Charley Collins v. COP Wyoming, LLC a Wyoming Limited Liability Company and Roger Ross , 2016 Wyo. LEXIS 18 ( 2016 )


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  •                 IN THE SUPREME COURT, STATE OF WYOMING
    
    2016 WY 18
    OCTOBER TERM, A.D. 2015
    February 10, 2016
    CHARLEY COLLINS,
    Appellant
    (Plaintiff),
    v.
    S-15-0098
    COP WYOMING, LLC a Wyoming
    Limited Liability Company and ROGER
    ROSS,
    Appellees
    (Defendants).
    Appeal from the District Court of Sheridan County
    The Honorable William J. Edelman, Judge
    Representing Appellant:
    Bret F. King of King & King, LLC, Jackson, Wyoming.
    Representing Appellees:
    Raymond W. Martin and Jane M. France of Sundahl, Powers, Kapp & Martin,
    LLC, Cheyenne, Wyoming. Argument by Ms. France.
    Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
    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.
    FOX, Justice.
    [¶1] Appellant Charley Collins appeals the order dismissing his claim for negligent
    infliction of emotional distress against his employer, COP Wyoming, LLC, and his co-
    employee, Roger Ross. Charley alleged he suffered emotional injuries after he witnessed
    the death of his son, Brett Collins,1 who was also an employee of COP Wyoming, and
    whose death was covered by Wyoming worker’s compensation. The district court found
    that the claims of the father were derivative of the covered death of the son and were
    therefore barred by worker’s compensation immunity. Charley appeals and we reverse.
    ISSUE
    [¶2] Is the father’s tort claim for negligent infliction of emotional distress barred by the
    Wyoming Worker’s Compensation Act?
    FACTS
    [¶3] Charley and his son, Brett, were both employed by Appellee COP Wyoming,
    LLC. Appellee Roger Ross was also employed by COP Wyoming, as the job
    superintendent and supervisor in charge of safety at the same job site. On August 20,
    2012, Mr. Ross was operating a large track hoe excavator to excavate inside a trench box
    at the job site. Mr. Ross instructed Brett to enter the trench box and work there while Mr.
    Ross was operating the track hoe. Mr. Ross struck Brett in the head with the bucket of
    the track hoe, severely injuring him. Charley was notified, and he immediately came to
    the aid of his son and attempted to administer first aid. In spite of those efforts, Brett
    died. Brett’s estate received worker’s compensation benefits as a result of his death.2
    Charley sued COP Wyoming and Mr. Ross, alleging they negligently inflicted emotional
    distress upon him.
    [¶4] COP Wyoming and Mr. Ross filed a motion to dismiss, asserting that the suit
    against them was barred by the exclusive remedy provision of the Wyoming Worker’s
    Compensation Act, Wyo. Stat. Ann. § 27-14-104(a). After a hearing, the district court
    granted the motion to dismiss, holding that Anderson v. Solvay Minerals, Inc., 
    3 P.3d 236
    (Wyo. 2000) was controlling, and that the father’s claim was barred because his injury
    was derivative of the son’s covered death.
    [¶5]   Charley timely filed this appeal.
    1
    We will refer to Charley Collins and Brett Collins by their first names for ease of reference.
    2
    The district court apparently considered matters outside the pleadings in reaching its conclusion and
    should have treated the motion as one for summary judgment, W.R.C.P. 12(c); however, Charley waived
    that issue at oral argument.
    1
    DISCUSSION
    [¶6]          When reviewing W.R.C.P. 12(b)(6) motions to dismiss, we
    accept the facts stated in the complaint as true and view them
    in the light most favorable to the plaintiff. We will sustain
    such a dismissal when it is certain from the face of the
    complaint that the plaintiff cannot assert any fact which
    would entitle him to relief.
    Accelerated Receivable Sols. v. Hauf, 
    2015 WY 71
    , ¶ 10, 
    350 P.3d 731
    , 734 (Wyo. 2015)
    (citations omitted).
    [¶7] Article 10, section 4(c) of the Wyoming Constitution directs the legislature to
    establish a fund from which to pay compensation “to each person injured in such
    employment or to the dependent families of such as die as the result of [workplace]
    injuries[.]”
    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 to the fund in favor of any person or persons by reason of
    the injuries or death.
    Wyo. Const. art. 10, § 4(c).
    [¶8] The legislature accordingly enacted the Wyoming Worker’s Compensation Act,
    Wyo. Stat. Ann. §§ 27-14-101 to 27-14-806, “which was the legislative embodiment of a
    compromise between employers and employees who recognized the need for a new
    system to compensate employees for employment-related injuries without the employee
    having to rely upon tort concepts.” Baker v. Wendy’s of Montana, Inc., 
    687 P.2d 885
    ,
    887 (Wyo. 1984). “[T]he act creates liability without fault on the part of the contributing
    employer and likewise provides the employer with absolute immunity from tort actions
    including the employer’s violation of his duty of care whether the negligence is ordinary
    or culpable.” 
    Id. at 888.
    The legislature codified this “great compromise between
    employers and employed,” 
    Anderson, 3 P.3d at 240
    (citation omitted):
    (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[.]
    Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2015).
    2
    [¶9] In Baker, this Court held that “mental disorders are compensable under the various
    worker’s compensation acts of the 
    country.” 687 P.2d at 890
    ; see also Johnson v. State
    ex rel. Wyo. Worker’s Comp. Div., 
    798 P.2d 323
    , 325-26 (Wyo. 1990) (holding that
    mental injuries are compensable). In 1994, the legislature amended the definition of
    injury to exclude “[a]ny mental injury unless it is caused by a compensable physical
    injury[.]” 1994 Wyo. Sess. Laws ch. 86, at 287; Wyo. Stat. Ann. § 27-14-102(a)(xi)(J)
    (LexisNexis 2015). We upheld the constitutionality of that amendment in Frantz v.
    Campbell Cty. Mem’l Hosp., 
    932 P.2d 750
    , 754 (Wyo. 1997), overruled in part on other
    grounds by Torres v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 
    2004 WY 92
    , 
    95 P.3d 794
    (Wyo. 2004), and since that time, we have adhered to the rule that mental
    injuries not caused by a compensable physical injury are not compensable by worker’s
    compensation. Cook v. Shoshone First Bank, 
    2006 WY 13
    , ¶ 15, 
    126 P.3d 886
    , 890
    (Wyo. 2006) (“[C]laims are not covered where the mental injury and resulting suicide
    were not caused by a compensable physical injury.”); Wheeler v. State ex rel. Wyo.
    Workers’ Safety & Comp. Div., 
    2010 WY 161
    , ¶ 20, 
    245 P.3d 811
    , 817 (Wyo. 2010)
    (mental injuries not caused by compensable physical injuries not compensable).3
    [¶10] In Cook, the administrator of the estate and the husband of the deceased employee
    filed a tort action against the employer, alleging negligent or intentional infliction of
    emotional distress. 
    2006 WY 13
    , ¶ 
    2, 126 P.3d at 887
    . This Court affirmed the district
    court’s grant of summary judgment in favor of the employer on the infliction of
    emotional distress claim. 
    Id. at ¶
    44, 126 P.3d at 896-97
    . But before reaching that
    question, we addressed the question of whether the employer was entitled to worker’s
    compensation immunity, and we held that the claim arising from the employee’s mental
    injury was not barred by worker’s compensation because it was not covered “where the
    mental injury and resulting suicide were not caused by a compensable physical injury.”
    
    Id. at ¶
    15, 126 P.3d at 890
    . See also Sisco v. Fabrication Tech., Inc., 
    350 F. Supp. 2d 932
    , 943 (D. Wyo. 2004) (“[M]ental injury is not derivative of any physical injury, and
    not barred by worker’s compensation.”); 9 Arthur Larson & Lex K. Larson, Larson’s
    Workers’ Compensation Law § 100.4 (2014) (“[T]he employer should be spared damage
    liability only when compensation liability has actually been provided in its place[.]”);4
    101 C.J.S. Workers’ Compensation § 1746, at 396 (2013) (“A civil action against an
    employer for a nonphysical injury is permitted because such injury is not encompassed
    within the scope of the workers’ compensation act[.]”).
    3
    The parties have not raised the issue of whether mental injuries arising from a compensable physical
    injury to another are covered, and we will not consider it. See e.g., Wheeler, 
    2010 WY 161
    , ¶ 
    22, 245 P.3d at 817-18
    .
    4
    However, “if [an] injury itself comes within the coverage formula, an action for damages is barred even
    although [a] particular element of damage is not compensated for.” Building & Constr. Dep’t v. Rockwell
    Int’l Corp., 
    7 F.3d 1487
    , 1494 (10th Cir. 1993) (quoting 2A Arthur Larson, The Law of Workmen’s
    Compensation § 65.00, at 12-1 (1993)).
    3
    [¶11] Charley’s claim for emotional distress is a claim for a mental injury that is not
    caused by a compensable physical injury to him; therefore it is not compensable under
    Wyoming worker’s compensation, and neither COP Wyoming nor Mr. Ross is entitled to
    worker’s compensation immunity on that basis.
    [¶12] We turn then to the question of whether Charley’s claim is nevertheless barred by
    worker’s compensation because it is derivative of a covered claim, Brett’s death. The
    district court concluded that “the current claim for negligent infliction of emotional
    distress is subsumed by the WWCA [Wyoming Worker’s Compensation Act] as it is
    derivative of the death of [Charley’s] son, and the relief provided by the WWCA is the
    exclusive remedy.” The district court relied on Anderson to support its conclusions.
    There, the parents of a miner killed in the collapse of a trona mine sued the mine for
    wrongful death and for intentional infliction of emotional distress. 
    Anderson, 3 P.3d at 237
    . The parents were notified of the mine’s collapse, and they went there to wait for
    news about their son. Initially they were told that he was talking and joking with his
    rescuers, but soon after they were advised that his heart had stopped, and he was
    pronounced dead. 
    Id. This Court,
    after reviewing the “great compromise” that resulted
    in the Wyoming Worker’s Compensation Act, concluded that “[r]elief is available to
    survivors for the death of a worker under Wyoming worker’s compensation law, and the
    remedy is exclusive.” 
    Id. at 240.
    The Anderson court quoted an earlier case, where we
    said:
    [W]e hold, then, that where the employee’s injury occurs in a
    work-related situation, as it did here, and is in all other
    respects compensable, as it is here, the employer of the
    injured or deceased employee who is contributing to the
    compensation fund in behalf of the worker’s account is
    absolutely immune from all common-law tort remedies
    arising out of the injury to or death of the employee—
    including causes of action for intentional tort or culpable
    negligence.
    
    Id. at 239
    (quoting Parker v. Energy Dev. Co., 
    691 P.2d 981
    , 985 (Wyo. 1984)). We
    concluded that “in providing the articulated benefits for death, the legislature subsumed
    the entire prospect of recovery for the death of an employee engaged in covered
    employment.” 
    Id. at 240.
    [¶13] Charley argues that his case is distinguishable from Anderson for two reasons:
    First, unlike the parents in Anderson, Charley was at the scene of the accident and he falls
    into the class of familial plaintiffs who can recover for negligent infliction of emotional
    distress under Gates v. Richardson, 
    719 P.2d 193
    (Wyo. 1986). Second, Charley, as an
    employee of COP Wyoming, suffered his own independent injury during the scope and
    4
    course of his employment, and is in a different position than the parents in Anderson,
    who were not employees.
    [¶14] Although there are distinctions between this case and Anderson, they do not
    provide a way around Anderson’s clear holding that a claim is derivative of a covered
    worker’s compensation claim “when there is a nexus between the injury and some
    condition, activity, environment or requirement of the employment.” 
    Anderson, 3 P.3d at 240
    (citation omitted). The difference between the Andersons’ claim for intentional
    infliction of emotional distress and Charley’s claim for negligent infliction of emotional
    distress is not significant to this analysis. In 
    Anderson, 3 P.3d at 238
    , the parents argued
    that Wyo. Const. art. 9, § 45 preserved their right to bring an action for wrongful death in
    spite of the worker’s compensation bar at Wyo. Const. art. 10, § 4, an argument which
    this Court rejected. But they also argued their claim was not barred by worker’s
    compensation immunity “because the emotional distress was not incurred in employment,
    resulting instead from Solvay Minerals’ conduct directed toward the Andersons.” 
    Id. at 240.
    This is exactly the argument presented to us by Charley (the fact Charley is an
    employee and the parents in Anderson were not, does not alter the “nexus” analysis).
    [¶15] We therefore consider whether Anderson’s holding that the parents’ intentional
    infliction of emotional distress claim was derivative of the son’s covered worker’s
    compensation claim, and consequently barred, was correctly decided. In doing so, we
    recognize a strong interest in adhering to past precedent under the doctrine of stare
    decisis. W. Wyo. Constr. Co. v. Bd. of Cty. Comm’rs of Sublette Cty., 
    2013 WY 63
    , ¶ 14,
    
    301 P.3d 512
    , 515 (Wyo. 2013) (citing Arnott v. Arnott, 
    2012 WY 167
    , ¶ 29, 
    293 P.3d 440
    , 443 (Wyo. 2012)). However, “when precedential decisions are poorly reasoned, we
    should not feel compelled to follow them.” 
    Id. (citing Brown
    v. City of Casper, 
    2011 WY 35
    , ¶ 43, 
    248 P.3d 1136
    , 1146 (Wyo. 2011)). For the reasons discussed below, we find
    that emotional distress claims are direct claims between the alleged tortfeasor and the
    injured party, are not derivative of the associated covered injury or death, and are not
    5
    Wyo. Const. art. 9, § 4 provides:
    For any injury to person or property caused by wilful failure to
    comply with the provisions of this article, or laws passed in pursuance
    hereof, a right of action shall accrue to the party injured, for the damage
    sustained thereby, and in all cases in this state, whenever the death of a
    person shall be caused by wrongful act, neglect or default, such as
    would, if death had not ensued, have entitled the party injured to
    maintain an action to recover damages in respect thereof, the person
    who, or the corporation which would have been liable, if death had not
    ensued, shall be liable to an action for damages notwithstanding the
    death of the person injured, and the legislature shall provide by law at its
    first session for the manner in which the right of action in respect thereto
    shall be enforced.
    5
    necessarily barred by worker’s compensation immunity; and we overrule Anderson to the
    extent it holds to the contrary.
    [¶16] Charley has alleged COP Wyoming and Mr. Ross had an independent duty to him,
    which they breached. When we recognized the tort of negligent infliction of emotional
    distress, we extended the duty of care to a limited class of persons who were neither
    physically impacted nor in the zone of danger. Gates v. Richardson, 
    719 P.2d 193
    , 195,
    199 (Wyo. 1986). We established that the alleged tortfeasor can have an independent
    duty to spouses, children, parents, and siblings who witness the severe injury or death of
    their relative, in certain circumstances. 
    Id. at 199.
    Charley does not attempt to bring an
    action for the death of his son; rather, he alleges that COP Wyoming and Mr. Ross
    breached a duty of care to him, separate from the duty they had to Brett. We recognized
    a similar exception to the worker’s compensation bar in Pan American Petroleum Corp.
    v. Maddux Well Service, 
    586 P.2d 1220
    (1978), when we held that a third-party claim for
    indemnity against the employer of a covered employee was not based on the employee’s
    injury. Rather, “[i]t is based on ‘by reason of’ ‘on account of’ the alleged breach of an
    independent duty owed by the employer to the third party.” 
    Id. at 1224.
    [¶17] We also recognized the distinction between a wrongful death claim and a claim for
    infliction of emotional distress in R.D. v. W.H., 
    875 P.2d 26
    , 32 (Wyo. 1994), where we
    held that “Appellant’s emotional distress claims were pleaded separately from the
    wrongful death claims, and they were drafted in their generally accepted elements. The
    claims were clearly not parasitic to the wrongful death claims even though they arose out
    of the same circumstances.” (Citations omitted.) In contrast, we have held that “a claim
    for loss of consortium is derivative of the injured party’s claim.” Worman v. Carver,
    
    2002 WY 59
    , ¶ 31, 
    44 P.3d 82
    , 89 (Wyo. 2002). Accordingly, claims for loss of
    consortium arising out of the death of an employee covered by worker’s compensation
    are generally barred. 9 Larson, supra ¶ 10, § 101.02; Hesse v. Ashland Oil, Inc., 
    642 N.W.2d 330
    , 337 (Mich. 2002) (Kelly, J., dissenting) (unlike loss of consortium claim,
    negligent infliction of emotional distress claim is a separate, independent cause of action
    “not dependent upon actual injury to, or recovery by, another person.”) (quoting Auto
    Club Ins. Ass’n v. Hardiman, 
    579 N.W.2d 115
    , 117 (Mich. Ct. App. 1998)).
    [¶18] We recognize that the majority of jurisdictions have held that an independent
    claim for negligent infliction of emotional distress is barred by worker’s compensation if
    it arises from a covered injury. For example, in Maney v. Louisiana Pac. Corp., 
    15 P.3d 962
    (Mont. 2000), the Montana Supreme Court held:
    Here, while Maney’s claims for negligent and
    intentional infliction of emotional distress are independent
    tort causes of action, they are logically related to the
    underlying injury to, and death of, [employee]. In other
    words, had [employee’s] injury and death not occurred,
    6
    Maney’s emotional distress claims would not have arisen.
    Thus, her claims arose as a result of—and directly concern—
    [employee’s] compensable injury and death. Moreover, her
    complaint does not allege any acts by [the employer] resulting
    in her emotional distress separate from—or in addition to—
    the negligence which allegedly caused [employee’s] accident.
    There is a clear nexus between the injury to, and death of,
    [employee] and Maney’s emotional distress claim.
    
    Id. at 968.6
    [¶19] We reject this “but for” analysis as too broad, and agree with the courts that have
    found that a claim for emotional distress is not necessarily a derivative claim arising from
    the injury of another. See, e.g., Bosch v. St. Louis Healthcare Network, 
    41 S.W.3d 462
    ,
    465 (Mo. 2001). We would apply the rationale of courts that have allowed claims to
    proceed on behalf of unborn children injured when their mothers were covered by
    worker’s compensation. See, e.g., Pizza Hut of Am., Inc. v. Keefe, 
    900 P.2d 97
    (Colo.
    1995), where the Colorado Supreme Court held there was no worker’s compensation bar
    for the claim of the unborn child because
    regardless of whether the mother was injured, the injury to the
    child was separate and distinct and subjects the employer to
    separate liability. In this case, the child’s right of action
    arises out of and on account of her own personal injuries, and
    not any personal injury suffered by the mother. The mother
    and child happened to be injured at the same time—the fact
    that the mother may have been injured, however, is not a bar
    to tort recovery for the child or a basis for limiting the child’s
    recovery to the workers’ compensation law.
    
    Id. at 101;
    see also Ransburg Indus. v. Brown, 
    659 N.E.2d 1081
    , 1085 (Ind. Ct. App.
    1995) (“While the derivative injury doctrine bars recovery by a third party who claims
    damages on account of an injury to the employee, if the same third party suffers his own
    injury, then he has his own claim against the employer.”); Meyer ex rel. Meyer v. Burger
    King Corp., 
    2 P.3d 1015
    , 1020 (Wash. Ct. App. 2000) (discussing cases that reasoned
    “that the injuries to the children did not derive from the injuries to the mothers and
    therefore, the children’s claims were outside the purview of the worker’s compensation
    laws”).
    6
    See also Pittman v. Western Eng’g Co., Inc., 
    813 N.W.2d 487
    , 498 (Neb. 2012); Snyder v. Michael’s
    Stores, Inc., 
    945 P.2d 781
    , 785 (Cal. 1997); Cole v. Fair Oaks Fire Protection Dist., 
    729 P.2d 743
    , 751-
    52 (Cal. 1987); Provost v. Puget Sound Power & Light Co., 
    696 P.2d 1238
    , 1241 (Wash. 1985).
    7
    [¶20] Here, Charley alleges that he has suffered an injury separate and distinct from his
    son’s death. It is an injury which is outside of the “grand bargain” because worker’s
    compensation provides no remedy for it, and he should be permitted to go forward to try
    to establish his claim against COP Wyoming and Mr. Ross.
    CONCLUSION
    [¶21] Charley Collins’ claim for emotional injury is based upon a duty to him that is
    independent of the covered death of his son, Brett Collins, and it is not barred by
    worker’s compensation immunity. The decision of the district court to dismiss this case
    is reversed.
    8
    

Document Info

Docket Number: S-15-0098

Citation Numbers: 2016 WY 18, 366 P.3d 521, 2016 Wyo. LEXIS 18

Judges: Burke, Davis, F055, Fox, Hill, Kautz

Filed Date: 2/10/2016

Precedential Status: Precedential

Modified Date: 11/13/2024

Authorities (24)

Ransburg Industries v. Brown , 1995 Ind. App. LEXIS 1636 ( 1995 )

Baker v. Wendy's of Montana, Inc. , 1984 Wyo. LEXIS 330 ( 1984 )

Rd v. Wh , 875 P.2d 26 ( 1994 )

Pan American Petroleum Corp. v. Maddux Well Service , 1978 Wyo. LEXIS 244 ( 1978 )

Wheeler v. STATE EX REL. WYOMING WORKERS'SAFETY & COMP. DIV. , 245 P.3d 811 ( 2010 )

Gates v. Richardson , 1986 Wyo. LEXIS 549 ( 1986 )

Frantz v. Campbell County Memorial Hospital , 1997 Wyo. LEXIS 34 ( 1997 )

Cook v. Shoshone First Bank , 2006 Wyo. LEXIS 16 ( 2006 )

Western Wyoming Construction Co., Inc. v. Board of County ... , 2013 Wyo. LEXIS 67 ( 2013 )

Auto Club Ins. Ass'n v. Hardiman , 228 Mich. App. 470 ( 1998 )

Maney v. Louisiana Pacific Corp. , 303 Mont. 398 ( 2000 )

Anderson v. Solvay Minerals, Inc. , 2000 Wyo. LEXIS 71 ( 2000 )

Cole v. Fair Oaks Fire Protection District , 43 Cal. 3d 148 ( 1987 )

Jeffrey R. Arnott v. Paula a/k/a Polly A. Arnott , 2012 Wyo. LEXIS 173 ( 2012 )

Sisco v. Fabrication Technologies, Inc. , 350 F. Supp. 2d 932 ( 2004 )

Brown v. City of Casper , 248 P.3d 1136 ( 2011 )

Torres v. STATE EX REL. WORKERS'SAFETY & COMPENSATION DIV. , 95 P.3d 794 ( 2004 )

Hesse v. Ashland Oil, Inc , 466 Mich. 21 ( 2002 )

Johnson v. State Ex Rel. Wyoming Worker's Compensation ... , 1990 Wyo. LEXIS 104 ( 1990 )

Provost v. Puget Sound Power & Light Co. , 103 Wash. 2d 750 ( 1985 )

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