Summary 2011 WY 8

Summary of Decision January 20, 2011

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Case Name: Formisano v. Gatson

Citation: 2011 WY 8

Docket Number: S-10-0138

URL: http://tinyurl.com/46s6p2p

Appeal from the District Court of Campbell County, The Honorable John R. Perry, Judge

Representing Appellant (Plaintiff): C. John Cotton of Cotton Law Office, P.C., Gillette, Wyoming.

Representing Appellee (Defendant): Rebecca A. Lewis of Pence and MacMillan LLC, Laramie, Wyoming.

Date of Decision: January 20, 2011

Facts: This is an appeal from a summary judgment granted to the defendant in a worker’s compensation co-employee liability suit.

Appellant and Appellee were employed by a mining company. Appellee had more job tenure, took on some of the crew leader’s duties, and drove the crew’s work truck. Appellant and Appellee were sent out to work on a truck bed needing repairs. They left around 5:00 am and arrived at the work site about 7:00 am. Around 4:00 p.m., Appellee went to call the company for further work instructions. Appellant testified that Appellee reported after the call that they needed to stay until the work was finished. Another employee testified, to the contrary, that Appellee said during the telephone call that company need not send out a night shift crew to finish the truck bed because the work would be done by the 7:00 p.m. shift change, or shortly thereafter.

At about midnight Appellant and Appellee finished the repair work and headed back, with Appellee driving. Appellee was tired, but “feeling okay.” At about 1:00 a.m., Appellee fell asleep, and the vehicle drifted off the roadway, rolling one and a half times. Appellant suffered several herniated discs in the accident. Several company employees testified that Appellee could have called in for night shift replacements at 7:00 p.m., or, after the job was finished, he could have called in to have someone drive them back, or he could have obtained permission to stay in a motel near the mine.

Issue: When viewed in the light most favorable to the appellant, would the undisputed facts of this case allow a reasonable jury to find that the appellee intentionally acted to cause physical harm or injury to Appellant, as that concept is defined under Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2009)?

Holdings: The Court found there were no genuine issues of material fact and Appellee was entitled to judgment as a matter of law. Appellee’s admitted negligence in falling asleep while driving simply does not rise to the level of misconduct envisioned by the exception to immunity in the Wyoming Worker’s Compensation Act. The Court Affirmed.

J. Voigt delivered the opinion for the court.