*1 SD HAGEMANN, Special Kelli Adminis Hagem
tratrix the Estate of Chad
ann, deceased, Sims, and Jason Plain
tiffs,
v. ENGINEERING, INC., Defendant,
NJS County, political
Lawrence subdivi Dakota,
sion the state of County Highway
the Lawrence De
partment, Williams, and Charles County Highway Superin
Lawrence
tendent, Defendants, Party Third
Complainants Appellants, Party
Jason Third Defendant Appellee.
No. 21732.
Supreme Court South Dakota.
Argued May Aug.
Decided *2 response wrongful death estate, by Hagemann’s
action filed filed a third-party complaint against Sims claiming that negligent *3 operation County of the vehicle. claims it would be to entitled indem nity if it was found liable for the death of Hagemann par because Sims at least was tially responsible for the accident. Sims Ashmore, filed a to claiming Daniel E. motion dismiss Jennifer K. Trucano Gunderson, Palmer, prevents of SDCL 62-3-2 Goodsell and Nel- him. son, SD, Rapid agreed The trial court City, Attorneys appel- for with Sims and pursuant granted lee Jason Sims. his motion to dismiss to 15-6-12(b)(5).1County appeals SDCL rais Spearfish, SD, Brady, Thomas E. Attor- ing the issue: following ney appellants. for Whether 62-3-2 precludes County SDCL from seeking contribution or indemnity AMUNDSON, Justice. from Sims. County The of (County) Lawrence
appeals the trial court’s of dismissal Coun- STANDARD OF REVIEW ty’s third-party complaint pursuant to This Court’s standard [¶4.] of 15-6-12(b). SDCL affirm. We grant review a trial court’s or denial of a
motion to dismiss is the same standard as FACTS applied that which upon review of a summary motion of judgment-“is 24,1999, On Hagemann June Chad pleader judgment a entitled as matter of Sims, co-employees and Jason Alpha Ethanol, Vironment, law?” Yankton Inc. v. Omega were east Company, travelling on ¶ Inc., 42, 6, 596, 1999 SD 597- County Lawrence road number 664. Sims Marshall, (quoting Steiner v. driving company was "a Hagem- vehicle as ¶ 109, 16, 631). 627, 1997 SD 568 N.W.2d ann a passenger. crossing was While a Therefore, we review all most facts favor bridge, plank lodged wooden somehow party. able the nonmovant Id. We con under the rear of the causing axle vehicle law, questions tinue to particu review it to Although roll. Sims survived acci- larly statutory construction, issues of de dent, Hagemann ejected from the ve- Klauzer, novo. In re Estate 2000 SD injuries. hicle and fatal Alpha suffered ¶ 22, 604 N.W.2d paid Omega worker’s bene- Hagemann’s fits to Hagemann’s estate. es- DECISION brought
tate wrongful death action against County for failure to maintain the disposition this case bridge where the fatal depends accident occurred. on whether under SDCL 15-6-12(b) defense, provides: Every SDCL may option pleader fenses at the be fact, law claim relief made motion: claim, counterclaim, pleading, whether a cross-claim, claim, third-party shall be as- upon Failure state a claim responsive serted in the pleading thereto if granted; relief can be required, except following one is that the de- Subsequent Injury Fund v. pursuant South Dakota tortfeasor 1999 SD Casualty Reciprocal Exchange, “The intent 15-8-11. ¶ 17, legisla (quoting from what NW2d re be determined must Brands, Inc., said, this court rather than what ture Famous said, (S.D.1984)). have legislature provides: should thinks 884-85 must be confined determination granted remedies herein ordinary meaning of the plain, title, employee subject to an M.B. v. Konen legislature.” used account of or death aris- (S.D.1994). 94, 97 kamp, 523 N.W.2d ing employ- of and in the course of out adopted statutory construction rules of *4 ment, rights exclude all other and shall this Court state: remedies of such the con- regarding of rules purpose or representatives, dependents, next of statutes is discover the struction of kin, injury account of such or death law, inten- of the and said true intention against any employee, or employer by the court tion is to be ascertained officer director of such em- partner, or language expressed primarily from the and ployer, remedies aris- except applying legislative statute. tort. ing from intentional enactments, them as accept we must it 62-3-2 makes clear that SDCL legislative intent is deter- written. The position in the and are same said, legislature mined from what barring when it comes to suit from what we or others rather than action for contribu- them. To allow such an it said. think should have plain tion to would circumvent proceed fundamental that we must While it is 62-3-2, prevents of SDCL language real intention of ascertain the strive to against “any employee.”2 lawmakers, equally it fundamental is Being must confine ourselves that SDCL 62-3-2 that we expressed immunity from “any employee” intention as provides against supply- rule suit, used. To violate the under the against Sims language would be to add ing omitted Among Tortfeasors Uniform the al- voluntarily law, unlimited hazard to of is As matter Act also barred. ready uncertain business of inexact and joint not a tortfeasor. Under Sims is legislative intent. searching 15-8, Act, “joint ch codified SDCL or more is “two statutory rules tortfeasor” defined primary One severally tort jointly or liable persons give ... is to words and construction property, person or effect. for the same plain meaning and phrases their judgment has been recov mean whether or that statutes court assumes all some of them.” SDCL legislators ered they say have what supplied). As this Court (emphasis 15-8-11 they the lan- said what meant. WThen clear, Youngstrom, in Burmeister stated is certain guage of (1965), the no is occasion for S.D. unambiguous, there common there is a construction, only applies Act “where only func- the court’s in tort” and injured person liability to meaning tion to declare where the be no contribution “there can clearly expressed in the stat- statute as of action right has no injured person ute. scope (1) Hagemann acting in the were both Ha- It is uncontroverted n gemann accident. employment the time of the their Sims and co-employees, were (em- third-party upon co-employee] is defendant.” [or phasis liability supplied). irrespective negli- This Court made it absolute gence, only and this is the kind of “abundantly clear” liabili- that contribution ty upon joint can devolve whether it or several lia- arises when “there is negligent or not.3 bility presence joint rather than the concurring negligence.” /¿.(emphasis sup- As Sims cannot be held under liable SDCL plied). from SDCL immunizes Sims definition, he cannot be a suit, such, and, as he cannot be liable held 15-8, tortfeasor under ch the Uni- degree as a tortfeasor no matter his Among form Contribution Tortfeasors percentage negligence. As stated in Act.4 Law, Compensation Larson’s: Workers than arguing interpre [¶ 7.] Rather § 121.02: 62-3-2, County urges tation of jurisdictions great have disregard statutory Court to South Dakota co-employee]
held that the [or law, and case and invites us follow Illi whose contributed to the em- nois Minnesota case law to reach its joined ployee’s injury cannot be sued or desired result. contends that *5 tortfeasor, joint as a whether under con- v. Cyclops Welding Corp., Kotecki cases of tribution statutes or at common law. The 1, 155, 146 Ill.2d 166 Ill.Dec. 585 N.E.2d ground simple is a employer (1991) one: the [or v. Lambertson Cincinnati 1023 co-employee] jointly 114, is not to the Corp., 812 Minn. liable Weldingt 257 N.W.2d (1977) tort; in employee therefore it cannot be precedent 679 as to follow in this joint essence, liability a tortfeasor. The In the Kotecki case and the that rests case.5 Acts, example, Phillips Compensation 3. For in v. along Union with the cases Pacific Co., (Utah 1980), interpreting provisions, R.R. 614 a P.2d 153 case those make it clear only liability that involving employer’s injuries a an suing estate co-em for decedent's by employee an ployee arising sustained is the for of a extent out car accident, exposure benefits under the Act. Supreme Additional the Utah Court followed through third-party the indirect method against the rule contribution. action would be a blatant violation ex- explained: court pressed policy. legislative There can be no contribution between the added); Phillips, (emphasis 614 at P.2d 154 Hammary [employ- defendant railroad and Brown, 130, v. see also Weller 266 Ga. 464 [co-employee], and Parham er] because (1996). S.E.2d 805 they cannot be tortfeasors. See 2A 295, Comp. on Larson Workmen’s Sec. important It 4. is note that Uniform respective 76.20 Contribution. Their liabili- Among Tortfeasors Act was grounded upon ties aré different is- social adopted after the codification of SDCL 62-3-2. sought recognized by Legisla- sues to be Certainly, Legislature was aware of SDCL adopted legislation dealing ture when it adopted 62-3-2 when it Act. Court Compensation. with Workmen’s Our mindful of notion that this Court should defines tort-feasor as one of two or interpret legisla be hesitant to of a effect jointly persons severally more in liable as to tive enactment void another enactment liability injury. tort for the same of the consistently Court sub silentio. This has stated all, materia, employer liability only is not tort but pari that statutes are to be in read n requires injured interpreting multiple "consistently that the employee be in the statutes harmoniously scope with other.” employment. course Fur- each Konen ther, kamp, Legislature 523 N.W.2d at per- to allow 97. If contribution would application indirectly desired to limit and effect of mit that be done which cannot e., certainly effectively how to directly, i. knows do so. permitting by employee against employee. one a fellow provisions remedy Washington The exclusive of both the also cites to a few state Utah and the support position North Carolina cases to Workmen's also its that it should
845 Abraham, an Abraham. holding hold that Lambertson case contribution, stated: but Court for be held liable could 62-3-2], interpretation lim- contributed would be [SDCL the amount Our
that
previous
166
decisions and
compensation benefits.
accordance with
ited to workers’
statutes,
1027;
together with
1,
read
other
N.E.2d at
N.W.2d
Ill.Dec.
operate as an exclu-
Therefore,
SDCL 62-3-2 does
analogy, County con-
at 689.
sionary provision which prevents claims
as an
should
tends
injuries
against
employees
fellow
for
ob-
proportionate
for
liable
his
also be held
scope
employment[.]
tained
percentage
on
depending
share
¶
fault.6
1999 SD
unambiguously
provides
only are
cases
Not
an
cannot maintain
[¶8.]
Court,
binding
co-employee
by County not
action
cited
is the exclusive
principle holding contravenes
as workers’
their
remedy
injury.7
for
To fol-
62-3-2 and our
a work-related
plain language of SDCL
employer or
of SDCL 62-3-2 bars such
go
cause
be able
forward
Abraham,
v.
See Canal Insurance Co.
employee despite having a statute similar
action.
holding in
Clark
SD
kin on injury account of such or death KONENKAMP, Justice, any concurs. partner, or director such em- officer GILBERTSON, Justice, [¶ 11.] concurs ployer, except rights and remedies aris- in result. tort, ing from (emphasis intentional add- ed). MILLER, Justice, [¶ 12.] Chief
SABERS, Justice, dissent. Thus, the amendments scope limited the prohibition against by employ- GILBERTSON, (concurring Justice ee claims “his result). employee, partner, officer of director of subject we are faced with employer-” such Clearly prohibi- was first addressed the South Dakota apply tion does not to suits initiated Legislature chapter section 5 of the party defendants such as Lawrence Coun- provided: Session laws. It ty, I disagree with majority opin- granted remedies herein ion’s contrary. conclusion to the subject to an employee to this act on Disposition of this issue instead account of or death upon rests an examination of the individual arising accident out of the course claims. right claims a employment, shall exclude all other under the Uniform Among *7 rights and remedies of such Act, arguing Tortfeasors “joint Simms is a his personal representatives, dependents tortfeasor” under the Act. majority As the kin, or next of on injury account of such out, opinion points Simms cannot be a or death. tortfeasor because he not is in tort liable Thus, time, an who was injury for the Hagemann. to This conclu- injured job or killed on the precluded was sion is in line with majority the vast of suing anybody from everybody. The jurisdictions, plain and is based on a read- ban was all-inclusive in exchange for work- ing of the clear of SDCL 15-8-11. ers’ benefits. addition, In a claim for contribution is Through chapter
[¶ 14.]
422
to,
of the 1977 intimately tied
per-
“on account of
Session
chapter
Laws and
2
section of
sonal
or death.” SDCL 62-3-2. For
Laws,
the 1978 Session
Legislature
reasons,
the
those
County’s claim for contribu-
recognizes
8. Even the Illinois court
urges
that 45
also
contemplate
this Court to
jurisdictions
considerations,
other
follow the
public policy
rule
namely
equi-
the
that an
cannot be sued
principle
for contribu-
table
allowing
poten-
of not
a
tortfeasor,
tion when there is a state
protection
statute which ex-
tial
Again,
suit.
Kotecki,
pressly forbids such
legislature
action. See
the
policy
is best suited to make
Ill.Dec.
1994). remedy Indemnity equitable is an proper light. posi- The its entirely loss by which burden addressing tion taken other courts party onto another. shifted from one allowing this issue and contribution and Mark, Maguire Agency, Inc. v. Insurance indemnity best demonstrates the error: (S.D.1994). Inc., phrase frequently most heard in in Dakota allows claim for law recovery arguments against over following cir demnity proceed in the party third is this: (1) or vicarious lia derivative cumstances: ac- recovery the allowance of such ever (2) for, of, action at direction bility; indirectly what complishes cannot be (3) another; duty indemnify; breach and, therefore, directly done evades (4) of anoth- failure discover spirit legislation. is not en- Indemnity er; express contract. Id. accurate, it does tirely for not tell through agreement arise contractual can True, story. the end result is that whole such as legal relationship, or based proceeds a common-law size and bailor or between that between bailee employee. from the agent. Lar- principal and her Professor however, things two are process, general son notes his treatise accomplished, one of which relevant rule, may party third recover-over “[t]he compensation provi- purposes employee] when- employer [or indepen- and the other of which is sion the employer [or it can be said that ever accomplishment of it. relevant dent independent duty employee] breached preserving employee’s is that acquired toward third thus against negligent common-law obligation indemnify party.” the third done, having been there outsiders. This Law, Compensation Workers’ Larson’s job adjusting rights still remains the § 121.04 at 121-47. Because a claim neg- fairly between the outsider and ac- indemnity independent is an cause of employer. question here be- ligent tion, “on which does not arise account compensa- very precise: did comes *8 death,” it should not be or acts, conferring immunity on the tion out hand on the exclu- dismissed based suits, mean employer from common-law id. sivity provision of SDCL 62-3-2. See expense of the to do so at the Rather, proceed, allowed to should be expense at injured employee, or also only if the owes employer but answer is that outsiders? One where- independent duty party. third got injured employee quid pro as the for this then question 17.] Court [¶ receiving compensation assured quo indepen- owed an whether Simms becomes as for tort recov- payments a substitute con- duty County. eries, Simms owes no party dent has received abso- third hence, indemnify and, duty County. Nor not be lutely nothing tractual should given up rights have relationship impliedly between held to does Simms had legal duty. There- which he before. County create such ] 1976). [¶ Lambertson v. Cincinnati In holding, Weld so recognized the court 20. ing Corp., 312 Minn. 257 N.W.2d that: Larson, (quoting
688-89
Workmen’s
reasoning
behind
foregoing
Compensation:
Party’s
Third
Action Over
cases is that an indemnity claim is not
Against Employer,
65 NWU.L.Rev.
employee’s
derivative
claim. Rath-
419).10
recognizes
As Larson
in his treatise
er, indemnity is based on a set of facts
compensation,
on worker’s
“[e]ach side to
warranting a conclusion that the indem-
controversy
an argument
has
in its
nitor owes a distinct obligation
duty
which,
alone,
favor
considered
sounds irre
obligation
the indemnitee. This
exists
Larson,
sistible.”
Compensation:
Worker’s
separate
apart
from
liability
Party Actions, §
Third
121.01 at-121-4. The
might
indemnitor
exclusivity provision,
asserts the
injured
have
employee.
had
whereas
party may
“subject
the third
be
Id. at 1170. As
treats em-
staggering liability
it would not have had
ployers
employees equally,
forego-
to bear but for the sheer chance that the
ing reasoning
equally applicable-
to a
parties
happened
other
involved
to be un
party
third
recovery against Simms as a
-compensation
Yet,
der a
act.” Id.
other
co-employee,
if recovery
ultimately
even
way
courts have found a
to balance the
obtained or
against Alpha
offset
Omega as
allocation,
interests and achieve a fair
un
employer.
fortunately
majority opinion
has not.
majority opinion
[¶ 23.] The
attempts to
majority
opinion
uses SDCL utilize the definition of “liability” to defeat
62-3-2 to define
of a third party
any attempt at
indemnity.
contribution or
in a context in which it was never meant to
doing,
so
opinion relies on
apply.
recognized
As
by the court in Lam- Burmeister v. Youngstrom,
guest
bertson,
ought
situation like
“[a]
to be
case which indicated that when there is no
dealt
legislatively.
with
It is rather incon-
liability there is no contribution. 81
siderate to
speculate
force courts to
about
S.D.
231. The Minne
legislative
strength
intention on the
rejected
sota court in Lambertson
this rea
statutory language,
in the framing of
soning and
prior
overruled their
cases indi
which the draftsmen had not the remotest
cating there
was no
because
trace of
present
question in their
there was no
liability.”
“common
Lambert
Lambertson,
minds.”
son,
derlying compensation scheme would Larson, Compen-
be subverted.”
Worfcer’s
Actions,
Party
§
Third
121.03 at
sation:
is limited its Id. on Briefs Jan.
121-30, Considered (discussing the Minnesota rule compensation from and the reduction of 15, 2001. Aug. Decided party recovery).11 third majority opinion is in- result totally unfair both now and
equitable County’s negli- calculate appreciate 11. The concurrence fails to outside using indemnity any. We as a typical indemnity gence, if are not fact that this is not a claim. equitable cause but an compensa- separate Because the worker's of action maximum exposure paid, accomplish a fair allocation. There- tion has been there will be means fore, analysis County against independent duty is not either permits negligent employee, inapplicable but as it a wind- employer or but in- unfair jury stead a would be allowed factor in fall.