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Popovich v. Irlando5/20/1991
The question in this case is whether the co-employee immunity rule of workers' compensation law bars a tort claim filed in the county court by an employee seeking damages from a co-employee for the intentional infliction of emotional distress due to sexual harassment. The county court ruled that the exclusive-remedy provisions of the Colorado Workers' Compensation Act barred the plaintiff's claim and dismissed the complaint with prejudice. The district court affirmed the judgment of dismissal, and we granted the plaintiff's petition for certiorari. We conclude that the county court erred in not conducting an evidentiary hearing to determine whether the co-employee immunity rule barred the plaintiff's claim under the factual circumstances alleged in the plaintiff's complaint. We accordingly reverse the judgment of the district court and remand the case to that court with directions to return the case to the county court for further proceedings.
I.
On February 16, 1988, the plaintiff, Ardith Popovich, a cable repair technician for U.S. West/Mountain States Telephone & Telegraph Company (Mountain Bell), filed a claim seeking workers' compensation benefits for severe depression and anxiety caused by sexually degrading remarks made by three co-workers, including John Irlando, who also is a cable repair technician for Mountain Bell and at one time worked on the same repair crew as Popovich. In her workers' compensation claim, Popovich alleged that on July 9, 1987, when she was performing her job duties, she was informed by another employee of the remarks made by Irlando and two other co-workers, and that she was unable to return to work for several days and sought and received treatment for her depression. Popovich did not claim any permanent disability as a result of her illness. Although Mountain Bell disputed whether Popovich's claim was a legitimate workers' compensation claim, it agreed to settle with Popovich by paying $3,138.00 directly to her health care providers to cover her medical and counseling expenses. Pursuant to the settlement agreement, which was executed on May 18, 1989, Popovich expressly agreed to waive any right or entitlement to workers' compensation benefits for her claimed injury , including any right to reopen her claim. The settlement agreement was approved by the Division of Labor.
On June 7, 1989, Popovich filed a common law tort action in the County Court of Jefferson County against John Irlando for intentional infliction of emotional distress and sought reasonable damages not in excess of $5,000. In her complaint, Popovich alleged as follows:
That on or about the months of January through the months of June of 1987 the defendant engaged in extreme and outrageous conduct toward the plaintiff by falsely accusing her of engaging in acts of oral sex and sexual intercourse with several of her male co-workers.
That the defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress.
That the plaintiff incurred severe emotional distress which was caused by the defendant's extreme and outrageous conduct.
That these allegations by the defendant were false.
Irlando denied the allegations of the complaint and moved to dismiss the complaint with prejudice on the basis that the Workers' Compensation Act provided Popovich with the exclusive remedy for her claimed injury or damage and thus barred her common law tort action against him for intentional infliction of emotional distress. The county court heard legal arguments on the motion and, without determining whether there was any dispute as to the material facts underlying Popovich's tort claim,
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