Hannifan v. American Nat. Bank of Cheyenne

Decision Date11 June 2008
Docket NumberNo. S-07-0156.,S-07-0156.
Citation2008 WY 65,185 P.3d 679
PartiesMichael HANNIFAN and Kevin Hampleman, Appellants (Defendants), v. The AMERICAN NATIONAL BANK OF CHEYENNE, as Conservator of the Estate of Leslie Roy "Les" Butts, Davis And Dawson Butts, the minor children of Les Butts and Heather Butts, by their mother and natural guardian, Heather Butts, Appellees (Plaintiffs).
CourtWyoming Supreme Court

Representing Appellants: Joe M. Tieg and Paula A. Fleck of Holland & Hart, LLP, Jackson, Wyoming; and Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Murphy.

Representing Appellees: Michael D. Cok and Theodore R. Dunn of Cok, Wheat & Kinzler, PLLP, Bozeman, Montana; and James E. Fitzgerald of Fitzgerald Law Office, Cheyenne, Wyoming. Argument by Messrs. Cok and Fitzgerald.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellants, Michael Hannifan (Hannifan) and Kevin Hampleman (Hampleman) (collectively Appellants) contend that they are entitled to judgment as a matter of law1 because there is insufficient evidence that either of them acted "intentionally" to harm the Appellees, Leslie Roy "Les" Butts (Butts), or Davis Butts and Dawson Butts, the minor children of Butts (hereafter "Children" or "Butts's Children"). Butts was severely injured and rendered a paraplegic when a large boulder landed on the piece of mining equipment (Terra-Gator) that he was operating at a Thunder Basin Coal Company mine near Gillette (Black Thunder Mine). The Butts Children seek damages for loss of consortium (the loss of the comfort, society, and companionship of their father). The American National Bank also appears in the caption as an Appellee, but only so because it is the conservator of the estate of Mr. Butts. It did not file a brief or otherwise appear in the proceedings before this Court. Heather Butts also appears in the caption, but her consortium claims were voluntarily dismissed before trial. Hannifan was the Safety Manager for Thunder Basin Coal Company, and Hampleman was the Mine Manager at Black Thunder Mine and the person charged with the overall operations of the mine on a day-to-day basis. It is Butts's contention in this case that they acted intentionally, by means of an intentional failure to act to guard his safety and, thus, brought about the circumstances that led to Butts's injuries.

[¶ 2] Hannifan and Hampleman also contend that the district court erred by giving inadequate, incomplete, and/or mistaken instructions on the elements of co-employee liability, and by its refusal to give the instructions they tendered to the trial court on the subject of co-employee liability. Furthermore, they contend that they are entitled to a new trial because Butts's trial counsel committed reversible error when he argued to the jury that if the jury attributed any fault to Thunder Basin Coal Company, then that would serve to diminish Butts's damages recovery.

[¶ 3] As additional background information, we note here that Thunder Basin Coal Company was not a party to this case (it was identified to the jury as a "nonparty"). However, Thunder Basin Coal Company was included in the jury verdict, and the jury was asked to assess the relative faults of Hampleman, Hannifan, and Thunder Basin Coal. Thunder Basin Coal's fault was determined under the ordinary negligence standard, whereas Hannifan's and Hampleman's respective faults were measured under the willful and wanton misconduct (intentional act) standard. The jury determined that Thunder Basin Coal Company's percentage of fault was 57%, Hampleman's was 25%, and Hannifan's was 18%. The jury also determined that Butts's damages were $18,000,000.00, and that each of the Children suffered damages in the amount of $2,000,000.00. After application of comparative negligence, the district court entered judgment in favor of Butts in the amount of $4,500,000.00 (with respect to Hampleman's negligence) and $3,240,000.00 (with respect to Hannifan's negligence). Furthermore, each of the Children received judgments in the amount of $860,000.00 ($500,000.00 with respect to Hampleman's negligence and $360,000.00 with respect to Hannifan's). We will affirm.


[¶ 4] Hannifan and Hampleman raise these issues:

A. Since there was insufficient evidence presented at trial from which the jury could find that either [Hannifan or Hampleman] intentionally acted to cause physical harm or injury to [Butts], are [Hannifan and Hampleman] entitled to judgment as a matter of law?

B. If [Hannifan and Hampleman] are not entitled to judgment as a matter of law, are [they] entitled to a new trial because the trial court erroneously instructed the jury on the elements of co-employee liability, and refused [their] tendered co-employee liability instructions?

C. Are [Hannifan and Hampleman] entitled to a new trial because Butts's counsel informed the jury in closing argument that any fault it attributed to the non-party, Thunder Basin Coal Company, would diminish [Butts's] damages recovery?

Butts restates the issues like this:

1. Did the trial judge commit prejudicial error when under the facts of this case he instructed the jury on the issue of co-employee liability with the standard approved by this Court in Bertagnolli v. Louderback 67 P.3d 627 (2003)?

2. Did the trial judge abuse his discretion denying [Hannifan's and Hampleman's] post trial motions and ruling that the evidence as presented by [Butts] met the standard set by this Court in Bertagnolli?

3. Did the trial judge abuse his discretion in denying [Hannifan's and Hampleman's] Motion for Mistrial based upon comments of [Butts's] counsel in closing argument which were consistent with the instructions of the [trial court] and non-prejudicial?

In their reply brief, Hannifan and Hampleman address a number of new issues which they claim arise from Butts's brief:

1. Whether or not Wyoming is an "intentional injury" state.

2. Whether Mills v. Reynolds, 837 P.2d 48 (Wyo.1992) (Mills II) prevents co-employee immunity for willful and wanton misconduct and, if so, whether Mills II should now be modified.

3. Whether the facts cited by [Butts] satisfy the statutory standard for co-employee liability.

4. Whether [Hannifan and Hampleman] properly preserved their objections to co-employee liability instructions given by the trial court.

5. Whether [Butts's] counsel's remarks in closing argument was harmless error because of the jury's ultimate allocation of fault.

6. Whether others at the mine had direct supervisory responsibility over Mr. Butts.


[¶ 5] Appellants bring to their argument the complex history of Wyoming's statutory and judicial treatment of the very difficult issue of co-employee liability and the delicate constitutional "quid pro quo" that underlies worker's compensation benefits. See Torres v. State ex rel. Division, 2005 WY 7, ¶ 22, 105 P.3d 101, 112 (Wyo.2005). Indeed, it might be said that they attack it with a sledgehammer. That the history and evolution of co-employee liability is fraught with complexities and idiosyncrasies that are not readily parsed is a matter well-known to this Court. We do not intend to reiterate that history in this opinion. We are satisfied that we have set a workable standard for resolving such cases in our decision in Bertagnolli v. Louderback, 2003 WY 50, 67 P.3d 627 (Wyo.2003). We decline the Appellants' ardent request to reverse our decision in that case. We also decline to engage in the debate as to whether or not Wyoming is an "intentional injury state," as that phrase is used in the general discussion of cases of this genre. These are complex questions, and not easily pigeonholed by a word or short phrase. The Bertagnolli case now serves as a complete restatement of Wyoming's jurisprudence in this regard. Also see Eric Hollowell, Annotation, Willful, Wanton, or Reckless Conduct of Coemployee as Ground of Liability Despite Bar of Workers' Compensation Law, 57 A.L.R.4th 888, § 3 (1987 and Supp.2007) (which confirms that Wyoming is far from being the "Lone Ranger," as characterized by Appellants).

[¶ 6] Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2007) provides:

(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.]

[¶ 7] In Bertagnolli, ¶¶ 15-19, 67 P.3d at 632-34 (emphasis added), we explained:

... We continue to believe the concept of willful and wanton misconduct has essentially the same legal effect as the statutory language "intentionally act to cause physical harm or injury." Well before the 1993 amendment to § 27-14-104(a), this court expressly defined willful and wanton misconduct in terms of intentional actions:

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo.1986) (emphasis added); see also Mayflower Restaurant Company v. Griego, 741 P.2d 1106, 1115 (Wyo.1987). In addition, one of the bases of the Mills decision was the conclusion that allowing immunity for intentional acts and willful and wanton behavior violated the constitution, and the legislature's response to that decision was the adoption of the statute granting...

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