Harbel v. Wintermute

• Decision Date: 21 October 1994
• Docket Number: No. 93-169,93-169
• Citation: 883 P.2d 359
• Parties: Douglass E. HARBEL and Janet D. Harbel, Appellants (Plaintiffs), v. Earl WINTERMUTE and Lloyd Hess, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 359

883 P.2d 359

Douglass E. HARBEL and Janet D. Harbel, Appellants (Plaintiffs), v. Earl WINTERMUTE and Lloyd Hess, Appellees (Defendants).

No. 93-169.

Supreme Court of Wyoming.

Oct. 21, 1994.

George Santini of Santini Law Offices, Cheyenne, for appellants.

Anthony T. Wendtland of Davis & Cannon, Sheridan, for appellees.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY ^** and TAYLOR, JJ.

TAYLOR, Justice.

This co-employee tort action presents a narrow question which has been broadly argued to implicate issues of fairness and government accountability. The injured party operated a front-end loader at a road construction site. The injured party maintains the front-end loader was unsafe and his employer did not correct the problems. Furthermore, the injured party contends that a supervisor and a mechanic permitted the front-end loader to be operated despite their knowledge of the unsafe conditions. However, the resolution of this case does not depend upon a finding of culpable negligence. Instead, the resolution is governed by sovereign or governmental immunity. The employer is a governmental entity. The injured party, the supervisor and the mechanic were all employees of the governmental entity acting within the scope of their duties at the time of the injury. As a result, the district court granted summary judgment in favor of the supervisor and the mechanic. The district court determined, under Wyoming's closed-end governmental tort claims act, immunity had not been waived.

We affirm.

I. ISSUES

Appellant, the injured party, frames two issues:

1. Are the [Appellees] subject to liability under the Wyoming Governmental Claims Act for "negligence in the operation of a motor vehicle" where they directed the use of heavy equipment which was known to be in a dangerous and unsafe condition?

2. In assuming an exception to governmental immunity under the Wyoming Governmental Claims Act exists, does requiring the use of heavy equipment known by the [Appellees] to be in a dangerous and unsafe condition constitute culpable negligence?

Appellees, the supervisor and the mechanic, identify more issues:

I. Does the recent holding in Copp v. Redmond render Douglass Harbel's negligence claims moot?

II. Did the District Court properly grant the Defendants summary judgment under the plain language of the Wyoming Governmental Claims Act including W.S. 1-39-105 and W.S. 1-39-120 based on the record in this case?

A. Was Douglass Harbel operating a "motor vehicle" at the time of his injury as that term is set out in W.S. 1-39-105 and as that term is statutorily defined in W.S. 31-1-101(a)(xv) and W.S. 31-1-101(a)(xvii)?

B. Were Earl Wintermute and/or Lloyd Hess "operating" a motor vehicle at the time Douglass Harbel injured himself such that sovereign immunity for them is waived under W.S. 1-39-105?

III. If the culpable negligence issues in this case are considered in this appeal, have the Harbels met their summary judgment burden to establish that a genuine issue of material fact exists to show that Earl Wintermute and/or Lloyd Hess were culpably negligent in a way which caused Douglass Harbel's injury?

II. FACTS

On July 26, 1988, Douglass E. Harbel (Harbel) was assigned to operate a Model 950 Caterpillar front-end loader (loader) owned by his employer, the Road and Bridge Department of Sheridan County, Wyoming (the department). Harbel used the loader to remove rocks from a steep slope of private land adjoining a road construction project. As Harbel steered the loader into one pile of loose rocks, the bucket hit solid rock underneath. The loader lunged forward tossing Harbel into the windshield and the roof of the cab. Harbel suffered neck and back injuries.

At the time Harbel was injured, the safety equipment installed in the loader by the manufacturer had not been properly maintained by the department. The seat belt in the loader was missing the part of the mechanism used to buckle the belt. In addition, the latching mechanism that anchored the seat to the loader's frame was broken allowing the seat to catapult forward on impact. Finally, the back cushion of the loader's seat was torn and missing some of its protective padding.

As the supervisor of operations at the department, Earl Wintermute (Wintermute) was responsible for assigning employees to projects. Wintermute assigned Harbel to operate the loader at the road construction project on the day he was injured. Ordinarily, Wintermute never inspected safety features of the department's equipment. Instead, he relied on reports from employees to alert him of problems with safety features. However, Wintermute knew that the back cushion in the loader was torn and missing some of its protective padding when he assigned Harbel to operate the loader.

Lloyd Hess (Hess) was the department's mechanic. His responsibilities included repairing equipment and ordering necessary parts. Hess had received several reports from the department's employees, including Harbel, about the condition of the loader's back cushion. Hess had ordered a replacement, but at the time Harbel was injured, the new back cushion had not been installed. Because the back cushion problem was considered minor, Hess had not taken the loader out of service.

Harbel received benefits for a permanent partial disability under the Wyoming Worker's Compensation Act. Harbel also filed a claim with Sheridan County under the Wyoming Governmental Claims Act. The Sheridan County Commission denied the claim.

On July 26, 1991, Harbel and Janet Harbel (collectively Harbel) filed this co-employee tort action against Wintermute and Hess. Harbel maintained that Wintermute and Hess acted "knowingly, willfully and intentionally" in failing to make necessary repairs to correct the unsafe conditions of the loader. Harbel sought damages for his injury, emotional distress, loss of income and disability. Janet Harbel sought damages for loss of consortium.

After nearly two years of discovery, Wintermute and Hess filed a motion for summary judgment. Wintermute and Hess asserted that the action was barred by sovereign or governmental immunity under the Wyoming Governmental Claims Act. The district court determined that as employees of a governmental entity, Wintermute and Hess were acting within the scope of their duties at the time Harbel was injured. Furthermore, the district court ruled that immunity had not been waived to permit a tort action under the Wyoming Governmental Claims Act. The district court granted summary judgment in favor of Wintermute and Hess.

III. DISCUSSION

Summary judgment is properly granted when there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. Prudential Preferred Properties v. J and J Ventures, Inc., 859 P.2d 1267, 1271 (Wyo.1993); W.R.C.P. 56(c). Our review of the record is conducted in the light most favorable to the party opposing the motion. Lynch v. Norton Const., Inc., 861 P.2d 1095, 1097 (Wyo.1993). This court accords no deference to the district court's decisions on issues of law. Coones v. F.D.I.C., 848 P.2d 783, 795 (Wyo.1993) (quoting Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403, 406-07 (Wyo.1992)). Because we review a grant of summary judgment from the same perspective as the district court using the same factual materials and the same standards, a summary judgment may be affirmed on any legal ground appearing in the record. Moncrief v. Louisiana Land and Exploration Co., 861 P.2d 516, 523 (Wyo.1993) (quoting Deisch v. Jay, 790 P.2d 1273, 1278 (Wyo.1990)).

This action involves the interrelationship between two laws which either grant or waive forms of immunity. The Wyoming Worker's Compensation Act, Wyo.Stat. §§ 27-14-101 through 27-14-805 (1991 & Cum.Supp.1994) (hereinafter Worker's Compensation Act), grants statutory immunity to participating employers from common law wrongful death and personal injury torts in return for the employer's participation in a no-fault industrial insurance fund to provide " 'rapid and certain relief for work-related injuries and death * * *.' " Hamlin v. Transcon Lines, 697 P.2d 606, 616, reh'g denied with opinion, 701 P.2d 1139, 1142 (Wyo.1985) (quoting Baker v. Wendy's of Montana, Inc., 687 P.2d 885, 887-88 (Wyo.1984)). The exclusive remedy provisions of the Worker's Compensation Act do not provide immunity to a co-employee who commits intentional acts or willful and wanton misconduct. Mills v. Reynolds, 837 P.2d 48, 55 (Wyo.1992). See Wyo.Stat. § 27-14-104(a) (permitting co-employee tort action when "employees intentionally act to cause physical harm or injury to the injured employee * * *."). Therefore, under the Worker's Compensation Act, Harbel was permitted to sue Wintermute and Hess to recover damages for personal injury suffered in a work-related accident that allegedly resulted from the culpable negligence of his co-employees. Copp v. Redmond, 858 P.2d 1125, 1126-27 (Wyo.1993) (holding that for claims accruing between July 1, 1987 and February 18, 1993, proof of culpable negligence was required for co-employee tort action). See Wyo.Stat. § 27-12-103(a) (1983) (repealed 1986) (establishing culpable negligence as standard of negligence for co-employee litigation under Worker's Compensation Act). However, even if Harbel could establish culpable negligence, he could only recover if immunity had been waived under provisions of the second law applicable to this case because Wintermute and Hess were employees of a governmental entity.

The Wyoming Governmental Claims Act, Wyo.Stat. §§ 1-39-101 through 1-39-120 (1988 & Cum.Supp.1994) (hereinafter Governmental Claims Act), waives sovereign or governmental immunity but only for certain enumerated torts. Veile v. Board of County Com'rs of Washakie County, 860 P.2d 1174, 1177 (Wyo.1993). See Worthington v. State, 598 P.2d 796, 800 (Wyo.1979) (characterizing the distinction between sovereign and governmental...