Herrera v. Phillipps

• Decision Date: 23 September 2014
• Docket Number: No. S–13–0243.,S–13–0243.
• Citation: 2014 WY 118,334 P.3d 1225
• Parties: Enrique HERRERA, Appellant (Plaintiff), v. Robert PHILLIPPS, Individually and as an employee and representative of Gilligan's LLC, a Wyoming Company, and Gilligan's LLC, a Wyoming Company, Appellees (Defendants).
• Court: Wyoming Supreme Court

334 P.3d 1225

2014 WY 118

Enrique HERRERA, Appellant (Plaintiff)

v.Robert PHILLIPPS, Individually and as an employee and representative of Gilligan's LLC, a Wyoming Company, and Gilligan's LLC, a Wyoming Company, Appellees (Defendants).

No. S–13–0243.

Supreme Court of Wyoming.

Sept. 23, 2014.

Representing Appellant: C. John Cotton, Cotton Law Office, P.C., Gillette, Wyoming.

Representing Appellees: Patrick T. Holscher, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Before BURKE, C.J., and HILL, KITE^* , DAVIS, and FOX, JJ.

Opinion

BURKE, Chief Justice.

[¶ 1] Appellant Enrique Herrera was injured while working for Gilligan's LLC, under the supervision of Robert Phillipps. Mr. Herrera filed suit seeking to recover damages for his injuries. Gilligan's sought summary judgment on the primary basis that, as Mr. Herrera's employer, it was immune from suit pursuant to the Wyoming Worker's Compensation Act. Mr. Phillipps also asserted that the Act shielded him from the negligence claim by Mr. Herrera, and that Mr. Herrera had not presented facts sufficient to establish Mr. Phillipps' liability as a co-employee under the Act. Mr. Herrera claimed that Appellees were not immune because he was not an employee of Gilligan's under the statutory definition found in the Wyoming Worker's Compensation Act because he was not legally authorized to work in the United States and Gilligan's did not have a reasonable belief that he was authorized to work in the United States. The district court granted summary judgment for Gilligan's and Mr. Phillipps. Mr. Herrera challenges that decision in this appeal. We will reverse.

ISSUES

[¶ 2] Mr. Herrera presents two issues:

1. Did the District Court err in ruling that Gilligan's LLC is entitled to Worker's Compensation immunity?

2. Did the District Court err in ruling that there is no genuine issue of material fact as to the co-employee liability of Robert Phillipps?

Gilligan's and Mr. Phillipps agree with Mr. Herrera's statement of the issues, but further assert that the first issue may be refined as follows:

1.a. Did the Legislature, in enacting Wyo. Stat. Ann. § 27–14–102(a)(vii) (LexisNexis 2007), contemplate employer compliance with Federal law regarding documentation of the work status of employees thereby incorporating the Federal provisions? And, if the answer to this is “Yes,” then,

1.b. Under Wyo. Stat. Ann. § 27–14–102(a)(vii), does the required “documentation in the employer's possession” include a properly completed I–9 form as required by the United States Department of Justice?

FACTS

[¶ 3] On June 5, 2007, Mr. Herrera was working for Gilligan's as a pipe fuser. He was working with a crew to clean out a four-inch pipe using a compressor to blow a cleaning plug, called a “pig,” through the pipe. The pig got stuck in the pipe and Mr. Herrera suggested they cut the pipe at the T-joint near where it was stuck. Instead, Mr. Phillipps directed the crew to lift the pipe out of the ditch. When the pipe was out of the ditch, Mr. Phillipps bent it, told Mr. Herrera to hold it, and walked away. There was an explosion, the other workers ran, and Mr. Phillipps told Mr. Herrera to let go of the pipe. Mr. Herrera tried to put the pipe back in the ditch and, when it would not go, he let go of it and ran. The pipe, still under pressure, twisted and whipped back and forth, striking Mr. Herrera and injuring him severely. According to Mr. Herrera, Gilligan's told him that it would not submit a worker's compensation claim on his behalf but, instead, would pay his medical expenses and lost wages. Gilligan's made the payments for a period of time but eventually ceased. This litigation ensued.

[¶ 4] Mr. Herrera initiated this action against Gilligan's and John Doe I in 2009, asserting that they were negligent, and that John Doe I acted in reckless disregard of Mr. Herrera's safety. Gilligan's denied the claims and asserted as one of its affirmative defenses that the complaint was barred because Mr. Herrera was a covered employee under the Wyoming Worker's Compensation Act, and Gilligan's was immune from suit by Mr. Herrera. Mr. Herrera filed a motion for partial summary judgment seeking a ruling that he was not an employee within the meaning of Wyo. Stat. Ann. § 27–14–102(a)(vii), and Gilligan's was not entitled to immunity under the Act. Mr. Herrera contended that he was not authorized to work in the United States, that Gilligan's was aware of his employment status, and that Gilligan's did not have a reasonable belief that he was authorized to work based upon documentation in its possession.

[¶ 5] Gilligan's filed a response in which it sought summary judgment holding that Mr. Herrera was covered by its worker's compensation account and his failure to file a claim did not affect Gilligan's immunity from suit. Gilligan's asserted there was no evidence indicating it knew Mr. Herrera was not authorized to work in the United States, and that the documentation in its files was adequate to satisfy the requirements of the Wyoming Worker's Compensation Act.

[¶ 6] In 2011, Mr. Herrera filed a new lawsuit against Gilligan's, and added Mr. Phillipps as a defendant. He alleged that Gilligan's and Mr. Phillipps were negligent, and that if the Worker's Compensation Act applied, Mr. Phillipps' conduct was intentional and he was therefore liable as a co-employee. The district court consolidated the two cases. It then denied the parties' motions for summary judgment, concluding that genuine issues of material fact existed as to whether Gilligan's reasonably believed Mr. Herrera was working legally in the United States at the time he was hired and on the date of his injury, as provided in Wyo. Stat. Ann. § 27–14–102(a)(vii). The district court stated, however, that any party could renew a motion for summary judgment “if the discovery process should reveal something that would warrant it.”¹

[¶ 7] Mr. Herrera renewed his motion for partial summary judgment. Gilligan's and Mr. Phillipps also moved for summary judgment in their favor. This time, without explanation, the district court granted summary judgment in favor of Gilligan's and Mr. Phillipps.² Mr. Herrera filed a timely appeal to this Court.

STANDARD OF REVIEW

[¶ 8] We review a district court's order on summary judgment de novo, using the same materials and following the same standards as the district court. Gheen v. State ex rel. Department of Health, 2014 WY 70, ¶ 11, 326 P.3d 918, 922 (Wyo.2014) (citing Michael's Constr., Inc. v. American Nat'l Bank, 2012 WY 76, ¶ 8, 278 P.3d 701, 704 (Wyo.2012) ; Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 16, 261 P.3d 731, 736 (Wyo.2011) ). W.R.C.P. 56(c) allows summary judgment when

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 view the facts from the vantage point most favorable to the party who opposed the motion, and give that party the benefit of all favorable inferences which may fairly be drawn from the record. Gheen, ¶ 11, 326 P.3d at 922.

DISCUSSION

[¶ 9] The rights and remedies afforded injured employees under the Wyoming Worker's Compensation Act “are in lieu of all other rights and remedies against any employer.” Wyo. Stat. Ann. § 27–14–104. Under the Act, employers are immune from suit by their employees, and employees are barred from suing their employers. Mauch v. Stanley Structures, 641 P.2d 1247, 1251 (Wyo.1982). As we have explained:

In return for their contributions to the compensation fund, employers were granted immunity from suits. In return, for relinquishing their right to common-law actions against the employers [for] work-related injuries, the employees received speedy relief for such injuries, regardless of lack of fault on the part of the employer and without cost and delay attendant to legal action.

Meyer v. Kendig, 641 P.2d 1235, 1238 (Wyo.1982) (footnote omitted). The Act defines the term “employee” to include:

any person engaged in any extrahazardous employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written, and includes legally employed minors, aliens authorized to work by the United States department of justice, office of citizenship and immigration services, and aliens whom the employer reasonably believes, at the date of hire and the date of injury based upon documentation in the employer's possession, to be authorized to work by the United States department of justice, office of citizenship and immigration services.

Wyo. Stat. Ann. § 27–14–102(a)(vii) (emphasis added).

[¶ 10] It is undisputed that Mr. Herrera is an alien who was not authorized to work in the United States, both at the time he was hired by Gilligan's and at the time of his injury. The parties do not agree on whether Gilligan's reasonably believed, based upon documentation in its possession, that Mr. Herrera was authorized to work in the United States.

[¶ 11] The district court's grant of summary judgment for Gilligan's necessarily rests on the conclusion there is no genuine dispute as to the material fact that Gilligan's reasonably believed Mr. Herrera was authorized to work in the United States. Mr. Herrera contends, to the contrary, that the facts undisputedly demonstrate that Gilligan's did not have and could not have had that reasonable belief. He asserts that he is entitled to partial summary judgment on this issue. His argument is based largely upon an incomplete “Form I–9” found in Gilligan's records.³

[¶ 12] The first section of the I–9 is to be filled out and signed by the employee. Mr. Herrera signed the document. Someone else filled in the information on his behalf, although the mandatory “Preparer and/or Translator Certification” was left blank. The second section of the form is to be completed and signed by the employer after examining certain specified documents relating...