Formisano v. Gaston

• Decision Date: 20 January 2011
• Docket Number: No. S–10–0138.,S–10–0138.
• Citation: 246 P.3d 286,2011 WY 8
• Parties: Ciro Paolo FORMISANO, Appellant (Plaintiff),v.Gabe GASTON, Appellee (Defendant).
• Court: Wyoming Supreme Court

246 P.3d 286

2011 WY 8

Ciro Paolo FORMISANO, Appellant (Plaintiff),

v.Gabe GASTON, Appellee (Defendant).

No. S–10–0138.

Supreme Court of Wyoming.

Jan. 20, 2011.

Representing Appellant: C. John Cotton of Cotton Law Office, P.C., Gillette, Wyoming.Representing Appellee: Rebecca A. Lewis of Pence and MacMillan LLC, Laramie, Wyoming.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] This is an appeal from a summary judgment granted to the defendant in a worker's compensation co-employee liability suit. We affirm because there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.

ISSUE

[¶ 2] When viewed in the light most favorable to the appellant (Formisano), would the undisputed facts of this case allow a reasonable jury to find that the appellee (Gaston) intentionally acted to cause physical harm or injury to Formisano, as that concept is defined under Wyo. Stat. Ann. § 27–14–104(a) (LexisNexis 2009)?

STANDARD OF REVIEW

[¶ 3] Motions for summary judgment come before the trial court pursuant to W.R.C.P. 56(c) which provides that

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

We review the granting of summary judgment under the following standard:

On appeal, this Court evaluates the propriety of a district court's summary judgment ruling by examining the same materials and following the same standards as the district court. We examine the record de novo in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which may be fairly drawn from the record. If upon review of the record, doubt exists about the presence of genuine issues of material fact, we resolve that doubt against the party seeking summary judgment. We review questions of law de novo without giving any deference to the district court's determinations. If we can uphold summary judgment on any proper legal basis appearing in the record, we will.

Heimer v. Antelope Valley Improvement, 2010 WY 29, ¶ 14, 226 P.3d 860, 863 (Wyo.2010) (quoting Wagner v. Reuter, 2009 WY 75, ¶ 11, 208 P.3d 1317, 1321–22 (Wyo.2009)) (internal citations omitted).

[¶ 4] “The party moving for summary judgment has the burden of demonstrating that no genuine issues of material fact exist and that [it] is entitled to summary judgment as a matter of law.” Stephenson v. Pacific Power & Light Co., 779 P.2d 1169, 1171 (Wyo.1989). A material fact is a fact that “if proved, would have the effect of establishing or refuting an essential element of the claim or defense asserted by the parties.” Id. If the party seeking summary judgment meets his or her “initial burden of establishing a prima facie case for summary judgment[,] ‘the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists.’ ” Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12 (Wyo.2006).

“After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings ..., and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden.”

The evidence opposing a prima facie case on a motion for summary judgment “must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation.” Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.

Id. at ¶ 9, at 12–13 (quoting Cook v. Shoshone First Bank, 2006 WY 13, ¶ 12, 126 P.3d 886, 890 (Wyo.2006)).

[¶ 5] Statutory interpretation is a question of law that we review de novo, without affording deference to the district court's determination. State ex rel. Wyo. Dep't of Revenue v. Hanover Compression, LP, 2008 WY 138, ¶ 8, 196 P.3d 781, 784 (Wyo.2008); Union Pac. Res. Co. v. Dolenc, 2004 WY 36, ¶ 13, 86 P.3d 1287, 1291 (Wyo.2004).

WYO. STAT. ANN. § 27–14–104(a) (LEXISNEXIS 2009)

[¶ 6] The statutory language at issue in this case is found in Wyo. Stat. Ann. § 27–14–104(a), which is part of the Wyoming Worker's Compensation Act:

(a) The rights and remedies provided in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the scope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

(Emphasis added.)

FACTS

[¶ 7] At the time of the accident giving rise to this lawsuit, Formisano and Gaston were both employed by Western Mine Services, Inc. (Western). They lived in Gillette, Wyoming. Formisano, originally from Italy, had limited English language skills. He had been in America since 1993, but had worked for Western for less than a year. Gaston, on the other hand, although younger than Formisano, was a native of Gillette and had worked for Western for about two years.

[¶ 8] Formisano and Gaston were on the same work crew, although several crew members, including the crew leader, had quit, leaving the crew shorthanded. Because Gaston had more job tenure than did Formisano, Gaston took on some of the crew leader's duties. Gaston drove the crew's work truck, he had the company credit card to purchase gas, and he communicated for the crew with company supervisors and work-site supervisors.

[¶ 9] On January 26, 2005, Formisano and Gaston were sent to the North Antelope Mine south of Gillette to work on a truck bed needing repairs. Gaston got up between 4:00 and 4:30 a.m. in order to be at the company shop at 5:00 a.m. Gaston and Formisano left the shop at about 5:00 a.m., with Gaston driving the company truck. Gaston stopped to fuel the vehicle, using a company credit card, and then drove to the mine, arriving at about 7:00 a.m.

[¶ 10] When the two men arrived at the mine, Gaston went into the shop, located the mine supervisor, and discussed with him the work that needed to be done. Gaston then returned to the company truck, where he and Formisano waited for the mine truck, which was in a wash bay. They did not begin working on the truck bed until about noon.

[¶ 11] Around 4:00 p.m., Gaston left Formisano working on the truck bed and went to call Western for further work instructions. It was normal procedure to “call in” at about that time each day to find out the next day's assignment. Formisano testified in his deposition that Gaston reported after the call that they needed to finish the truck bed repair, no matter how long it took, and that they both had to report to work at 5:00 a.m. the next day. A Western employee testified, to the contrary, that Gaston said during the telephone call that Western need not send out a night shift crew to finish the truck bed because the work would be done by the 7:00 p.m. shift change, or shortly thereafter.¹

[¶ 12] Formisano and Gaston finished the repair work and headed back to Gillette at about midnight with Gaston driving. Formisano testified that they both were “pretty tired,” that Gaston looked “pretty white,” that Formisano told Gaston he did not look well, but that Gaston replied “I'm okay.” At about 1:00 a.m., Gaston fell asleep, and the vehicle drifted off the roadway, rolling one-and-a-half times after Gaston “overcorrected.” Gaston later told Western personnel that he began “nodding off,” so he opened the window to help himself stay awake, but that he fell asleep and “went into the ditch.” Formisano suffered several herniated discs in the accident.

[¶ 13] In the week before the accident, Gaston was off work on January 20, worked 12 hours on January 21, worked 12 hours on January 22, was off work on January 23, worked 15 hours on January 24, and worked 14 hours on January 25, for a total of 53 hours. By comparison, Formisano worked 12 hours on January 20, 12 hours on January 21, was off work on January 22, was off work on January 23, worked 12 hours on January 24, and worked 12 hours on January 25, for a total of 48 hours. Both men were “on the clock” from 7:00 a.m. on January 26 until the accident at 1:00 a.m. on January 27, which is 18 hours, but neither apparently actually worked between about 7:00 a.m. and noon.

[¶ 14] Several Western employees were deposed, all of whom testified that Gaston violated company policy by driving when he was too tired to do so safely. They also testified that Gaston could have called in for night shift replacements at 7:00 p.m., or, after the job was finished, he could have called in to have someone drive them to Gillette, or he could have obtained permission to stay in a motel in Wright, near the mine.

DISCUSSION

[¶ 15] To place this case in its appropriate legal context, we will reiterate a bit of legal history. To begin, we note the well-known proposition that the “rights and remedies” of the Wyoming Worker's Compensation Act are “in lieu of” any other rights and remedies a covered employee injured “on the job” may have against his or her employer. Wyo. Stat. Ann. § 27–14–104(a). That immunity extends to co-employees who may have acted to cause the harm, so long as such...