Wilder v. Redd

Wilder, and Lewis WILDER Edna

Plaintiffs-Appellants, REDD, Defendant-Respondent. R. John Combo, Falls, plain- James F. tiffs-appellants.

No. 16092. Petersen, Moss, Olsen, Blower, of Earl Supreme of Idaho. Court Carr, Falls, for defend- Meacham & 18, 1986. June ant-respondent. BAKES, Justice. Wilder,

Plaintiff, appeals from the Edna grant of John district court defendant summary judgment and the Redd’s motion appeal, complaint. her In this dismissal of im- alleges that Wilder properly applied the disagree and affirm dis- doctrine. We dismissing Wilder’s com- trict court’s order plaint. August 11:30 on approximately

At a.m. Wilder, employee of E.G. Edna Idaho, Inc., by an automo- was struck & G walking across a road- while she was bile parking lot owned E.G. way within the Idaho, Inc. The automobile which & G. by John Wilder was driven struck Edna Redd, employee. At the E.G. & G. another left his Redd had time going Wilder was to lunch. office and was process performing her ment duties. negligence action filed a

After Wilder Redd, for sum Redd filed a motion district court. mary judgment Wilder’s urged the court dismiss motion complaint under the established under I.C. §§ employer obligation owed liability em- or 1. 72-209. Exclusiveness person, amount of limited to the Subject provisions shall be ployer. (1) of section other employer is liable liability employer for which injury, dis- on of such all other law account shall exclusive and in under this ease, law death, person and the liability employer employee, his unless such other or heirs, liability legal representatives agree in a different dependents, employer to share spouse, assigns. manner. (3) given liability an em- per- to another extend to the ployer by this section shall also paid who be liable for who son officers, agents, surety ser- employer’s to all occupation- damages injury on account surety, employer or vants and arising of and in al disease or death exemptions provided that such course injury case where shall not any duty and caused the breach of In May and 72-211.2 acting of scope within employment” “the of at decision, court issued a memorandum find accident, the time of the merely rather than that, ing since Wilder and Redd were both course of “the employment.” According to acting employment” “course of Wilder, employee’s an conduct is within the accident, at the time of the co-employee scope employment only of if the conduct is immunity doctrine barred Wilder’s suit. actuated to some by extent an intent to From district court’s order dismissing serve words, the master. In other Wilder complaint, Wilder’s appeals. Wilder now argues employee an only that is entitled to Idaho workmen’s statutes co-employee immunity if employee an is provide remedy the exclusive employ- of an acting an agency capacity and a respon- injuries arising for out of deat superior relationship exists between employment. 72-211; of course the employee the employer. Wilder Service, Inc., Yeend v. United Parcel argues ap- that the district court erred in 333, 334, (1983). plying co-employee immunity doctrine employer’s exemption from liability tort because, here at the time of the extended, statute, by has been “to em- Redd’s conduct was not actuated to some ployer’s surety and all ser- extent employer. intent to serve vants of the or Redd, hand, on argues the other that surety.” exemption 72-209. I.C. § district court in concluding was correct not, however, does extend to that, existing law, under he is enti- non-employee See I.C. parties. third 72- § tled co-employee immunity to was since he 72-223, injured employ- 223. Under I.C. § within the “course of acting employment” ees receive workmen’s argues at the time the accident. He that bring negligence benefits and thereafter correctly applied reg- district party actions third tortfeasors. ular workmen’s California, Tucker v. Oil Union Co. of 590, 603, employment” standard set I.C. 100 Idaho 603 P.2d 72-102(14)(a), “scope appeal, In this we rather than are asked to § standard, employment” determine whether the district court cor- to determine rectly co-employee ruled that Redd was a co-employee whether he was im- entitled liability giv- entitled to the munity under I.C. 72-209. Redd asserts § 72-209, en to a I.C. under or “scope § that there is no whether, case, under the facts Redd Compen- standard Idaho Workmen’s subject should be as third Act, sation I.C. and therefore party under I.C. 72-223. tortfeasor internally interpreted should be to make it 72-102(14)(a), and consistent with I.C. § argues Wilder that since Redd on standard business, i.e., lunch, personal going to 72-102(14)(a) I.C. used the time of the accident he should not be “employee” pur- determine status for all employee purposes for considered an poses, including determinations co-employee immunity forth doctrine as set employee is an whether individual argues 72-209. Wilder purposes co-employee immunity co-employee immunity only is employee available to an is 72-209. granted proximately rights is wilful or and remedies herein death caused unprovoked physical aggression occupa- injury on or account er, officers, agents, employees, servants he entitled to tional disease for which com- exemption applying the loss of such pensation under this law shall exclude all other imputable aggressor and shall not the the rights employee, person- and remedies provoked employer employer, unless authorized kin, dependents representatives, next of al party was a thereto. or the otherwise, law or on account of common added.) (Emphasis injury disease. employee’s Exclusiveness reme- 72-211. dy. Subject provisions of section Bufford, Ida

Having carefully considered the cases, statutes, prior strikingly we and our con on facts similar to those involved ho ap correctly case, the district court clude in this this Court used the “course of standard. plied the “course applying test in common Since law rule.3 legislature, which Unlike the California presumed to have enacted expressly limited knowledge this I.C. 72-209 with of § employer act- “any other of the interpretation, prior common law Court’s scope ing within the of Hatch, v. McFarland, see C. Forsman Real Estate Co. ...,” v. see Saala 63 Cal.2d 1116, 511, 515, 144, (1965), 97 547 P.2d Idaho Cal.Rptr. 403 P.2d 400 that, (1976), in the may presumed legislature expressly extended it the Idaho otherwise, statutory to “all directive absence of servants, employees of the adopted the with this Court’s statute was surety” adopting the employer or without interpretation upon Accordingly, prior it.4 of stan- “scope California enacting we must conclude I.C. added). (emphasis 72-209 We dard. I.C. 72-209, legislature intended significant adopting that in it is believe apply. “course of standard to 72-209, legislature expressly ex- has adopting “course of In immunity employees, as tended the both to standard, legislature adopted what referring agents employer, well as Larson, comprehensive in his treatise on separately. throughout them Since law, compensation workmen’s has called Compensation Act the relevant Workmen’s satisfactory test.” As Larson “the more deciding “employee” criteria for status states: test set been the question “The that arises in commonest 72-102(14)(a), it is clear that forth [co-employee immunity] these cases is: this same standard to be used deter- ap- employment’ ‘course of which test of purposes of “employee” mine status for it plies? Is the workmen’s determining co-employee immunity. See test, or the vicarious test? The Bufford, Foust v. by wording may be answer dictated In immunity itself. Califor- clause of immunity history co-employee nia, example, statutory doctrine in Idaho also indicates that ‘acting scope of his within the phrase had the “course of against suit is barred employment,’ ment” standard in mind when I.C. § only if the time of the co-employee at was Prior to the enactment of enacted. actively engaged in some injury he was acknowledged the Idaho had employer____ for the service co-employee general common law rule of Carolina, and Texas also recognized Nevada commonly “South which was test adopted the common-law Foust In have other states. the case employer co-employee merged pre-1971 becomes 3. While the Workmen’s meaning dealing co-employ- person, Act no contains statute with is not a third law, immunity, against damage did contain same act whom employment" "course standard for determin- Id. maintained.” action ing right compensation. employee's Thus, agents provides that while White the 1971 standard was then carried over into immunity, employer are entitled to White of the workmen’s recodification agents. It limit this does not 72-102(14)(a). See I.C. laws. decided Foust was not until Court Buf non-agent ford, question supra, whether expressly reject Wilder's contention that 4. We immunity was employees ad were entitled to adopted "scope em this Court ployment,” the narrower above, determined As noted dressed. Ponozzo, agency, White v. test in employ acting within the "course (1955). White, it 291 P.2d 843 In ment,” compensa under the workers as defined plaintiffs was clear that the ácting laws, immunity. to this were entitled tion also "scope employment.” As within the stated, agent employer, "the this Court scope employment, parking way when in to lunch. Eye Foust v. Birds Divi they lot cases ruled have that a tort sion Corp., General Foods action the tortfeasor Mrs. Foust was was not barred because under the cir- injured by an automobile driven a fellow cumstances the could not have employee as backed from a been held liable in tort for the same parking space in company parking lot. injury. At the time of the both driver test, satisfactory “The more ex- unless Mrs. ended had their shifts and statute, pressly ruled out is that preparing go were home. The adopted Jersey, Kentucky, New appealed to this after Court Mrs. Foust Indiana, Oklahoma, Florida, which received an compensa award of workmen’s simply regular use the workmen’s com- appeal, tion benefits. On this Court af course of the finding firmed inju Mrs. Foust’s all, purpose. dard for this After there ries arose in the course of her employment. complications enough are troubles and Moreover, in Bufford, v. Foust 92 Idaho administering one course of 639, 448 year P.2d 645 one decided act, adding test under without sec- later, this Court held that the driver of the test, By adopting ond. car which struck Mrs. Foust was also act ready-made body a court has at hand a ing in the employment. course of his As dispose cases with which to of most bor- the district court in the instant cor Larson, 2A derline situations.” Work- stated, “The Foust case has a fact rectly (cita- man’s Law 72-23 situation which is almost identical to the omitted). tions Thus, despite ease hand.” at Wilder’s ar Thus, through directive, legislative guments contrary, this Court has Larson, joined with and with previously employee, determined that an courts those to states which have chosen preparing immediately depart from the read in their workman’s laws is, place purposes manner, internally granting consistent doctrine, immunity acting co-employee immunity employees acting those employment, within the course of at least See, e.g., of employment.” “course employer’s premises. while still on the Un Chawla, 975, Blank v. 234 Kan. 678 P.2d Foust, holding acting der the in Redd was (1984); Massey 162, Selensky, v. 168 685 employment, within the course his 938, (Mont.1984); Cottonwood P.2d 940 im co-employee therefore he is entitled to Hansen, Corp. Steel v. munity pursuant 72-709. Tillman, Ward v. (Wyo.1982); Ind. 179 (1979); 626, Jackson App. 386 applica- N.E.2d 1003 Accordingly, district court’s Hutchinson, v. (Ky.Ct.App. 453 269 S.W.2d tion of 1970). com reading workmen’s dard to determine whether promote har laws will serve correct, entitled to Steel Cottonwood mony workplace. in that, as is district court’s conclusion Hansen, v. 1231; Corp. supra Meyer at case, the facts of this Redd was 1235, (Wyo. Kendig, 641 P.2d co-employee immunity. entitled Tortorich, 475, 1982); Bazley v. 397 So.2d respondent. Affirmed. Costs (La.1981). dis 484 We conclude that application did not trict court err C.J., SHEPARD, J., DONALDSON,

the “course of standard. concur. correctly de The district court also acting within the

termined Redd was HUNTLEY, Justice, dissenting. the time of respectfully and would reverse dissent accident, prior on our cases. At based for the of the district court ve the decision time of the Redd was in his hicle, lot, which parking reasons follow. company on 56(c) (1985); I.R.C.P. 702 P.2d negligence filed a action After Wilder Therefore, im- Redd, Redd filed a motion for sum munity does not to Redd’s doctrine urged the motion mary judgment. This behavior, should remand the case for we complaint under court to dismiss Wilder’s proceedings. further estab doctrine 72-2091 and lished under I.C. § on court based its decision district granted. The district which motion was I, I and Foust II. Foust Foust summary judgment order based question before this Court was whether Eye on the related cases of Foust v. Birds walking the em- Foust’s action across Corp., Division General Foods following “arose ployer’s parking lot work I) (1967) (Foust P.2d 616 so out of and the course Bufford, Foust eligible to receive work- as to make Foust II (1968) (Foust II). Foust I 72-209. er’s benefits. I.C. analogous parking accident involved lot proposition em- This court cited the II, In the case at to that in bar. on the ployee accidents which take coemployee employer’s premises presumed found that Court are Id., employment. eo-em immunized Albina Foust’s the course Idaho at injuries 617. This Court held that for Foust’s ployee as a “natural inci- the accident followed parking in a lot accident. Since suffered been con- decided, dent” to the work and “have Foust II wrongly we should templated by person familiar a reasonable re the district court’s order and reverse (quoting Ki- situation.” Id. with the whole proceedings. mand case for further the 424, Corporation, ger 85 Idaho 208, 430, (1963)); Erikson I. 1, 5, County, 72 Idaho Nez Perce Court, by frequently As stated this (1951); Larsen v. State Industrial “[sjummary only judgment appropriate is Commission, 295 P. Accident Or. genuine no issue of material when there is depositions, pleadings, the admis- fact after II, affidavits have been construed held the earli- Foust sions and this court that in of favorably opposing party finding most to the and Foust was the course er issue of moving party judgment employment is her decided the the entitled Bufford, tortfeasor, and Truck whether was also Boise Car a of law.” matter Waco, Inc., employment his at the time Rental Co. v. in the course of surety, employer employees or liability of of em- vants 1. 72-209. Exclusiveness of liability ployer. (1) Subject provisions exemptions provided to the of section that such — 72-223, liability employer any injury this of the under or apply where the shall not law be exclusive and in of all other by shall proximately the wilful or caused death is employee, liability employer his of the to the aggression unprovoked physical er, heirs, dependents, legal representatives spouse, officers, employees, agents, servants or assigns. or exemption applying of the loss such (2) per- liability employer of an to another The imputable aggressor be and shall not paid son damages be for or who has who liable by provoked employer or unless authorized injury occupation- on account an or of employer party employer, was a thereto. or the arising death out of and in the the al disease or [Emphasis added]. employment employee of an of course of employer duty by caused the breach of employee’s reme- 2. 72-211. Exclusiveness obligation by employer owed to such dy. Subject provisions of section person, be limited to the amount other shall rights granted an herein and remedies employer liable for which the injury occupa- employee on account of an injury, dis- this law on account under com- he is entitled to tional disease for which ease, death, person and the unless such other all other this law shall exclude under agree employer in a different share employee, person- rights and remedies manner. kin, dependents representatives, or next of al (3) liability given exemption an em- otherwise, on of such law or account common ployer extend to this section shall also injury or disease. officers, agents, surety ser- employer’s all stated, of the accident. This court “The said to have had such an I effect. move on decision of granting district court ... to discuss legislature’s whether the amend- summary Bufford’s motion judgment for ments to I.C. 72-209 § determine what on the basis that he was as matter of law apply standard shall in co-employee immu- acting in the course employment, of his nity cases. on the authority affirmed first Foust

case ... and the II. numerous authorities cited II, Id., therein.” Foust 92 Idaho at 72-209(3) states, I.C. “The § 448 P.2d at 645. given from liability employer by this section shall also extend employer’s We should reconsider Foust II because surety and to all servants this court decided ground that case on the employees the employer or surety had determined the issue of ...” Nowhere does the statute state fact Foust I when whether the of employment” did “course issue. Foust I resolved not address the stan- dard to co-employee issue whether the immuni- Compen- Worker’s ty. provides I.C. 72-204 following sation recovery Law would allow for an following definition: “The employee’s parking lot but did shall constitute not private employment resolve the issue of employee whether an ... sub- ject provisions parking involved in law: lot accident should this A person performing immune from service in co-employ- the course of trade, profession occupation doctrine. 72-209 sets injured employer.” the standard which an worker While section does contain may recover from the Compensa- language Worker’s “course of” I, tion “The liability prefaces Fund: language ... on injury arising requiring account ... “per- of and in the forming course of ... a service” to be considered an shall be limited to the of compensa- amount purposes of 72-209. There- fore, tion for which the is liable under 72-204 does not make clear this law ...” courts Idaho have whether the of employment” often to interpret had respondeat when an accident dard superior standard or a and in govern the course of em- the co-employee immunity “aris[es] ployment.” Id. doctrine. body

No such standard or immunity law exists The section itself states that Idaho to determine a co-employee when the law shall immunize “the servants, shall immune be from under employees” and Compensation 72-209(3). Worker’s employer. language Law. The issues This immunity also does not determine the under Compensation may the Worker’s Law are issue. It contended separate Foust II court did legislature adopt not must have intended address this issue. This fact is sufficient the “course of standard be- II in light reconsider to allow us to exempts agents cause the statute both subsequent developments. employees liability. legislature from If the respondeat superi- adopt had intended to a II This court decided before the standard, argument goes, it could legislature passed statutory version of by attaching immunity have only done so 1971. agents employer. I find this Usually, may presume legisla- we that the unpersuasive. argument to be any prior ture codifies case law into a sub- modification, sequent statutory initially ap- absent I note civil a the Texas specific* court, statutory peals substantially directive otherwise. when faced with II However, Foust sufficiently statutory adopted language, obscure same a respondeat reasoning superior logically that it of co-em- cannot standard

147 Wright, meaning Ward v. immunity. encompasses 490 of the word “em- ployee (Tex.Civ.App.1973). including ployee,” S.W.2d we cannot be sure that states, Compensation Law Workers’ Texas agents employees in 72-209 is I.C. § employees of pertinent part: “The verbiage. a matter of excess not right shall have no of action subscriber ... deciding in this factor against their adopting policy reasons for broad cov agent, of said servant erage Compensation the Workers’ Ann. art. er Tex.Rev.Civ.Stat. ...” strength to not with such Law do (Vernon 1967) (amended 1983). This sec. 3 co-employee acci providing for indistinguishable Ida- language is from the originated Workers’ dents. ho statute. compromise em as a between workers and Compensation con the Workers’ Law If give up Employers agreed to nor ployers. “agent,” the statute tained the word and assume automatic liabili mal defenses respondeat supe clearly adopt would not right employees gave up ty, while their “employee” in While an rior standard. Larsen, 2A The Law common law verdicts. superior respondeat always sense 72- of Workmens’ technically employer’s “agent,” such be an Therefore, coverage of 22. the broad fact, legal usage. in common not so Compensation Law was intended Worker’s Dictionary Black’s Law definition of recovery for to offset the reduced size of specifically “agent” does not mention policy work accidents. trade-off Further, employer-employee relation.3 we apply with the same force co- does not expect language of the statute cannot involving and cases accidents meaning subtle nuances of when reveal this, Recognizing third-party tortfeasors. excess verbi contains blatant 72-2234 to enacted age. exempts employees The statute both bring law ac employees to common allow However, liability. and servants employ “other than the against those tions synonymous. two words are Black’s Law Further, Id. I cannot read I.C. er.” 1979) (rev. (citing Dictionary 5th ed. 72-209(3) employees immunize Transport, Gibson v. Gillette Motor what the circumstances. no matter suit Ten (Tex.Civ.App.1940); S.W.2d example, of the same Rowden, For two Valley Appliances v. nessee in a have an accident employer were to (1940)). Tenn.App. S.W.2d a weekend parking lot on grocery store Therefore, even if we assume that returning employees was completely one of the meaning “agent” while word all business “Agent. authorized to transact person A another to One authorized him, principal’s principal, business some all of with another’s busi- act one intrusted kind, particu- D.C.N.C., particular all business at some Humphries Going, 59 F.R.D. ness. 583, Coffin, place. Mut. Ins. Co. lar Farm Bureau (1973) represents and One who [ ]. 587 (1962) Ind.App. ].’’ N.E.2d 182 [ relation another under the contract or acts for (rev. 1979). Dictionary ed. 5th Law Black’s representative, agency {q.v.) A business affect, about, bring modify, is to whose function right liability. (1) party The Third 4. 72-223. of, accept performance contractual terminate compensation this law shall not to persons. obligations principal and third between occupational injury, that the the fact affected business, to transact some One who undertakes under circumstances or death is caused disease creating another, affair, manage the to some employ- person other than the some latter, authority and to therefor, on account of the and pay damages legal a to er acts for or in an account of it. One who render being the to as third person so referred liable him; by authority a sub- of another from party. stitute, by principal deputy, appointed with a principal things do. power do which compensation has been claimed If things, a as does who deals not with One awarded, having paid such com- servant, using persons, therefor, discre- but with his own having liable pensation become means, establishing frequently tion rights as subrogated shall be ee, principal party his contractual relations between against such third recover liability. persons. compensation third employer’s extent of the vacation, would statute not im- purpose of section [T]he make munize employee causing compensation workmen’s the exclusive the accident. remedy injured against workman his employer. purpose That would be question The then becomes: What stan right a action existed defeated if dard shall determine when the statute im against a employee acting in the munizes an fellow and when an employ scope employment in such way subject to suit under I.C. 72-223? employee’s negligence generally applied The alternatives fellow are the could imputed employer. For “course of standard and the reason workmen’s respondeat superior standard. Redd ar was also made the exclusive remedy gues correctly ap against a fellow “acting workman within plied the of employment” standard the scope of his employment.” The 72-102(14)(a)5 set out in I.C. and 72- §§ “acting words scope of his 209(2). Redd contends that we should in employment” should be construed in 72-209(3) terpret apply this standard light purpose of the section so as to co-employee immunity Larsen, cases. not to extend the immunity beyond re- supra, favors spondeat superior [Empha- situations. test. sis added.] test, satisfactory more unless ex- statute, pressly ruled out is that While the Idaho statute not does contain adopted by Jersey, New Kentucky, “scope employment” language Indiana, Oklahoma, Florida, which Compensation Law, California Worker’s simply regular use the workmen’s com- (West 1971) (amend- Cal.Lab. Code course of 1970), ed I find the reasoning referee’s all, dard purpose. for this After there persuasive purpose as to of the co-em- are and complications enough troubles ployee immunity provision in I.C. 72- administering one course of 209(3). doctrine act, adding test under the without a sec- protect employers imputed By adopting test, ond. However, negligence. no find reason ready-made body court has hand a that co-employee immunity should extend dispose eases with which to of most bor- beyond potential imputed negli- cases derline situations. Moreover, gence. adopting we note that Larsen, (citations omitted). the “course of standard could have the reducing unintended result of I disagree with Initially, Larsen. coverage Compensation of the Worker’s courts of this state should find it diffi- not Law. A case could arise under the co-em- respon- cult to decide when the doctrine of ployee immunity doctrine which had not superior applies, deat ex- been addressed under interpreted long isted and was before the statute, section of the and a court could Further, Workers’ Law. hold not “in respondeat superior standard is the most that the course of logical and therefore not when the However, liability. immune from given specific not direction on what stan- McFarland, injured some Saala v. apply. dard to later date were Cal.Rptr. 144, performing activity while the same Cal.2d he (1965) (citing Motal v. Industrial Acci- would be unable to collect workers’ com- Commission, dent Cal.Comp.Cases pensation interpretation benefits. Such an (Oct.1964)), goal implicit cited California court a Cali- would conflict with coverage fornia provide Industrial Accident statute to broad to in- Commission ref- reasoning: eree’s See jured workers. 72-102(14)(a) "‘Injury’ any

5. I.C. out of and in the course of states: means a personal injury arising caused covered the workmen's law." an accident (defining goals of the Workers’ one provide

Compensation Law “sure injured workmen and

certain relief regardless questions families

their ... ”).

of fault ...

Finally, adopting superior a respondeat benefit

standard would the Workers’ Com- Fund. case where a

claimant recovered both from the Fund and co-employee, the Fund would subro- recovery

gated co-employ- from the

ee, 72-223(3),thereby reducing total

payments from the Fund. For the above

reasons, adopt respondeat supe- I would govern

rior standard

immunity doctrine.

Accordingly, would reverse summary judgment

court’s order and re- proceedings for further con-

mand opinion.

sistent with J.,

BISTLINE, concurs. Idaho, Plaintiff-Respondent,

STATE of CHAPMAN,

Roger Lyle

Defendant-Appellant.

No. 16093.

Supreme Court of Idaho.

June

Case Details

Case Name: Wilder v. Redd

Court Name: Idaho Supreme Court

Date Published: Jun 18, 1986

Citation: 721 P.2d 1240

Docket Number: 16092

Court Abbreviation: Idaho