Wessel v. Mapco, Inc.

Decision Date30 March 1988
Docket NumberNo. 87-146,87-146
Citation752 P.2d 1363
PartiesLeighton WESSEL, Personal Representative of the Estate of Joel McGlynn, for and on behalf of the heirs at law of Joel McGlynn, Appellant (Plaintiff), v. MAPCO, INC., a Delaware corporation; Mid-America Pipeline Company, a Delaware corporation; Chester Dryer; Erwin E. Hissey; Harvey J. Henderson, Appellees (Defendants), Charles Neff and John Does 1-10 (Defendants).
CourtWyoming Supreme Court

Richard H. Honaker of Honaker & Hampton, Rock Springs, for appellant.

Carl L. Lathrop of Lathrop & Uchner, P.C., Cheyenne, Timothy Knaus, Robert Bruce Wark, and Thomas P. Johnson of Mayer, Brown & Platt, Denver, Colo., for appellees.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This appeal presents a wrongful-death/motion-to-dismiss/summary-judgment decision granted to the employer and to the employer's grandparent corporation, as well as to culpable-negligence claims against co-employees. With the death occurring in Colorado, worker's-compensation conflict-of-law issues resulted.

We affirm in part, and reverse in part, holding that § 27-12-208, W.S.1977, 1983 Replacement, is applicable to these facts, and find that it was proper to grant summary judgment to the employer (Mid-America), and that it was proper to dismiss the action against the grandparent company (Mapco). However, we find error in the trial-court application of Colorado law to the culpable-negligence claims asserted against the co-employees, and reverse the order granting the motion to dismiss granted in contravention of § 27-12-208, W.S.1977, 1983 Replacement, by our conclusion that a cause of action was properly presented for trial decision.

Initially it is noted that the litigants focused discussion primarily on general rules of choice of law. We will not broaden the scope to encompass that inquiry.

Appellant stated as issues:

"1. Whether, with regard to the choice of substantive law in wrongful death and tort actions, Wyoming should abandon the doctrine of lex loci delicti, and adopt the 'modern rule' under which applicable law is determined by weighing various factors indicating which jurisdiction has the most significant relationship to the occurrence and the parties.

"2. Whether this Court should except intentional and reckless misconduct from the immunity granted employers under the Wyoming Worker's Compensation Act."

While this court recognizes this case as one involving a wrongful-death allegation, it still must be examined against the backdrop of the facts which indicate it is more appropriately a worker's compensation-conflict case. Originally, when worker's compensation laws were first passed, many courts applied tort conflict principles and lex loci delicti, such as in In re American Mutual Liability Insurance Co., 215 Mass. 480, 102 N.E. 693 (1913), the first American case involving a claim for compensation when the injury occurred outside the state. Dwan, Workmen's Compensation and the Conflict of Laws--The Restatement and Other Recent Developments, 20 Minn.L.Rev. 19 (1935). However, currently it is recognized worker's compensation law-conflict issues present unique policy questions since the process is neither tort nor contract, but a statutory hybrid, so the traditional conflict theories are inept.

"As a result, virtually all workmen's compensation statutes today contain their own choice of law provisions and cover out-of-state injuries." Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983).

See 4 A. Larson, Workmen's Compensation Law, § 84; Storke and Sears, Reciprocal Exemption Provisions of Workmen's Compensation Acts, 67 Yale L.J. 982 (1958); Note, Recent Legislation Workmen's Compensation: Injury by Accident: Insurance Costs to Employer: Denial of California Benefits to Employees Temporarily in the State: Labor Code Section 3600.5, 44 Calif.L.Rev. 387 (1956); Note, Choice of Law in Workmen's Compensation Cases, 34 Ill.L.Rev. 226 (1939).

In declining to address the variegated, general conflict-of-law theories, we direct our analysis to the applicable and dispositive out-of-state injuries or extraterritoriality provision in Wyoming's Worker's Compensation Act (state fund) found in § 27-12-208.

FACTS

Joel McGlynn, age 25 in 1985, was employed by Mid-America Pipeline Company as a pipeliner/welder on a maintenance crew stationed at Rock Springs, Wyoming. One of the company pipelines, used to transport heavy gasses, begins at two points in Wyoming, one near Evanston and the other near Wamsutter, converging at Rock Springs into a single pipeline to continue south to Hobbs, New Mexico.

Present summary-judgment/motion-to-dismiss documentary status suggests for the factual panorama of this case that in the early morning hours of April 17, 1985, a pressure problem was detected in the pipeline and localized as a leak just north of the summit of Baxter Pass in Colorado. 1 McGlynn and his co-employees were dispatched from Rock Springs to the site to conduct the repairs. The area near Baxter Pass is very mountainous and rugged, and the sides of the ditch were steep with a ditch around the pipeline only about eight feet wide and seven feet deep, necessitating equipment to raise and lower the workers into the ditch. Persons present as the pipeline crew at leak site included two supervisors, defendants Dryer and Hissey; and workers: David Anderson, who was unconscious when delivered by helicopter to a hospital; Scott Renck, who was in a coma for ten days; William Sanger; Steven Postle; and Robert O'Neal, all, including decedent McGlynn, receiving medical attention.

The alleged facts of the death occurrence are such that a justiciable jury issue of culpable negligence sufficient for trial may be presented. Upon arrival, decedent and other crew members were directed into the ditch for repair by Chester Dryer and Erwin Hissey, who were employed by Mid-America as the maintenance supervisor and area supervisor respectively. Henderson, the other defendant and safety officer, and senior vice president for Mid-America, may not have been present. Working conditions for repair were unfavorable since the vapors of the highly volatile liquid transported by the pipeline were heavier than air and after leakage would collect close to the ground, resulting in exclusion of oxygen sufficient to cause suffocation for workers unprotected by oxygenation equipment.

Unfortunately, neither protective clothing nor respiratory equipment was brought with the crew to the site. The "safety" procedures used were crude at best, as the workers without lifelines were directed to hold their breath and go down into the ditch for about 30 seconds to work, before coming back out of the ditch for air. When repair first started in the afternoon, there was a slight breeze in the area; however, as the afternoon wore on, the breeze stopped, and the liquid vapors collected and visibly radiated from the ground like heat waves. As the work continued until around 7:00 p.m., crew members began to pass out in the ditch. Because of the terrain and the dimensions of the ditch, it was difficult to remove the unconscious men who lacked lifelines, and most had to be pulled out by a sideboom on a dozer hooked to their belts. McGlynn, who was not wearing a belt, was the last one retrieved, only to be extracted by a chain tied around his legs. The rescue helicopter did not reach the area, because of its remoteness, until two hours after the accident, and was untimely for his survival.

A claim on behalf of McGlynn was asserted in Wyoming by Mid-America through its compensation fund which made claim payments. Disability and medical benefits were also paid to the other injured members of the crew. Wessel, the personal representative for McGlynn's estate, filed this wrongful-death action in District Court for Sweetwater County, against Mapco, 2 its second-tier subsidiary, Mid-America, and three employees of Mid-America, for culpable negligence in causing the death of McGlynn.

The pleading issue was quickly joined when the individual defendants filed separate motions to dismiss pursuant to Rule 12(b)(6), W.R.C.P., claiming that Colorado law was applicable because Wyoming's choice of law doctrine--lex loci delicti--required the law of the place of the injury to govern, i.e., Colorado, and Colorado does not allow co-employees to be sued for culpable negligence. Mid-America filed a separate motion to dismiss, contending that both Colorado and Wyoming law barred the suit against the employer for work-related injuries. Mapco filed a motion seeking dismissal or, in the alternative, summary judgment, alleging that their only connection with McGlynn's death was that they were a grandparent company of Mid-America and, lacking involvement or control over the operation or employees of thesubsidiary, had no liability. Responding to these defenses, the trial court granted Mid-America's motion to dismiss, finding that regardless of which state's law applied, the employer would be immune from suit, and also dismissing the suit against the co-employees by applying lex loci delicti and concluding that the Colorado law which did not include co-employee culpable-negligence coverage was applicable, thus effectively barring the suit against Dryer, Hissey, and Henderson. Subsequently, summary judgment in favor of Mapco was granted. Appeal is taken from the two sustained Rule 12(b)(6) motions to dismiss and the Rule 56, W.R.C.P. summary judgment. 3

EMPLOYER AND CO-EMPLOYEES

The claims against Mid-America, Dryer, Hissey, and Henderson were dismissed under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. This court will again restate the standard for review:

" ' * * * In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of...

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