Mounteer v. Utah Power & Light Co.

773 P.2d 405, 107 Utah Adv. Rep. 71, 4 I.E.R. Cas. (BNA) 1564, 1989 Utah App. LEXIS 67, 1989 WL 45380
CourtCourt of Appeals of Utah
DecidedMay 2, 1989
Docket880189-CA
StatusPublished
Cited by12 cases

This text of 773 P.2d 405 (Mounteer v. Utah Power & Light Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mounteer v. Utah Power & Light Co., 773 P.2d 405, 107 Utah Adv. Rep. 71, 4 I.E.R. Cas. (BNA) 1564, 1989 Utah App. LEXIS 67, 1989 WL 45380 (Utah Ct. App. 1989).

Opinion

MEMORANDUM DECISION

JACKSON, Judge:

Percy Mounteer appeals from the final order and judgment dismissing his complaint for failure to state a cause of action against respondent Utah Power & Light Company (“UP & L”). We affirm.

According to the June 1987 complaint filed in this action, Mounteer worked as a warehouseman at UP & L’s mine in Emery County, Utah. He was under elevated mental stress because of his involvement in the December 1984 Wilburg mine disaster. Niki Larsen, a security guard for UP & L, was instructed by her superiors at UP & L to investigate Mounteer for suspected drug use. UP & L had specific procedures to be followed in such cases. On October 6, 1986, Larsen came to the mine, briefly interviewed Mounteer at work, and

in violation of company policy, and on an open-page system that was connected to loudspeakers, knowingly communicated to many of defendant’s other employees that [Mounteer] was on drugs. When advised by another of defendant’s employees that it was being broadcast on the public-address system, Larsen persisted and continued to make allegations to the effect that plaintiff was on drugs.

These false statements, which Mounteer claimed were either intentionally, recklessly, or negligently made by Larsen, resulted in severe mental and emotional damage that, in turn, resulted in Mounteer’s hospitalization and the aggravation of his post-traumatic stress disorder, rendering him totally disabled from employment.

Mounteer did not sue Larsen, and made no allegations of any negligent or intentional injurious acts by UP & L directly. Instead, he sought to hold UP & L vicariously liable in damages for the acts of its agent, Larsen, under three asserted causes of action. The first was for slander for the unprivileged publication of false and defamatory statements, which, “in fact, was in violation of the company’s procedures with respect to allegations of drug use....” The second and third causes of action were for intentional and negligent infliction of emotional distress. He requested reimbursement for medical expenses, and damages for permanent total disability, suffering, and damage to reputation.

In the absence of any allegations that UP & L intended or directed Larsen’s injurious acts, which were allegedly in violation of UP & L’s policy, the trial court concluded UP & L could not be liable. Mounteer’s complaint was dismissed without prejudice. 1

In reviewing a dismissal for failure to state a claim, this court must construe the complaint in the light most favorable to the plaintiff and indulge all reasonable inferences in plaintiff’s favor. Arrow Indus. v. Zions First Nat’l Bank, 767 P.2d 935, 936 (Utah 1988). Such a dismissal is appropriate only where it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claims asserted. Freegard v. First W. Nat’l Bank, 738 P.2d 614, 616 (Utah 1987).

*407 Appellant avers that his is a textbook case in which the employer should be vicariously liable, under the principle of respon-deat superior, for the negligent or intentional acts of an employee/agent that injure a third party while that employee is carrying out the employer’s business and acting within the scope of employment. See, e.g., Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989); Whitehead v. Variable Annuity Life Ins. Co., 101 Utah Adv.Rep. 24 (1989); see also Johnson v. Rogers, 763 P.2d 771 (Utah 1988) (recognizing cause of action for negligent infliction of emotional distress and enunciating standards for employer’s vicarious liability to third party for punitive damages awarded against negligent employee).

We agree that, viewing Mounteer’s allegations in a favorable light, as we must, reasonable minds could conclude as a factual matter that Larsen was acting within the scope of her employment under the criteria enunciated in Birkner, 771 P.2d at 1057, when she made the allegedly defamatory statements. However, the appropriate legal analysis does not stop here. Mounteer ignores the additional key fact that he was Larsen’s fellow employee when he was allegedly injured in the course of his employment by Larsen’s performance of her assigned task and refuses to acknowledge that the workers’ compensation statute has reshaped an employer’s liability in such circumstances. See Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612, 615-17, appeal dismissed, 335 U.S. 866, 69 S.Ct. 138, 93 L.Ed. 411 (1948); see generally 1 A. Larson, Workmen’s Compensation Law §§ 4.10-4.50 (1985).

Utah Code Ann. § 35-1-60 (1988) provides:

The right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or not, shall be the exclusive remedy against the employer and shall be the exclusive remedy against any officer, agent, or employee of the employer and the liabilities of the employer imposed by this act shall be in place of any and all other civil liability whatsoever, at common law or otherwise, to such employee ... or any other person whomsoever, on account of any accident or injury or death, in any way contracted, sustained, aggravated or incurred by such employee in the course of or because of or arising out of his employment, and no action at law may be maintained against an employer or against any officer, agent, or employee of the employer based upon any accident, injury or death of an employee....

(Emphasis added.) If an employee suffers a compensable injury, defined in Utah Code Ann. § 35-1-45 (1987) as one that occurs by accident arising out of or in the course of his employment, 2 this section bars the maintenance of an action at law against either a fellow employee who is merely negligent or the employer as a vicariously liable principal. Instead, workers’ compensation provides the exclusive remedy to the injured employee. E.g., Morrill v. J & M Constr. Co., 635 P.2d 88 (Utah 1981); Gallegos v. Stringham, 21 Utah 2d 139, 442 P.2d 31 (1968); Masich, 191 P.2d at 616.

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773 P.2d 405, 107 Utah Adv. Rep. 71, 4 I.E.R. Cas. (BNA) 1564, 1989 Utah App. LEXIS 67, 1989 WL 45380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mounteer-v-utah-power-light-co-utahctapp-1989.