Popovich v. Irlando, 90SC259

Decision Date20 May 1991
Docket NumberNo. 90SC259,90SC259
Citation811 P.2d 379
Parties56 Fair Empl.Prac.Cas. (BNA) 77, 6 IER Cases 1157 Ardith POPOVICH, Petitioner, v. John IRLANDO, Respondent.
CourtColorado Supreme Court

Law Offices of John Robert Holland, P.C., John R. Holland, Law Office of Kathleen Mullen, P.C., Kathleen Mullen, Benjamin Sachs, Denver, for petitioner.

Hall & Evans, Barbara A. Duff, Alan Epstein, Denver, for respondent.

Gilbert M. Roman, Feiger, Collison & Killmer, P.C., Denver, for amicus curiae, Colorado Chapter of the National Employment Lawyers Ass'n.

Solomon & Lindquist-Kleissler, P.C., Carmen S. Danielson, Denver, for amicus curiae, the Colorado Women's Bar Ass'n.

Justice QUINN delivered the Opinion of the Court.

The question in this case is whether the co-employee immunity rule of workers' compensation law bars a tort claim filed in the county court by an employee seeking damages from a co-employee for the intentional infliction of emotional distress due to sexual harassment. The county court ruled that the exclusive-remedy provisions of the Colorado Workers' Compensation Act barred the plaintiff's claim and dismissed the complaint with prejudice. 1 The district court affirmed the judgment of dismissal, and we granted the plaintiff's petition for certiorari. We conclude that the county court erred in not conducting an evidentiary hearing to determine whether the co-employee immunity rule barred the plaintiff's claim under the factual circumstances alleged in the plaintiff's complaint. We accordingly reverse the judgment of the district court and remand the case to that court with directions to return the case to the county court for further proceedings.

I.

On February 16, 1988, the plaintiff, Ardith Popovich, a cable repair technician for U.S. West/Mountain States Telephone & Telegraph Company (Mountain Bell), filed a claim seeking workers' compensation benefits for severe depression and anxiety caused by sexually degrading remarks made by three co-workers, including John Irlando, who also is a cable repair technician for Mountain Bell and at one time worked on the same repair crew as Popovich. In her workers' compensation claim, Popovich alleged that on July 9, 1987, when she was performing her job duties, she was informed by another employee of the remarks made by Irlando and two other co-workers, and that she was unable to return to work for several days and sought and received treatment for her depression. Popovich did not claim any permanent disability as a result of her illness. Although Mountain Bell disputed whether Popovich's claim was a legitimate workers' compensation claim, it agreed to settle with Popovich by paying $3,138.00 directly to her health care providers to cover her medical and counseling expenses. Pursuant to the settlement agreement, which was executed on May 18, 1989, Popovich expressly agreed to waive any right or entitlement to workers' compensation benefits for her claimed injury, including any right to reopen her claim. The settlement agreement was approved by the Division of Labor.

On June 7, 1989, Popovich filed a common law tort action in the County Court of Jefferson County against John Irlando for intentional infliction of emotional distress and sought reasonable damages not in excess of $5,000. In her complaint, Popovich alleged as follows:

That on or about the months of January through the months of June of 1987 the defendant engaged in extreme and outrageous conduct toward the plaintiff by falsely accusing her of engaging in acts of oral sex and sexual intercourse with several of her male co-workers.

That the defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress.

That the plaintiff incurred severe emotional distress which was caused by the defendant's extreme and outrageous conduct.

That these allegations by the defendant were false.

Irlando denied the allegations of the complaint and moved to dismiss the complaint with prejudice on the basis that the Workers' Compensation Act provided Popovich with the exclusive remedy for her claimed injury or damage and thus barred her common law tort action against him for intentional infliction of emotional distress. The county court heard legal arguments on the motion and, without determining whether there was any dispute as to the material facts underlying Popovich's tort claim, dismissed the complaint with prejudice. Popovich appealed to the district court, which affirmed the judgment of dismissal on April 6, 1990. 2 We thereafter granted Popovich's petition for certiorari in order to consider the effect of the Workers' Compensation Act on Popovich's tort claim against a co-employee for intentional infliction of emotional distress based on sexual harassment.

II.

The Workers' Compensation Act provides a comprehensive administrative structure for compensating workers for job-related injuries and occupational diseases. An employer's compliance with these statutory provisions is construed as a surrender by both the employer and the employee of any other cause of action or common-law right or remedy which the employee may have against the employer for the employee's injuries arising out of and in the course of employment. § 8-43-104, 3B C.R.S. (1986); see Curtiss v. GSX Corp. of Colorado, 774 P.2d 873, 874 (Colo.1989). Section 8-52-102(1), 3B C.R.S. (1986), states that the right of compensation authorized by the act, in lieu of any other liability to any person for any personal injury or death, shall obtain in all cases where the following conditions occur:

(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of his employment;

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted. 3

A.

Although the Workers' Compensation Act is silent on whether an employer is immune from a common law action for intentional wrongs committed by a co-employee and arising out of and in the course of employment, we held in Kandt v. Evans, 645 P.2d 1300, 1304 (Colo.1982), that, in light of the exclusive-remedy provisions of the act, there is no justification for holding an employer answerable in tort for an employee's intentional acts solely under the principle of respondeat superior. We also addressed in Kandt whether the exclusivity provisions constitute a bar to a common law tort action against a co-employee for the intentional infliction of emotional distress. 4 After noting that section 8-52-108, 3B C.R.S. (1986), allows an employee to pursue a common law remedy for work-related injuries in cases where the employee "is injured or killed by the negligence or wrong of another not in the same employ," we reasoned that a rule of co-employee immunity was consistent with "the aim of workmen's compensation schemes to spread the costs of hazards of the workplace, one of which is intentional interference with an employee's legal interests by a fellow employee." 645 P.2d at 1304-05. Based on this reasoning, we concluded that "co-employee immunity for intentional wrongs is strictly limited to injuries sustained where both the tortfeasor and the victim are acting in the course of their employment." 645 P.2d at 1305. This strict limitation on co-employee immunity, we emphasized in Kandt, would result in preserving "the deterrent function of tort liability ... as to those acts between employees not 'arising out of and in the course of' the employment relation." Id. However, because it was undisputed in Kandt that the co-employee tortfeasor was acting within the scope of his employment when he caused the plaintiff's emotional distress, we held that the plaintiff's claim was barred.

It follows from the rationale of Kandt that the rule of co-employee immunity does not extend to a co-employee's intentional tort when the tortious conduct did not arise out of and in the course of the tortfeasor's employment, even though the injury to the victim might have occurred within the scope of the victim's employment. It is against the backdrop of Kandt 's analysis of the co-employee immunity rule, therefore, that we must examine the legal scope and significance of the "in the course of" and "arising out of" elements of Colorado's workers' compensation scheme in order to assess the cognizability of Popovich's tort claim against Irlando.

B.

In workers' compensation law, the terms "in the course of" and "arising out of" are not synonymous. "In the course of employment" generally refers to "the time, place and circumstances under which the injury occurred." Industrial Comm'n v. London & Lancashire Indemnity Co., 135 Colo. 372, 376, 311 P.2d 705, 707 (1957). The "course of employment" requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job-related functions. City and County of Denver School District No. 1 v. Industrial Comm'n, 196 Colo. 131, 133, 581 P.2d 1162, 1163 (1978); O.P. Skaggs Co. v. Nixon, 101 Colo. 203, 206-07, 72 P.2d 1102, 1103-04 (1937); 1A A. Larson, The Law of Workmen's Compensation § 20.00 (1990).

The term "arising out of" is narrower than the term "in the course of." E.g., Deterts v. Times Publishing Co., 38 Colo.App. 48, 51, 552 P.2d 1033, 1036 (1976). An injury or occupational disease "arises out of" employment when it has its origin in an employee's work-related functions and is sufficiently related thereto as to be considered part of the employee's service to the employer in connection with the contract of employment. See, e.g., Martin Marietta Corp. v. Faulk, 158 Colo....

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