Timothy L. MILLS, Appellant (Plaintiff), v. Guy REYNOLDS and Sid Marks, Appellees (Defendants). Levi Harry BUNKER, Appellant (Plaintiff), v. Jim NIGGEMYER, Appellee (Defendant).
Nos. 89-193, 89-195.
Supreme Court of Wyoming.
March 11, 1991.
Rehearing Granted May 6, 1991.
807 P.2d 383
* Chief Justice at time of oral argument.
This case and its yet undeveloped facts re-emphasize why the majority is wrong in Mills v. Reynolds, 807 P.2d 383 (Wyo.1991) and Bunker v. Niggemyer, 807 P.2d 383 (Wyo.1991), both in constitutional concept and work place damage analysis.
Taking one contention of the facts in this case where a fact finding trial has not yet been provided, a co-employee, Charles Ross, was engaged in criminal driving misconduct in playing “chicken” on a narrow country road while driving a large earth-hauling vehicle. The available record would suggest that he did not know that it was his foreman, not a co-employee with whom he had previously played the game, that he met that October morning on that countryside driveway. A man was killed as a result. If these facts are correct, a serious crime was committed and a wrongful death was caused by conduct which in no way related to the proper performance of his employee responsibilities.
For whatever reasons of misguided policy, the legislative amendment took away from the survivors of the foreman century-old rights to recover redress for a most serious wrong—the killing of their husband and father. Significant specific and clear constitutional rights are lost by the legislative abrogation. See Mills, 807 P.2d 383, Urbigkit, Chief Justice, dissenting. As this case goes back to the trial court, and then most likely again to return, I will continue my objection to a Wyoming constitutional amendment by statutory enactments. I will also continue to believe that the specific rights clearly provided by the Wyoming Constitution both deserve and require our protection and maintenance. The insurance companies, which constitute the real parties in interest in these cases, do not deserve the largess provided by applied immunity of their insureds from responsibility. This is not litigation between an employer and employee—this involves two drivers on a country road, one of whom was killed when hit head-on by a vehicle which was in his lane at impact. In concurring to remand, I will not accept the validity of ultimate resolution by the immunizing application of
Consequently, I specially concur, although I believe that justice will not be served until constitutional rights under
MACY, Justice, dissenting.
I dissent. This Court is being hyper-technical. As a matter of judicial economy, we should grant a writ of certiorari and dispose of this case in accordance with Mills v. Reynolds, 807 P.2d 383 (Wyo. 1991).
William S. Bon, Schwartz, Bon, McCrary & Walker, Casper, for appellees Reynolds and Marks.
Patrick J. Murphy, Williams, Porter, Day & Neville, P.C., Casper, and John T. Pappas, Western Law Associates, P.C., Lander, for appellee Niggemyer.
Rodger McDaniel, McDaniel & Tiedeken Law Offices, Cheyenne, for amicus curiae, Wyoming AFL-CIO.
Robert W. Tiedeken, McDaniel & Tiedeken Law Offices, and George Santini, Graves, Santini & Villemez, P.C., Cheyenne, for amicus curiae, Wyoming Trial Lawyers Ass‘n.
Joseph B. Meyer, Atty. Gen., Ron Arnold, Sr. Asst. Atty. Gen., Larry M. Donovan, Asst. Atty. Gen., for amicus curiae, State of Wyo.
Patrick R. Day, Holland & Hart, Cheyenne, for amici curiae Rocky Mountain Oil and Gas Ass‘n, Wyoming Mining Ass‘n, Wyoming Trucking Ass‘n, Inc., and Associated Gen. Contractors of Wyoming, Inc.
Before URBIGKIT, C.J., and THOMAS, CARDINE,* MACY, and GOLDEN, JJ.
THOMAS, Justice.
The primary question that must be resolved in this case is whether
Timothy L. Mills (Mills) and Levi Harry Bunker (Bunker) filed separate briefs that state the issues identically:
“1. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article 10, Section 4, of the Wyoming Constitution, which provides that ‘No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person?’
“2. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article 10, Section 4, of the Wyoming Constitution, which limits the immunities which can be granted pursuant to Worker‘s Compensation laws to the ‘employer contributing as required by law’ to the compensation fund?
“3. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article 1, Sections 2, 3, 6, 7, 8, 9, and 34, and Article 3, Section 27, which provide for equality among all members of the human race in the right to life, liberty, and the pursuit of happiness; equal political rights, equality in civil rights, and equal privileges among all citizens; due process of law; prohibit absolute and arbitrary uses of power, even by the greatest majority; provide for equal access to the courts for all citizens; provide that the right to a jury trial is inviolate; provide that all laws shall have a uniform operation; and which prohibit special legislation, especially special legislation which calls for the ‘limitation of civil actions,’ and which grants ‘to any corporation, association or individual ... any special exclusive privilege, immunity, or franchise whatever?‘”
Guy Reynolds (Reynolds) and Sid Marks (Marks) state the only issue that they perceive in this way:
“The sole issue for review is whether in granting summary judgment in favor of the defendants, the District Court correctly held that the part of § 27-14-104(a), W.S.1977, prohibiting lawsuits between co-employees while acting in the course and scope of their employment was not unconstitutional.”
Jim Niggemyer (Niggemyer), responding to the arguments of Bunker, presents this statement of the issue:
“Is the Wyoming Legislature‘s elimination of co-employee liability constitutional?”
In addition to the briefs of the parties, the court was favored with briefs of amicus curiae from several interested groups, all filed with the permission of the court. In the Amicus Curiae Brief of the Wyoming AFL-CIO, the issues in the appeal are articulated in this way:
“A. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 2 of the Wyoming Constitution which guarantees:
“In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.
“B. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 3 of the Wyoming Constitution which provides:
“Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual
incompetency, or unworthiness duly ascertained by a court of competent jurisdiction. “C. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 6 of the Wyoming Constitution which reads as follows:
“No person shall be deprived of life, liberty or property without due process of law.
“D. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 7 of the Wyoming Constitution which guarantees:
“Absolute, arbitrary power over the lives, liberty and property of free men exists nowhere in the republic, not even in the largest majority.
“E. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 8 of the Wyoming Constitution which assures access to the courts of this state as follows:
“All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay.
“F. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 9 of the Wyoming Constitution which reads in pertinent part as follows:
“The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases in all courts or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law.
“G. Does W.S. 27-14-104(a) violate the provisions of Article 1, Section 34 of the Wyoming Constitution which guarantees:
“All laws of a general nature shall have a uniform operation.
“H. Does W.S. 27-14-104(a) violate the provisions of Article 10, Section 4 of the Wyoming Constitution which reads in pertinent part as follows:
“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.
*
“The right of each employee to compensation from such fund (referring to this Constitutional section as providing for the maintenance of a fund for the payment of compensation to injured employees) shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injuries or death. (Emphasis added.)”
The Wyoming Trial Lawyers Association says that the issue is:
“Does absolute co-employee immunity under Section 27-14-104(a), W.S.1977 (1987 Cum.Supp.), violate Article 10, Section 4, of the Wyoming Constitution?”
In the Amicus Curiae Brief of the State of Wyoming, there is no statement of an issue, but the statement of the argument suffices in lieu of an issue statement. It is:
“Section 27-14-104(a), W.S.1986, does not afford complete, absolute co-employee immunity but rather limits the available remedies to injured co-workers.”
Lastly, in the Amicus Curiae Brief of the Rocky Mountain Oil and Gas Association, the Wyoming Mining Association, the Wyoming Trucking Association, Inc., and the Associated General Contractors of Wyoming, Inc., the statement of the issue is:
“May the Legislature constitutionally grant coemployees immunity from suit, when acting within the scope of their employment, under Wyoming‘s Worker‘s Compensation Act?”
These cases present a pure question of the constitutionality of the statute. Consequently, the operative facts may be very briefly stated. Mills was employed by Dunbar Well Service, Inc. and, early in March of 1988, Reynolds directed Mills to paint the hood of a truck using equipment and materials provided by Marks. Both Reynolds and Marks were co-employees of Mills. While Mills was engaged in the assigned task, and was following instructions given him by Reynolds, an underrated pressure regulator burst near his face. Mills received severe injuries that included the loss of his left eye. He was awarded work-
In the companion case, Bunker was employed by Universal Equipment Co. and received instructions from Niggemyer, a supervisory co-employee, to remove some electrical equipment from the old concentrator area of the Atlantic City mine site. Niggemyer informed Bunker that the electricity had been shut off, but the electricity had not been shut off. When Bunker attempted to remove the equipment, as directed, he received severe electrical burns over 47% of his body and also suffered a broken hip when he fell from a ladder. Bunker also was awarded worker‘s compensation benefits.
Mills filed suit naming Reynolds and Marks as defendants. Bunker filed his action naming Niggemyer as a defendant. In both cases, the defendants responded to the respective complaints and then filed motions for summary judgment asserting the contention that
The importance of the constitutional claims justifies an historical review. In Barnette v. Doyle, 622 P.2d 1349 (Wyo. 1981), the court noted that worker‘s compensation laws developed during the end of the nineteenth century to provide social insurance for victims of industrial accidents. It was estimated that, at the time such laws were adopted, only 25% of injured workers were being compensated for injuries under common law remedies. Boggs v. Blue Diamond Coal Company, 590 F.2d 655 (6th Cir.1979), cert. denied 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979). The opinion of the court suggested that the laws were not developed to abrogate existing common law remedies that protected injured workers, but to counter the lack of recovery that was attributed to assumption of risk, contributory negligence, and the fellow servant rule. These doctrines, as well as other common law principles, had effectively shielded employers from liability. In order to provide compensation not based upon fault or the breach of a duty owed by the employer to the injured employee, the compromise was adopted that afforded immunity to the employer. Barnette.
Earlier, in Zancanelli v. Central Coal and Coke Company, 25 Wyo. 511, 173 P. 981 (1918), this court observed that many employees were required to waive their right to sue their employer as a condition of their employment. Even if the worker did not agree to such a condition, the economic realities of those times generally mandated that he simply could not afford to litigate so, ultimately, the final result became the same. It seemed clear that the traditional tort mechanisms and common law remedies were not adequate to address the needs of an increasingly larger working class in America.
While, in many states, compensation legislation offered an appropriate solution, in Wyoming, the conclusion was that a constitutional amendment was necessary before such legislation could be adopted. At the time,
“No law shall be enacted limiting the amount of damages to be recovered for
causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void.”
Because the substitution of worker‘s compensation benefits was perceived as limiting the amount of damages to be recovered by an injured employee, it appeared to be necessary to amend the constitution. The process for accomplishing the amendment was completed in 1914. 1913 Wyo.Sess. Laws, Ch. 79; Meyer v. Kendig, 641 P.2d 1235 (1982). By the amendment,
“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void. As to all extrahazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries, except in case of injuries due solely to the culpable negligence of the injured employee. The fund or funds shall be accumulated, paid into the state treasury and maintained in such manner as may be provided by law. The right of each employee to compensation from the fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to the fund in favor of any person or persons by reason of the injuries or death.”
Following this amendment, the legislature passed the original Wyoming Worker‘s Compensation Act, 1915 Wyo.Sess. Laws, Ch. 124, § 8. The traditional tort recovery, with its essential elements and historical defenses, was replaced by a state-administered industrial insurance program that required no showing of fault. Matter of Injury to Spera, 713 P.2d 1155 (Wyo.1986); Cottonwood Steel Corp. v. Hansen, 655 P.2d 1226 (1982); Kendig; Barnette, 622 P.2d 1349; Stephenson v. Mitchell ex rel. Workmen‘s Compensation Department, 569 P.2d 95 (Wyo.1977); Markle v. Williamson, 518 P.2d 621 (Wyo. 1974). The injured worker needed to prove only that he had sustained injuries under work-related circumstances while employed in an extrahazardous employment by a covered employer. The key provisions of the legislative program were that the employer paid into an earmarked fund, established for the sole purpose of paying benefits for any work-related injury to a covered employee, and the employee no longer had the common law right to sue his employer. Baker v. Wendy‘s of Montana, Inc., 687 P.2d 885 (Wyo.1984); Kendig; Mauch v. Stanley Structures, Inc., 641 P.2d 1247 (Wyo.1982); Zancanelli.
The philosophy justifying the change in the law was that the worker gained by being assured a quick and certain recovery while the employer benefited because the risk of large damage judgments was eliminated. Barnette, 622 P.2d 1349; Stephenson; Zancanelli. In Wyoming, this combination of benefit and detriment has long been described as a quid pro quo adjustment that resulted in a relationship very similar to a contractual arrangement. Spera; Baker; Cottonwood; Markle; Zancanelli. While that justification well may have been important in inducing the voters to adopt the constitutional amendment, the justification was not needed for its application after it was adopted.
The worker‘s compensation approach was intended to substitute the statutory remedy for the common law remedy previously available to an injured worker against his employer, but it was not intended to provide exclusive relief under all circumstances and all situations. The injured worker, it was assumed, received a sufficient portion of his regular income to provide a minimum level of support for himself and his family without the necessity of public assistance. Because the benefits received by the employee were normally less than wages he earned by working and,
Even though neither the constitution nor the statute provided immunity for a co-employee, in 1939, this court held that the legislative intent supporting the Wyoming Worker‘s Compensation Act, because the overall purpose was to protect the worker, mandated that benefits under the act should be paid even though the circumstances of the injury or death created a legal liability in some person other than the employer. In re Byrne, 53 Wyo. 519, 86 P.2d 1095 (1939). The court ruled that Section 124-109, W.R.S.1931, purporting to avoid worker‘s compensation benefits in such an instance, “must be held to be without operative force under circumstances such as are now at bar.” Byrne, 53 Wyo. at 539, 86 P.2d at 1102. In reaching this conclusion, the court analogized such a situation to one in which the injury or death was caused by a co-employee, pointing out that awards had been repeatedly made in the latter situations. This decision apparently was perceived as a ruling that an employee‘s cause of action against a negligent co-employee was eliminated as a matter of law. This perception apparently was confirmed in the case of Blackwell v. Pickett, 490 P.2d 347 (Wyo.1971), in which the court, being equally divided, affirmed a summary judgment granted to a co-employee on the ground that a claim against a fellow-employee by an employee who had received worker‘s compensation benefits was barred.
That was the law in Wyoming until 1974, when the court resurrected the common law right to sue a negligent co-employee. Markle, 518 P.2d 621. The rationale that led to the denial of Byrne, and the sub silentio overruling of Blackwell hinged on the absence of any language, either in the constitutional amendment or in the legislation subsequently adopted, that specifically indicated a co-employee was to be immune from suit. The legislature responded promptly to the Markle decision. In 1975, the original Wyoming Worker‘s Compensation Act was amended to extend immunity from suit to negligent co-employees unless they were found to be grossly negligent. 1975 Wyo.Sess. Laws Ch. 149, § 1; Cottonwood; Kendig. Under the amended statute, ordinary negligence by a co-employee in the workplace was no longer actionable. In 1977, the statute again was amended to substitute the word “culpably” for the word “grossly.” 1977 Wyo.Sess. Laws Ch. 142, § 1,
A case testing the constitutionality of the 1975 amendment to the Worker‘s Compensation Act soon came before the court. In Kendig, 641 P.2d 1235, an injured truck driver brought an action for damages against a co-employee asserting theories of both ordinary negligence and culpable negligence. The trial court, in denying the defendant‘s motion to strike the claim of ordinary negligence submitted in reliance upon Section 27-12-103(a), W.S.1977, declared the amendment to the statute unconstitutional. The district court invoked
In addressing the claims of unconstitutionality in Kendig, we held that Section 27-12-103(a), W.S.1977, did not conflict with art. 10, § 4, because the statute “does not limit the amount of damages to be recovered” and, instead, it specifically “limits the cause of action available for a recovery.” Kendig, 641 P.2d at 1239. The court ruled that “a ‘limitation in amount’ and a ‘right to recover’ were regarded as separate issues and treated separately by the framers of the Wyoming Constitution.” Kendig, 641 P.2d at 1239. The court also said that the argument advanced by Kendig would make legislative enactments im-
The court further held in Kendig that the trial court had erroneously relied upon
Subsequent to the Kendig decision,
It is against this background of legal history that these cases protesting the constitutionality of the amendment affording immunity to co-employees acting within the scope of employment are presented. There are several principles that we must apply in addressing constitutional issues. Our court recognizes that “statutes are presumed to be constitutional unless affirmatively shown to be otherwise, and one who would deny the constitutionality of a statute has a heavy burden. The alleged unconstitutionality must be clearly and exactly shown beyond any reasonable doubt.” Stephenson, 569 P.2d at 97. See Baskin; O‘Brien; Budd v. Bishop, 543 P.2d 368 (Wyo.1975); State v. Stern, 526 P.2d 344 (Wyo.1974); Johnson v. Schrader, 507 P.2d 814 (Wyo.1973); Zancanelli. The duty of the court is “to uphold the constitutionality of statutes which the legislature has enacted if that is at all possible, and any doubt must be resolved in favor of constitutionality. [citations omitted]” Kendig, 641 P.2d at 1239, citing Washakie County School District Number One v. Herschler, 606 P.2d 310 (Wyo.1980), reh. denied, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). See Billis v. State, 800 P.2d 401 (Wyo.1990); Witzenburger v. State ex rel. Wyoming Community Development Authority, 575 P.2d 1100 (Wyo.1978), reh. denied 577 P.2d 1386 (Wyo. 1978). A party attacking a statute on con-
If, among the constitutional questions raised, there are concerns about classifications and equal rights, we also are cognizant of the principle that any fact that can be reasonably conceived to sustain the classification will be assumed and that the court applies the “rational basis” test, not the more rigid “strict scrutiny” test, when an ordinary interest is involved. Kendig. It is within the parameters of these fundamental principles that we consider the appellants’ several issues and arguments.
The appellants attack the latest version of § 27-14-104, W.S.1977 (Cum.Supp.1989), from several quarters, albeit each attack addresses constitutional ramifications. Mills and Bunker initially assert that the statute is contrary to the provision of
We have considered these several contentions, and the arguments offered in support of them, in light of our standards for addressing the constitutionality of statutes. We have included not only the arguments of the appellants but those made by the amicus curiae who offered briefs in support of the appellants’ position. We hold that
The foregoing represents our decision in this case, but it is appropriate to develop our analysis so that it addresses each of the asserted issues. The first claim of the appellants is that this statute violates the provisions of art. 10, § 4, because it effectively limits the damages recoverable from a negligent co-employee to nothing.
The state legislature, in its enactment of the amendments represented in
A plain reading of the first sentence of
Following our principle that all components of the constitution must be construed in pari materia, in that all words of the constitution must be understood in relation to one another so as to allow a meaningful interpretation of the constitutional purpose, we conclude that the only feasible
The logical result then is that, to avoid an irreconcilable conflict and to give effect to all provisions of the constitution, we must construe the prohibition against lawsuits by an employee against his employer to be something different from a limitation on damages, even though a similar ultimate result may attach in some situations. Story; Attletweedt. The reasonable conclusion, we reiterate, is that it is a restriction on the cause of action. Kendig. See Thomson; Witzenburger, 575 P.2d 1100. Such a restriction is not prohibited by the constitution. Witzenburger. As to the first claim of the appellants, the preclusion of an action against the employer is not a limitation on damages and, thus, is not foreclosed by
The second issue urged by the appellants is premised upon their contention that the amended statute must be held unconstitutional because it fails to narrowly limit the immunities granted under the act to an “employer contributing as required by law to such fund ***” See Stratman v. Admiral Beverage Corporation, 760 P.2d 974 (Wyo.1988); Fiscus v. Atlantic Richfield Company, 742 P.2d 198 (Wyo.1987); Bence v. Pacific Power & Light Company, 631 P.2d 13 (Wyo.1981). Mills and Bunker argue that the amendment that enabled the adoption of the Worker‘s Compensation Act was framed with the express provision that it should be limited to such employers, and the result that must follow is that the immunity provisions are to be strictly construed and narrowly applied. Our understanding of the relevant provision, however, does not confirm the existence of such a limitation, and our research has not disclosed a legislative intent to establish such a limitation. It is true that the amended section specifically mandates that “[t]he right of each employee to compensation from such fund shall be in lieu of * * * any and all rights of action against any employer contributing as required by law to such fund * * *,” but nothing in the section even implicitly demands that the restriction is limited only to such employers. The legislature in this state may permissibly enact any law that is neither expressly nor inferentially prohibited by the constitution. Witzenburger; Bulova Watch Company v. Zale Jewelry Company of Cheyenne, 371 P.2d 409 (Wyo.1962). There exists no readily apparent rationale to justify the claim of these appellants that the protections under the Worker‘s Compensation Act must be limited to only those employers “contributing as required by law to such fund.”
The appellants, however, strongly urge us to consider policy justifications hinging on fairness and due process that, in their
First, we are not satisfied as to the absence of a quid pro quo between the injured employee and his co-employee. Instead, in a greater sense, both gain something and give up something under the statutory amendment. Every worker is a co-employee of any other worker and, even though he loses a right to sue his fellow worker, also is afforded protection from any action against him by his co-worker. This is a quid pro quo. More importantly, however, the appellants misconstrue our judicial powers relative to those of the legislature. Even if we were to agree with their contention, which we have said we do not, we are not justified in overruling a legislative enactment simply because we perceive it to be unfair. The only power possessed by the judicial department to negate legislative actions is found in the conclusion that the enactment is unconstitutional. Any lack of a quid pro quo, even though that has been a popular justification for the worker‘s compensation statute, whether fair or unfair, does not offer a proper ground to declare a statute unconstitutional. In our view, it is unnecessary for the draftsman to justify, or refute, constitutional amendments with policy arguments. See Hoem v. State, 756 P.2d 780 (Wyo.1988). An amendment, once passed, exists and takes effect. Its existence is sufficient for our purposes. Once the constitutional provision is adopted, the duty of the court is to follow it, and our only power is to determine the unconstitutionality of subsequent enactments. The only time policy considerations are relevant to constitutional dictates is in the public debate leading to their adoption when those who favor the amendment are attempting to sway the political majority to their views.
Neither can we perceive how the alleged lack of quid pro quo ties into due process, even though the appellants’ arguments are creative and, to a degree, attractive. Due process presents both substantive and procedural facets.
Mills and Bunker next argue, still in support of their second issue, that giving a negligent co-employee “something for nothing” violates the injured worker‘s rights to access to the courts and trial by jury. See
While in effect, the Wyoming Medical Review Panel Act, §§ 9-2-1501 to -1511, W.S.1977 (June 1987 Repl.), mandated, by one of its key provisions, that no complaint alleging medical malpractice could be filed in court unless a claim had first been filed with a statutorily specified review panel and a decision rendered. Hoem. The decision by the Medical Review Panel was not subject to court review, was not binding on either party, and was not admissible at trial. Sections 9-2-1509 to -1511, W.S. 1977 (June 1987 Repl.) (since repealed). Among a number of contentions, including one alleging an impediment to free access to the courts, the plaintiff in Hoem had argued that the Medical Review Panel Act violated equal protection of the law in that it arbitrarily “singles out a limited class of health class providers for special protection while, on the other hand, it places an added burden on persons injured by health care providers.” Hoem, 756 P.2d at 782. See Wyo. Const. art. 1, §§ 2, 3, 6, 7, 8, 34; art. 3, § 27. This court agreed.
Because the Medical Review Panel Act was found to be unconstitutional on that basis, the court declined to address other contentions, including one that alleged a denial of free access to the courts. See K.N. Energy Corporation v. City of Casper, 755 P.2d 207 (Wyo.1988); Nehring v. Russell, 582 P.2d 67 (Wyo.1978). Had the court chosen to address that issue in Hoem, and had it held the Medical Review Panel Act was one that denied access to the courts, the case still would not be dispositive, in this instance, because the circumstances are significantly different. In Hoem, the Medical Review Panel Act created a situation in which the parties had to follow a unique process before proceeding to trial even though they may have possessed a viable cause of action. In a sense, that act did no more than establish an additional jurisdictional roadblock. Nothing in the Worker‘s Compensation Act, either before or after the 1986 amendment, delays or forecloses an injured worker from filing, and attempting to pursue, his claim, whatever it may be, through the courts. Even with the restrictions found in the act and the constitution, there is no barrier to the access of the worker to the courts. Our constitutional guarantee of access to the court means just that and no more. Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 (1949).
While the constitution also guarantees that justice shall be “administered without sale, denial, or delay,” there is no guarantee that an unhappy litigant will maintain a viable claim once he finds himself in court.
We move now to the third, and final, issue asserted by Mills and Bunker in which they assert a broad spectrum claim that the accused statute violates Wyo. Const. art. 1, §§ 2, 3, 6, 7, 8, 9, and 34, and
“*** [P]rovide for equality among all members of the human race in the right to life, liberty, and the pursuit of happiness; equal political rights, equality in civil rights, and equal privileges among all citizens; due process of law; prohibit absolute and arbitrary uses of power, even by the greatest majority; provide for equal access to the courts for all citizens; provide that the right to a jury trial is inviolate; provide that all laws shall have a uniform operation; and which prohibit special legislation, especially special legislation which calls for the ‘limitation of civil actions,’ and which grants ‘to any corporation, association or individual ... any special exclusive privilege, immunity, or franchise whatever‘” (emphasis added by appellants).
Earlier, we addressed the claim that this amended statute deprives these appellants of due process and their right of access to the courts in a trial by jury. There is no necessity to address those particular provisions any further. The remaining aspects of this very broad claim can be identified with two main contentions. The first of those is that
In support of their premise, Mills and Bunker argue that the grant of co-employee immunity is not extended to all Wyoming workers since it applies only to those workers involved in extrahazardous employments as identified by Section 27-14-103, W.S.1977. In their brief, the appellants concede that Section 27-14-103(g), W.S. 1977 (Cum.Supp.1989), permits any employer who is not engaged in extrahazardous employment to elect to be included in the system. Upon reflection, in the context of this case, we conclude that this extension of the benefit of the statute to nonhazardous employments is dispositive of that aspect of the claim made by the appellants. By its enactment, the legislature has provided a means whereby each and every Wyoming employer, and thus each and every Wyoming employee, can be covered under the Worker‘s Compensation Act. Because every worker in Wyoming now may receive an equal benefit under the act with respect to the protection afforded the co-employee, there seems no prospect of supporting the claim of a deprivation of equal protection. See Bell v. State, 693 P.2d 769 (Wyo.1985). Cf. Small, 689 P.2d 420 (statute not violating equal protection merely because it could have included other persons).
The difficulty of identifying special legislation is at least at the same level. See Kendig. If deficiencies in either area existed prior to 1986, Section 27-14-103(g), W.S. 1977 (Cum.Supp.1989), has, contrary to the position asserted by the appellants, cured that defect. The appellants do not chose to acknowledge this universal application, however, and cite Phillips, 611 P.2d 821, and Hoem to support their position. In Phillips, the constitutionality of a questionable statute of limitations shielding “any person performing or furnishing the design, planning, supervision, construction or supervision of construction for” improvements to real property was at issue. Phillips, 611 P.2d at 822. Relying upon persuasive authority from a number of jurisdictions, this court held that the statute, § 1-3-111, W.S.1977, was unconstitutional in that, instead of being a statute of limitations, it was a grant of immunity conferred on an extremely narrow band of defendants. See Phillips. Though that case certainly is the law, we do not find it applicable to the problems presented in this case because the provisions of the accused statute, now available to all Wyoming workers, is not limited to such an extremely narrow group.
Similarly, we reject Hoem as authority for the appellants’ arguments on the same reasoning. The protections in
The summary judgments granted by the district court are respectively affirmed.
CARDINE, J., filed a concurring opinion.
URBIGKIT, C.J., filed a dissenting opinion in which MACY, J., joined.
CARDINE, Justice, concurring.
I concur in the opinion of Justice Thomas. I have no doubt that the legislature can create or eliminate causes of action. I am reminded of the “Heart Balm” statutes passed to abolish the common law cause of action for breach of promise to marry. The original version of the current “Heart Balm” statutes, W.S. 1-23-101 through -104, was enacted in 1941. In passing the session law eliminating causes of action for alienation of affection, criminal conversation, seduction, etc., the legislature gave the following reason for their enactment:
“The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affection, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the State that the best interests of the people of the State will be served by the abolition of such remedies. Consequently, in the public interest, the necessity for the enactment of this article is hereby declared as a matter of legislative determination.” 1941 Wyo.Sess.Laws ch. 36 § 1.
One case presenting this cause of action was heard by the Wyoming Supreme Court before enactment of W.S. 1-23-101 through -104. In that case, Worth v. Worth, 48 Wyo. 441, 49 P.2d 649, 103 A.L.R. 107 (1935), this court, based upon the trial court‘s failure to give instructions concerning a presumption of the good faith of parents and proof necessary to rebut it, reversed a $10,000 judgment in favor of the plaintiff against her in-laws. The constitutional power of the legislature to abolish this cause of action is so clear, it has never been questioned.
URBIGKIT, Chief Justice, dissenting, with whom MACY, Justice, joins.
Are workers in Wyoming to be essentially unprotected from injurious acts which are culpably, willfully or criminally inflicted against them by co-workers by the barrier which has been applied legislatively to deny to them rights for civil justice to properly recover for resulting personal injury? Believing that the Wyoming Constitution says what it says and means what it was intended to provide in protection for citizens against a statist government, I respectfully dissent.
I. UNSAFE WORK PLACE—RIGHT TO INJURE OR KILL
These cases come to this court to present a constitutional challenge to a statutory
Contrary to the majority opinion, in which this court again fails to recognize that, with limited exceptions,1 immunity is “an outmoded anachronism of [questionable] history and parentage,” I would hold that the legislature is constitutionally foreclosed from extending absolute immunity to co-employees even when acting within the scope of their employment under the Wyoming Worker‘s Compensation Act. White v. State, 784 P.2d 1313, 1360 (Wyo. 1989), Urbigkit, Justice, dissenting. I write to express my unwavering conviction that the injured appellants in these cases are constitutionally entitled to their day in court. In addition, I write to continue my battle against the injustice which comes when liability is decoupled from criminal conduct, intentional misconduct or culpable negligence via legislative extension of absolute immunity in derogation of the Wyoming Constitution. See White, 784 P.2d at 1324, Urbigkit, Justice, dissenting and Cooney v. Park County, 792 P.2d 1287 (Wyo. 1990), Urbigkit, Justice, dissenting. In ef-fect,
In simplest terms, the end result of
I would find
While I agree with the general statement of this court‘s standard of review set forth in the majority opinion, I find the summary of applicable principles to be incomplete. I would add the following statutory and constitutionally determinative provisions previously adopted by this court for judicial review of Worker‘s Compensation legislation.
In Seckman v. Wyo-Ben, Inc., 783 P.2d 161 (Wyo.1989), we identified the underlying purpose and application of the Act. We stated:
Unlike most statutes that abrogate common law rights and must, for that reason, be strictly construed ***, the Wyoming Worker‘s Compensation Act ***, is to be interpreted in a reasonably liberal fashion so that the legislative goals that obviously are intended may be accomplished * * *. Whenever possible, the Act should be applied in favor of the workman * * *, so that industry, and not the individual employee, bears the burden of accident and injury occurring within the industrial setting. ***
Id. at 165. I find the result reached by the majority in these cases to be counterproductive to the underlying purpose of the Worker‘s Compensation Act. In direct contrast to the stated legislative purpose, the majority does not apply the Act in favor of injured workmen. Instead, the majority reaches the result that a legislative grant of statutory immunity is a superior right to the constitutionally mandated right of an individual to recover damages for injuries. In recognition of an injured employee‘s eligibility to collect modest Worker‘s Compensation benefits and by upholding the constitutionality of
For example, in Bence v. Pacific Power and Light Co., 631 P.2d 13, we held that immunity provisions in the Worker‘s Compensation Act must be narrowly construed. In deciding whether immunity extends to a non-employer, we ruled that a non-employer “should not enjoy an immunity that it has not paid for.” Id. at 18. See also Robinson v. Bell, 767 P.2d 177 (Wyo. 1989); Stratman v. Admiral Beverage Corp., 760 P.2d 974; and Fiscus v. Atlantic Richfield Co., 742 P.2d 198. In light of our unequivocal analysis in these cases, I find no legislative authority to extend absolute immunity to co-employees who do not “pay” for the privilege.
III. WHOSE QUID PRO QUO
I reject the majority‘s analysis of and conclusion that a quid pro quo relationship
In Mauch v. Stanley Structures, Inc., 641 P.2d 1247, a case decided the same day as Meyer v. Kendig, 641 P.2d 1235, we considered the quid pro quo relationship between an employer covered under the Act and his employees. It is the employer who contributes to the fund and it is the employer‘s contributions which fund payment to workers for those injuries not occasioned by the employer‘s fault or negligence. In return for that contribution, the employer is granted immunity from suit. Neither the injured employee nor the co-employee contribute to the fund. A rational basis thus exists for treating the employer differently from his employees with respect to the extent of immunity.
Mauch, 641 P.2d at 1251. In this case, this court recognized the existence of a rational basis for treating contributing employers and co-employees differently with regard to immunity. I find nothing has changed with the passage of time or over the course of events which now justifies treating contributing employers and co-employees identically.
IV. CONSTITUTIONAL ANALYSIS
“While it is our duty to give great deference to legislative pronouncements and uphold constitutionality when possible, it is likewise our equally imperative duty to declare a legislative enactment invalid if it transgresses the state constitution.” Witzenburger v. State ex rel. Wyoming Community Development Authority, 575 P.2d 1100, 1114, reh‘g denied 577 P.2d 1386 (Wyo.1978). See Brenner v. City of Casper, 723 P.2d 558, 560 (Wyo.1986). The majority decision in this case fails to recognize the constitutional transgressions of
I would also hold that Wyo. Const. art. 1, § 8,5 when read in conjunction with
The majority states that the test for whether or not substantive due process has been infringed is “if a statute is arbitrary and fails to promote a legitimate state objective by reasonable means.” (Citing Moreno v. State Dept. of Revenue and Taxation, 775 P.2d 497 (Wyo.1989).) The majority opinion dismisses appellants’ substantive due process arguments in a single sentence and concludes without analysis that, “this particular application of the Wyoming Workers’ Compensation Act does not meet those criteria so that a conclusion that substantive due process is violated is justified.”
I would conclude otherwise. I find that the legislative extension of immunity to co-employees, without regard to the degree of negligence or the qualitative distinction between negligence and intentionally tortious conduct, is an arbitrary deprivation of the appellant‘s right to recover damages for injuries. Saylor v. Hall, 497 S.W.2d 218 (Ky.1973). Legislation which limits damages cannot pass the rational basis test. Such legislation, on its face, discriminates against a more seriously injured victim since Worker‘s Compensation benefits will quite often fail to cover all economic losses, to say nothing of compensating for pain, suffering, and other related damages. More significantly, I recognize no state objective, legitimate or otherwise, which is promoted by the extension of immunity to co-employees.
V. OUR HISTORY IN KENDIG
In Kendig, 641 P.2d 1235, this court found a rational relationship between the statute (which provided immunity to co-employees acting with less than culpable negligence) and the classification of immunized co-employees. The Kendig objectives, which are reiterated by the majority here, are: (1) harmony among employees; (2) maintenance of a sound compensation fund; and (3) continuance of the overall purpose and philosophy behind the Worker‘s Compensation Act. The same legislative objectives set forth by this court in Kendig are still applicable today. All are viewed in the context of the underlying legislative goal of “saving” the Worker‘s Compensation program when it underwent revision in 1986. Unfortunately, any realistic factual relevance of those “goals” to what the provision actually does exists somewhere between unrefined imagination and a total non sequitur.
Relying on
The majority agrees with appellees’ response that this court‘s holding in Kendig recognizes legislative authority to immunize co-employees from liability so long as the co-employee allegedly causes an injury while acting within the scope of his employment. Thus, without specifically distinguishing between various types of intentional and negligent conduct, the legislature and the majority of this court provide absolute immunity from liability to all co-employees regardless of whether their conduct is negligent, grossly negligent, culpably negligent, intentionally tortious or abjectly criminal. Before the 1986 revision in
Intentionally tortious conduct is “different in kind” from other classifications of negligent behavior and the distinction is not simply a difference in the “degree” of knowledge.
The law of intentional torts constitutes a separate world of legal culpability. It is a system that balances specific rights and obligations, and imposes liability on the basis of a party‘s intent, rather than the moral blameworthiness of that party‘s conduct by societal standards. The real qualitative distinctions between intentional torts and other forms of culpable conduct share a single origin—the “duty” concept. Intentional torts are dignitary by nature. They are designed to protect one‘s right to be free from unpermitted intentional invasions of person or property. Alternatively, the duty underlying an action in negligence or strict products liability is to avoid causing, be it by conduct or by product, an unreasonable risk of harm to others within the range of proximate cause foreseeability. These distinct worlds of culpability cannot be reconciled.[9]
Gallub, Assessing Culpability in the Law of Torts: A Call for Judicial Scrutiny in Comparing “Culpable Conduct” Under New York‘s CPLR 1411, 37 Syracuse L.Rev. 1079, 1112 (1987) (footnotes omitted). Thus, relying on Kendig for the proposition that the legislature has authority to abolish co-employee liability for all actions within the scope of employment is misplaced. It is not enough to assume that intentionally tortious co-employees will be held accountable for their misconduct based on a showing that they acted outside the scope of their employment. Rather, it is likely that many intentional tortfeasors will enjoy full immunity from liability.
I believe the legislature and the majority of this court mistakenly blur the qualitative distinction between intentional misconduct and other types of negligent behavior. Ex-
While it is arguable that a higher level of scrutiny is mandated by the statutory infringement of constitutionally protected rights at stake in these cases, I find that
First, it is purely speculative, if not actually spurious, to opine justification for constitutionality on ascertainment of whether or not co-employee immunity creates a more harmonious work environment. I contend that both logic and statistical evidence reveal that a grant of absolute immunity to co-employees serves only to create a less-safe workplace. It follows that a less-safe workplace is, by its very nature, a less-harmonious workplace since employees must be more cautious of their co-workers. Since co-employees are no longer threatened with liability for their culpable negligence or intentionally tortious conduct, they are, unfortunately, more likely to endanger both themselves and their fellow employees in the workplace. This conclusion is supported by employment and work force injury data generated by various state agencies since the 1986 legislative revision of
This case is illustrative of the analysis of thoughtful scholars and concerned jurors determining why immunities from responsibility for wrongful conduct are characterized as anachronistic and dinosaurs in this modern world in its complex and compressed society. Immunities by providing absolution from responsibility invite, approve and pamper harmful, slothful, malicious and just bad conduct. Protection from misconduct grows and cultivates that approved, invited and justified misconduct. The real quid pro quo from the legislative enactment, taking away rights of the employees, was that the something the worker lost from the immunity foreclosing rights was the doubtful benefit he achieves of exposure to harm, damage, and possible death caused by wrongful conduct.
Similarly, in light of
Second,
Third, from the outset, Worker‘s Compensation has always been considered a form of industrial insurance rather than damages. Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925).12 This court irrefutably established the proposition that Worker‘s Compensation stems from contract and not from tort. Kendig, 641 P.2d 1235; Markle, 518 P.2d 621; Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918). “An insurance policy does not protect the policy holder from the consequences of his intentional tortious act. Indeed, it would be against public policy to permit insurance against the intentional tort.” Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, 577 (1982), cert. denied 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982). By denying an injured employee the opportunity to recover damages from an intentionally tortious co-employee, the injured employee is forced to bear the brunt of his injuries while the intentionally tortious co-worker escapes liability. I fail to see how the elimination of co-employee liability in tort serves to enhance any public purpose premised on the concepts of insurance and contract.
The only effective legislation to “save” the Worker‘s Compensation fund would involve imposing greater deterrent measures on the work force—not eliminating viable incentives for safe practices.13 Absolute immunity creates a less-safe workplace and allows a tortious wrongdoer to escape re-
Legislative extension of absolute immunity to co-employees absent an enabling constitutional amendment is an arbitrary limitation on an injured employee‘s right to recover damages and is thus in contravention of
VI. EVEN WITH KENDIG, THIS DECISION IS STILL WRONG
We are first faced here with the consequences of this court‘s wrong decision in Kendig. I would overrule Kendig for, as Chief Justice Rose pointed out in his dissent, “it is a holding not supported by the law and in derogation of the limitations on legislative power found in Art. 10, § 4.” Id. at 1246. Kendig should be overturned.
If the majority of this court is unwilling to do so, then the legislature should, or in time a majority of this court will in another day be called to return to the application of basic constitutional protections which should be provided by the Wyoming Constitution and enforced by this tribunal.
Regardless of the semantic manipulations applied by the majority to conclude that a “plain reading of the first sentence of Wyo. Const. art. 10, § 4,” when read in conjunction with the whole provision, “does not * * * prove that the elimination of co-employee suits is unconstitutional,” I strongly feel that the legislature cannot enact a statute that immunizes co-employees regardless of the degree or nature of their culpably negligent or intentionally tortious conduct without first amending
Even though Kendig was wrongly decided and is again upheld against the Wyoming Constitution by this court, in consideration of that present state of Wyoming law, I would further argue that Kendig is also distinguishable from the present case. As a further step beyond where this court had previously gone, Kendig does not mandate legislative authority to extend absolute immunity to co-employees in the absence of an authenticating constitutional amendment or elimination of the beneficial amendments presently existent. Although that earlier case might be excused constitu-tionally under the specific terminology of
Kendig held that co-employee immunity for acts of ordinary negligence was constitutional. However, in 1986, the legislature went far beyond the result in Kendig to eliminate culpable negligence or intentionally tortious acts from
The same cannot be said for intentional acts of co-employees, supervisors and bosses where the totality of any responsibility for conduct or rights of justice to the injured are identically eliminated. Extending immunity to intentional tortfeasors re-
Similarly, in 1986 when the legislature sought to allow non-extrahazardous employers the option of participating in the Act, Wyo. Const. art. 10, § 4 (1986 amend.) was again amended to add the last two sentences which read:
Subject to conditions specified by law, the legislature may allow employments not designated extrahazardous to be covered by the state fund at the option of the employer. To the extent an employer elects to be covered by the state fund and contributes to the fund as required by law, the employer shall enjoy the same immunity as provided for extrahazardous employments.
Legislation which arbitrarily abolishes an entire cause of action and eliminates rights to redress for injury violates several constitutional guarantees.18 The legislature cannot actively or inactively “amend” the constitution by legislative action or inaction. As one court aptly observed, “[s]ociety cannot escape its responsibility to provide justice by simply eliminating the rights of its citizens.” Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 838 (1980) (quoting Opinion of the Justices, 113 N.H. 205, 215, 304 A.2d 881, 888 (1973), Duncan and Grimes, Justices, dissenting).
Former Chief Justice Robert R. Rose, Jr., who was principal counsel for the worker in Markle, 518 P.2d 621, came on this court and dissented in Kendig and now appears as appellate counsel in the present companion case of Rodabaugh v. Ross, 807 P.2d 380 (Wyo.1991). In Rodabaugh, Chief Justice Rose provides his wisdom and dedication to justice by effective analysis in his appellate brief:
At common law, there was no prohibition against suit by one employee against a co-employee. This seed issue was resolved in Markle v. Williamson, [518 P.2d 621 (Wyo.1974)], where it was urged by the employer that one employee could not sue a co-employee in tort and that, in any case, the immunity of the employer inured to the benefit of its co-employee. In holding that the co-employee enjoyed no such immunity and that co-employees were possessed of rights of action against one another, the court said:
“[1] There is a pervading rule that valuable common law rights shall not be deemed destroyed by a statute except by clear language. See Bosel v.
State, Alaska, 398 P.2d 651, 654; Saala v. McFarland, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400, 404; Industrial Indemnity Co. v. Columbia Basin Steel & Iron Inc., 93 Idaho 719, 471 P.2d 574, 548; Valdez v. State, 83 N.M. 720, 497 P.2d 231, aff‘d. 83 N.M. 741, 497 P.2d 743; Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142, 144; and Southern Railway Company v. Maples, 201 Tenn. 85, 296 S.W.2d 870. “[2] We find nothing in ... the 1914 constitutional amendment ... which expressly says that a co-employee shall be immune from suit. Having said the employer shall be immune, the legislature surely would have used similar language to say co-employees were immune—if it had so intended.
“The general rule seems to be that where there is no expressed legislative mandate to the contrary, a co-employee or fellow servant is a third party tort-feasor within the meaning of a workmen‘s compensation act like ours. Annotation 21 A.L.R.3d, § 3, p. 850; 2 Larson‘s Workmen‘s Compensation Law, §§ 72 and 72.10, p. 174; 58 Am. Jur., Workmen‘s Compensation, § 61, p. 617; 101 C.J.S. Workmen‘s Compensation, § 985(e), p. 481.”
Id., at 623.
Following Markle, supra, the legislature undertook to amend the statutes to adjust the degrees of negligence that would need to be proved against co-employees before recovery could be accomplished. These amendments were upheld as not violating Article 10, § 4 of the Wyoming Constitution. The court held that, for the legislature to adjust the degree of proof from ordinary negligence to gross negligence to culpable negligence, was not to enact laws “limiting the amount of damages....” Art. 10, § 4, supra. In other words, the damages against co-employees always remained recoverable, provided the degrees of negligence and culpability established by the legislature were satisfied in the proof process. In Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982), the court held that
The effect of this opinion is to establish that the first sentence places limitations upon causes of action, which the legislature has the power to do, providing the cause of action itself is preserved. The reasoning behind the holding seems corroborative of this conclusion where the court, in Kendig, supra, goes on to say that if the first sentence of Art. 10, § 4 of the Constitution were to be held to provide that the legislature did not have limitation powers to fix degrees of proof in causes of action involving injury and death, then it would also be without the authority to legislate in such areas as “comparable negligence, statutes of limitation, contribution among joint tortfeasors, etc.” (see p. 1239).
By observing that the legislature was indeed possessed with the power of adjustment in these areas, the court was not, of course, saying that the legislature would have the ultimate authority to use them to eradicate causes of action by, for example, adjusting statute of limitations timeframes down to zero, or adjusting comparable negligence statutes in such a burdensome way as to prevent parties from bringing tort actions under any circumstances.
Again, in its Kendig opinion, the court reiterates the proposition which holds that the statute under consideration was not violate of Art. 10, § 4, supra, because it only sets a standard of proof which must be followed where one employee asserts his or her cause of action against a co-employee. In this context, the court was considering plaintiff‘s contention that Art. 1, § 8 was being abridged by reason of the legislature‘s adjustment of the degree of negligence in
Therefore, it seems clear that when the court looked at the legislature‘s fixing of a degree of negligence or culpability proof, the court was simply fixing a standard of proof as between the parties, but it wasn‘t even intimating that this kind of authority extended to the legislature‘s ability to do away with the cause of action altogether. In fact, the court in Kendig used a comparison between the first and second sentences of Art. 10, § 4 of the Constitution to fortify its view when it observed that the second sentence spoke to “right to recover damages,” which the court interpreted to mean no contract whatever could be entered into which would inhibit common-law rights of action, while the first sentence spoke to the legislature‘s inability to enact legislation “limiting the amount of damages” as being language which, while not permitting the doing away with a right to recover damages, did permit adjustment and control of the degrees of negligence. In this regard, the court said:
“[4] Appellee argues that the first sentence of Art. 10, § 4, Wyoming Constitution, prohibits the legislature from granting immunity to co-employees for negligence, regardless of degree. She acknowledges the propriety of immunity granted to employers because of the subsequent language in Art. 10, § 4 of the Wyoming Constitution. Such first sentence states that ‘no law shall be enacted limiting the amount of damages to be recovered ***’ (emphasis added). Section 27-12-103(a) does not limit the amount of damages to be recovered. It limits the cause of action available for a recovery. The fact that the first sentence of Art. 10, § 4 relates only to the amount of damages is exemplified by the second sentence which pertains to the ‘right to recover.’ A ‘limitation in amount’ and a ‘right to recover’ were regarded as separate issues and treated separately by the framers of the Wyoming Constitution. See Journal and Debate of the Constitutional Convention of the State of Wyoming, pp. 443-454 and 614-616 (1889). The plain language of such first sentence and its ordinary meaning reflects its prohibition to be against laws limiting the ‘amount of damages.’ Section 27-12-103(a) does not do that.” (Emphasis [Rose].)
Kendig, supra, at 1239. (Emphasis in original and footnote omitted.) With accuracy, the author concluded:
We conclude this argument by allowing that Kendig does not address the constitutionality of a statute granting immunity to a co-employee in a worker‘s compensation case. It only holds that a worker‘s compensation statute which adjusts the degree of negligence or culpability which must be met in actions between co-employees is not in violation of Article 10, § 4 of the Wyoming Constitution. We further urge that, since the legislature felt impelled to submit the Worker‘s Compensation Amendment for adoption before enacting worker‘s compensation statutes in the nature of industrial accident insurance, so that the first sentence of Article 10, § 4 would not be violated, it follows that a statute doing away with the common-law co-employee cause of action altogether must also fail in the face of the “limiting the amount of damages” language of the first sentence of Article 10, § 4, supra.
VII. CONCLUSION
An employee injured at the hands of his criminal, culpably negligent or intentionally tortious co-employee constitutionally should be given an opportunity to recover damages for his physical harm. Because
BARNHART DRILLING CO., INC., Appellant (Defendant/Third Party Plaintiff), v. PETROLEUM FINANCING, INC., a Texas corporation; and The Clarke Partnership, a Texas general partnership, Appellees (Plaintiffs), and Devane Clarke, Appellee (Third Party Defendant). No. 90-100. Supreme Court of Wyoming. March 12, 1991.
Glenn E. Smith, Glenn E. Smith & Associates, Cheyenne, and Joel M. Vincent, Vincent and Vincent, Riverton, for appellant.
Jerry A. Yaap, Bishop, Bishop & Yaap, Casper, for appellees.
Before URBIGKIT, C.J., THOMAS, CARDINE and GOLDEN, JJ., and TAYLOR, District Judge.
Notes
and Wyo. Const. art. 1, § 22: “The rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his service and to promote the industrial welfare of the state.”
The purpose of the 1913 legislative resolution from which the Worker‘s Compensation amendment came was not to legitimize yellow dog contracts by state legislative enactment, which is now the effect of this legislation here under review. This court takes the carefully considered and presented progressive plan for compensation insurance involving employer and employee, see Governor Joseph M. Carey‘s Address to the Twelfth Wyoming State Legislature, 6 House Journal at 40 (1913), and, for political purposes of whatever persuasion, creates a kind of yellow dog contract between fellow employees by governmental fiat.