Bryan v. Utah International , 1975 Utah LEXIS 667 ( 1975 )

CROCKETT, Justice

(dissenting).

The main opinion states that “There is no justifiable reason why one, injured by the intentional act of a fellow employee, cannot seek recovery for damage, . ” against the fellow employee. The only reason I know of is that that is so plainly prohibited by our statutory law. Section 35-1-60, quoted in the opinion, so states in the plainest possible language:

The right to recover compensation . by an employee, . . . shall he 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 he in place of any and all other civil liability whatsoever, at common law or otherwise . on account of any accident or injury or death, in any way 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 employee of the employer based upon any accident, injury or death of an employee. .

If the clearly expressed intent of this statute needs any background for interpretation, it is to be found in its history. Its antecedent in our prior code was Section 42-1-57, U.C.A.1943. That section contained the provision that where an injury in employment resulted from willful misconduct or willful disregard of the employee’s safety, the employee could have the option of either claiming compensation under the act or maintaining an action at law for damages. But Chapter 52, S.L.U. 1949, repealed that section and re-enacted it as 35-1-60 quoted above. Significantly it deletes any such option; and provides that the workmen’s compensation is the exclusive remedy as against both employers and employees.¹

It seems so obvious as to not admit of doubt that it was the intent and purpose of the amendment to eliminate controversies of this character, where an employee may allege that the conduct of an employer or fellow employee was willful or intentional. In order to accomplish that purpose, it will be noted that in each instance the language of the statute as quoted above is all inclusive: it protects the “ . . . employer . or employee . . . [from] all other civil liability whatsoever at common law or otherwise ... on account of any accident or [any] injury . . . ”; and there are no exceptions or loopholes. The statute then doubles the clarity of its intent by providing the reverse that: “ . . . no action at law may be maintained against an employer or employee of the employer based upon any accident, [or any] injury or death of an employee. . . . ”

I cannot perceive how the statute could make it more clear that when workmen’s compensation coverage is provided, that is the only remedy an injured employee has against his employer or a fellow employee. Whatever moral aspects of such a situation may be, that is the state of our law. Under the circumstances shown, the trial court had no choice but to follow the clear and unequivocal mandate of the statute. We should do likewise and sustain his ruling. If there is to be any variance from or change in the law as declared by that statute, it should be made by the legislature. I would affirm the judgment. (All emphasis added.)

1 . See Peterson v. Fowler, 27 Utah 2d 159, 493 P.2d 997 (1972) ; Smith v. Alfred Brown Co., 27 Utah 2d 155, 493 P.2d 994 (1972).