Barnette v. Doyle, No. 5342

• Court: Wyoming Supreme Court
• Writing for the Court: Before ROSE; McCLINTOCK
• Citation: 622 P.2d 1349
• Docket Number: No. 5342
• Decision Date: 23 January 1981
• Parties: Gibson A. BARNETTE, Appellant (Defendant), v. Michael L. DOYLE, Appellee (Plaintiff).

Page 1349

622 P.2d 1349 Gibson A. BARNETTE, Appellant (Defendant),
v.
Michael L. DOYLE, Appellee (Plaintiff). No. 5342. Supreme Court of Wyoming. Jan. 23, 1981.

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Jerry A. Yaap and Richard E. Day, Casper, for appellant.

James R. McCarty, Casper, for appellee.

Before ROSE, C. J. ^*, and McCLINTOCK, RAPER ^**, THOMAS and ROONEY, JJ.

McCLINTOCK, Justice.

Plaintiff, Michael L. Doyle, was injured when an unattended truck ran over him, crushing his legs. He brought suit against Lenise Williams, the driver of the truck and a fellow employee, and Gibson A. Barnette, the president, director, shareholder of plaintiff's corporate employer and a fellow employee. The jury found that Barnette was 100 percent culpably negligent and awarded Doyle $84,000.00 in damages. Barnette has raised the following issues on appeal:

1. The trial court erred in denying his motion to dismiss because defendant is immune from suit under the Wyoming Workers' Compensation Act; he is not a coemployee.

2. Even if this court finds that defendant is a coemployee, he did not have a duty to provide reasonably safe equipment.

3. The doctrine of assumption of the risk bars recovery.

4. The trial judge erred when he refused to give defendant's offered Instructions A, B and C.

5. There is insufficient evidence to support the jury's finding of culpable negligence.

(a) Plaintiff failed to prove that defendant knew or should have known that the emergency brake was defective and failed to have it repaired; and

(b) Plaintiff failed to prove that defendant employed an incompetent coemployee.

6. It was error to instruct the jury that a violation of a statute is evidence of culpable negligence.

7. The trial court erred in failing to grant a mistrial when plaintiff's attorney asked on voir dire if any of the jurors worked for insurance companies and also "based upon the confusion which arose as a result of the district court's instructions to the jury that insurance was not involved in the matter."

8. The trial judge erred in failing to instruct the jury that the award would not be subject to federal income tax.

9. The jury's failure to answer question number 5 of the special verdict form that

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requested the jury to find the percentage of negligence that defendant contributed to the occurrence "resulted in an irregular or perverse verdict."

10. The award of damages is excessive and contrary to the evidence presented.

Michael Doyle went to work for Casper Mud Service on August 16, 1976 and was employed by this company until he was injured on October 21, 1977. Casper Mud Service sells and delivers products that are used primarily in connection with drilling rigs.

On October 21, 1977 Doyle and Williams, a fellow employee, were to deliver cement to a uranium rig located near Linch, Wyoming. Doyle was driving a 1976 two-ton Ford truck, and Williams was driving a 1973 two-ton GMC truck. This was the first time Williams had driven a truck for Casper Mud Service. Each truck was loaded with 160 sacks of cement. In order to reach the drilling location, these two men had to unlock and open a gate that was secured with a padlock. Because Doyle had delivered products to this drilling site before, he knew the combination to the lock, so that when they arrived at the gate, Doyle unlocked and opened the gate. After opening the gate, Doyle drove his truck through the gate and parked his truck on a slight incline immediately north of the gate. However, after Doyle drove through, the gate swung half-way shut. Doyle got out of his truck and reopened the gate. Williams drove through the gate, stopped his truck, set the emergency brake and waited a few minutes to see if the truck would roll. He then got out of the truck and walked back to the gate where Doyle was, so that he could learn the combination of the lock. A short time after Williams got out of the 1973 GMC truck, it rolled backwards, knocked Michael Doyle to the ground and ran over his legs.

IMMUNITY FROM SUIT UNDER THE WYOMING WORKER'S COMPENSATION ACT

The first question is whether the Wyoming Worker's Compensation Act has granted Barnette immunity. Because this is a question of first impression for this court, we must look to the language of the Act, its history and purpose.

Worker's compensation laws were enacted during the later part of the nineteenth century in order to provide social insurance for victims of industrial accidents, and this compensation is not based upon fault or the breach of a duty owed by the employer to the injured employee. These laws were not enacted to abrogate existing common-law remedies that protected injured workers. At the time these laws were enacted, it has been estimated that only one-fourth of the injured workers were being compensated for their injuries under the limited common-law remedies. Boggs v. Blue Diamond Coal Company, 6 Cir., 590 F.2d 655, 658 (1979), cert. denied 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47.

The lack of recovery has been attributed to

"(t)he so-called 'unholy trinity' of judicially-created employer defenses, assumption of the risk, contributory negligence and the fellow servant rule, were developed and strictly enforced as legal rules in the last half of the nineteenth century..." Boggs, supra, 590 F.2d at 658.

Since the worker's compensation laws were enacted, the common-law tort principles, the defenses of assumption of the risk, contributory negligence and the fellow-servant rule have been narrowly construed or abolished. However, the benefits received under such laws have remained low, "and the compromise which was extended immunity from common-law liability to employers has remained in place." Boggs, supra, 590 F.2d at 659. As the United States Congress stated in the Occupational Safety and Health Act of 1970, Public Law 91-596 Dec. 29, 1970 Sec. 27(a)(1)(B), (29 U.S.C.A. § 676(a)(1)(B)):

"Sec. 17. (a)(1) The Congress hereby finds and declares that

"(B) (I)n recent years serious questions have been raised concerning the fairness

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and adequacy of present workmen's compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living."

The courts have responded to this inadequacy by "liberally construing the coverage provisions of workmen's compensation acts while narrowly construing the immunity provisions." Boggs, supra, 590 F.2d 659. This court, like the majority of courts, has narrowly construed the immunity provisions of our own act. For example, in Markle v. Williamson, Wyo., 518 P.2d 621 (1974), this court held that an injured employee has a common-law right to bring suit against a coemployee and that the worker's compensation statutes do not grant coworkers immunity from suit. ¹

Here, Barnette contends that he is immune from suit because he is the president, director and owner of 50 percent of the stock of Barnette Enterprises, a family owned corporation, and he is not an employee of the corporation as required by the Wyoming Worker's Compensation Act. Plaintiff argues that Barnette is not immune because he was in charge of the day-to-day operation of the company and that Barnette failed to have the emergency brake on the 1973 GMC truck repaired after being advised that the brake was not working.

During trial, Barnette testified that "Casper Mud Service is a division of Barnette Enterprises," that he is a coemployee of Casper Mud Service and that he receives a salary from that company. In a deposition, Charles Doyle, a coemployee, testified that Barnette ran Casper Mud Service and that Barnette was at the company almost every day.

There is no doubt that the Wyoming Worker's Compensation Act would preclude a suit against the corporate employer unless the employment was unlawful or illegal. Jordan v. Delta Drilling Company, Wyo., 541 P.2d 39, 48 (1975). However, while the Act creates liability without fault, it also allows an injured employee to bring a third-party action against coemployees who are personally responsible for the victim's injuries if these coemployees were culpably negligent. § 27-12-103, W.S.1977; Abeyta v. Hensley, Wyo., 595 P.2d 71, 73-74 (1979). The question then is, where does Mr. Barnette stand when he is both an officer and stockholder in the corporation and a coemployee?

In raising the contention that he is immune from suit because of the Wyoming Worker's Compensation Act, Barnette has ignored the legal entity of Barnette Enterprises, Inc. Presumably, Barnette and his wife created this legal entity for the purpose of protecting themselves from personal liability for the obligations of the corporation, the acts of the corporation's employees, and worker's compensation benefits. After the corporation was formed, Barnette undertook to work for Casper Mud Service, a division of the corporation, and he received a salary from that company. Therefore, when Barnette became an employee of his corporation, he assumed the additional role of a coemployee. And as a coemployee, he is liable for the breach of any duty that he owes to his fellow employees. Cole v. Golemi, La.App., 271 So.2d 65, 68 (1972); Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637, 638 (1978). As was said in the latter case:

"The defendant before the bar is the president, treasurer, sole stockholder and a director of the Park Manufacturing Company, a Massachusetts corporation engaged in producing shoe components....

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"As the defendant has noted, New Hampshire is one of only fourteen States that permit employees covered by workmen's compensation to maintain common law tort actions against fellow employees. We did this as a matter of statutory interpretation in Tuttle (Merchants Mut. Cas. Co. v. Tuttle, 98 N.H. 349, 101 A.2d 262 (1953)) and have...