Champion Well Service, Inc. v. NL Industries

• Decision Date: 21 February 1989
• Docket Number: No. 88-150,88-150
• Citation: 769 P.2d 382
• Parties: CHAMPION WELL SERVICE, INC., Appellant (Plaintiff), v. NL INDUSTRIES, a New Jersey corporation, NL McCullough, a subsidiary of NL Industries, Inc., Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 382

769 P.2d 382

CHAMPION WELL SERVICE, INC., Appellant (Plaintiff), v. NL INDUSTRIES, a New Jersey corporation, NL McCullough, a subsidiary of NL Industries, Inc., Appellee (Defendant).

No. 88-150.

Supreme Court of Wyoming.

Feb. 21, 1989.

Michael N. Patchen of Morgan, Price & Arp, Gillette, for appellant.

Michael K. Davis of Redle, Yonkee & Arney, Sheridan, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Appellant, Champion Well Service, Inc. (Champion), seeks review of an order of the district court which dismissed its complaint for failure to state a claim upon which relief can be granted. Champion claimed that appellee, NL Industries (NL), negligently injured one of Champion's key employees and, as a result, it suffered economic loss although it suffered no direct injury. In this appeal, Champion asserts its complaint contained averments which were sufficient to survive NL's motion to dismiss.

We affirm.

The facts relevant to the consideration of this appeal, and which were pled in Champion's complaint, are these. Champion hired Rod Lang as an employee in 1979. Lang had both a bachelor's and a master's degree and was highly intelligent and energetic. Champion spent a considerable sum of money training Lang. Eventually Lang became Champion's key employee. The following information, gleaned from the briefs, serves to flesh out the nature of Champion's claim. Both Champion and NL were hired by Prenalta Corporation to work over an oil rig. Champion's role was to complete the well and NL's was to perforate it. As a part of its job, NL would load or arm the perforating gun. Champion would put the gun in the well. NL would set off the charge after the gun was placed in the well by Champion. In 1985, while working on an oil rig alongside an NL employee, Lang was severely injured when the NL employee negligently discharged a casing gun. Champion asserts that NL was negligent in improperly training NL's employee; the perforating gun was not properly assembled; safety procedures were not properly followed in clearing the rig floor area of personnel such as Lang; and/or that the perforating gun was defective.

Champion asserts that it was unable to find an employee to replace Lang who could work up to Lang's standards. Some Champion clients complained that Champion's work was no longer as good as it was when Lang worked for it. As a result, Champion lost a number of jobs and expended significant monies trying to find and train employees who could capably handle the work Champion was doing when Lang was its employee. Lang's injuries rendered him permanently physically incapable of performing his duties for Champion. Lang recovered a substantial award for his personal injuries. Champion lost the services of Lang as a direct and proximate result of NL's negligence and now seeks to recover damage because it lost Lang's services.

When considering a dismissal under Rule 12(b)(6), W.R.C.P., for failure to state a claim upon which relief can be granted, we accept the facts alleged in the complaint as true and view the allegations in the light most favorable to Champion. Carbon County School Dist. No. 2 v. Wyoming State Hospital, 680 P.2d 773, 773-774 (Wyo.1984); McClellan v. Tottenhoff, 666 P.2d 408, 414 (Wyo.1983). Such motions should be granted sparingly, and Champion is only required to plead the operative facts involved in the litigation so as to give fair notice of the claim to the defendant. Johnson v. Aetna Cas. & Sur., 608 P.2d 1299, 1302 (Wyo.1980). As shall be borne out by the remainder of this opinion, Champion's failing was not one of failure to plead operative facts, but rather that the facts pled do not constitute a cause of action which is cognizable in this state.

Champion divided its complaint into two counts. In Count I, it relied upon the common law rule that a master may maintain an action for injuries to his servant resulting from negligent acts of third persons which damage the master through loss of the servant's services. 57 C.J.S. Master and Servant, § 622, p. 424 (1948). This common law rule has never been recognized in Wyoming and, although W.S. 8-1-101 adopts the common law as the law of this state, we have held that we will recognize the common law as modified by judicial decisions and will adopt that interpretation which seems best. Krug v. Reissig, 488 P.2d 150, 152 (Wyo.1971); In re Smith's Estate, 55 Wyo. 181, 97 P.2d 677, 681 (1940). Moreover, we have previously expressed a reluctance to recognize, or continue a recognition of, a common law rule that had its genesis in a social, economic and political climate entirely foreign to Wyoming in current times. Weaver v. Mitchell, 715 P.2d 1361, 1369 (Wyo.1986).

In reality, only a few rather dated cases support the rule espoused by Champion. See Annotation, Employer's Right of Action for Loss of Services or the Like Against Third Person Tortiously Killing or Injuring Employee, 4 A.L.R.4th 504 (1981). We agree with the Superior Court of Connecticut that the weight of authority and the better reasoned decisions deny the existence of such a cause of action even though a defendant is aware of the employee's relationship with a plaintiff. Steele v. J and S Metals, Inc., 32 Conn.Sup. 17, 335 A.2d 629, 630 (1974); and see Mattingly v. Sheldon Jackson College, 743 P.2d 356, 361-63 (Alaska 1987). The suggested remedy is a reflection of an outdated social concept and is an anomaly in today's society in which employer/employee relationships are based on contract rather than ownership. Hartridge v. State Farm Mutual Auto. Ins. Co., 86 Wis.2d 1, 271 N.W.2d 598, 600, 4 A.L.R.4th 495 (1978). We conclude that, under present social circumstances, the rule which permitted recovery by an employer for the services of an employee is neither well suited to the times nor accepted in modern jurisprudence. The dismissal of Count I of the complaint is affirmed.

For Count II of its complaint, Champion relies on two modern cases which have adopted rules which Champion claims permit its cause of action. In People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107, 65 A.L.R.4th 1105 (1985), the Supreme Court of New Jersey was asked to overturn a summary judgment in a case in which a fire began in the freight yard of Consolidated Rail (Conrail) when a tank car was punctured during a coupling operation. The fire had the potential to produce toxic fumes and necessitated evacuation of a one-mile radius from the fire. The evacuation area included an airline terminal building used by People Express Airlines (Airline). Airline contended it suffered business-interruption losses (e.g., employee time, cancelled flights, lost reservations) because of the evacuation, although there was no physical damage to Airline or its personnel. The trial court granted summary judgment in favor of Conrail (and other associated defendants) on the ground that, absent property damage or personal injury, economic loss was not recoverable in tort. Id., 495 A.2d at 108-109. In reversing the summary judgment, the court held:

"[A] defendant owes a duty of care to take reasonable measures to avoid the risk of...