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Hagemann v. NJS Engineering8/8/2001
or. The liability that rests upon the employer [or co-employee] is an absolute liability irrespective of negligence, and this is the only kind of liability that can devolve upon it whether it is negligent or not.
As Sims cannot be held liable under SDCL 62-3-2, by definition, he cannot be a joint tortfeasor under SDCL ch 15-8, the Uniform Contribution Among Tortfeasors Act.
[ .] Rather than arguing the interpretation of SDCL 62-3-2, County urges this Court to disregard South Dakota statutory and case law, and invites us to follow Illinois and Minnesota case law to reach its desired result. County contends that the cases of Kotecki v. Cyclops Welding Corp., 585 NE2d 1023 (Ill 1991) and Lambertson v. Cincinnati Welding Corp., 257 NW2d 679 (Minn 1977) as precedent to follow in this case. In essence, the Kotecki case and the Lambertson case hold that an employer could be held liable for contribution, but that the amount contributed would be limited to workers' compensation benefits. 585 NE2d at 1027; 257 NW2d at 689. Therefore, by analogy, County contends that Sims, as an employee, should also be held liable for his proportionate share depending on his percentage of fault.
[ .] Not only are the cases cited by County not binding on this Court, their principle holding contravenes the plain language of SDCL 62-3-2 and our holding in Abraham. In Abraham, this Court stated:
Our interpretation of [SDCL 62-3-2], in accordance with previous decisions and read together with other statutes, is that SDCL 62-3-2 does operate as an exclusionary provision which prevents claims against fellow employees for injuries obtained in the scope of employment[.] 1999 SD 90, , 598 NW2d 512, 518.
SDCL 62-3-2 unambiguously provides that an employee cannot maintain a negligence action against his employer or co-employee as workers' compensation is the exclusive remedy for a work-related injury . To follow the Illinois and Minnesota case law in this area would involve rewriting South Dakota's workers compensation law by this Court. We decline the invitation to legislate in this case. Since SDCL 62-3-2 bars County's action against Sims, it was proper for the trial court to dismiss this case as provided by SDCL 15-6-12 (b) (5).
[ .] We affirm.
[ .] KONENKAMP, Justice, concurs.
[ .] GILBERTSON, Justice, concurs in result.
[ .] MILLER, Chief Justice, and SABERS, Justice, dissent.
GILBERTSON, Justice (concurring in result).
[ .] The subject we are faced with was first addressed by the South Dakota Legislature in chapter 376, section 5 of the 1917 Session laws. It provided:
The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident 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.
Thus, at that time, an employee who was injured or killed on the job was precluded from suing anybody and everybody. The ban was all-inclusive in exchange for workers' compensation benefits.
[ .] Through chapter 422 of the 1977 Session Laws and chapter 370, section 2 of the 1978 Session Laws, the Legislature limited the scope of this ban. SDCL 62-3-2 now states:
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 suc
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