Daniel J. BENCE, Appellant (Plaintiff), v. PACIFIC POWER AND LIGHT COMPANY, a Maine Corporation, et al., Appellees (Defendants), 631 P.2d 13

BROWN, Justice. The sole issue presented by this appeal is whether appellees are entitled to immunity from suit by virtue of the Wyoming Worker's Compensation Act. After examining the pertinent Wyoming laws, we have concluded that appellees are not immune from suit and, therefore, we reverse and remand the case for further proceedings. Daniel Bence, appellant, brought this personal injury action against Pacific Power and Light Company and Idaho Power Company, appellees, after he was seriously injured in 1974 when he fell from a scaffolding while he was attempting to weld tubes on the waterwall of a boiler.

At the time of the occurrence, Benee was employed by Bechtel Power Corporation as a welder-pipefitter and he was working at the Jim Bridger Power Plant located near Rock Springs, Wyoming. Bechtel Power Corporation had contracted with appellees to do work in connection with the designing, engineering and construction of the power plant. Appellees are the owners of the power plant. Bence did receive worker's compensation after he was injured.

However, while both contracts between appellees and Bechtel Power Corporation provided that Bechtel was entitled to receive "recoverable cost" which included "net costs of premiums for workmen's compensation," the record does not contain any evidence that appellees contributed to the worker's compensation fund. In any event according to their agreement, any payment by appellees would have been made indirectly by way of reimbursement to Bechtel. Appellees filed a motion for

summary judgment alleging that Bechtel was an independent contractor pursuant to one of the two contracts and, therefore, appellees did not owe a duty to appellant. The trial judge in his tentative opinion letter raised for the first time the question of whether appellees are immune from suit because they are David Benee's statutory employers. The trial judge went on to request additional briefs from the parties on this issue and he also indicated that he would allow appel-lees to amend their answer in order to allege the affirmative defense that worker's compensation is appellant's sole remedy.

After the trial judge received the additional briefs and appellees amended their answer, he granted

summary judgment in favor of Pacific Power and Light Company and Idaho Power Company finding: "* * * [TJhat said defendants were the 'statutory employers' of the plaintiff, that the plaintiff obtained workmen's compensation benefits through his employer, the Bechtel Corporation, and that workmen's compensation is the sole and exclusive remedy of the plaintiff against the said defendants." Appellant has appealed from that order. The question of whether Pacific Power and Light Company and Idaho Power Company are employers within the meaning of the worker's compensation law is one of law.

If an owner of a project is an employer, the employee's sole remedy is worker's compensation and the employee may not subject the owner to a common-law tort action. On the other hand, if the owner is a third party he is subject to a common-law tort action for the injuries sustained by the contractor's employee. In order to answer this question, we must look to the law of Wyoming. A landowner at common law was not considered the employer of a workman hired by the person with whom the owner had contracted to develop his property.

Here appellees contend that § 27-60(D), W.9.1957, of the Wyoming Worker's Compensation Act made owners statutory employers of the workmen; therefore, appel-lees are immune from the present action.' This court has held that immunity provisions in the Wyoming Worker's Compensation Act, will be narrowly construed. Markle v. Williamson, Wyo., 518 P.2d 621, 624 (1974); and Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981). As this court recently stated in Barnette v.

Doyle, supra, p. 1852: "Worker's compensation laws were enacted during the later [sic] part of the nineteenth century in order to provide social insurance for victims of industrial accidents, and this compensation is not based upon fault or the breach of a duty owed by the employer to the injured employee. These laws were not enacted to abrogate existing common-law remedies that protected injured workers. * * *" Because the Act was not intended to abrogate common-law remedies, this court has held that amending legislation must contain clear and precise language before common-law rights can be taken away.

Markle v. Williamson, supra. It is difficult to find in § 27-60(D), supra, any expression of legislative intent to destroy an injured worker's right to bring common-law negligence action against the owner of the premises. Nor do we find such intent in any of the other pertinent Wyoming laws.

As originally enacted, Art. 10, § 4, of the Wyoming Constitution provides that "[njo law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person." This seetion of the constitution was amended in 1914, so that the Wyoming Worker's Compensation Act, §§ 27-12-101 to 27-12-805, W.S.1977, could be enacted.

The constitutional amendment provides: "* * * The right of each employee to compensation from such fund [a compensation fund out of which compensation benefits are paid] 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 such fund in favor of any person or persons by reason of any such injuries or death." (Emphasis added.) The sections of the Wyoming Worker's Compensation Act that were in effect at the time of the occurrence and that are pertinent to this appeal are as follows: "* * * 'The right of each employee to compensation from such funds [a compensation 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 such fund in favor of any such person or persons by reason of such injury or death. * * *" (Emphasis added.) § 27-50, W.S.1957.

"(D) * * * [I)n private work the contractor, prime or general, shall be responsible, primarily and directly to the industrial accident fund for all obligations against the total payroll of the work and for the amounts due it, and the owner of the property affected by the contract shall be surety for such payments." (Emphasis added.)

Section 27-60, W.S.1957. Appellees contend that since the owner under § 27-60(

D) is obligated to contribute to the industrial accident fund if the injured worker's employer fails to make the required payment, the owner must be deemed the statutory employer of the worker.

In support of this argument, appellees point to Professor Larson's treatise on Workmen's Compensation Law, Vol. 2A, § 72.31, p. 14-47 (1976), in which he states: "Forty-three states now have 'statutory-employer or contractor-under' statutes-i. e., statutes which provide that the general contractor shall be liable for compensation to the employee of a subcontractor under him, usually when the subcontractor is uninsured but sometimes without reference to the insured status of the subcontractor, doing work which is part of the business, trade or occupation of the principal contractor.

Since the general contractor is thereby, in effect, made the employer for the purposes of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third-party suit when the facts are such that he could be made liable for compensation and the great majority of cases have so held." When Professor Larson says "Forty-three states now have 'statutory-employer or contract-under' statutes," he has apparently included Wyoming because Wyoming is not listed as an exception in footnote 46, page 14-47.

However, we do not believe that Larson has correctly classified Wyoming as a state that has statutory-employer or contract-under statutes, under § 27-60(D), W.S.1957.

Larson does not cite cases from states that provide that an owner is a "surety" nor does he refer to cases from states that have constitutional and statutory provisions granting immunity to "any employer contributing, as required by law to such fund." It appears, therefore, that the cases cited by Larson in support for granting immunity to statutory-employers are of no value because Wyoming's constitutional and statutory lan-is different from that of other states.

In addition Professor Larson goes on to note: "* * * It is imperative to observe the exact statutory language used to describe the statutory employer, since it varies significantly from one jurisdiction to another. * * *." 2A Larson, Workmen's Compensation Law, supra, p. 14-57, n. 53. As appellees' counsel states in his brief to this court "[TJhere are as many different types of statutory employers as there are states." Furthermore, appellees have not cited any constitutional or statutory provisions in other states that are similar enough to Wyoming's worker's compensation law to be persuasive.

Our own research has revealed that in a substantial number of states that have ruled that a principal contractor is a statutory employer, the applicable worker's compensation law specifically requires immunity. For example, in Honaker v. W. C. & A. N. Miller Development Company, 285 Md. 216, 401 A.2d 1013 (1979), an injured employee of a roofing subcontractor brought a common-law tort action against the principal contractor who had hired the roofing company to install a roof on a house.

The injured employee did receive worker's compensation benefits that were paid by the insurance carrier of his immediate employer. In affirming the

summary judgment entered by the lower court in favor of the principal contractor the appellate court found that under the pertinent

section of the Maryland Worker's Compensation Act, Code (1957), Art. 101, § 62, the contractor was a statutory employer and, therefore, immune from suit. This

section of the Maryland Act, unlike our own law, specifically provides that: "* * * [where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer * * *." (Emphasis added.) Honaker v. W. C. & A. N. Miller Development Company, supra, p. 1016. Likewise, while the Utah Supreme Court has held that an injured employee who has received worker's compensation benefits may not maintain a negligence action against the general contractor, Utah's worker's compensation law is substantially different from our own law.

Section 35-1-41 of the Act provided: "Where any employer procures any work to be done wholly or in part for him by a contractor over whose work he retains supervision or control, and such work is a part of process in the trade or business of the employer, such contractor, and all persons employed by him, and all subcontractors under him and all persons employed by any such subcontractors, shall be deemed, * * * employees of such original employer." (Italics in text.) Adamson v. Okland Construction Company, 29 Utah 2d 286, 508 P.2d 805, 807 (1973).

On the other hand, the Arkansas Supreme Court in The Baldwin Company v. Maner, 224 Ark. 348, 273 S.W.2d 28 (1954), refused to grant immunity to a prime contractor whose subcontractor had made the required compensation payments for the subcontractor's injured employee. In so holding, the court found that unlike other worker's compensation statutes that specifically provide that the prime contractor is deemed the employer of its subcontractor's employees, the Arkansas law did not. The court refused to read a grant of immunity into the statute. Also, see Prive v. M. W.

Goodell Construction Co., Inc., 119 N.H. 914, 409 A.2d 1149 (1979); Lawrence v. Yamauchi, 50 Haw. 298, 439 P.2d 669 (1968); and Laffoon v. Bell & Zoller Coal Company, 65 Ill.2d 437, 3 Ill.Dec. 715, 359 N.E.2d 125 (1976), where these courts have held that their respective worker's compensation laws confer immunity only upon the immediate employer. Our own § 27-60(

D) provides that the owner is the "surety" for payments that are not made by the immediate employer. This

section was enacted to protect the industrial accident fund against irresponsible or itinerant subcontractors by making prime or general contractors "primarily and directly" responsible to the fund. The industrial accident fund is further secured by making the owner of the property "surety" for all contributions to the fund. It does not provide that the owner is to be deemed the original employer of the workmen, nor does it in any other way specifically grant the owner immunity from suit.

The statute does not grant immunity to those responsible for making payments to the fund nor does it say anything about granting immunity to those having a potential liability to the fund. The grant of immunity is set out in § 27-50, W.S.1957, and extends to "any employer contributing, as required by law." As we have already discussed, Markle and Barnette, supra, hold that immunity provisions in the Worker's Compensation Act will be narrowly construed. Art. 10, § 4, Wyoming Constitution, § 27-50 and § 27-78, W.S. 1957, speaking of immunity, grant such to any employer contributing, as required by law to such fund.

Neither the constitution nor statutes specifically grant immunity to a surety, guarantor, or general contractor who has contracted to reimburse the employer, who actually makes the payment. Were we to hold that immunity extends to a surety, we would be extending immunity to someone who is not contributing as required by law but only has potential liability to contribute. This construction would violate what we have traditionally said about construction of the worker's compensation laws, that is, immunity provisions will be narrowly construed.

If the theory urged by appellees were adopted it would logically follow that appellant's immediate employer (Bechtel) would not be entitled to immunity. The rationale being that Bechtel does not ultimately bear the cost of worker's compensation premiums; therefore, it should not enjoy an immunity that it has not paid for. Appellees' theory and its logical extension are contrary to the statutes. Therefore, we find that the trial judge erred when he ruled that the appellees are statutory employers who are immune from suit. Reversed and remanded. .

We attach no significance to appellees' reimbursement arrangement with Bechtel. Appel-lees and Bechtel cannot limit appellant's cause of action against appellees by contract. Johnson v. Coleman, Ky., 288 S.W.2d 348 (1956); Burden v. Elling State Bank, 76 Mont. 24, 245 P. 958, 46 A.L.R. 906 (1926) 17 Am.Jur.2d, Contracts, § 294, p. 711; Mitchell v. Atlas Roofing Manufacturing Company, 246 Miss. 280, 149 So.2d 298 (1963). As a practical matter, the owner rather than the employer, ultimately pays for the worker's compensation premiums.

We can see little difference between the owners in the case at bar who obligated themselves to make payments by reimbursement pursuant to an express contractual agreement and other situations where the contractor takes into consideration, as he surely would, worker's compensation costs when he makes a bid for any construction job. .

Section 27-50, W.S.1957, was amended in 1975 and this section, now § 27-12-103(a), W.S.1977, provides in pertinent part: "The rights and remedies provided in this act [§§ 27-12-101 to 27-12-8051, 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. * * *" (Emphasis added.) .

Section 27-60(D), W.$.1957, was amended in 1975 and 1977; this section, now § 27-12-109(e), W.S.1977, provides: "In private work a contractor who subcontracts all or any part of a contract is liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of compensation has secured the payment of compensation as provided for in this act. Any contractor or his carrier who becomes liable for compensation may recover the amount of the compensation paid and necessary expenses from the subcontractor primarily liable therefor."

Section 27-12-109(

f) goes on to provide that in certain specified instances "[the owner of land shall be deemed a contractor when he contracts with another who shall be deemed a subcontractor." .

"Each employee, who shall be injured in any of the extra-hazardous employments as herein defined, or the defendant family of any such injured workman, who may die as the result of such injuries, except in cases of injuries due solely to the culpable negligence of such injured employee, shall receive out of the industrial accident fund, compensation in accordance with sections 34 * * * of this act, and such right and payment shall be in lieu of and take the place of any and all rights of action against any employer contributing, as required by this act, to the industrial accident fund in favor of any person or persons by reason of such injuries or death." (Emphasis added.) >