Libercent v. Aldrich

• Decision Date: 06 November 1987
• Docket Number: No. 84-301,84-301
• Citation: 149 Vt. 76,539 A.2d 981
• Court: Vermont Supreme Court
• Parties: Paul A. LIBERCENT, Jr. v. Frank E. ALDRICH, et al.

Page 981

539 A.2d 981

149 Vt. 76

Paul A. LIBERCENT, Jr. v. Frank E. ALDRICH, et al.

No. 84-301.

Supreme Court of Vermont.

Nov. 6, 1987.

Reargument Denied Dec. 16, 1987.

M. Jerome Diamond, Kenneth A. Clarke, and Matthew I. Levine, Law Clerk, on the brief, of Diamond & Associates, P.C., Montpelier, for plaintiff-appellee

John J. Easton, Jr., Atty. Gen., Thomas R. Viall and John K. Dunleavy, Asst. Attys. Gen., and Fiona Farrell, Law Clerk, on the brief, Montpelier, for defendants-appellants.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ^* JJ.

PECK, Justice.

Defendants, employees of the State of Vermont, bring this interlocutory appeal from the trial court's denial of their motion to dismiss a negligence action brought by a fellow state employee.

The questions certified for appeal by the lower court are as follows:

1. Whether a state employee who was injured performing his duties as a state employee who received workers' compensation can maintain an action against a fellow state employee, for acts or omissions in the course of his state employment, pursuant to Title 21 V.S.A. § 624.

2. Whether Plaintiff's claim against the Defendants, for which provision has been made pursuant to the Workers' Compensation Act, 21 V.S.A. Chapter 9, is barred by sovereign immunity pursuant to 12 V.S.A. § 5602(7).

We answer the first of these questions in the affirmative and the second in the negative.

At the time of his injury, plaintiff was employed as a truck driver for the state highway department. In his complaint he alleges that, during significant portions of 1980 and 1981, he was assigned a truck that had steering problems and a leaking gas tank. He alleges further that he made 37 weekly reports during these time periods, specifically noting the vehicle's faults. Moreover, plaintiff states that he demonstrated the steering difficulties to the highway department's maintenance workers and requested the necessary repairs. While he was driving his route on October 26, 1981, the steering mechanism failed and caused him to lose control of the vehicle. The truck left the roadway, overturned twice, and caught fire. Plaintiff was trapped in the vehicle and sustained severe injuries, but a passing motorist was able to rescue him before the truck exploded. Thereafter, he applied for and received workers' compensation benefits.

On November 14, 1983, plaintiff filed a third-party action in Washington Superior Court, alleging negligent acts and omissions by supervisory and maintenance personnel of the highway department. On December 19, 1983, defendants filed a motion to dismiss and for summary judgment on two grounds: first, that the workers' compensation benefits were his exclusive remedy under 21 V.S.A. § 622, and, second, that the action was barred by the doctrine of sovereign immunity. The trial court denied the motions, but granted defendants' subsequent motion for permission to appeal pursuant to V.R.A.P. 5(b)(1).

I.

The general rule under Vermont's workers' compensation scheme is that its rights and remedies are exclusive:

The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury.

21 V.S.A. § 622. However, plaintiff's claims are based on the so-called "dual liability" exception under 21 V.S.A. § 624(a), which provides in pertinent part:

Where the injury for which compensation is payable under the provisions of this chapter was caused under circumstances (Emphasis added.) Plaintiff argues that his co-workers are persons other than his employer and that his action naming them as defendants can be maintained under § 624(a), despite his acceptance of workers' compensation.

creating a legal liability in some person other than the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but the injured employee or his personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section.

In Herbert v. Layman this Court recognized that a co-worker is "some person other than the employer" for purposes of the dual liability provision of § 624, and held that negligence actions against fellow employees are maintainable, even where those employees act in a supervisory capacity. 125 Vt. 481, 483-84, 218 A.2d 706, 708 (1966). The acceptance of workers' compensation by a plaintiff will not bar a subsequent suit against the nonemployer wrongdoer. Id. at 486, 218 A.2d at 710; see also Dubie v. Cass-Warner Corp., 125 Vt. 476, 478, 218 A.2d 694, 696 (1966). Third-party suits against co-employees are supported by both the plain language of § 624(a) and "by the argument that existing rights of action should not be deemed destroyed in the absence of clear language...." Herbert, 125 Vt. at 484, 218 A.2d at 709 (citation omitted).

Under workers' compensation the employee gives up the right to sue his employer for negligence and possibly receive a large damage award. In exchange, the employee is entitled to prompt compensation for injuries arising out of the employment relationship without having to prove the employer's fault. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980). However, "in the exchange for sure and swift compensation the worker has given up the right to sue his employer but not his fellow employee, because the fellow employee is not a party to such an agreement and has given up nothing in return for such an immunity." Herbert, 125 Vt. at 484, 218 A.2d at 709.

In the instant case, plaintiff has a right to his common law negligence action against his co-employees to test his allegations that they failed to provide him with a safe and defect-free motor vehicle with which to perform his job. The fact that the plaintiff is a public rather than a private employee does not alter this right. The language of § 624 does not distinguish between public and private employees. The purpose of the statute, to preserve the injured worker's common law rights of action, Dubie, 125 Vt. at 479, 218 A.2d at 697, applies with equal force to employees in the public sector. Suits against co-workers in the public sector may be precluded, however, if the employees are protected by official immunity.

Although both parties have adopted the term "sovereign immunity" to refer to the defense raised below, "official immunity" is a more accurate description. See Tilton v. Dougherty, 126 N.H. 294, 297-98, 493 A.2d 442, 444 (1985). These two concepts represent distinct doctrines that differ in their application. Sovereign immunity shields the state from suit in its own courts and confers immunity from liability for torts committed by its officers and employees. Official immunity, on the other hand, shields the state officials and employees themselves in certain circumstances. Id. at 297, 493 A.2d at 444; see DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981); Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984); Larson v. Independent School District, 289 N.W.2d 112 (Minn.1979); Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970); Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977); W. Prosser, Handbook of the Law of Torts § 132 (4th ed. 1971). The doctrine of official immunity has not been applied to state officers in Vermont, but the principle involved has been applied in cases where the liability of a municipal officer was at issue. See Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 769 (1960) (immunity of municipality does not attach to its employees); Nadeau v. Marchessault In most jurisdictions, two degrees of official immunity from tort liability are recognized. See Ross, 420 Mich. at 632, 363 N.W.2d at 667; Prosser at 987-88. Absolute immunity is generally afforded to judges (with limited exceptions not relevant here), legislators, and the highest executive officers, where the acts complained of are performed within their respective authorities. Only qualified official immunity is extended to lower level officers, employees, and agents. The general rule is that such individuals are immune from tort liability only where they are: "1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; 2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts." Ross, 420 Mich. at 633-34, 363 N.W.2d at 667-68; see Ferraro, 105 Vt. at 246, 164 A. at 888.

                112 Vt. 309, 313, 24 A.2d 352, 355 (1942);   Ferraro v. Earle, 105 Vt. 243, 246, 164 A. 886, 887 (1933) (municipal officer is personally [149 Vt. 81] liable for injuries caused by his negligence when the breached duty was ministerial)
                

Here, the central issue is whether the allegedly negligent acts and omissions of the defendants are better described as "discretionary" or as "ministerial." Whether qualified official immunity exists in a particular situation depends upon the nature of the specific acts and omissions complained of, and not upon the nature of the office held or the general nature of the activity involved. Ross, 420 Mich. at 635, 363 N.W.2d at 668. This rule allows the state officer or employee sufficient freedom to determine the best method of carrying out his or her duties, while ensuring that those duties are fulfilled in a conscientious manner. Id. Our cases have defined a discretionary duty as one requiring the exercise of judgment in its performance, and a ministerial duty as one where "nothing is left to discretion--a simple and definite duty, imposed by law, and arising under conditions...