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Schwindt v. Hershey Foods Corp.11/20/2003
ORDER AFFIRMED
In this personal injury action for damages allegedly incurred as a result of a work-related injury, plaintiffs, Lonnie Schwindt (Employee) and Gina Schwindt, his wife, appeal the trial court order dismissing their claims against defendant, Hershey Foods Corporation (Employer), as barred by the exclusivity provision of the Workers' Compensation Act, §§ 8-41-102, C.R.S. 2003. We affirm.
According to the allegations of the complaint, Employee was injured on the job while operating one of Employer's machines. Plaintiffs alleged that Employer had modified the machine to bypass the safety switch and to operate with the safety guards open. In addition, plaintiffs alleged that Employer knew that operation of the machine without the safety switch was dangerous, that Employer nevertheless refused to replace the safety switch, and that Employer trained Employee to operate the machine while overriding the safety switch. Employer's actions were allegedly taken "in willful, wanton and reckless disregard for the health and safety of its employees in general and [Employee] . . . in particular." Employee's wife asserted a separate claim for loss of consortium.
The trial court granted Employer's motion to dismiss both claims under C.R.C.P. 12(b)(5) based on the exclusivity provision of the Act and the derivative nature of the loss of consortium claim. Plaintiffs did not seek leave to amend their complaint following the dismissal.
I.
Plaintiffs first contend that because their complaint alleged Employer committed an intentional tort, the exclusive remedy provisions of the Act do not bar their common law damage claims. We reject the contention.
We review an order of dismissal under C.R.C.P. 12(b)(5) de novo, accepting as true all allegations of material fact in the complaint. Dismissal is proper only if, based upon the allegations, the plaintiff is not entitled to relief upon any theory of the law. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo. 1995).
The Act "provides exclusive remedies for compensation of an employee by an employer for work-related injury." Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo. 1991); see § 8-41-102, C.R.S. 2003. An employer that has complied with the Act is immune from common law damage actions, and its employees are limited to the remedies provided by the Act. Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo. 2001).
Further, the Act provides the exclusive remedy even where an employee is injured by the intentional tort of a co-employee, absent an allegation that the co-employee was not acting in the course of employment. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982); Digliani v. City of Fort Collins, 873 P.2d 4 (Colo. App. 1993). However, an employer may be held liable to an employee for common law damage claims for intentional torts committed by the employer or the employer's alter ego "if the employer deliberately intended to cause the injury and acted directly, rather than constructively through an agent." Ventura v. Albertson's, Inc., 856 P.2d 35, 39 (Colo. App. 1992).
Here, in their complaint, plaintiffs do not allege that the injuries were caused by one or more of Employee's co-employees. Rather, they allege generally that the acts and omissions causing the injury were those of Employer. As noted, we must assume the truth of the allegations of the complaint for purposes of our review of the dismissal order under C.R.C.P. 12(b)(5). Accordingly, we address the issue whether plaintiffs sufficiently alleged an intentional tort by Employer. We conclude, as did the trial court, that plaintiffs alleged at most a claim for gross negligence and that
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