Herrera v. Phillipps , 2014 Wyo. LEXIS 135 ( 2014 )


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  •                 IN THE SUPREME COURT, STATE OF WYOMING
    
    2014 WY 118
    APRIL TERM, A.D. 2014
    September 23, 2014
    ENRIQUE HERRERA,
    Appellant
    (Plaintiff),
    v.
    S-13-0243
    ROBERT PHILLIPPS, Individually and as an
    employee and representative of GILLIGAN’S LLC,
    a Wyoming Company, and GILLIGAN’S LLC, a
    Wyoming Company,
    Appellees
    (Defendants).
    Appeal from the District Court of Campbell County
    The Honorable John R. Perry, Judge
    Representing Appellant:
    C. John Cotton, Cotton Law Office, P.C., Gillette, Wyoming.
    Representing Appellees:
    Patrick T. Holscher, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.
    Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
    *Chief Justice at time of oral argument.
    NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
    are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
    82002, of any typographical or other formal errors so that correction may be made before final publication in
    the permanent volume.
    BURKE, Chief Justice.
    [¶1] Appellant Enrique Herrera was injured while working for Gilligan’s LLC, under
    the supervision of Robert Phillipps. Mr. Herrera filed suit seeking to recover damages for
    his injuries. Gilligan’s sought summary judgment on the primary basis that, as
    Mr. Herrera’s employer, it was immune from suit pursuant to the Wyoming Worker’s
    Compensation Act. Mr. Phillipps also asserted that the Act shielded him from the
    negligence claim by Mr. Herrera, and that Mr. Herrera had not presented facts sufficient
    to establish Mr. Phillipps’ liability as a co-employee under the Act. Mr. Herrera claimed
    that Appellees were not immune because he was not an employee of Gilligan’s under the
    statutory definition found in the Wyoming Worker’s Compensation Act because he was
    not legally authorized to work in the United States and Gilligan’s did not have a
    reasonable belief that he was authorized to work in the United States. The district court
    granted summary judgment for Gilligan’s and Mr. Phillipps. Mr. Herrera challenges that
    decision in this appeal. We will reverse.
    ISSUES
    [¶2]   Mr. Herrera presents two issues:
    1.      Did the District Court err in ruling that Gilligan’s LLC
    is entitled to Worker’s Compensation immunity?
    2.    Did the District Court err in ruling that there is no
    genuine issue of material fact as to the co-employee liability
    of Robert Phillipps?
    Gilligan’s and Mr. Phillipps agree with Mr. Herrera’s statement of the issues, but further
    assert that the first issue may be refined as follows:
    1.a. Did the Legislature, in enacting Wyo. Stat. Ann. § 27-
    14-102(a)(vii) (LexisNexis 2007), contemplate employer
    compliance with Federal law regarding documentation of the
    work status of employees thereby incorporating the Federal
    provisions? And, if the answer to this is “Yes,” then,
    1.b. Under Wyo. Stat. Ann. § 27-14-102(a)(vii), does the
    required “documentation in the employer’s possession”
    include a properly completed I-9 form as required by the
    United States Department of Justice?
    FACTS
    [¶3]   On June 5, 2007, Mr. Herrera was working for Gilligan’s as a pipe fuser. He was
    1
    working with a crew to clean out a four-inch pipe using a compressor to blow a cleaning
    plug, called a “pig,” through the pipe. The pig got stuck in the pipe and Mr. Herrera
    suggested they cut the pipe at the T-joint near where it was stuck. Instead, Mr. Phillipps
    directed the crew to lift the pipe out of the ditch. When the pipe was out of the ditch,
    Mr. Phillipps bent it, told Mr. Herrera to hold it, and walked away. There was an
    explosion, the other workers ran, and Mr. Phillipps told Mr. Herrera to let go of the pipe.
    Mr. Herrera tried to put the pipe back in the ditch and, when it would not go, he let go of
    it and ran. The pipe, still under pressure, twisted and whipped back and forth, striking
    Mr. Herrera and injuring him severely. According to Mr. Herrera, Gilligan’s told him
    that it would not submit a worker’s compensation claim on his behalf but, instead, would
    pay his medical expenses and lost wages. Gilligan’s made the payments for a period of
    time but eventually ceased. This litigation ensued.
    [¶4] Mr. Herrera initiated this action against Gilligan’s and John Doe I in 2009,
    asserting that they were negligent, and that John Doe I acted in reckless disregard of
    Mr. Herrera’s safety. Gilligan’s denied the claims and asserted as one of its affirmative
    defenses that the complaint was barred because Mr. Herrera was a covered employee
    under the Wyoming Worker’s Compensation Act, and Gilligan’s was immune from suit
    by Mr. Herrera. Mr. Herrera filed a motion for partial summary judgment seeking a
    ruling that he was not an employee within the meaning of Wyo. Stat. Ann. § 27-14-
    102(a)(vii), and Gilligan’s was not entitled to immunity under the Act. Mr. Herrera
    contended that he was not authorized to work in the United States, that Gilligan’s was
    aware of his employment status, and that Gilligan’s did not have a reasonable belief that
    he was authorized to work based upon documentation in its possession.
    [¶5] Gilligan’s filed a response in which it sought summary judgment holding that
    Mr. Herrera was covered by its worker’s compensation account and his failure to file a
    claim did not affect Gilligan’s immunity from suit. Gilligan’s asserted there was no
    evidence indicating it knew Mr. Herrera was not authorized to work in the United States,
    and that the documentation in its files was adequate to satisfy the requirements of the
    Wyoming Worker’s Compensation Act.
    [¶6] In 2011, Mr. Herrera filed a new lawsuit against Gilligan’s, and added
    Mr. Phillipps as a defendant. He alleged that Gilligan’s and Mr. Phillipps were negligent,
    and that if the Worker’s Compensation Act applied, Mr. Phillipps’ conduct was
    intentional and he was therefore liable as a co-employee. The district court consolidated
    the two cases. It then denied the parties’ motions for summary judgment, concluding that
    genuine issues of material fact existed as to whether Gilligan’s reasonably believed
    Mr. Herrera was working legally in the United States at the time he was hired and on the
    date of his injury, as provided in Wyo. Stat. Ann. § 27-14-102(a)(vii). The district court
    stated, however, that any party could renew a motion for summary judgment “if the
    2
    discovery process should reveal something that would warrant it.”1
    [¶7] Mr. Herrera renewed his motion for partial summary judgment. Gilligan’s and
    Mr. Phillipps also moved for summary judgment in their favor. This time, without
    explanation, the district court granted summary judgment in favor of Gilligan’s and
    Mr. Phillipps.2 Mr. Herrera filed a timely appeal to this Court.
    STANDARD OF REVIEW
    [¶8]    We review a district court’s order on summary judgment de novo, using the same
    1
    In June of 2012, Mr. Herrera filed a motion pursuant to W.R.A.P. 11 asking the district court to certify
    the case to this Court to answer whether, as a matter of law, Wyo. Stat. Ann. § 27-14-102(a)(vii)
    contemplates employer compliance with federal law regarding documentation of the work status of
    employees and whether the words “documentation in the employer’s possession” used in the foregoing
    statute include a properly completed I-9 form as required by the United States Department of Justice. The
    district court granted the motion. We declined to answer the certified questions because they did not
    appear to be determinative of the action.
    2
    The Order Granting Summary Judgment consists of three short paragraphs, the critical one reading as
    follows:
    The court has reviewed the file and the extensive submissions of the
    parties. Further, the court has spent substantial time considering the facts
    set forth and finds that for the purposes of defendants’ motion, there are
    no material facts at issue. No specific basis for the granting of summary
    judgment is required by the district court. After careful consideration
    and deliberation, the court specifically elects not to set forth further
    specific bases.
    (Internal case citations omitted.) We would once again emphasize that the failure of the district court to
    provide any factual basis or legal analysis to support its decision significantly handicaps our review, and
    would once again encourage district courts to provide that analysis. See, e.g., Berthel Land and Livestock
    v. Rockies Express Pipeline LLC, 
    2012 WY 52
    , ¶ 16 n.1, 
    275 P.3d 423
    , 431 n.1 (Wyo. 2012):
    The summary judgment order did not provide findings of fact . . . or a
    rationale for the decision. This has complicated our review, and likely
    the district court’s consideration of the issues that went to trial. For these
    reasons, we take this opportunity to again encourage district courts to
    provide findings of fact and their reasoning when ruling on summary
    judgment motions. Baldwin v. Dube, 
    751 P.2d 388
    , 394 (Wyo. 1988)
    (“Absence from the record of a specific basis upon which summary
    judgment was sought or granted is a handicap to the reviewing court,
    although specific bases are not mandatory under the rule.”) (quoting
    Centrella v. Morris, 
    597 P.2d 958
    , 962 (Wyo. 1979)); Weaver v. Blue
    Cross—Blue Shield of Wyoming, 
    609 P.2d 984
    , 986 (Wyo. 1980) (“[W]e
    would prefer that the reasons for granting a motion for summary
    judgment appear clearly in the record.”).
    3
    materials and following the same standards as the district court. Gheen v. State ex rel.
    Department of Health, 
    2014 WY 70
    , ¶ 11, 
    326 P.3d 918
    , 922 (Wyo. 2014) (citing
    Michael’s Constr., Inc. v. American Nat’l Bank, 
    2012 WY 76
    , ¶ 8, 
    278 P.3d 701
    , 704
    (Wyo. 2012); Grynberg v. L & R Exploration Venture, 
    2011 WY 134
    , ¶ 16, 
    261 P.3d 731
    , 736 (Wyo. 2011)). W.R.C.P. 56(c) allows summary judgment when
    the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact and that
    the moving party is entitled to a judgment as a matter of law.
    We view the facts from the vantage point most favorable to the party who opposed the
    motion, and give that party the benefit of all favorable inferences which may fairly be
    drawn from the record. Gheen, ¶ 
    11, 326 P.3d at 922
    .
    DISCUSSION
    [¶9] The rights and remedies afforded injured employees under the Wyoming Worker’s
    Compensation Act “are in lieu of all other rights and remedies against any employer.”
    Wyo. Stat. Ann. § 27-14-104. Under the Act, employers are immune from suit by their
    employees, and employees are barred from suing their employers. Mauch v. Stanley
    Structures, 
    641 P.2d 1247
    , 1251 (Wyo. 1982). As we have explained:
    In return for their contributions to the compensation fund,
    employers were granted immunity from suits. In return, for
    relinquishing their right to common-law actions against the
    employers [for] work-related injuries, the employees received
    speedy relief for such injuries, regardless of lack of fault on
    the part of the employer and without cost and delay attendant
    to legal action.
    Meyer v. Kendig, 
    641 P.2d 1235
    , 1238 (Wyo. 1982) (footnote omitted). The Act defines
    the term “employee” to include:
    any person engaged in any extrahazardous employment under
    any appointment, contract of hire or apprenticeship, express
    or implied, oral or written, and includes legally employed
    minors, aliens authorized to work by the United States
    department of justice, office of citizenship and immigration
    services, and aliens whom the employer reasonably believes,
    at the date of hire and the date of injury based upon
    documentation in the employer’s possession, to be
    authorized to work by the United States department of
    justice, office of citizenship and immigration services.
    4
    Wyo. Stat. Ann. § 27-14-102(a)(vii) (emphasis added).
    [¶10] It is undisputed that Mr. Herrera is an alien who was not authorized to work in the
    United States, both at the time he was hired by Gilligan’s and at the time of his injury.
    The parties do not agree on whether Gilligan’s reasonably believed, based upon
    documentation in its possession, that Mr. Herrera was authorized to work in the United
    States.
    [¶11] The district court’s grant of summary judgment for Gilligan’s necessarily rests on
    the conclusion there is no genuine dispute as to the material fact that Gilligan’s
    reasonably believed Mr. Herrera was authorized to work in the United States.
    Mr. Herrera contends, to the contrary, that the facts undisputedly demonstrate that
    Gilligan’s did not have and could not have had that reasonable belief. He asserts that he
    is entitled to partial summary judgment on this issue. His argument is based largely upon
    an incomplete “Form I-9” found in Gilligan’s records.3
    [¶12] The first section of the I-9 is to be filled out and signed by the employee.
    Mr. Herrera signed the document. Someone else filled in the information on his behalf,
    although the mandatory “Preparer and/or Translator Certification” was left blank. The
    second section of the form is to be completed and signed by the employer after
    examining certain specified documents relating to the employee’s authorization to work
    in the United States. The second section of Mr. Herrera’s I-9 is entirely blank, and
    contains no signature on behalf of Gilligan’s.
    [¶13] Mr. Herrera emphasizes that the statute requires an employer’s belief about an
    employee’s authorization to work in the United States to be “based upon documentation
    in the employer’s possession.” Wyo. Stat. Ann. § 27-14-102(a)(vii). Because the I-9 is
    incomplete, he maintains that Gilligan’s did not have any documentation in its possession
    from which it could form any reasonable belief that Mr. Herrera was authorized to work
    in the United States. On that basis, he asserts that the district court erred in granting
    summary judgment in Gilligan’s favor, and instead should have ruled in his favor on that
    issue.
    [¶14] Mr. Herrera’s argument, taken to its logical limit, is that an employer must have a
    properly completed I-9 in its possession in order to prove that it had a reasonable belief
    that an employee is authorized to work. The statutory language does not allow such an
    3
    According to the federal government’s website, “Employers must complete Form I-9 to document
    verification of the identity and employment authorization of each new employee (both citizen and
    noncitizen) hired after November 6, 1986, to work in the United States.”
    http://www.uscis.gov/sites/default/files/files/form/i-9.pdf (last visited Aug. 26, 2014).
    5
    interpretation. The statute requires a reasonable belief “based upon documentation in the
    employer’s possession,” that an employee is authorized to work. The statute does not
    specify that the documentation in the employer’s possession must be a completed I-9,
    indicating that other documents could also provide the basis for a reasonable belief.
    [¶15] However, the fact that Gilligan’s did not have a properly completed I-9 for
    Mr. Herrera, viewed from the vantage point most favorable to Mr. Herrera, is evidence
    suggesting that Gilligan’s did not have a reasonable belief that Mr. Herrera was
    authorized to work in the United States. The inference can reasonably be drawn that
    Gilligan’s failed to inquire about Mr. Herrera’s status, or even that it knew he was not
    authorized to work in the United States and purposely avoided completing the I-9.
    Mr. Herrera testified in his deposition that he was not asked to fill out any paperwork
    when he began working for Gilligan’s. He also testified that the supervisor who drove
    him to the hospital after the injury asked, “You’re illegal, aren’t you?” According to
    Mr. Herrera, this question indicates that Gilligan’s was aware of his status, and could not
    have had a reasonable belief that he was authorized to work in the United States.
    [¶16] Gilligan’s emphasizes evidence favorable to its position and unfavorable to
    Mr. Herrera’s, including the fact that Mr. Herrera was listed as covered under Gilligan’s
    worker’s compensation account. Gilligan’s also points out that the incomplete I-9 for
    Mr. Herrera still includes his signature verifying that he is a lawful permanent alien.
    Gilligan’s contends that this is a document in its possession upon which it based a
    reasonable belief that Mr. Herrera was authorized to work. Gilligan’s also relies on
    Mr. Herrera’s admission that he had a forged alien registration card and a social security
    card. While Mr. Herrera does not remember presenting this documentation to Gilligan’s
    when he started work, he admits that he had the documents with him at the time. This
    and other evidence, according to Gilligan’s, supports its claim to have had a reasonable
    belief of Mr. Herrera’s status based on documents in its possession. Gilligan’s therefore
    asserts that the district court was correct in granting summary judgment in its favor.
    [¶17] What Gilligan’s argument actually establishes, however, is that it has provided
    sufficient evidence to raise a genuine issue of material fact, precluding summary
    judgment in favor of Mr. Herrera. But as we have previously discussed, Mr. Herrera has
    presented evidence conflicting with that of Gilligan’s. When “the evidence leads to
    conflicting interpretations or if reasonable minds might differ, summary judgment is
    improper.” Jasper v. Brinckerhoff, 
    2008 WY 32
    , ¶ 10, 
    179 P.3d 857
    , 862 (Wyo. 2008)
    (citing Abraham v. Great Western Energy, LLC, 
    2004 WY 145
    , ¶ 12, 
    101 P.3d 446
    , 452
    (Wyo. 2004)). Summary judgment should not have been granted in this case. Genuine
    issues of material fact exist. At trial, the fact finder must determine whether Gilligan’s
    had a reasonable belief, based on documentation in its possession, that Mr. Herrera was
    authorized to work in the United States. If the fact finder determines that it did have a
    reasonable belief, then Mr. Herrera fits within the Wyoming Worker’s Compensation Act
    definition of an employee, and Gilligan’s is immune from his claims. If Gilligan’s did
    not have such a reasonable belief, then Mr. Herrera is not an employee under the
    6
    Wyoming Worker’s Compensation Act, and Gilligan’s is not immune from his claims.
    [¶18] In his second issue, Mr. Herrera challenges the grant of summary judgment to
    Mr. Phillipps on Mr. Herrera’s claim against him. Under the Wyoming Worker’s
    Compensation Act, co-employees are immune from claims of ordinary negligence, but
    may be held liable if they “intentionally act to cause physical harm or injury to the
    injured employee.” Wyo. Stat. Ann. § 27-14-104(a). In Bertagnolli v. Louderback, 
    2003 WY 50
    , ¶ 15, 
    67 P.3d 627
    , 632 (Wyo. 2003), we said that the statutory standard for co-
    employee liability set forth in Wyo. Stat. Ann. § 27-14-104(a) – that is, “intentionally act
    to cause physical harm or injury” – is the equivalent of willful and wanton misconduct.
    We explained further:
    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.
    Bertagnolli, ¶ 
    15, 67 P.3d at 632
    (emphasis omitted). We also said that we have
    “consistently held the requirements of the statute and the standards of willful and wanton
    misconduct were met when the evidence demonstrated the co-employee had knowledge
    of the dangerous condition and demonstrated a disregard of the risks through intentional
    acts.” 
    Id., ¶ 19,
    67 P.3d at 634.
    [¶19] We note again that the evidence is viewed from a vantage point favorable to
    Mr. Herrera. Gheen, ¶ 
    11, 326 P.3d at 922
    . Reviewing the record in this way, we
    conclude that Mr. Herrera’s evidence is sufficient to create a genuine issue of material
    fact as to Mr. Phillipps’ knowledge of the dangerous condition and whether he acted
    intentionally in disregard of known risks. Mr. Herrera relies on Gilligan’s written policy
    concerning pigging, which provides:
    NO MORE THAN 3 PEOPLE ARE REQUIRED FOR
    PIGGING. . . . WHEN PIGGING[,] THE PIPE BEING
    PIGGED WILL HAVE NO MORE THAN 4 [FEET]
    EXPOSED[.]     ALL PIPE WILL BE ANCHORED,
    CHAINED OR SECURED SO NO MOVEMENT CAN
    EXIST EVEN UNDER PRESSURE. ALL EQUIPMENT
    AND [PERSONNEL] WILL [BE] EVACUATED . . . AT
    LEAST 150 YARDS FROM END OF PIPE. [PERSONNEL]
    OPERATING PRESSURE END WILL WATCH PSI
    GAUGE FOR SPIKES OR DROPS AT WHICH TIME,
    ESPECIALLY SPIKES OR FAST INCREASES IN
    PRESSURE WILL TURN OFF AIR COMPRESSOR TO
    7
    SEE IF PSI LEVELS OFF.   NEVER EVER MESS
    AROUND WITH PRESSURIZED PIPE.
    (Capitalization and emphasis in original.) There is evidence that Mr. Phillipps had been
    provided a copy of this policy, and an inference can be fairly drawn that he had
    knowledge of the dangers inherent in pigging operations. There is evidence that, contrary
    to the policy, approximately 200 feet of the pipe remained exposed. There is evidence
    that, contrary to the policy, the exposed pipe was not anchored, chained, or secured.
    There is evidence that when Mr. Phillipps ordered the crew, including Mr. Herrera, to lift
    a section of pipe out of the trench and kink it to put pressure on the pig, Mr. Herrera
    suggested that they should instead turn off the pressure and cut the T-joint to remove the
    pig. According to Mr. Herrera, Mr. Phillipps told him “‘I am the boss, and you will do
    what I say,’ or words to that effect.” Mr. Phillipps also told the compressor operator not
    to turn off the compressor. This evidence, if believed by the fact finder, is sufficient to
    support findings that Mr. Phillipps knew of the dangers, but acted intentionally in
    disregard of the risks.
    [¶20] Mr. Phillipps points out that the evidence relied on by Mr. Herrera is not
    uncontroverted. But that is precisely why all of the evidence must be evaluated by the
    fact finder in this case, and why summary judgment is not appropriate. Mr. Phillipps also
    asserts that the evidence in this case is more like that in Formisano v. Gaston, 
    2011 WY 8
    , ¶ 12, 
    246 P.3d 286
    , 290 (Wyo. 2011), where the employee was injured in a car crash
    when his co-employee fell asleep at the wheel. We noted that a co-employee is not liable
    if he is “merely negligent,” but admitted that the “trouble this Court has repeatedly faced
    over the years” was in “trying to draw the line—somewhere beyond negligence—that
    results in liability.” 
    Id., ¶ 16,
    246 P.3d at 290. Given the evidence in Formisano,
    however, we had little trouble concluding that the co-worker’s admitted negligence in
    falling asleep while driving simply did not rise to the level of misconduct envisioned by
    the exception to immunity in the Wyoming Worker’s Compensation Act. 
    Id., ¶ 28,
    246
    P.3d at 293.
    [¶21] When the evidence is viewed favorably to Mr. Herrera, however, his case is more
    in line with Bertagnolli than with Formisano. In Bertagnolli, ¶ 
    16, 67 P.3d at 633
    , we
    discussed the injured employee’s assertion that:
    the key factors in finding co-employee liability under § 27-
    14-104(a) are a co-employee with (1) knowledge of the
    hazard or serious nature of the risk involved,
    (2) responsibility for the injured employee’s safety and work
    conditions, and (3) willful disregard of the need to act despite
    the awareness of the high probability that serious injury or
    death may result.
    We stated that our “jurisprudence in this area is consistent with these factors.” 
    Id. We 8
    then evaluated the evidence in substantial detail, and concluded there was evidence of the
    supervisors’ knowledge of the dangers, their responsibility for the employee’s safety, and
    their willful disregard of the dangers, which was sufficient to preclude summary
    judgment in favor of the supervisors. 
    Id., ¶¶ 25,
    26, 67 P.3d at 635
    . In Mr. Herrera’s
    case, we have already noted the presence of evidence that Mr. Phillipps was aware of the
    dangers, and that when he instructed Mr. Herrera to perform his work, Mr. Phillipps acted
    in intentional disregard of those dangers. The evidence is sufficient to preclude summary
    judgment for Mr. Phillipps.
    [¶22] We reverse the district court’s grant of summary judgment in favor of Gilligan’s
    and Mr. Phillipps, and remand the case to the district court for further proceedings
    consistent with this opinion.
    9