Mills v. Reynolds

837 P.2d 48, 1992 Wyo. LEXIS 92, 1992 WL 165378

• Court: Wyoming Supreme Court
• Decided: July 20, 1992
• Docket: 89-193, 89-195
• Status: Published

Opinions

MACY, Chief Justice.

In the rehearing granted in this case, Appellants Timothy L. Mills and Levi Harry Bunker ask this Court to declare that Wyo.Stat. § 27-14-104(a) (1987) was unconstitutional. We hold that the statute, which, under the Wyoming worker’s compensation scheme, granted immunity from suits by co-employees to employees who were acting within the scope of their employment, was unconstitutional because it violated the Wyoming Constitution’s guarantee of equal protection.¹

Mills and Bunker presented the following issues in their original briefs:

1. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article 10, Section 4, of the Wyoming Constitution, which provides that “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person”?

2. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article 10, Section 4, of the Wyoming Constitution, which limits the immunities which can be granted pursuant to Worker’s Compensation laws to the “employer contributing as required by law” to the compensation fund?

3. Does Wyo.Stats.1977, as amended, Section 27-14-104, which grants immunity from suit to coemployees, violate Article I, Sections 2, 3, 6, 7, 8, 9, and 34, and Article 3, Section 27, which provide for equality among all members of the human race in the right to life, liberty, and the pursuit of happiness; equal political rights, equality in civil rights, and equal privileges among all citizens; due process of law; prohibit absolute and arbitrary uses of power, even by the greatest majority; provide for equal access to the courts for all citizens; provide that the right to a jury trial is inviolate; provide that all laws shall have a uniform operation; and which prohibit special legislation, especially special legislation which calls for the “limitation of civil actions,” and which grants “to any corporation, association or individual ... any special exclusive privilege, immunity, or franchise whatever”?

In March 1988, Mills was employed by Dunbar Well Service, Inc. On the day that Mills sustained the injuries which serve as the basis for his suit, Appellee Guy Reynolds, a co-employee, told Mills to paint the hood of a pump truck. Reynolds directed Mills to use specific equipment, including a regulator and an air tank which was provided by Reynolds and Appellee Sid Marks, a co-employee. Reynolds did not supervise Mills or provide him with proper instructions on the tank’s use. When Mills and a co-worker opened the tank, the regulator burst, and parts of the regulator and other equipment struck Mills in the face. Mills was severely injured.

The record from the companion case shows that Bunker was employed by Universal Equipment Co. In July 1987, Appel-lee Jim Niggemyer, Bunker’s co-employee, instructed Bunker to remove electrical equipment from a mine site. Bunker was incorrectly informed that electricity to the equipment had been turned off. As he began working, Bunker placed a wrench in an electrical panel. The wrench touched a live electrical bar which delivered an electrical shock to Bunker. Bunker was thrown from a ladder, and he received serious injuries.

Mills filed a complaint, alleging that Reynolds and Marks were negligent and that their negligence was the proximate cause of his injuries. Bunker filed a similar complaint, naming Niggemyer as the defendant. In response, Appellees filed motions for summary judgments, asserting that, as co-employees of Mills and Bunker, they were immune from suit pursuant to § 27-14-104(a). Mills and Bunker argued, as they did before this Court, that Appel-lees were not immune because § 27-14-104(a) was unconstitutional under the Wyoming Constitution. The district court held a motion hearing and decided that Appel-lees were entitled to summary judgments because § 27-14-104(a) was constitutional and because it provided Appellees with immunity from suit.

On appeal, a majority of this Court upheld the constitutionality of § 27-14-104(a) and affirmed the district court’s decision to grant summary judgments in favor of Appellees. Mills v. Reynolds, 807 P.2d 383 (Wyo.1991). Writing for the majority, Justice Thomas stated that the constitutionality of § 27-14-104(a) could be sustained by extending the rationale and holding of Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982) (upholding the constitutionality of the statute which granted immunity to co-employees unless they were culpably negligent). He also said that the statement, “ ‘The right of each employee to compensation from the fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law,’ ” found in Article 10, Section 4 of the Wyoming Constitution did not limit the application of immunity to employers. Mills, 807 P.2d at 389. Justice Thomas rejected Appellants’ due process arguments by stating that they failed to show how the scheme was unfair and that the statute was not an arbitrary enactment which failed “to promote a legitimate state objective by reasonable means.” Id. at 395. In addition, Justice Thomas wrote that Appellants were not denied their right to access to the courts because, while the statutory immunity prevented employees from recovering from co-employees who were acting within the scope of their employment, it did not preclude them from going to court. Finally, he stated that § 27-14-104(a) did not violate Appellants’ equal protection rights or amount to special legislation because every employee could be subject to the immunity pursuant to Wyo.Stat. § 27-14-103(g) (1987).² After the decision was issued, Appellants filed petitions for a rehearing. We granted Appellants’ petitions, heard oral arguments, and took the case under advisement.

Before an amendment in 1914, Article 10, Section 4 of the Wyoming Constitution provided:

No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employe[e] waiving any right to recover damages for causing the death or injury of any employe[e] shall be void.

Meyer, 641 P.2d 1235. The 1914 amendment expanded the provision to allow for worker’s compensation legislation:

No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void. As to all extra hazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries, except in case of injuries due solely to the culpable negligence of the injured employee. Such fund or funds shall be accumulated, paid into the state treasury and maintained in such manner as may be provided by law. The right of each employee to compensation from such fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injuries or death.

Wyo. Const, art. 10, § 4 (as amended in 1914). In 1975, the legislature enacted the first provision of the Wyoming Worker’s Compensation Act (the Act) which referred to co-employee immunity. 1975 Wyo.Sess. Laws ch. 149, § 1. Wyo.Stat. § 27-312(a) (Supp.1975) provided:

(a) The rights and remedies provided in this act [§§ 27-310 to -388] for an employee and his dependents for injuries incurred in extra hazardous 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 grossly negligent, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

(Emphasis added.) In 1977, the legislature changed the degree of negligence from grossly to culpably. See Wyo.Stat. § 27-12-103(a) (1977).³

In Meyer, this Court sustained the constitutionality of the grant of immunity for co-employees unless they were “culpably negligent.” In response to several constitutional arguments, this Court first held that the statute permissibly limited a “cause of action available for a recovery” and not damages in violation of Article 10, Section 4 of the Wyoming Constitution. Meyer, 641 P.2d at 1239. Second, the Meyer Court held that the legislation did not violate employees’ equal protection rights or amount to special legislation because it had the same effect upon all employees in similar circumstances and because the classification was reasonable in view of the State’s objectives (“harmony among employees, the maintenance of a sound worker’s compensation fund, and the overall purpose and philosophy behind the Worker’s Compensation Act.” Id. at 1240). Third, this Court held that the appellant was denied success in court but that she was not denied her constitutional right to access to the courts. Id. at 1241. Finally, the Meyer Court held that the statute did not violate Article 10, Section 4 of the Wyoming Constitution. Id.

In 1986, the following two sentences were added to Article 10, Section 4:

Subject to conditions specified by law, the legislature may allow employments not designated extrahazardous to be covered by the state fund at the option of the employer. To the extent an employer elects to be covered by the state fund and contributes to the fund as required by law, the employer shall enjoy the same immunity as provided for extrahaz-ardous employments.[⁴]

In the same year, the legislature again expanded the immunity for co-employees. Section 27-14-104(a) provided employees with complete immunity from suit by co-employees if the employees were acting within the scope of their employment. That immunity served as the basis for the constitutional challenge in this case. .

Because we hold that § 27-14-104(a) violated the equal protection guarantees embraced in the Wyoming Constitution, we decline to address the other constitutional issues presented for our review. A foundation for equal protection is located in the following provisions of the Wyoming Constitution:

In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

Wyo.Const. art. 1, § 2.

Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Wyo. Const, art. 1, § 3.

All laws of a general nature shall have a uniform operation.

Wyo. Const, art. 1, § 34.

The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: For ... limitation of civil actions; ... granting to any corporation, association or individual ... any special or exclusive privilege, immunity or franchise whatever_ In all other cases where a general law can be made applicable no special law shall be enacted.

Wyo. Const, art. 3, § 27. Generally, equal protection “ ‘mandates that all persons similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed.’ ” Small v. State, 689 P.2d 420, 425 (Wyo.1984), cert. denied, 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 (1985) (quoting State v. Freitas, 61 Haw. 262, 602 P.2d 914, 922 (1979)). The concept does not require, however, that the legislature treat every state citizen equally. Small, 689 P.2d 420. Instead, traditional equal protection principles operate to ensure that legislatively created classifications bear a rational relationship to a legitimate state concern. Kautza v. City of Cody, 812 P.2d 143 (Wyo.1991); Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). The rational relationship test is utilized when an ordinary interest is involved. Hays v. State ex rel. Wyoming Workers’ Compensation Division, 768 P.2d 11 (Wyo.1989). If a fundamental right is implicated or if the classification is inherently suspect, we employ a strict scrutiny standard. Under the strict scrutiny test, the classification must be closely scrutinized to determine if it is necessary to achieve a compelling state interest. In addition, the burden is on the State to demonstrate that it could not use a less onerous alternative to achieve its objective. Id.; O’Brien v. State, 711 P.2d 1144 (Wyo.1986); Washakie County School District Number One v. Herschler, 606 P.2d 310 (Wyo.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980).

In this case, the legislature has created classifications at two levels. See State v. Laude, 654 P.2d 1223 (Wyo.1982) (discussing how a court can identify classifications). First, it has taken the entire group of individuals who have suffered or who will suffer from the tortious conduct of others and carved out an exception, without express constitutional authority, for co-employees. Second, it has created a class of employees. Under the Act, employees who were involved in extrahazardous employments were automatically within the purview of the Act. Section 27-14-104(a). Employees who were not involved in extra-hazardous employment could have been subject to the provisions of the Act if their employers had elected to participate. Section 27-14-103(g). Given that only some employees were automatically covered by the Act and that the determination of whether employees not involved in extra-hazardous employment were covered by the Act was made by employers, we cannot concur that:

Because every worker in Wyoming now may receive an equal benefit under the act with respect to the protection afforded the co-employee, there seems no prospect of supporting the claim of a deprivation of equal protection.

Mills, 807 P.2d at 397 (emphasis added). The Act created classifications which treat similarly situated people differently.

Next, we must determine the level of scrutiny which applies to this case. Because neither the class of employees covered by the Act nor the class of those who suffer due to the tortious conduct of others is inherently suspect, we must examine the nature of the interest involved to determine whether § 27-14-104(a) infringed upon the fundamental right to access to the courts. A fundamental right is a right which the constitution explicitly or implicitly guarantees. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). See also Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153 (1988); and Bryant v. Continental Conveyor & Equipment Co., Inc., 156 Ariz. 193, 751 P.2d 509 (1988) (en banc). Article 1, Section 8 of the Wyoming Constitution provides:

All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.

At a very minimum, that constitutional provision implicitly guarantees that every person has the right to meaningful access to the courts if he or she is injured. While this Court has not previously declared that the right to access to the courts is a fundamental right, we have referred to Article 1, Section 8 as securing a right to access. White v. State, 784 P.2d 1313 (Wyo.1989); Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo.1980), appeal after remand, 632 P.2d 925 (Wyo.1981); Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 (1949).⁵ We now hold that the right to access to the courts is a fundamental right pursuant to Article 1, Section 8.⁶

Section 27-14-104(a) infringed upon the right to access to the courts because it granted complete immunity from suits by co-employees to employees who were acting within the scope of their employment. In other words, Mills’ and Bunker’s access to the courts was denied because they were precluded from going to court and recovering for injuries caused by the tortious conduct of their co-employees. The version of § 27-14-104(a) which served as the basis for the constitutional challenge in Meyer is distinguishable as it did not give complete immunity to co-employees. That statute prescribed a level of proof which an employee must establish to recover from a tortious co-employee. It did not completely deny a meaningful access to the courts to the injured employee.

Since we have determined that § 27-14-104(a) infringed upon a fundamental right, we must employ our strict scrutiny analysis. The burden is on Appellees to defend the constitutionality of the statute. Washakie County School District Number One, 606 P.2d 310. They must demonstrate “a compelling interest ... which is served by the challenged legislation and which cannot be satisfied by any other convenient legal structure.” Id. at 335. While Appellees and those who submitted briefs on their behalf have not argued that § 27-14-104(a) was supported by a compelling state interest, they have asserted that, the statute addressed the following legitimate state concerns: (1) the assurance of compensation for injured workers in a timely manner; (2) the elimination of the risk of suits; (3) the promotion of harmony among workers; (4) the maintenance of a financially stable worker’s compensation fund; and (5) the prevention of increased insurance costs. We recognize that those concerns may be legitimate and that they may be addressed by appropriate legislation. See Meyer, 641 P.2d 1235. However, they do not correspond with any compelling interests which this Court has previously identified. King v. State, 810 P.2d 119 (Wyo.1991) (compelling interest in assuring that a prosecutor is countered at trial by a defense attorney who is aggressive and effective enough to make the adversarial process perform as designed); RHF v. RMC (Adoption of JLP), 774 P.2d 624 (Wyo.1989) (compelling state interest in protecting the welfare of children); Nowack v. State, 774 P.2d 561 (Wyo.1989) (compelling public interest in punishment for crimes); Scadden v. State, 732 P.2d 1036 (Wyo.1987) (compelling interest in regulating sexual contacts between persons when one of those persons does not consent or lacks the capacity to consent); Coyne v. State ex rel. Thomas, 595 P.2d 970 (Wyo.1979) (compelling state interest in preventing conflicts of interest in public employment). We hold that the state concerns do not justify the legislature’s infringement upon a fundamental right.

In addition, we do not perceive that complete immunity for co-employees who were acting within the scope of their employment was the least onerous means by which the objective of the Act could be achieved. Section 27-14-104(a) precluded employees from bringing suit against co-employees who committed intentional torts while they were acting within the scope of their employment. In essence, that provision permits an employee to intentionally harm a co-employee without being concerned about civil liability. While such immunity may slightly decrease the number of lawsuits filed by employees and increase the number of employees who will be guaranteed compensation, it severely burdens the State’s undeniable interest in prohibiting an individual from committing an intentional tort without the possibility of liability. See Meyer, 641 P.2d 1235; Markle v. Williamson, 518 P.2d 621 (Wyo.1974) (stating that Wyoming’s worker’s compensation scheme is a form of insurance); and Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982) (stating that insurance against intentional torts is against public policy). Harmony in the work place may actually be enhanced if an employee knows that the worker next to him will be legally accountable for some of his actions, and, even though the parties have not presented facts concerning insurance costs and the financial status of the worker’s compensation fund, we would be hard pressed to hold that those objectives could be attained only under a scheme which provided complete immunity to employees.

In summary, the legislature’s grant of complete immunity to co-employees, which includes immunity for intentional acts and for willful and wanton misconduct, infringed upon the fundamental right to access to the courts.⁷ Such an infringement triggers application of the strict scrutiny test. Under that test, we are unable to identify a compelling state interest which would permit complete immunity for co-employees. We hold that § 27-14-104(a) was unconstitutional.

This decision applies retroactively. We have previously held:

“The general rule from time immemorial is that the ruling of a court is deemed to state the true nature of the law both retrospectively and prospectively. In civil cases, at least, constitutional law neither requires nor prohibits retroactive operation of an overruling decision, but in the vast majority of cases a decision is effective both prospectively and retrospectively, even an overruling decision. Whether the general rule should be departed from depends on whether a substantial injustice would otherwise occur.”

Harvey By and Through Harvey v. General Motors Corporation, 739 P.2d 763, 765 (Wyo.1987) (quoting Malan v. Lewis, 693 P.2d 661, 676 (Utah 1984) (emphasis added and citations omitted)). We detect no substantial injustice which would require us to depart from the general rule. By our decision being applied retroactively, as well as prospectively, the statute of limitations is tolled from July 1, 1987 (the date on which § 27-14-104(a) became effective) until the date of this decision.

CARDINE, J., filed a specially concurring opinion in which URBIGKIT, J., joined.

URBIGKIT, J., filed an opinion concurring in the majority opinion and joining in Justice CARDINE’s specially concurring opinion.

THOMAS, J., filed a dissenting opinion in which GOLDEN, J., joined.

GOLDEN, J., filed a dissenting opinion in which THOMAS, J., joined.

1 . Section 27-14-104(a) was created during the 1986 Special Session and became effective July 1, 1987:

(a) The rights and remedies provided in this act for an employee and his dependents for injuries incurred in extrahazardous 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, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

This section was amended effective July 1, 1989, and now 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.

(Emphasis indicates amendments.) The amendments did not make a substantive change in this section so as to cause it to become constitutional.

2 . Section 27-14-103(g) provided:

(g) Any employee not enumerated under this section or not employed in an extrahaz-ardous occupation enumerated under this section may be covered and subject to the provisions of this act and his employment shall be treated as if extrahazardous for purposes of this act, if his employer elects to obtain coverage under this act and makes payments as required by this act. An employer electing coverage may only elect to cover all his employees. The division shall not provide coverage under this subsection sooner than thirty (30) days after receipt of the employer’s notice of election. An employer may withdraw coverage elected under this subsection at any time if the elected coverage has been in effect for at least three (3) years and the employer is current on all contributions and payments required under this act.

Amended by 1989 Wyo.Sess.Laws ch. 226, §§ 1 and 2 effective July 1, 1989; repealed by 1991 Wyo.Sess.Laws ch. 190, § 2 effective July 1, 1991.

3 . Repealed and recreated as § 27-14-104(a) by 1986 Wyo.Sp.Sess.Laws ch. 3, § 3 effective July 1, 1987.

4 . The Act was amended in 1986 to provide for the election stated in Article 10, Section 4.

5 . In Mull, this Court held that Article 1, Section 8 did not abrogate a common-law rule (barring a suit for personal injuries against the representative of a deceased tort-feasor) which existed at the time the Wyoming Constitution was adopted.

6 . In Troyer v. State Department of Health and Social Services, Division of Vocational Rehabilitation, 722 P.2d 158 (Wyo.1986), this Court held that a tort victim did not have a fundamental right to sue the State. That holding is supported by the last sentence of Article 1, Section 8: "Suits may be brought against the state in such manner and in such courts as the legislature may by law direct." The case at bar is distinguishable because it involves a suit against individuals and not against the State.

7 . In Mayflower Restaurant Company v. Griego, 741 P.2d 1106, 1115 (Wyo.1987) (quoting Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo.1986)), we gave the definition of willful and wanton misconduct:

"Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.”