Hagemann v. NJS Engineering, Inc.

2001 SD 102, 632 N.W.2d 840

Opinions

AMUNDSON, Justice.

[¶ 1.] The County of Lawrence (County) appeals the trial court’s dismissal of County’s third-party complaint pursuant to SDCL 15-6-12(b). We affirm.

FACTS

[¶ 2.] On June 24,1999, Chad Hagemann and Jason Sims, co-employees of Alpha Omega Company, were travelling east on Lawrence County road number 664. Sims was driving "a company vehicle as Hagem-ann was a passenger. While crossing a wooden bridge, a plank somehow lodged under the rear axle of the vehicle causing it to roll. Although Sims survived the accident, Hagemann was ejected from the vehicle and suffered fatal injuries. Alpha Omega paid worker’s compensation benefits to Hagemann’s estate. Hagemann’s estate brought a wrongful death action against County for failure to maintain the bridge where the fatal accident occurred.

[¶ 3.] In response to the wrongful death action filed by Hagemann’s estate, County filed a third-party complaint against Sims claiming that Sims was negligent in the operation of the vehicle. County claims it would be entitled to contribution or indemnity if it was found liable for the death of Hagemann because Sims was at least partially responsible for the accident. Sims filed a motion to dismiss claiming that SDCL 62-3-2 prevents suit against him. The trial court agreed with Sims and granted his motion to dismiss pursuant to SDCL 15-6-12(b)(5).¹ County appeals raising the following issue:

Whether SDCL 62-3-2 precludes County from seeking contribution or indemnity from Sims.

STANDARD OF REVIEW

[¶4.] This Court’s standard of review of a trial court’s grant or denial of a motion to dismiss is the same standard as that which is applied upon review of a motion of summary judgment-“is the pleader entitled to judgment as a matter of law?” Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 597-98 (quoting Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631). Therefore, we review all facts most favorable to the nonmovant party. Id. We continue to review questions of law, particularly issues of statutory construction, de novo. In re Estate of Klauzer, 2000 SD 7, ¶ 22, 604 N.W.2d 474, 479.

DECISION

[¶ 5.] The disposition of this case depends on whether under SDCL 62-3-2, Sims is a joint tortfeasor pursuant to SDCL 15-8-11. “The intent of the statute must be determined from what the legislature said, rather than what this court thinks the legislature should have said, and this determination must be confined to the plain, ordinary meaning of the language used by the legislature.” M.B. v. Konenkamp, 523 N.W.2d 94, 97 (S.D.1994). The rules of statutory construction adopted by this Court state:

The purpose of rules regarding the construction of statutes is to discover the true intention of the law, and said intention is to be ascertained by the court primarily from the language expressed in the statute. In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.

While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent.

One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. WThen the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.

South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 NW2d 206, 209 (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 884-85 (S.D.1984)). SDCL 62-3-2 provides:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2 makes it clear that employer and employee are in the same position when it comes to barring suit against them. To allow such an action for contribution to proceed would circumvent the plain language of SDCL 62-3-2, which prevents suit against “any employee.”²

[¶ 6.] Being that SDCL 62-3-2 provides “any employee” immunity from suit, contribution against Sims under the Uniform Contribution Among Tortfeasors Act is also barred. As a matter of law, Sims is not a joint tortfeasor. Under the Act, codified in SDCL ch 15-8, a “joint tortfeasor” is defined as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” SDCL 15-8-11 (emphasis supplied). As this Court stated in Burmeister v. Youngstrom, 81 S.D. 578, 139 N.W.2d 226, 231 (1965), the Act only applies “where there is a common liability to an injured person in tort” and “there can be no contribution where the injured person has no right of action against the third-party defendant.” (emphasis supplied). This Court made it “abundantly clear” that contribution only arises when “there is joint or several liability rather than the presence of joint or concurring negligence.” /¿.(emphasis supplied). SDCL 62-3-2 immunizes Sims from suit, and, as such, he cannot be held liable as a joint tortfeasor no matter his degree or percentage of negligence. As stated in Larson’s: Workers Compensation Law, § 121.02:

The great majority of jurisdictions have held that the employer [or co-employee] whose negligence contributed to the employee’s injury cannot be sued or joined as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one: the employer [or co-employee] is not jointly liable to the employee in tort; therefore it cannot be a joint tortfeasor. The liability that rests upon the employer [or co-employee] is an absolute liability irrespective of negligence, and this is the only kind of liability that can devolve upon it whether it is negligent or not.³

As Sims cannot be held liable under SDCL 62-3-2, by definition, he cannot be a joint tortfeasor under SDCL ch 15-8, the Uniform Contribution Among Tortfeasors Act.⁴

[¶ 7.] Rather than arguing the interpretation of SDCL 62-3-2, County urges this Court to disregard South Dakota statutory and case law, and invites us to follow Illinois and Minnesota case law to reach its desired result. County contends that the cases of Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991) and Lambertson v. Cincinnati Weldingt Corp., 812 Minn. 114, 257 N.W.2d 679 (1977) as precedent to follow in this case.⁵ In essence, the Kotecki case and the Lambertson case hold that an employer could be held liable for contribution, but that the amount contributed would be limited to workers’ compensation benefits. 166 Ill.Dec. 1, 585 N.E.2d at 1027; 257 N.W.2d at 689. Therefore, by analogy, County contends that Sims, as an employee, should also be held liable for his proportionate share depending on his percentage of fault.⁶

[¶8.] Not only are the cases cited by County not binding on this Court, their principle holding contravenes the plain language of SDCL 62-3-2 and our holding in Abraham. In Abraham, this Court stated:

Our interpretation of [SDCL 62-3-2], in accordance with previous decisions and read together with other statutes, is that SDCL 62-3-2 does operate as an exclusionary provision which prevents claims against fellow employees for injuries obtained in the scope of employment[.]

1999 SD 90, ¶ 22, 598 N.W.2d 512, 518. SDCL 62-3-2 unambiguously provides that an employee cannot maintain a negligence action against his employer or co-employee as workers’ compensation is the exclusive remedy for a work-related injury.⁷ To fol low the Illinois and Minnesota case law in this area would involve rewriting South Dakota’s workers compensation law by this Court.⁸ We decline the invitation to legislate in this case.⁹ Since SDCL 62-3-2 bars County’s action against Sims, it was proper for the trial court to dismiss this case as provided by SDCL 15-6-12(b)(5).

[¶ 9.] We affirm.

[¶ 10.] KONENKAMP, Justice, concurs. [¶ 11.] GILBERTSON, Justice, concurs in result. [¶ 12.] MILLER, Chief Justice, and SABERS, Justice, dissent.

Footnotes

1

. SDCL 15-6-12(b) provides: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

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(5) Failure to state a claim upon which relief can be granted;

2

. It is uncontroverted that (1) Sims and Ha-■gemann were co-employees, and (2) Sims and Hagemann were both acting in the scope of their employment at the time of the accident.

3

. For example, in Phillips v. Union Pacific R.R. Co., 614 P.2d 153 (Utah 1980), a case involving a decedent's estate suing a co-employee for contribution arising out of a car accident, the Utah Supreme Court followed the majority rule against contribution. The court explained:

There can be no contribution between the defendant railroad and Hammary [employer] and Parham [co-employee], because they cannot be joint tortfeasors. See 2A Larson on Workmen’s Comp. 295, Sec. 76.20 Contribution. Their respective liabilities aré grounded upon different social issues sought to be recognized by the Legislature when it adopted legislation dealing with Workmen’s Compensation. Our statute defines a joint tort-feasor as one of two or more persons jointly or severally liable in tort for the same injury. The liability of the employer is not tort liability at all, but only requires that the injured employee be in the course and scope of the employment. Further, to allow contribution would only permit indirectly that which cannot be done directly, i. e., effectively permitting recovery by one employee against a fellow employee. The exclusive remedy provisions of both the Utah and the North Carolina Workmen's Compensation Acts, along with the cases interpreting those provisions, make it clear that an employer’s only liability for injuries sustained by an employee is the extent of benefits under the Act. Additional exposure through the indirect method of a third-party action would be a blatant violation of expressed legislative policy.

Phillips, 614 P.2d at 154 (emphasis added); see also Weller v. Brown, 266 Ga. 130, 464 S.E.2d 805 (1996).

4

. It is important to note that the Uniform Contribution Among Tortfeasors Act was adopted after the codification of SDCL 62-3-2. Certainly, the Legislature was aware of SDCL 62-3-2 when it adopted the Act. This Court is mindful of the notion that this Court should be hesitant to interpret the effect of a legislative enactment as to void another enactment sub silentio. This Court has consistently stated that statutes are to be read in pari materia, ■ interpreting multiple statutes "consistently and harmoniously with each other.” Konenkamp, 523 N.W.2d at 97. If the Legislature desired to limit the application and effect of SDCL 62-3-2, it certainly knows how to do so.

5

. County also cites to a few Washington state cases to also support its position that it should be able to go forward against an employer or employee despite having a statute similar to SDCL 62-3-2. The case of Clark v. Pacific Corp, 118 Wash.2d 167, 822 P.2d 162 (1991) allowed suit against an employer for contribution. The Clark case, however, was subsequently abrogated by state statute. Following the state legislature’s change of the statute, the court in Shelton v. Azar, Inc., 90 Wash.App. 923, 954 P.2d 352 (1998) recognized that a suit against an employer could not be maintained because the new statute expressly forbids such action. Therefore, the Clark case has little or no prudential value in the state of Washington, let alone South Dakota. It is also instructive to note that Illinois has only partially adopted the Uniform Contribution Among Tortfeasor Act. In Illinois, the Act includes an express provision for third party recovery against an employer. See Ill.St. ch 740, § 100/3.5. Minnesota has not adopted the Act. But see Minn.Ann.St. 604.01, subd. 1. As the Lambertson court states, "other jurisdictions must be read with caution on this issue because of different statutes and concepts of recovery.” 257 N.W.2d at 689. It is clear that South Dakota's statutory scheme for recovery is different from those cited by County. The dissent disregards our holding in Burmeister, and now attempts to interpret SDCL 15-8-11 to hold that negligence alone creates a joint tortfeasor. This interpretation not only contravenes the plain language of SDCL 15-8-11 requiring "common liability,” but also our holding in Burmeister.

6

. In its brief, County concedes that Hagem-ann's estate could not sue Sims directly because the language of SDCL 62-3-2 bars such action. See Canal Insurance Co. v. Abraham, 1999 SD 90, 598 N.W.2d 512. The holding in Abraham contradicts the holdings espoused in the two cases supplied as persuasive authority by County.

7

. The dissent cites no authority for the propositions that our "use” of "SDCL 62-3-2 to define the rights of a third party in a context in which it was never meant apply” and that its decision calls "for a commonsense interpretation of these separate, independent chapters.” The language employed by the Legislature in writing SDCL 62-3-2 is plain and unambiguous. Therefore, any interpretation is unnecessary, and we must simply "declare the meaning of the statute as clearly expressed.” VanGorp v. Sieff, 2001 SD 45, ¶ 12, 624 N.W.2d 712. As stated by Chief Justice Miller in his dissent in Baatz v. Arrow Bar, 426 N.W.2d 298, 309 (S.D.1988), this Court "should not speculate or second guess the legislature in its exercise of this constitutional prerogative.” This Court cannot supplant its own agenda for that of the Legislature. To reach the result desired by the dissent this Court would have to overrule Burmeister and rewrite SDCL 15-8-11 and 62-3-2. "It is not the task of this court to revise or amend statutes, or to 'liberally construe a statute to avoid a seemingly harsh result where such action would do violence to the plain meaning of the statute under construction.' " Moore v. Michelin Tire Co., 1999 SD 152, ¶ 21, 603 N.W.2d 513, 519. If the result appears to be harsh or unfair, the Legislature is the proper venue to amend the statutes, not the courts.

8

. Even the Illinois court recognizes that 45 other jurisdictions follow the majority rule that an employer cannot be sued for contribution when there is a state statute which expressly forbids such action. See Kotecki, 166 Ill.Dec. 1, 585 N.E.2d at 1027.

9

. County also urges this Court to contemplate public policy considerations, namely the equitable principle of not allowing Sims, a potential tortfeasor, protection against suit. Again, the legislature is best suited to make policy decisions.