based on fault—worker‘s compensation and many other statutory schemes are of a no-fault nature. Within the general negligence sphere, the rules regarding ‘scope of employment’ are somewhat different. This is so for a number of reasons. A liberal statute designed to benefit workers is not involved. There is no special relationship giving rise to a special duty as in worker‘s compensation. There is no sound reason for finding liability without fault for social or economic reasons.
“The Arizona Supreme Court recently addressed this question:
“‘* * * [T]he going and coming rule was largely judicially developed in order to provide compensation to workmen for injuries which were incurred
while within the range of dangers associated with their employer‘s premises. There can therefore be no reason to apply it to a situation where the recipient of the benefits of the rule is not an injured workman.’ Driscoll v. Harmon, 1979, 124 Ariz. 15, 601 P.2d 1051, 1052.
“We agree with this reasoning.
“The rule as regards ‘scope of employment’ in the general negligence sphere is that set out in Miller v. Reiman-Wuerth Co. [598 P.2d 20], supra, i.e., there must be some direct benefit to the employer and the employer must exercise some control over the employee. Buller was in no different status than her two passengers who were likewise being paid and doing nothing but being carried to the place where they too would commence the duties for which they were employed. To the extent that rule is inconsistent with the worker‘s compensation rule, the inconsistency is explainable, sound, and well-grounded as discussed above.” (Emphasis added.) 616 P.2d at 736-737.
From this quote from Beard v. Brown it should be clear to all that we were distinguishing “scope of employment” in the area of tort from “course or scope” of employment in the worker‘s compensation context. It should also be noted in Beard that the terms “course of employment” and “scope of employment” are used interchangeably when alluding to the liberal interpretation rules of worker‘s compensation law. We do not differentiate in Beard between the words “scope” on the one hand and “course” on the other. “Course or scope” is the language we use. We considered that, for worker‘s compensation purposes, these terms are interchangeable. In other words, they mean the same thing. This being our intention, it follows that the distinction that the appellants urge is without merit. That is, we do not, for purposes of the worker‘s compensation law, distinguish between the meaning of “scope of their employment” as it appears in the immunity section,
This leaves us to reach the following conclusion: The case at bar, being a worker‘s compensation case, cannot be resolved by holding the term “scope of * * * [his] employment” to have the same meaning that we said it had in Beard v. Brown, supra, which was a tort case. The meaning of that term is different when it is used in the worker‘s compensation statute than it is when employed in the law of tort.
We tried to emphasize this in Beard when discussing the question relating to whether one was or was not in the “course or scope” (emphasis added) of his or her employment in the worker‘s compensation context, when we said, as indicated above, that we would liberally construe the statute to afford coverage to the worker but, in tort law, the “* * * rules regarding ‘scope of employment’ are somewhat different. This is so * * * [because a] * * * liberal statute designed to benefit workers is not involved.” 616 P.2d at 737.
We then went on to say, as indicated above, that “* * * the general negligence sphere is that set out in Miller v. Reiman-Wuerth Co., supra, i.e., there must be some direct benefit to the employer and the employer must exercise some control over the employee.” 616 P.2d at 737.
There is still another and equally important reason for our affirming the trial court. We view
The amendment to Art. 10, § 4 of the Wyoming Constitution10 and subsequent enabling legislation did not contemplate that tort law would hold any office in the Worker‘s Compensation Act except that the employer could defend against claims of the injured employee on the grounds that he or she was culpably negligent. Soon after the amendment to Art. 10, § 4 of the Wyoming Constitution, this court said that the Wyoming worker‘s compensation scheme was in the nature of an industrial-accident policy. Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918). See: Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925); In re Byrne, 53 Wyo. 519, 86 P.2d 1095, 1101 (1939); and Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 337 (1942). See also Markle v. Williamson, supra, where we said:
“To say that workmen‘s compensation in Wyoming is in the nature of insurance is to say it stems from contract. Indeed, the clear implication in Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989, is that our Workmen‘s Compensation Act is in contract and not in tort.” 518 P.2d at 624.
We have never changed our minds about that proposition. Sometimes we have had trouble keeping tort concepts out of the worker‘s compensation law, Stephenson v. Mitchell, Wyo., 569 P.2d 95 (1977), and Meyer v. Kendig, supra, but we have never deviated from our adherence to the proposition that the worker‘s compensation law of this state is in the nature of industrial-accident insurance. In other words, the injured and the survivors of deceased workers who are covered by the Act are to receive compensation benefits whether or not, except for culpable acts, the injured or deceased worker was negligent. In Zancanelli we approved the opinion in Jensen v. Southern Pacific Co., 215 N.Y. 514, 109 N.E. 600, where there the court said, speaking to an act similar to ours:
“* * * Both acts are said to have been based on the proposition that the risk of accidental injuries in a hazardous employment should be borne by the business, and that loss should not fall on the injured employe and his dependents, who are unable to bear it or to protect themselves against it. * * *” (Emphasis added.) 173 P. at 989-990.
Hansen‘s estate is not subject to the contribution demands of Cottonwood under
Affirmed.
THOMAS, Justice, dissenting.
I cannot agree with either the result or the justification for that result which is encompassed in the majority opinion. It is my view that the decision of the majority unduly restricts the right of a passenger for hire to bring an action against his negligent driver. Because I find that to be an erroneous result under the law, as well as a bad result in terms of valid public policy considerations, I must voice my disapproval.
Most observers would agree that we now are living in a relatively complex society, and certainly it is much more complex than it was in the times of our fathers and grandfathers. In such a complex society relationships between parties may have more than one dimension, and in adjusting the rights of the parties that evolve from those relationships it behooves courts of law to carefully analyze the operative facts and adjust the rights of the parties in the context of the relationship which was being effectuated at the time the legal questions arose. See Barnette v. Hartford Insurance Group, Wyo., 653 P.2d 1375 (1982). We should not insist that those who are employed by the same employer can only occupy the relationship of co-employees, but if, instead, their relationship has multiple facets, we must take the other facets into account and apply them when it is important to do so to adjust the rights of the parties.
I must ask, why is this not a tort case? What is present here which effectively serves to distinguish this case from any one of a number of others in which a driver is negligent, and his paying passengers are injured by that negligence? Can the case be distinguished simply because the driver and the passengers receive their paychecks from a common employer? I am persuaded that that is not a valid distinction nor should it be the basis for denial of the right of action by the passengers. The true relationship which existed between these parties at the time of the injuries was that of driver and passengers for hire.
This certainly is not the first instance in which a significant legal question comes to us in a perhaps unpalatable package. Recognizing that this case is one for contribution pursuant to our Wyoming Statutes (
As part of its justification for the disposition of this case the majority holds that the words “scope of their employment” in
Section 8-1-103, (a)(i), W.S.1977, states:
“Words and phrases shall be taken in their ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.”
The phrase “scope of their employment” does have a peculiar and appropriate meaning in law in Wyoming. Beard v. Brown, supra; Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). I submit that under our Wyoming jurisprudence the legislature is presumed to have been aware of the difference between “course of employment” and “scope of employment,” and to have used the latter phrase designedly in limiting the immunity statute. A word which has a well-settled meaning in law at the time of its usage in a statute will be so understood unless a different meaning is unmistakably intended. Sorenson v. State, Wyo., 604 P.2d 1031 (1979); Johnson v. Safeway Stores, Inc., Wyo., 568 P.2d 908 (1977); Title Guaranty Company of Wyoming v. Belt, Wyo., 539 P.2d 357 (1975); and School Districts Nos. 2, 3, 6, 9, and 10, in County of Campbell v. Cook, Wyo., 424 P.2d 751 (1967). Statutes are presumed to be enacted with full knowledge on the part of the legislature of the existing state of the law and with reference thereto. Brittain v. Booth, Wyo., 601 P.2d 532 (1979); White v. Board of Land Commissioners, Wyo., 595 P.2d 76 (1979); Brown v. State, Wyo., 590 P.2d 1312 (1979); DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977); Voss v. Ralston, Wyo., 550 P.2d 481 (1976); and Board of the County Commissioners of the County of Albany v. White, 79 Wyo. 420, 335 P.2d 433 (1959). If the Wyoming Legislature had intended the words in the immunity provision of the worker‘s compensation statute to mean “course of employment” and to extend to the facts of this case, the legislature knew the right words to use.
Counsel for the appellant has very capably called to our attention the similarity in jurisprudential history between Wyoming and the State of California. In Wyoming
Furthermore, the result I espouse is consistent with the decision of this court in Meyer v. Kendig, Wyo., 641 P.2d 1235 (1981). The majority opinion quotes from Meyer v. Kendig, emphasizing language in favor of immunity. Whether the factors there related really can be espoused to justify immunity from action for injuries resulting from the negligence of a driver carrying other workers to and from their place of employment for compensation is problematical. Certainly the purposes there related to be served by the Worker‘s Compensation Act are not in any way furthered by insulating a driver such as Hansen from liability for negligent acts which he commits while carrying on his private profit-making activities. We must remember that in Meyer v. Kendig, supra, the issue was constitutionality of the statutory immunity; it clearly was factually applicable in that instance.
I harken back to Nehring v. Russell, Wyo., 582 P.2d 67 (1978), in which this court concluded that the Wyoming automobile guest statute violated the guaranty of uniform operation of laws established by § 34 of Art. 1 of the Constitution of the State of Wyoming. This was true, we said, because the statute discriminated between paying passengers and nonpaying passengers by barring the nonpaying passengers from suits for ordinary negligence. We stated that in so doing the guest statute exceeded all bounds of rationality and for that reason it constituted a denial of uniform operation under the Wyoming Constitution. Conceivably one of Hansen‘s passengers could have been employed by some other person or firm than Pathfinder Mines Corporation. Given that circumstance, how would we justify the right of one to sue while the other could not? To paraphrase what we said in Nehring v. Russell, supra, the immunity extended by the worker‘s compensation statute to a driver whose negligence injures his passenger does not bear a substantial nor rational relation to the worker‘s compensation statute‘s ascribed purposes of speedy relief for work-related injuries, maintaining harmony in the work place, and avoiding a plethora of legal actions. I only note the deleterious rather than salutary effect upon the soundness of the Worker‘s Compensation Fund resulting from covering such injuries in favor of a tortfeasor who makes no payments into the fund in connection with his business of transporting passengers for hire.
In summary I am convinced that by calling a tort case a worker‘s compensation case we have reached a result that will lead to future injustices. The result is not necessary to further the philosophy and statutory purposes of the Worker‘s Compensation Fund. It is possible to recognize that the immunity provision would not extend to situations such as this without ignoring what I regard as the obvious intent of the legislature, and without creating confusion
I must confess a lack of capacity to engage in the intellectual gymnastics manifest in the majority opinion. I think these efforts are inappropriate when the result is simply a windfall to a negligent driver and his insurance carrier without in any way furthering the purposes of the worker‘s compensation system. I would reverse the district court in this case and would hold that the statute accommodates to a construction to the end that the negligent driver transporting his fellow employees to and from the work site is not within the scope of his employment, but instead is within the purview of his own profit-making activities, and therefore is not entitled to the benefit of the immunity provision in the statute. I would read the language from Meyer v. Kendig, supra, as limited to justifying the immunity in those situations in which the employees were working together in a common effort to further the business of their employer. I believe that is what worker‘s compensation deals with, and in my view it has very little, if anything, to do with the relationship here, which was that of driver and passenger for hire. This is a tort case in which there are incidental overtones of worker‘s compensation; it is not, as the majority holds, a worker‘s compensation case in which there has been some incidental tortious conduct.
Robert L. CLEGG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 5699.
Supreme Court of Wyoming.
Dec. 23, 1982.