Vol. 32, No. 3, 8. The Life, Death and Rebirth of Co-Employee Liability.

• Author: By Timothy M. Stubson

Wyoming Bar Journal

2009.

Vol. 32, No. 3, 8.

The Life, Death and Rebirth of Co-Employee Liability

Wyoming LawyerIssue: June, 2009The Life, Death and Rebirth of Co-Employee LiabilityBy Timothy M. Stubson Two decisions of the Wyoming Supreme Court, Bertagnolli v. Louderback, 2003 WY 50, 67 P.3d 627 (Wyo. 2003) and Hannifan v. American National Bank of Cheyenne, 2008 WY 65, 185 P.3d 679 (Wyo. 2008), have breathed new life into the issue of co-employee immunity under Wyoming's workers' compensation statutes. The cases and the policy choices surrounding co-employee immunity demand a new review of workers' compensation and the principle of immunity that lies at the heart of workers' compensation's grand bargain.

The Path We Have Taken

The issue of an employee's liability for injuries they may cause to co-workers has a long and vibrant history in Wyoming. The Wyoming workers' compensation program was initiated by a constitutional amendment approved in 1914 and followed by enabling legislation in 1915. Lying at the heart of the system was the recognition that employees should be protected by no-fault insurance. The history of workplace injuries prior to workers' compensation was fraught with inequities. Employees who were injured had no real recourse against employers who were able to fund vigorous defenses to any claims brought by the injured worker. The no-fault system cured that ill and resulted in an uneasy bargain. Employees were granted benefits regardless of fault, but employers gained protection from the expense and uncertainty of litigation in the form of immunity.

Co-employee immunity danced in the background but was not firmly addressed until 1939 in the case of In re Byrne, 53 Wyo. 519, 86 P.2d 1095 (Wyo. 1939). In that case, the Wyoming Supreme Court found that employees could not sue their co-employees for workplace injuries. The Court concluded that with the adoption of workers' compensation, the Legislature intended immunity to extend not only to employers, but to employees as well. The rule that co-employees were immune from suit for workplace injuries remained the law until 1974. In Markle v. Williamson, 518 P.2d 621 (Wyo. 1974) the Wyoming Supreme Court once again addressed an attempt to sue a co-employee for injuries sustained in a workplace accident. In that case the Court reached a very different...