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Hagemann v. NJS Engineering8/8/2001
ry over accomplishes indirectly what cannot be done directly and, therefore, evades the spirit of the legislation. This is not entirely accurate, for it does not tell the whole story. True, the end result is that a common-law size recovery proceeds from the employer to the employee. In the process, however, two things are accomplished, one of which is relevant to the purposes of the compensation provision and the other of which is independent of it. The relevant accomplishment is that of preserving the employee's common-law rights against negligent outsiders. This having been done, there still remains the job of adjusting rights fairly between the outsider and the negligent employer. The question here becomes very precise: did the compensation acts, in conferring immunity on the employer from common-law suits, mean to do so only at the expense of the injured employee, or also at the expense of outsiders? One answer is that whereas the injured employee got quid pro quo in receiving assured compensation payments as a substitute for tort recoveries, the third party has received absolutely nothing and, hence, should not be impliedly held to have given up rights which he had before.
[ .] Lambertson v. Cincinnati Corp., 257 NW2d 679, 688-89 (Minn 1977) (quoting Larson, Workmen's Compensation: Third Party's Action Over Against Employer, 65 NWU.L.Rev. 351, 419). As Larson recognizes in his treatise on worker's compensation, " ach side to the controversy has an argument in its favor which, considered alone, sounds irresistible." Larson, Worker's Compensation:
Third Party Actions, ยง 121.01 at 121-4. The employer asserts the exclusivity provision, whereas the third party may be "subject to a staggering liability it would not have had to bear but for the sheer chance that the other parties involved happened to be under a compensation act." Id. Yet, other courts have found a way to balance the interests and achieve a fair allocation, unfortunately the majority opinion has not.
[ .] The majority opinion uses SDCL 62-3-2 to define the rights of a third party in a context in which it was never meant to apply. As recognized by the court in Lambertson, " situation like this ought to be dealt with legislatively. It is rather inconsiderate to force courts to speculate about legislative intention on the strength of statutory language, in the framing of which the draftsmen had not the remotest trace of the present question in their minds." Lambertson, 257 NW2d at 689. Despite the majority opinion's stated declaration that " e decline the invitation to legislate in this case," that is exactly what it is doing.
[ .] Interpreting South Dakota law on claims for indemnity, the United States District Court for South Dakota held that "an indemnity claim may properly be raised by a third party against an employer discharged from direct liability to his injured employee." Harn v. Standard Engr. Co, 416 FSupp 1168, 1169 (D SD 1976). In so holding, the court recognized that:
The reasoning behind the foregoing cases is that an indemnity claim is not derivative of the employee's claim. Rather, indemnity is based on a set of facts warranting a conclusion that the indemnitor owes a distinct obligation or duty to the indemnitee. This obligation exists separate and apart from any liability which the employer as indemnitor might have had to his injured employee. Id. at 1170.
As SDCL 62-3-2 treats employers and employees equally, the foregoing reasoning is equally applicable to a third party recovery against Simms as a co-employee, even if recovery is ultimately obtained or offset against Alpha Omega as the employer.
[ .] The majority opinion attempts to utilize the
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