Copp v. Redmond

Page 1125

858 P.2d 1125

C.O. BUD COPP; John Hewitt; Jim Rogers; and John Rogers, Appellants (Defendants), v. Bryan Thomas REDMOND and Robbin Lee Redmond, Appellees (Plaintiffs).

No. 93-8.

Supreme Court of Wyoming.

Sept. 3, 1993.

Cameron Walker, Patrick T. Holscher and William S. Bon of Schwartz, Bon, McCrary & Walker, Casper, for appellants.

Gary L. Shockey, Heather Noble and Robert R. Rose of Spence, Moriarity & Schuster, Jackson, for appellees.

The Petroleum Ass'n of Wyoming, The Wyoming Mining Ass'n, The Wyoming Trucking Ass'n, the National Federation of Independent Businesses, The Wyoming Lodging and Restaurant Ass'n, The Wyoming Auto Dealers Ass'n, The Wyoming Ass'n of Commerce and Industry, Coastal Chem, Inc., Sinclair Oil Corp., Little America Refining Co., The FMC Wyoming Corp., and Rissler & McMurry Corp.: Patrick R. Day, P.C., of Holland & Hart, Cheyenne, amici curiae.

Richard E. Day and Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, amicus curiae of Pacificorp.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

Answering a certified question of law, we hold that for claims accruing between July 1, 1987, and February 18, 1993, culpable negligence is the degree of negligence that an injured employee must prove against a co-employee in an action to recover damages for personal injury suffered in a work-related accident.

BACKGROUND

Brian Redmond, an employee of Jim's Water Service, was seriously injured on May 3, 1988, when he was struck, knocked to the ground and run over by a 75,000 pound 1981 Kenworth "slickback" truck operated by C.O. Bud Copp, a supervising co-employee. At the time of Redmond's injury, Redmond, Copp, and several other co-employees were involved in moving a rig from a storage yard to a drilling site southwest of Gillette, Wyoming. In a personal injury action to recover damages, Redmond and his wife sued Copp and several other co-employees alleging negligence, gross negligence, and culpable negligence.

The instant case was filed in 1988, but was held in abeyance pending this court's final decision upon the rehearing of Mills v. Reynolds, 837 P.2d 48 (Wyo.1992). In Mills this court held that the Wyoming legislature transgressed constitutional limitations by its 1986 repeal of what has become known as the "culpably negligent" rule. That rehearing decision generated an inquiry whether the applicable standard for such cases after the effective date of the 1986 amendment ¹ should be a revival of the "culpably negligent" standard, or a simple negligence standard.

CERTIFIED QUESTION

After the Mills decision was released, proceedings in this matter resumed, and the district court certified the following question for review pursuant to WYO.R.APP.P. 11:

1. When the Wyoming Supreme Court declared the joint employee immunity created by W.S. § 27-14-104(a) to be unconstitutional in Mills v. Reynolds, 837 P.2d 48 (Wyo.1992), did that decision enable recovery in co-employee cases pursuant to common law and Markle v. Williamson [518 P.2d 621 (Wyo.1974) ], to-wit: for ordinary negligence, or did it revive repealed 1977 W.S. § 27-12-103(a), so as to permit tort recovery between co-employees covered by the Wyoming Worker's Compensation Act only when the defendant co-employee is chargeable with culpable negligence? If neither of these positions is correct, then:

2. What is the standard for recovery between such co-employees?

By order issued on January 13, 1993, the court agreed to review the certified questions.

ANALYSIS

Before its repeal in 1986, WYO.STAT. § 27-12-103(a) (1983) provided:

(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 unless the employees are culpably negligent, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

(Emphasis added).

In the Mills decision, the court recounted the divers changes this provision has undergone in the years both before and after 1986. Effective February 18, 1993, this provision now reads:

§ 27-14-104. Exclusive remedy as to employer; nonliability of coemployees; no relief from liability; rights as to delinquent or noncontributing employer.

(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 unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

WYO.SESS.LAWS, ch. 47, § 1 (emphasis added).

The task of this court is to settle what standard applies to such cases between the July 1, 1987 effective date of the repeal of the "culpable neglect" language and the most recent amendment which went into place on February 18, 1993. Our decision today does not construe the language which is now in place. The effect of our decision in Mills was simply this: For the purpose of suits, such as the instant case, the language, "or his employees acting within the scope of their employment unless the employees are culpably negligent," which appeared in § 27-12-103(a) is revived and governs all such cases for that time period. See Morris v. Smith, 837 P.2d 679, 682 (Wyo.1992).

In determining the status of the law when a statute is declared unconstitutional following amendment, we found other authorities in support of the result we reach in this case. A California case states it simply: "[T]he constitutional invalidity of amendatory legislation does not affect the validity of preceding enactments." Valdes v. Cory, 139 Cal.App.3d 773, 189 Cal.Rptr. 212, 227 (1983) (citation omitted). Generally, when an amendment to an original act is declared unconstitutional, the unconstitutional amendment has no effect, and the law as it existed before the amendment is controlling. State v. Bloss, 64 Haw. 148, 637 P.2d 1117, 1130-31 (1981), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982); Western Int'l v. Kirkpatrick, 396 N.W.2d 359, 366 (Iowa 1986); Bongard v. Bongard, 342 N.W.2d 156, 159 (Minn.App.1983). See also, 1 Norman J. Singer, STATUTES AND STATUTORY CONSTRUCTION § 2.07 at 42 n. 23 (1985) ("Former act remains in force when the unconstitutional amendment is declared void."); Annotation, Previous statute as affected by attempted but unconstitutional amendment, 66 A.L.R. 1483 (1930).

We are unwilling to attribute to the legislature an intent to repeal the "culpably negligent" standard even in the face of our finding of unconstitutionality. Ascribing such intent to the legislature would leave the law in this area in a state of chaos for a period which lasted almost seven years. It would be inconsistent, as well as irresponsible, with our precedents to assign the burden of such an absurd intent to the legislature. Parker Land & Cattle v. Wyoming Game & Fish, 845 P.2d 1040, 1042-1045 (Wyo.1993); Cook v. State, 841 P.2d 1345, 1356 (Wyo.1992) (Golden, J., concurring).

CONCLUSION

Under the circumstances presented here, we hold that our decision in Mills revived the "culpably negligent" standard. Applying the general rule, we further hold the unconstitutional amendment had no effect and left the statute as it was before the amendment--for the limited purpose of maintaining the "culpably negligent" standard in cases where that standard properly applies.

THOMAS, Justice, concurring.

I agree with the result reached by the opinion of the court in this case, and I have no quarrel with the rationale incorporated in the court's opinion. I perceive, however, in this instance, we find a nuance which does not seem to be a part of the ratio decidendi of the persuasive authority from our sister jurisdictions.

It is very clear that, in the case of amendatory legislation, if the new statute is declared unconstitutional, the effect of that declaration is to treat the new statute as though it had not been adopted. This approach reaches even to striking the enactment clause of the new statute, and the effect is to reinstate the prior statute. In addition to the cases and the annotations cited in the majority opinion, I would call attention to Clark County, By and Through Bd. of City Comm'rs v. City of Las Vegas, By and Through Bd. of City Comm'rs, 97 Nev. 260, 628 P.2d 1120 (1981); Clark v. State, 287 A.2d 660 (Del.1972), appeal dismissed, cert. denied, 409 U.S. 812, 93 S.Ct. 139, 34 L.Ed.2d 67 (1972); Henderson v. Antonacci, 62 So.2d 5 (Fla.1952); State v. Greenburg, 187 Neb. 149, 187 N.W.2d 751 (1971); State v. Clark, 367 N.W.2d 168 (N.D.1985); State ex rel. Thornton v. Wannamaker, 248 S.C. 421, 150 S.E.2d 607 (1966); State ex rel. Dieringer v. Bachman, 131 W.Va. 562, 48 S.E.2d 420 (1948). ¹ None of these cases, however, address the instance in which an entire codification, such as our workers' compensation act, is purportedly repealed and amended and re-enacted. This is the nuance I conclude should be addressed.

Succinctly, the question is: Conceding that, when an amendment to a statute is declared unconstitutional and that declaration of unconstitutionality serves to strike the enacting clause, should the same result ensue when the repealing clause is much broader and extends to a number of other statutory provisions? Obviously, the striking of the repealing clause in toto would lead to legal chaos but, perhaps, the situation could be saved by the concept of implied repeal. In my view, however, it makes far better sense to simply say the...