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Hagemann v. NJS Engineering8/8/2001
statutes is to discover the true intention of the law, and said intention is to be ascertained by the court primarily from the language expressed in the statute. In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.
While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent.
One of the primary rules of statutory . . . construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court's only function is to declare the meaning of the statute as clearly expressed in the statute. South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, , 589 NW2d 206, 209 (quoting In re Famous Brands, Inc., 347 NW2d 882, 884-85 (SD 1984)).
SDCL 62-3-2 provides:
The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.
SDCL 62-3-2 makes it clear that employer and employee are in the same position when it comes to barring suit against them. To allow such an action for contribution to proceed would circumvent the plain language of SDCL 62-3-2, which prevents suit against "any employee."
[ .] Being that SDCL 62-3-2 provides "any employee" immunity from suit, contribution against Sims under the Uniform Contribution Among Tortfeasors Act is also barred. As a matter of law, Sims is not a joint tortfeasor. Under the Act, codified in SDCL ch 15-8, a "joint tortfeasor" is defined as "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." SDCL 15-8-11 (emphasis supplied). As this Court stated in Burmeister v. Youngstrom, 139 NW2d 226, 231 (SD 1965), the Act only applies "where there is a common liability to an injured person in tort" and "there can be no contribution where the injured person has no right of action against the third-party defendant." (emphasis supplied). This Court made it "abundantly clear" that contribution only arises when "there is joint or several liability rather than the presence of joint or concurring negligence." Id. (emphasis supplied). SDCL 62-3-2 immunizes Sims from suit, and, as such, he cannot be held liable as a joint tortfeasor no matter his degree or percentage of negligence. As stated in Larson's: Workers Compensation Law, ยง 121.02:
The great majority of jurisdictions have held that the employer [or co-employee] whose negligence contributed to the employee's injury cannot be sued or joined as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one: the employer [or co-employee] is not jointly liable to the employee in tort; therefore it cannot be a joint tortfeas
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