Copp v. Redmond

858 P.2d 1125, 1993 Wyo. LEXIS 142, 1993 WL 332561

• Court: Wyoming Supreme Court
• Decided: September 3, 1993
• Docket: 93-8
• Status: Published

Opinions

GOLDEN, Justice.

Answering a certified question of law, we hold that for claims accruing between July 1, 1987, and February 18, 1993, culpable negligence is the degree of negligence that an injured employee must prove against a co-employee in an action to recover damages for personal injury suffered in a work-related accident.

BACKGROUND

Brian Redmond, an employee of Jim’s Water Service, was seriously injured on May 3, 1988, when he was struck, knocked to the ground and run over by a 75,000 pound 1981 Kenworth “slickback” truck operated by C.O. Bud Copp, a supervising co-employee. At the time of Redmond’s injury, Redmond, Copp, and several other co-employees were involved in moving a rig from a storage yard to a drilling site southwest of Gillette, Wyoming. In a personal injury action to recover damages, Redmond and his wife sued Copp and several other co-employees alleging negligence, gross negligence, and culpable negligence.

The instant case was filed in 1988, but was held in abeyance pending this court’s final decision upon the rehearing of Mills v. Reynolds, 837 P.2d 48 (Wyo.1992). In Mills this court held that the Wyoming legislature transgressed constitutional limitations by its 1986 repeal of what has become known as the “culpably negligent” rule. That rehearing decision generated an inquiry whether the applicable standard for such cases after the effective date of the 1986 amendment¹ should be a revival of the “culpably negligent” standard, or a simple negligence standard.

CERTIFIED QUESTION

After the Mills decision was released, proceedings in this matter resumed, and the district court certified the following question for review pursuant to Wyo. R.App.P. 11:

1. When the Wyoming Supreme Court declared the joint employee immunity created by W.S. § 27-14-104(a) to be unconstitutional in Mills v. Reynolds, 837 P.2d 48 (Wyo.1992), did that decision enable recovery in co-employee cases pursuant to common law and Markle v. Williamson [518 P.2d 621 (Wyo.1974)], to-wit: for ordinary negligence, or did it revive repealed 1977 W.S. § 27-12-103(a), so as to permit tort recovery between co-employees covered by the Wyoming Worker’s Compensation Act only when the defendant co-employee is chargeable with culpable negligence? If neither of these positions is correct, then:

2. What is the standard for recovery between such co-employees?

By order issued on January 13, 1993, the court agreed to review the certified questions.

ANALYSIS

Before its repeal in 1986, Wyo.Stat. § 27-12-103(a) (1983) provided:

(a) The rights and remedies provided in this act for an employee and his dependents for injuries incurred in extrahaz-ardous employments are in lieu of all other rights and remedies against any employer making contributions required by this act, or his employees acting within the scope of their employment unless the employees are culpably negligent, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

(Emphasis added).

In the Mills decision, the court recounted the divers changes this provision has undergone in the years both before and after 1986. Effective February 18, 1993, this provision now reads:

§ 27-14-104. Exclusive remedy as to employer; nonliability of coemployees; no relief from liability; rights as to delinquent or noncontributing employer.

(a) The rights and remedies provided in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the scope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

Wyo.Sess.Laws, ch. 47, § 1 (emphasis added).

The task of this court is to settle what standard applies to such cases between the July 1, 1987 effective date of the repeal of the “culpable neglect” language and the most recent amendment which went into place on February 18, 1993. Our decision today does not construe the language which is now in place. The effect of our decision in Mills was simply this: For the purpose of suits, such as the instant case, the language, “or his employees acting within the scope of their employment unless the employees are culpably negligent,” which appeared in § 27-12-103(a) is revived and governs all such cases for that time period. See Morris v. Smith, 837 P.2d 679, 682 (Wyo.1992).

In determining the status of the law when a statute is declared unconstitutional following amendment, we found other authorities in support of the result we reach in this case. A California case states it simply: “[T]he constitutional invalidity of amendatory legislation does not affect the validity of preceding enactments.” Valdes v. Cory, 139 Cal.App.3d 773, 189 Cal.Rptr. 212, 227 (1983) (citation omitted). Generally, when an amendment to an original act is declared unconstitutional, the unconstitutional amendment has no effect, and the law as it existed before the amendment is controlling. State v. Bloss, 64 Haw. 148, 637 P.2d 1117,1130-31 (1981), cert, denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982); Western Int’l v. Kirkpatrick, 396 N.W.2d 359, 366 (Iowa 1986); Bongard v. Bongard, 342 N.W.2d 156, 159 (Minn.App.1983). See also, 1 Norman J. Singer, Statutes and Statutory Construction § 2.07 at 42 n. 23 (1985) (“Former act remains in force when the unconstitutional amendment is declared void.”); Annotation, Previous statute as affected by attempted but unconstitutional amendment, 66 A.L.R. 1483 (1930).

We are unwilling to attribute to the legislature an intent to repeal the “culpably negligent” standard even in the face of our finding of unconstitutionality. Ascribing such intent to the legislature would leave the law in this area in a state of chaos for a period which lasted almost seven years. It would be inconsistent, as well as irresponsible, with our precedents to assign the burden of such an absurd intent to the legislature. Parker Land & Cattle v. Wyoming Game & Fish, 845 P.2d 1040, 1042-1045 (Wyo.1993); Cook v. State, 841 P.2d 1345, 1356 (Wyo.1992) (Golden, J., concurring).

CONCLUSION

Under the circumstances presented here, we hold that our decision in Mills revived the “culpably negligent” standard. Applying the general rule, we further hold the unconstitutional amendment had no effect and left the statute as it was before the amendment — for the limited purpose of maintaining the “culpably negligent” standard in cases where that standard properly applies.

1 . Wyo.Stat. § 27-14-104(a) is located in Section 3 of the 1986 Session Laws. As provided in Section 6 of the 1986 Session Laws, Section 3 became effective July 1, 1987.