McKennan v. Newman

843 P.2d 602, 1992 Wyo. LEXIS 190, 1992 WL 363186

• Court: Wyoming Supreme Court
• Decided: December 11, 1992
• Docket: No. 91-273
• Status: Published

Opinions

MACY, Chief Justice.

Susan W. McKennan, personal representative of the estate of Terry Don McKen-nan, appeals from the district court’s order dismissing the wrongful death action which she filed against her deceased husband’s co-employees.

We reverse and remand.

Stated most simply, the issue on appeal is: Whether the district court’s dismissal order must be reversed in light of Mills v. Reynolds, 837 P.2d 48 (Wyo.1992).

Mr. McKennan died in a tragic industrial accident which occurred at Wyoming Sawmills, Inc. on September 22, 1989. Although no one witnessed the accident, circumstances indicated that Mr. McKennan either fell or was drawn into a wood chip auger as he attempted to unclog it. Mr. McKennan suffered massive body trauma and died almost instantaneously. McKennan v. Wyoming Sawmills, Inc., 816 P.2d 1303, 1304 (Wyo.1991).

Ms. McKennan filed a wrongful death action against Wyoming Sawmills, Inc. on October 11, 1990. She alleged that her husband’s employment with Wyoming Sawmills, Inc. was unlawful because he was required to work under circumstances which violated the Wyoming Occupational Health and Safety Act, Wyo.Stat. §§ 27-11-101 to -114 (1991 & Supp.1992). Ms. McKennan reasoned that, because her husband’s employment was unlawful, the exclusive remedy provisions in Article 10, Section 4 of the Wyoming Constitution and Wyo.Stat. § 27-14-104(a) (1991) barred the action. We affirmed, holding “that the existence of OHSA violations does not render otherwise lawful employment unlawful.” McKennan, 816 P.2d at 1304 (citing Mauch v. Stanley Structures, Inc., 641 P.2d 1247, 1251 (Wyo.1982)).

On September 20, 1991, shortly after our decision in McKennan, Ms. McKennan filed a wrongful death action against her husband’s co-employees: Richard Newman, the general manager; Ron Rabe, the sawmill supervisor; Gary Senier, the shift supervisor; and Terry Caywood, the immediate supervisor. This complaint’s substantive allegations were essentially identical to those in the complaint filed against Wyoming Sawmills, Inc. Ms. McKennan alleged that her husband’s death was proximately caused by the co-employees’ operation of the sawmill in violation of OHSA regulations. She further asserted that, because of the co-employees’ negligent operation, they were “not acting within the scope of their employment” and thus not statutorily immune from suit under § 27-14-104(a).¹

In response, the co-employees moved to have Ms. McKennan’s complaint dismissed pursuant to W.R.C.P. 12(b)(6). Their motions to dismiss were supported by supplemental materials from McKennan and by Richard Newman’s affidavit. The co-employees’ position was that they were absolutely immune from suit under § 27-14-104(a) as they were acting “within the scope of their employment” at all times relevant to Mr. McKennan’s death. In support of this position, the co-employees relied upon the holding in McKennan to argue that OHSA violations alone were an insufficient reason to deny the immunity afforded by the Wyoming Worker’s Compensation Act.

Following a hearing held on October 28, 1991, the district court entered an order on November 6, 1991, granting the co-employees’ motions to dismiss. The district court determined, after considering the motions, legal memoranda, supplemental materials, affidavit, and counsels’ arguments, that Ms. McKennan’s wrongful death action against the co-employees was indeed barred by § 27-14-104(a) of the Wyoming Worker’s Compensation Act. This appeal followed.

Under ordinary circumstances, our threshold issue would be whether the co-employees’ motions to dismiss were converted to motions for a summary judgment by the district court’s consideration of matters outside of the pleadings. See generally Cranston v. Weston County Weed and Pest Board, 826 P.2d 251 (Wyo.1992), and Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986). If we were to determine that no conversion occurred, we would then address whether, under the applicable standard of review, the district court erred in determining that Ms. McKennan’s complaint failed to state a claim upon which relief could be granted in light of § 27-14-104(a). Alternatively, if we were to determine that conversion occurred, we would then address whether, under the applicable standard of review, the district court erred in determining that Ms. McKennan failed to create an issue of material fact which would preclude an entry of a judgment as a matter of law under § 27-14-104(a).

The need to engage in the analysis outlined above has been obviated, however, by Mills.2 In Mills, a majority of this Court agreed that the statutory grant of co-employee immunity contained in § 27-14-104(a) violated one or more provisions of the Wyoming Constitution. Mills, 837 P.2d at 49, 55. The Mills decision was given effect prospectively and retroactively to July 1, 1987 (the effective date of § 27-14-104(a)). Id. at 55-56. As a result of the retroactive application of Mills, the district court’s dismissal order, which was premised upon the co-employee immunity provided by § 27-14-104(a), cannot stand. Consequently, we reverse and remand this case, directing that Ms. McKennan be allowed to amend her complaint to state a cause of action, if any, under the law as it now stands.

Reversed and remanded.

THOMAS, J., files a specially concurring opinion.

1 . Section 27-14-104(a) provides:

(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, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

2 . As Milb eliminated the need to consider the conversion issue, we refer to the district court’s “Order Granting Motion to Dismiss” as a W.R.C.P. 12(b)(6) dismissal.