Stine v. Weiner

• Decision Date: 11 February 1976
• Docket Number: No. 9167,9167
• Citation: 238 N.W.2d 918
• Parties: Joseph STINE, Plaintiff-Appellant, v. Gilda WEINER, Executrix of the Estate of Alvin Weiner, Deceased, and Declan Praska, Defendants-Appellees. Civ.
• Court: North Dakota Supreme Court

Page 918

238 N.W.2d 918

Joseph STINE, Plaintiff-Appellant, v. Gilda WEINER, Executrix of the Estate of Alvin Weiner Deceased, and Declan Praska Defendants-Appellees.

Civ. No. 9167.

Supreme Court of North Dakota.

Feb. 11, 1976.

Syllabus by the Court

1. Summary judgment shall be granted where there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Rule 56(c), N.D.R.Civ.P.

2. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. U.S.Const., art. IV, § 1.

3. An employee injured in the course of his employment by the negligent act of a fellow employee has no right of action against such fellow employee, under the terms of § 65--01--08, N.D.C.C. but must look solely to the workmen's compensation fund for compensation.

4. Where the exclusive remedy provided for under both the New York and North Dakota workmen's compensation laws is identical; where each such State respectively accords a decision of the workmen's compensation authority of the other State the same status accorded a judgment of a court of competent jurisdiction; where the plaintiff actively and knowingly pursued his claim--by participating in a hearing on his application and being represented at such hearing by his attorney--for benefits under the New York Workmen's Compensation Law; where the plaintiff was awarded medical, hospitalization, and disability benefits by the New York Workmen's Compensation Board; where such award necessarily determined that plaintiff's injuries were sustained in the course of his employment; and where suit against a fellow employee under such circumstances is barred, we hold that plaintiff is bound by prior decision of New York Workmen's Compensation Board that injury occurred in course of employment and, accordingly, that summary judgment dismissing his action was therefore proper.

Lashkowitz Law Offices, Ltd., Fargo, for plaintiff and appellant; argued by Shelley J. Lashkowitz, Fargo.

Tenneson, Serkland, Lunberg & Erickson, Ltd., Fargo, for Gilda Weiner, defendant and appellee; argued by Jack G. Marcil, Fargo.

PAULSON, Judge.

This is an appeal by the plaintiff, Joseph Stine (hereinafter Stine), from a summary judgment of dismissal with prejudice entered by the Walsh County District Court in favor of the defendant, Gilda Weiner, as Executrix of the Estate of Alvin Weiner, Deceased.

Stine brought this action to recover for injuries he sustained in an automobile accident on May 10, 1972, near Crystal, North Dakota. Stine was a passenger in an automobile being driven by Alvin Weiner (hereinafter Weiner), who was killed in such accident. Suit was thereafter brought against Gilda Weiner, as the executrix of Weiner's estate.

Although no affidavits detailing the circumstances which are at issue were filed by Stine in resistance to the summary judgment motion, ¹ an examination of the record reveals that the facts are as follows:

--Stine and Weiner were both employees of Fairchild Industries, Inc. (hereinafter Fairchild), whose principal place of business is in New York. Although both Stine and Weiner lived and worked in New York, at the time of the accident they were in North Dakota supervising, for Fairchild, the installation of component parts for the antiballistic missile system then under construction by the Federal Government in northeastern North Dakota. While in North Dakota, both men were staying at a motel in Grafton, and worked at a missile site some distance from Grafton.

--At the time of the accident, Weiner had been in North Dakota for about two days, and was employed as a superintendent by Fairchild. Stine had been in North Dakota approximately one week, and was employed by Fairchild as a foreman. Weiner was Stine's immediate supervisor.

--The accident occurred near Crystal at approximately 7 a.m. on May 10, 1972, while Weiner and Stine were traveling to their work site. They left Grafton for the work site at approximately 6:30 a.m., after breakfast in Grafton. At the intersection of North Dakota Highways No. 66 and No. 18 Weiner's vehicle was struck by a pickup driven by Declan Praska. Weiner was killed, and Praska and Stine were injured in the accident. ²

--After the accident, Stine returned to New York for medical care and hospitalization. An application for benefits under the New York Workmen's Compensation Law was filed on Stine's behalf, and thereafter benefits were awarded. Prior to the award of workmen's compensation benefits, the Workmen's Compensation Board of New York conducted a hearing on the application for benefits, at which hearing Stine was represented by his attorney. All of Stine's medical and hospital expenses were paid pursuant to the terms of the workmen's compensation award, and Stine also received a disability award. The record does not, however, detail the monetary terms of such awards. Neither Stine nor his employer filed a claim for benefits under the North Dakota Workmen's Compensation Act.

--Subsequent thereto, Stine commenced this action in Walsh County District Court, seeking recovery from Weiner and Praska for the injuries which he sustained in the automobile accident for which he had received benefits under the New York Workmen's Compensation Law. Weiner thereupon moved, pursuant to Rule 56(b), N.D.R.Civ.P., for summary judgment, contending that Stine's exclusive remedy was his earlier resort to compensation from workmen's compensation benefits. It is from the trial court's summary judgment of dismissal in favor of Weiner that Stine appeals.

The issue for our determination on this appeal is whether or not the trial court erred in granting Weiner's motion for summary judgment.

Rule 56(c), N.D.R.Civ.P., provides that:

'(c) Motion and proceedings thereon. The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. Judgment shall be rendered forthwith if 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 any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party.' (Emphasis added.)

We must, therefore, determine whether or not a genuine issue as to any material fact existed in determining whether or not the trial court erred in granting Weiner's motion for summary judgment in the instant case. Farmers Elevator Company v. David, 234 N.W.2d 26, Syll. 2 (N.D.1975) (and cases cited therein).

Stine contends that a genuine issue of material fact exists, asserting that the determination of whether or not the automobile accident which caused Stine's injuries occurred within the course of employment is a question of fact which can be resolved only at trial. Stine further contends, in the alternative, that, even if the injuries were sustained in the course of employment, a co-employee's immunity from suit under the workmen's compensation laws violates an asserted public policy against such immunity.

Weiner, on the other hand, contends that Stine's suit against him is barred by the provision in the workmen's compensation law that no right of action exists against a co-employee if the injuries were sustained in the course of employment; that the decision of the New York Workmen's Compensation Board awarding Stine medical, hospitalization, and disability benefits is Res judicata on the 'course of employment' question in the instant case; and that, because no genuine issue of fact therefore exists, the summary judgment was proper.

The trial court concluded that the decision of the New York Workmen's Compensation Board did, of necessity, determine that Stine's injuries were sustained in the course of employment; that the North Dakota and New York workmen's compensation statutes, as applied to the instant case, are so similar that no differences in public policy are involved; that both New York and North Dakota provide that the injured person's sole recourse, when the injury is caused by the negligence of a co-employee, is provided for by the respective State's workmen's compensation laws; and that, therefore, under the Full Faith and Credit Clause of Article IV, § 1 of the United States Constitution, North Dakota courts should give effect to the decision of the New York Workmen's Compensation Board that Stine's injuries were, in fact, sustained in the course of his employment, consequently barring this action against co-employee Weiner. The trial court therefore granted Weiner's motion for summary judgment. We affirm.

Stine received benefits under the Workmen's Compensation Law of New York, which provides, in pertinent part, N.Y.Consol.Laws, Workmen's Compensation Law § 10 (64 McKinney 1965):

' § 10. Liability for compensation

'Every employer subject to this chapter shall in accordance with this chapter, except as otherwise provided in section twenty-five-a hereof, secure compensation to his employees and pay or Provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury, except that there shall be no liability for compensation under this chapter when the injury has been solely occasioned by intoxication of the injured employee while on duty or by wilful intention of the injured employee to bring about the injury or death of himself or another.' (Emphasis added.)

The New York Workmen's Compensation Law is given extraterritorial effect, permitting employees injured in the course of employment while outside the boundaries of New York to receive workmen's compensation benefits for such...