Touchard v. La-Z-Boy

2006 UT 71
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Marilyn Touchard, et al., 	No. 20050361
Plaintiffs and Respondents,
v.
F I L E D
La-Z-Boy Inc.,
Defendant and Petitioner. 	November 17, 2006
---
Certification from the Federal Court
Attorneys: 	Erik Strindberg, Ralph E. Chamness, Salt Lake City,
for respondent
Jathan W. Janove, Salt Lake City, for petitioner
---
On Certification from the United States District Court
for the District of Utah, the Honorable Teena Campbell
DURHAM, Chief Justice:
INTRODUCTION
¶1 	We accepted the following question on certification
from the United States District Court for the District of Utah:
“Whether the termination of an employee in retaliation for the
exercise of rights under the Utah Workers’ Compensation Act . . .
implicates a ‘clear and substantial public policy’ of the State
of Utah that would provide a basis for a claim of wrongful
termination in violation of public policy.” 	If we conclude that
it does, the federal court then asks whether the cause of action
applies (1) when “the employee is not fired but resigns under
circumstances that constitute a ‘constructive discharge’”;
(2) when “the employee who has filed for benefits under the
[Workers’ Compensation Act] is neither fired nor constructively
discharged, but experiences other discriminatory treatment or
harassment from an employer”; or (3) when “the employee has not
filed for benefits under the [Workers’ Compensation Act] but is
retaliated against for opposing an employer’s treatment of other
injured employees who are entitled to file for benefits under the
[Act].” 	We hold that retaliatory discharge for filing a workers’
compensation claim violates the public policy of this state;
thus, an employee who has been fired or constructively discharged

No. 20050361 	2
in retaliation for claiming workers’ compensation benefits has a
wrongful discharge cause of action. 	We decline to extend this
cause of action, however, to an employee who has suffered only
harassment or discrimination or to an employee who has been
retaliated against for opposing an employer’s treatment of
employees who are entitled to claim workers’ compensation
benefits.
ANALYSIS
¶2 	When a federal court certifies a question of law to
this court, we “are not presented with a decision to affirm or
reverse.” 	Robert J. Debry & Assocs. v. Qwest Dex, Inc., 2006 UT
41, ¶ 11, 144 P.3d 1079. 	Consequently, “traditional standards of
review do not apply.” 	Id. 	Moreover, “[o]n certification, we
‘answer the legal questions presented’ without ‘resolving the
underlying dispute.’” 	In re Kunz, 2004 UT 71, ¶ 6, 99 P.3d 793
(quoting Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87,
¶ 1 n.2, 16 P.3d 533). 	We therefore proceed directly to our
analysis of Utah law.
¶3 	Under Utah law, all employment relationships “entered
into for an indefinite period of time” are presumed to be at-
will. 	Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 7, 96 P.3d 950.
When employment is at-will, either “the employer or the employee
may terminate the employment for any reason (or no reason) except
where prohibited by law.” 	Id. 	Accordingly, an employer’s
decision to terminate an employee is presumed to be valid. 	Id.
A discharged employee can overcome this presumption in three
narrow situations by showing that
“(1) there is an implied or express agreement
that the employment may be terminated only
for cause or upon satisfaction of [some]
agreed-upon condition; (2) a statute or
regulation restricts the right of an employer
to terminate an employee under certain
conditions; or (3) the termination of
employment constitutes a violation of a clear
and substantial public policy.”
Id. (alteration in original) (quoting Fox v. MCI Commc’ns Corp.,
931 P.2d 857, 859 (Utah 1997)).
¶4 	The federal court’s questions invoke the public policy
exception to the at-will rule. 	We have stated that “all
employers have a duty not to terminate any employee, ‘whether the
employee is at-will or protected by an express or implied
employment contract,’ in violation of clear and substantial
public policy.” 	Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395,

3 	No. 20050361
404 (Utah 1998) (quoting Retherford v. AT&T Commc’ns of the
Mountain States, Inc., 844 P.2d 949, 960 (Utah 1992)). 	“If an
employer breaches that duty, an employee has a tort cause of
action against the employer” for wrongful discharge. 	Id.
¶5 	We thus begin our analysis by answering the federal
court’s first question: 	whether the termination of an employee
for “the exercise of rights under the Utah Workers’ Compensation
Act . . . implicates a ‘clear and substantial public policy’”
that gives rise to a wrongful termination claim.
I. 	AN EMPLOYEE WHO HAS BEEN TERMINATED FOR EXERCISING RIGHTS
UNDER THE WORKERS’ COMPENSATION ACT HAS A
WRONGFUL DISCHARGE CAUSE OF ACTION
¶6 	A discharged employee has a cause of action under the
public policy exception if his or her termination violated a
“clear and substantial” public policy. 	Hansen v. Am. Online,
Inc., 2004 UT 62, ¶ 7, 96 P.3d 950. 	We have previously
identified four categories that invoke a “clear and substantial
public policy”: 	(1) discharging an employee for “refusing to
commit an illegal or wrongful act”; (2) discharging an employee
for 	“performing a public obligation”; (3) discharging an
employee for “exercising a legal right or privilege”; and
(4) discharging an employee for reporting an employer’s criminal
activities to the appropriate authorities. 	Ryan v. Dan’s Food
Stores, Inc., 972 P.2d 395, 408 (Utah 1998).
¶7 	We have not yet had the opportunity to consider whether
retaliatory discharge for claiming workers’ compensation benefits
falls under one of the public policy categories. 	We did mention
workers’ compensation claims as an example of the third category
in Ryan, 972 P.2d at 408, but the issue was not before us in that
case, nor had it been decided in any prior case. 	Thus, Ryan did
not conclusively establish that claiming workers’ compensation
benefits constituted the exercise of a legal right or privilege
for purposes of the public policy exception to the at-will rule.
We now conduct that analysis.
¶8 	Under the Utah Workers’ Compensation Act (the Act),
Utah Code Ann. §§ 34A-2-101 to -905 (2005 & Supp. 2006), “[a]n
employee . . . who is injured . . . by accident arising out of
and in the course of the employee’s employment” is entitled to
compensation pursuant to the provisions of the Act. 	Id. § 34A-2-
401(1) (2005); see also id. § 34A-2-105(1) (2005). 	By its terms,
the Act establishes that an employee injured in the course of
employment has a right to receive workers’ compensation benefits.
Thus, if an employee’s attempts to claim workers’ compensation
fall within one of the recognized categories of public policy, it

No. 20050361 	4
must be because it is “the exercise of a legal right or
privilege.”
¶9 	Nevertheless, the fact that an employee can point to a
legal right or privilege does not automatically mean that the
employee has established a clear and substantial public policy
for purposes of the exception to the at-will rule. 	We have
recognized that the “exercise of a legal right or privilege”
category “poses analytical challenges different from, and
generally greater than, [the other categories of the public
policy exception].” 	Hansen, 2004 UT 62, ¶ 10. 	With regard to
the other categories, we have explained that “[a]n employer owes
a duty to an employee . . . not to exploit the employment
relationship by demanding that an employee choose between
continued employment and violating a law or failing to perform a
public obligation of clear and substantial import.” 	Id. 	This is
because an employer’s use of termination to “coerce an employee
to commit unlawful acts or avoid public obligations serves no
legitimate economic objective and corrodes civil society.” 	Id.
In contrast, an employer’s attempts to dissuade or prevent an
employee from exercising a legal right may not always lack a
legitimate objective. 	Rather, when the “exercise of a legal
right” category is implicated, both the employer and the employee
may be able to invoke public policy “in aid of their cause.” 	Id.
¶ 11. 	This was the case in Hansen, where the employer terminated
three employees for possessing firearms on business premises in
violation of company policy. 	Id. ¶¶ 1-5. 	The employees argued
that their termination contravened public policy because they had
a constitutional “right to keep and bear arms,” id. ¶¶ 13-14,
while the employer invoked its right to maintain a safe
workplace, see id. ¶ 14 & n.6. 	Recognizing that both the
employer and the employee could support their positions with
public policy, this court stated:
The analysis of whether the public policy
exception applies to a particular legal right
or privilege will frequently require a
balancing of competing legitimate interests:
the interests of the employer to regulate the
workplace environment to promote
productivity, security, and similar lawful
business objectives, and the interests of the
employees to maximize access to their
statutory and constitutional rights within
the workplace.
Id. ¶ 11.
¶10 	Thus, under Hansen, we must determine whether an
employee’s exercise of his or her workers’ compensation rights

5 	No. 20050361
invokes a clear and substantial public policy that outweighs the
employer’s interests in “regulat[ing] the workplace environment
to promote productivity, security, and similar lawful business
objectives.” 	Id.
A. 	Workers’ Compensation Is a Clear
and Substantial Public Policy
¶11 	In order to conduct the balancing required by Hansen,
we first determine whether the exercise of workers’ compensation
rights amounts to a public policy that is both clear and
substantial. 	We make determinations of “clear and substantial”
public policy under the at-will rule on a case-by-case basis.
Indeed, we have stated that
determining what employee conduct implicates
or furthers a clear and substantial public
policy is a still-developing inquiry.
Although we have established certain conduct
that will almost always implicate a clear and
substantial public policy . . . there are
other situations that we will have to address
as they come before us.
Ryan, 972 P.2d at 408. 	When making determinations of public
policy for purposes of the exception to the at-will rule, we
“will construe public policies narrowly[,] . . . applying only
those principles which are so substantial and fundamental that
there can be virtually no question as to their importance for
promotion of the public good.” 	Berube v. Fashion Ctr., Ltd., 771
P.2d 1033, 1043 (Utah 1989). 	This is much narrower “than what
may typically be characterized as ‘public policy.’” 	Ryan, 972
P.2d at 405 (defining public policy as “‘community common sense
and common conscience’ and ‘general and well-settled public
opinion relating to [people’s] plain, palpable duty to
[others].’” (alterations in original) (quoting Black’s Law
Dictionary, 1231 (6th ed. 1990))).
¶12 	We begin our discussion of the status of workers’
compensation under the public policy exception by addressing
whether the exercise of workers’ compensation rights furthers a
clear public policy. 	We conclude that it does. 	“A public policy
is ‘clear’ only if plainly defined by legislative enactments,
constitutional standards, or judicial decisions.” 	Ryan, 972 P.2d
at 405. 	In this case, the Utah Legislature has declared that
“[a]n employee . . . who is injured . . . by accident arising out
of and in the course of the employee’s employment” is entitled to
compensation pursuant to the provisions of the Act. 	Utah Code
Ann. § 34A-2-401(1); see also id. § 34A-2-105(1). 	An employee’s
right to compensation for injuries sustained in the course of

No. 20050361 	6
employment arises “irrespective of negligence on the part of
employers or employees.” 	Sheppick v. Albertson’s, Inc., 922 P.2d
769, 773 (Utah 1996). 	In accordance with the Act’s requirement
that an employee injured in the course of employment has the
right to compensation, the Act requires an employer to “secure
the payment of workers’ compensation benefits for its employees,”
Utah Code Ann. § 34A-2-201 (2005), and imposes criminal penalties
on employers who fail to comply, id. § 34A-2-209 (2005). 	We
think that by adopting the Act and imposing penalties on an
employer for noncompliance, the legislature plainly established
the public policy that an employee injured in the scope of
employment has the right to receive compensation.
¶13 	However, it is not enough that a public policy be
clear; it must also be substantial. 	To determine whether a
public policy is substantial, we conduct a two-step inquiry.
First, we ask “whether the policy in question is one of
overarching importance to the public as opposed to the parties
only.” 	Retherford v. AT&T Commc’ns of the Mountain States, Inc.,
844 P.2d 949, 966 (Utah 1992). 	A policy that affects a duty that
inures solely to the benefit of the employer and employee is
generally insufficient to give rise to a substantial and
important public policy. 	Ryan, 972 P.2d at 405. 	Second, we ask
“whether the public interest is so strong and the policy so clear
and weighty that we should place the policy beyond the reach of
contract, thereby constituting a bar to discharge that parties
cannot modify, even when freely willing and of equal bargaining
power.” 	Retherford, 844 P.2d at 966.
¶14 	We conclude that workers’ compensation is a policy of
“overarching importance to the public, as opposed to the parties
only.” 	Id. at 966. 	This court has previously discussed the
policy underlying workers’ compensation. 	“The Workers’
Compensation Act was enacted to provide economic protection for
employees who sustain injuries arising out of their employment,
therefore alleviating hardship upon workers and their families.”
Drake v. Indus. Comm’n, 939 P.2d 177, 182 (Utah 1997) (internal
quotation marks omitted). 	Accordingly, we have stated that we
will liberally construe the Act in favor of employee
compensation. 	Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257,
260 (Utah 1998). 	While workers’ compensation provides economic
support for injured workers and their families, it was not
enacted solely for their benefit. 	Rather, workers’ compensation
was designed to “provide speedy compensation” to injured workers,
Sheppick, 922 P.2d at 773, thereby “reliev[ing] society of the
care and support of the unfortunate victims of industrial
accidents.” 	Reteuna v. Indus. Comm’n, 185 P. 535, 537 (Utah
1919) (emphasis added). 	Indeed, this court has stated, “‘The
theory of workmen’s compensation is based largely upon the
doctrine that society itself is vitally concerned in the prompt

1 We note that section 34A-2-108 does provide for the
settlement of workers’ compensation claims in accordance with
Utah Code section 34A-2-420. 	Section 34A-2-420(4) permits the
parties to agree to a “settlement of disputed medical,
disability, or death benefit entitlements” or the “commutation
and settlement of reasonable future medical, disability, or death
benefit entitlements.” 	Id. 34A-2-420(4) (2005) (emphasis added).
An administrative law judge must “review and . . . approve” these
agreements. 	Utah Code Ann. § 34A-2-420(4). 	Thus, this section
does not alter our conclusion that the Act does not allow an
employee to contract away his or her workers’ compensation
rights.
7 	No. 20050361
payment of compensation to injured and the dependents of killed
employs [sic]. 	It is a matter relating to the promotion of the
general welfare.’” 	Id. (emphasis added) (quoting Rosen Steel v.
Niles Forge & Mfg. Co., 7 Neg. & Comp. Cases Ann. 798).
¶15 	The text of the Act lends further support to the
proposition that workers’ compensation is not just a private
benefit affecting only the interests of the employer and the
employee. 	For example, the Act provides a means by which an
injured employee can obtain compensation even where his or her
employer fails to comply with the Act’s requirements. 	Utah Code
Ann. § 34A-2-208(1) (2005). 	To this end, the Act creates the
Uninsured Employers’ Fund to “assist[] in the payments of
workers’ compensation benefits to any person entitled to the
benefits, if: 	. . . that person’s employer . . . does not have
sufficient funds . . . to cover workers’ compensation
liabilities.” 	Id. § 34A-2-704(1) (2005). 	Moreover, an employer
who fails to provide sufficient workers’ compensation insurance
“is guilty of a class B misdemeanor.” 	Id. § 34A-2-209(1)(a)(I).
Similarly, it is a criminal misdemeanor for an employer to
“deduct[] any portion of the [workers’ compensation insurance]
premium from the wages or salary of any employee entitled to the
benefits of [the Act].” 	Id. § 34A-2-108(3) (2005).
¶16 	Workers’ compensation not only is a “question . . . of
. . . importance to the public,” but also furthers a “public
interest [that] is so strong . . . that we should place the
policy beyond the reach of contract.” 	Retherford, 844 P.2d at
966. 	Evidence of this lies within the text of the Act itself.
Section 34A-2-108(1) declares that “an agreement by an employee
to waive the employee’s rights to compensation . . . is not
valid.” 1 	Similarly, that section provides that an employee’s
agreement “to pay any portion of the [insurance] premium paid by
his employer is not valid.” 	Id. § 34A-2-108(2). 	Thus, by
statute, an employer cannot relieve itself of its obligation to
provide workers’ compensation by asking employees to contract

2 This conclusion does not mark the first time an employer’s
interest in workplace autonomy has been outweighed by public
interests. 	For example, an employer is not free to maintain an
unsafe working environment, 29 U.S.C. § 654 (2000) (requiring
employers to provide safe workplace environments in compliance
with the federal Occupational Safety and Health Act), to
compensate employees below the minimum wage, Utah Code Ann.
§§ 34-40-101 to -106 (2005) (requiring employers to pay the
minimum wage), or to make employment decisions, such as hiring or
firing, based on race, national origin, sex, religion, pregnancy,
(continued...)
No. 20050361 	8
away their rights. 	The legislature itself has placed workers’
compensation “beyond the reach of contract.” 	It follows that an
employer should not be able to free itself of its workers’
compensation obligations by discharging employees entitled to
workers’ compensation benefits. 	Accordingly, we hold that
workers’ compensation constitutes public policy that is both
clear and substantial.
B. 	The Clear and Substantial Public Policy Underlying
Workers’ Compensation Outweighs La-Z-Boy’s Interests
¶17 	Having concluded that workers’ compensation represents
a clear and substantial public policy, we now must weigh that
policy against La-Z-Boy’s interests. 	In this case, La-Z-Boy has
invoked the policy that underlies at-will employment--that
employers ought to be able “to manage their workforces” and
regulate their workplace environments “to promote productivity,
security, and similar lawful business objectives.” 	However, an
employer’s ability to regulate its workforce primarily inures to
the benefit of the employer and the employee, not to the public
in general. 	Moreover, while there may be public policies
underlying an employer’s general ability to manage its employees
free from judicial interference, we can think of no public policy
that would be furthered by permitting employers to discharge
employees who seek to exercise their workers’ compensation
rights.
¶18 	In contrast to La-Z-Boy’s stated interests, La-Z-Boy’s
employees raise a public policy that provides a benefit outside
of the private employer-employee relationship. 	By design,
workers’ compensation benefits the public as a whole. 	See supra
¶ 14. 	It follows, then, that limiting an employer’s ability to
interfere with workers’ compensation serves the greater good. 	We
therefore conclude that in order to give effect to the
legislature’s pronouncement that workers’ compensation is in the
public’s interest, an employer’s right to workplace autonomy must
yield. 2 	Accordingly, an employer owes its employees a duty “not

2 (...continued)
or disability, Utah Code Ann. § 34A-5-106 (2005) (prohibiting
employers from making discriminatory employment decisions).
9 	No. 20050361
to exploit the employment relationship” by forcing employees to
choose between their jobs and compensation under the Act. 	See
Hansen, 2004 UT 62, ¶ 10.
¶19 	We therefore hold that an employee’s exercise of
workers’ compensation rights constitutes the “exercise of a legal
right” that embodies a clear and substantial public policy. 	An
employer who terminates an employee in retaliation for the
employee’s exercise of that right has violated a clear and
substantial public policy and may be sued for wrongful discharge
by the discharged employee.
C. 	The Act Does Not Preempt Our Holding that Employees
Terminated for Exercising Their Workers’ Compensation Rights
Have a Wrongful Discharge Cause of Action
¶20 	La-Z-Boy has argued that the Act prohibits this court
from using workers’ compensation as the basis of a wrongful
discharge cause of action because (1) the Act does not include a
retaliation provision, and (2) the Act provides employees with
their “exclusive remedy” against their employer.
¶21 	La-Z-Boy notes, correctly, that the Act does not
contain a provision that forbids an employer to discharge an
employee in retaliation for claiming workers’ compensation.
According to La-Z-Boy, this court should not allow an employee
who has been the subject of a retaliatory termination to bring a
wrongful discharge cause of action in the absence of an anti-
retaliation provision. 	To lend support to its argument, La-Z-Boy
points to this court’s general reluctance to construe a statute
to include a private cause of action where the statute does not
specifically provide one. 	It is true that Utah courts are
reluctant to imply a private statutory cause of action in the
absence of express statutory language. 	Buckner v. Kennard, 2004
UT 78, ¶ 40, 99 P.3d 842. 	In this case, however, we are not
determining whether the Act includes a private statutory cause of
action. 	Rather, we are applying our common law wrongful
discharge cause of action to retaliatory termination for the
exercise of rights guaranteed by the Act. 	Because wrongful
discharge is a common law claim, this determination is entirely
within our province. 	The lack of an anti-retaliation provision
in the Act does not affect this court’s ability to recognize this
state’s public policy for purposes of a wrongful discharge cause
of action.

No. 20050361 	10
¶22 	Moreover, the absence of an anti-retaliation provision
does not diminish the Act’s function as a source of clear and
substantial public policy. 	There would be no more effective
means of undermining the purposes behind the Act than allowing an
employer to terminate an employee in retaliation for filing
workers’ compensation claims. 	See Frampton v. Cent. Ind. Gas
Co., 297 N.E.2d 425, 427 (Ind. 1973). 	As the Indiana Supreme
Court stated:
The [Workers’ Compensation Act] creates a
duty in the employer to compensate employees
for work-related injuries (through insurance)
and a right in the employee to receive such
compensation. 	But in order for the goals of
the Act to be realized and for public policy
to be effectuated, the employee must be able
to exercise his right in an unfettered
fashion without being subject to reprisal.
If employers are permitted to penalize
employees for filing workmen’s compensation
claims, a most important public policy will
be undermined. 	The fear of being discharged
would have a deleterious effect on the
exercise of a statutory right. 	Employees
will not file claims for justly deserved
compensation--opting, instead to continue
their employment without incident. 	The end
result, of course, is that the employer is
effectively relieved of his obligation.
Id. (construing a provision in the Indiana workers’ compensation
statute that prohibited an employer’s use of any “device” to
relieve the employer of his workers’ compensation obligations).
In other words, the recognition of a retaliatory discharge cause
of action for seeking workers’ compensation benefits is essential
to maintaining an employee’s rights under the Act.
¶23 	Other courts have also concluded that workers’
compensation implicates a clear public policy for wrongful
discharge purposes despite the lack of a statutory prohibition
against retaliation. 	For example, in Hansen v. Harrah’s, 675
P.2d 394, 395 (Nev. 1984), two casino workers brought wrongful
discharge suits alleging they were terminated for filing workers’
compensation claims. 	The Nevada Supreme Court held that the
“failure of the legislature to enact a statute expressly
forbidding retaliatory discharge for filing workmen’s
compensation claims [did] not preclude [the court] from providing
a remedy for what [it] conclude[d] to be tortious behavior.” 	Id.
at 396. 	In so holding, the court reasoned that “Nevada’s
workmen’s compensation laws reflect a clear public policy

11 	No. 20050361
favoring economic security for employees injured while in the
course of their employment.” 	Id. 	Furthermore, the court
realized that “[f]ailure to recognize the cause of action of
retaliatory discharge for filing a workmen’s compensation claim
would only undermine [the Nevada Workmen’s Compensation Act] and
the strong public policy behind its enactment.” 	Id. 	Other
states have used similar reasoning to adopt a public policy
exception to the at-will rule to make discharge in retaliation
for filing workers’ compensation claims an actionable tort. 	See
Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1373 (Colo. Ct. App.
1989) (concluding that “since an employee is granted the specific
right to apply for and receive compensation under the [Workers’
Compensation Act], an employer’s retaliation against such an
employee for his exercise of such right violates Colorado’s
public policy . . . [that] provides the basis for a common law
claim by the employee to recover damages sustained . . . as a
result”); Kelsay v. Motorola, Inc., 384 N.E.2d 353, 358-61 (Ill.
1978) (recognizing that the Illinois Legislature did not intend
to make injured employees choose between compensation and their
jobs and thus holding that the plaintiff had a retaliatory
discharge cause of action, despite the lack of a legislative
anti-retaliation pronouncement at the time of discharge); Murphy
v. City of Topeka-Shawnee County Dep’t of Labor Servs., 630 P.2d
186, 192-93 (Kan. Ct. App. 1981) (holding that the plaintiff
alleged a valid cause of action for retaliatory discharge where
he was terminated for claiming workers’ compensation rights,
despite the lack of a retaliation provision in the Act, because
allowing an employer “to coerce employees in the free exercise of
their rights under the act would substantially subvert the
purpose of the act”); Firestone Textile Co. Div. v. Meadows, 666
S.W.2d 730, 732-34 (Ky. 1983) (recognizing a cause of action for
discharge in retaliation for filing workers’ compensation claims
even though, at the time, the Kentucky Workers’ Compensation Act
did not contain a retaliation provision); Jackson v. Morris
Commc’ns Corp., 657 N.W.2d 634, 640-41 (Neb. 2003) (recognizing
that the Nebraska Workers’ Compensation Act “was promulgated to
serve an important public purpose” that would be undermined if
employees fear retaliation, and thus recognizing a public policy
exception to the at-will rule for retaliatory discharge due to
the exercise of workers’ compensation rights even though the
statute did not contain an anti-retaliation provision); Shick v.
Shirey, 716 A.2d 1231, 1237 (Pa. 1998) (holding that the
“termination of an at-will employee for filing a workers’
compensation claim violates public policy” despite the lack of a
retaliation provision in the statute).
¶24 	We also hold that the exclusivity provision of the Act
does not bar an employee’s wrongful discharge cause of action.
Under the Act, “[t]he right to recover compensation . . . for
injuries sustained by an employee . . . shall be the exclusive

No. 20050361 	12
remedy against the employer.” 	Utah Code Ann. § 34A-2-105.
However, “[i]t is well settled that the Act covers only mental
and physical injuries sustained on the job.” 	Shattuck-Owen v.
Snowbird Corp., 2000 UT 94, ¶ 19, 16 P.3d 555. 	Accordingly, the
exclusivity provision only “bars common-law tort actions
requiring proof of physical or mental injury.” 	Id. 	In this
case, the employees’ wrongful discharge cause of action does not
arise out of work-related physical or mental injuries.
Therefore, the exclusivity provision does not hinder an
employee’s wrongful discharge cause of action brought against an
employer who has discharged an employee in retaliation for the
employee’s exercise of rights.
¶25 	Having concluded that an employee who has been
terminated for exercising his or her workers’ compensation rights
has a wrongful discharge cause of action under the public policy
exception to the at-will rule, we turn to the federal court’s
remaining questions of whether this cause of action extends to
constructive discharge, to workplace discrimination or
harassment, or to the termination of an employee who has not
actually sought compensation but who has opposed his or her
employer’s treatment of injured employees.
II. 	THE WRONGFUL DISCHARGE CAUSE OF ACTION EXTENDS TO
CONSTRUCTIVE DISCHARGE
¶26 	This court has not had the opportunity to address
whether an employee who has been constructively discharged has a
wrongful discharge cause of action. 	However, the Utah Court of
Appeals has addressed this question. 	In Sheikh v. Department of
Public Safety, the court of appeals held that “an employee who
believes that he or she has been constructively discharged may
bring an action for discrimination [based on pregnancy] because
‘an involuntary or coerced resignation is equivalent to a
discharge.’” 	904 P.2d 1103, 1107 (Utah Ct. App. 1995) (quoting
Bulaich v. AT&T Info. Sys., 778 P.2d 1031, 1033 (Wash. 1989)
(internal quotation marks omitted)). 	In so holding, the court of
appeals defined constructive discharge as resignation under
“working conditions that a reasonable person would view as
intolerable.” 	Id. 	Like the court of appeals, other
jurisdictions have recognized that a constructive discharge is
the same as an actual discharge. 	See, e.g., Breitsprecher v.
Stevens Graphics, Inc., 772 So. 2d 1125, 1130 (Ala. 2000)
(recognizing that an employee who was constructively discharged
for claiming workers’ compensation benefits had a wrongful
discharge cause of action against her former employer); Sterling
Drug, Inc. v. Oxford, 743 S.W.2d 380, 385 (Ark. 1988) (upholding
a wrongful discharge jury instruction based on substantial
evidence of constructive discharge); Casenas v. Fujisawa USA,
Inc., 67 Cal. Rptr. 2d 827, 835 (Ct. App. 1997) (“[A]

13 	No. 20050361
constructive discharge is legally regarded as a firing rather
than a resignation.”); Lathrop v. Entenmann’s, Inc., 770 P.2d
1367, 1372-73 	(Colo. Ct. App. 1989) (holding that an employee
who claimed that he had been constructively discharged for filing
a workers’ compensation claim had stated a proper wrongful
discharge claim); GTE Prods. Corp. v. Stewart, 653 N.E.2d 161,
168 (Mass. 1995) (recognizing that “constructive discharge is
legally regarded as a firing rather than a resignation”).
¶27 	We agree with the Utah Court of Appeals and hold that a
resignation under working conditions that a reasonable employee
would consider intolerable is equivalent to a termination. 	Thus,
an employee’s cause of action for wrongful discharge as a result
of the exercise of workers’ compensation rights extends to
constructive discharge. 	Holding otherwise would make it possible
for employers both to escape their obligations to provide
compensation by retaliating against injured employees with
intolerable working conditions and to avoid a wrongful discharge
cause of action by never actually terminating the employee. 	Just
as allowing an employer to terminate an injured employee seeking
compensation undermines the purpose of the Act, so too does
allowing an employer to make conditions so intolerable that an
employee has no choice but to resign. 	Therefore, we believe that
recognizing constructive discharge as actual termination is
necessary to give effect to the purposes of the Act.
III. 	THE WRONGFUL DISCHARGE CAUSE OF ACTION DOES NOT
EXTEND TO RETALIATORY HARASSMENT OR DISCRIMINATION
¶28 	Having concluded that the public policy exception
applies to both actual and constructive discharge, we now address
the district court’s question regarding whether the wrongful
discharge cause of action extends to retaliatory harassment or
discrimination. 	To answer this question, we look to the elements
of wrongful discharge. 	“To make out a prima facie case of
wrongful discharge, an employee must show (i) that his employer
terminated him; (ii) that a clear and substantial public policy
existed; (iii) that the employee’s conduct brought the policy
into play; and (iv) that the discharge and the conduct bringing
the policy into play are causally connected.” 	Ryan v. Dan’s Food
Stores, Inc., 972 P.2d 395, 404 (Utah 1998) (emphasis added)
(footnotes omitted). 	When an employee alleges only retaliatory
harassment or discrimination, that employee has failed to satisfy
the first element and the wrongful discharge tort does not apply.
¶29 	Moreover, we decline the invitation to create a new
cause of action for retaliatory harassment or discrimination.
While retaliatory discrimination or harassment is deplorable, it
does not implicate a clear and substantial public policy to the
same extent as a discharge. 	When an employee is discharged in

No. 20050361 	14
retaliation for pursuing a workers’ compensation claim, that
employee is placed in the untenable position of choosing between
receiving compensation or maintaining employment. 	Because most
employees would choose to retain their jobs, this would in turn
relieve employers of their obligations under the Act. 	See
Frampton v. Cent. Indiana Gas Co., 297 N.E.2d 425, 427 (Ind.
1973) (recognizing that when employees are forced to choose
between their job and compensation, they will generally choose
their job, the end result of which relieves the employer of his
workers’ compensation obligation). 	We do not think this policy
applies to the same extent when the employee suffers
unpleasantness, not amounting to constructive discharge, and does
not have the fear of losing his or her employment.
¶30 	In addition, we are concerned that creating a new cause
of action for harassment would expand the public policy exception
to the at-will rule beyond its intended narrow scope and
encourage myriad claims against employers. 	The concept of
discharge is fairly concrete--either the employer actually
terminated the employee or the employee resigned under
circumstances so unbearable that no reasonable employee could
tolerate them. 	However, discrimination and harassment have the
potential to implicate a much broader range of behavior,
including demotions, salary reductions, job transfers, or
disciplinary actions. 	See Zimmerman v. Buchheit of Sparta, Inc.,
645 N.E.2d 877, 882 (Ill. 1994) (stating the adoption of a cause
of action short of termination would “replace the well-developed
element of discharge with a new, ill-defined, and potentially
all-encompassing concept of retaliatory conduct or
discrimination”). 	If employees were allowed to bring a cause of
action for retaliatory discrimination, we fear the courts “would
be called upon to become increasingly involved in the resolution
of workplace disputes which center on employer conduct that
heretofore has not been actionable at common law.” 	Id. 	We
therefore decline to extend the public policy exception to the
at-will rule to encompass retaliatory discrimination. 	See 	Mintz
v. Bell Atl. Sys. Leasing Int’l, 905 P.2d 559, 562 (Ariz. Ct.
App. 1995) (refusing to recognize a cause of action for “wrongful
failure-to-promote” where an employee claimed she had not been
promoted due to retaliation against her for filing a sex
discrimination claim); Zimmerman, 645 N.E.2d at 882 (refusing to
“extrapolate . . . a cause of action predicated on retaliatory
demotion” from a wrongful discharge tort); Below v. Skarr, 569
N.W.2d 510, 512 (Iowa 1997) (holding that “claimed harassment of
a worker, including threatened termination, does not give rise to
a claim at common law”).
¶31 	Much as we might lament the suffering of an employee
who has been harassed for exercising his or her statutory rights,
it is not our prerogative to remedy the situation in the absence

3 The facts we recite here are those alleged by the
employees in their complaint before the federal court and in
their brief before this court. 	We need only look to the facts as
alleged to determine whether the plaintiffs have pled a valid
cause of action under Utah law. 	We do not, however, comment upon
the veracity of the plaintiffs’ allegations.
15 	No. 20050361
of a clear and substantial public policy. 	Employees under these
circumstances should look to the legislature to define their
recourse against employers who discriminate against them in
retaliation for claiming the compensation to which they are
entitled. 	Indeed, many states have enacted such legislation.
See, e.g., Conn. Gen. Stat. § 31-290a (2005) (prohibiting the
discharge of or discrimination against an employee who has
exercised workers’ compensation rights and granting employees a
private cause of action against employers who violate the
statute); Mo. Rev. Stat. § 287.780 (2000) (same); N.C. Gen. Stat.
§ 95-241 (2005) (prohibiting retaliatory discrimination against
employees who have filed workers’ compensation claims). 	Until
our legislature joins these states, employees who have suffered
retaliatory discrimination as a result of claiming workers’
compensation benefits do not have a cause of action against their
employers.
IV. 	THE WRONGFUL DISCHARGE CAUSE OF ACTION DOES NOT
EXTEND TO AN EMPLOYEE WHO OPPOSES HER EMPLOYER’S TREATMENT OF
OTHER EMPLOYEES WHO ARE ENTITLED TO WORKERS’ COMPENSATION
BENEFITS
¶32 	The final question the federal court has asked us to
address is whether an employee who opposes her employer’s
treatment of injured employees has a wrongful discharge cause of
action under the public policy exception to the at-will rule. 	To
fully respond to this inquiry, however, we must recite the
relevant facts. 3
¶33 	La-Z-Boy hired Marilyn Touchard to serve as an
“environmental/assistant safety manager.” 	Her job
responsibilities included investigating the cause of La-Z-Boy’s
high workers’ compensation costs. 	After conducting her
investigation, Ms. Touchard wrote La-Z-Boy a memorandum
concluding that the company had a high injury rate and that
employees were “waiting for extensive periods of time to receive
treatment, diagnostic testing, and/or resolution of their claims,
due to the intentional mismanagement of their claims.” 	Ms.
Touchard also informed La-Z-Boy that its claims adjuster was
“hostile” toward employees who filed workers’ compensation claims
and “documented that [the claims adjuster] attempted to deny

No. 20050361 	16
benefits to . . . an employee with a documented work-related
injury and extensive work history with the company.”
¶34 	In addition to her job investigating La-Z-Boy’s
workers’ compensation costs, Ms. Touchard was the head of the
ergonomics team. 	In this capacity, Ms. Touchard conducted a
study and submitted a memorandum concluding that the practices
employed on the upholstery production line could cause shoulder
injuries.
¶35 	The allegations of the complaint are that after
submitting the memorandum detailing the problems in La-Z-Boy’s
production line, Ms. Touchard met with Mr. Smith, the Human
Resources Director, and informed him of her belief that the
“alternate duty assignments” given to injured employees were
demeaning. 	Moreover, she informed him that employees were
deciding not to report injuries to avoid being harassed by
management. 	She alleges that, as a result of her complaint, Mr.
Smith began criticizing her, recommending that she be “written
up,” and delaying the implementation of programs she had
recommended.
¶36 	Several months after meeting with Mr. Smith, Ms.
Touchard met with Mr. Garren, La-Z-Boy’s vice president. 	At this
time, Mr. Garren “falsely accused Ms. Touchard of coaching
employees on how they could sue La-Z-Boy and told her that she
could not tell employees they had a legal right to contact Utah’s
Labor Commission” (emphasis added). 	A few months after this
incident, Ms. Touchard voiced her objections to the proposed
adoption of a “120-day return to work rule.” 	She alleges that at
this time Mr. Garren “got angry with [her] and told her she was
never to discuss employees’ rights with the employees.”
¶37 	The final incident alleged by Ms. Touchard is that she
reported to Mr. Garren that an employee had been injured and that
his benefits were being improperly denied. 	At this time, she was
allegedly told “that she would be fired if she ever talked to any
employees about their Workers’ Compensation issues or their
injuries.” 	Several months after this final meeting, Ms. Touchard
took maternity leave, during which she was informed she had been
terminated and her position had been filled. 	Ms. Touchard’s
complaint alleges that La-Z-Boy terminated her “because she
opposed its practices of abusing employees who applied for
[workers’ compensation benefits] and maintaining an unsafe
workplace.” 	The employees’ brief asserts that Ms. Touchard was
fired for “inform[ing] injured workers of their rights to
workers’ compensation.” 	While the complaint does allege that Ms.
Touchard was warned not to discuss workers’ compensation claims
with La-Z-Boy employees and was accused of “coaching employees on
how they could sue La-Z-Boy,” an accusation her brief claims was

17 	No. 20050361
false, she has not pled that she actually discussed workers’
compensation benefits with La-Z-Boy employees or assisted them in
pursuing claims.
¶38 	We hold that Ms. Touchard’s opposition to her
employer’s workers’ compensation practices does not implicate a
clear and substantial public policy of this state. 	This is not
the first time this court has addressed whether an employee
terminated for reporting to her employer potential policy or
criminal violations has a cause of action under the public policy
exception to the at-will rule. 	In Heslop v. Bank of Utah, 839
P.2d 828 (Utah 1992), we were asked whether Mr. Heslop, a senior
vice president and manager of the bank’s Salt Lake Division, had
a cause of action for wrongful discharge. 	Id. at 831.
Specifically, Mr. Heslop alleged that he had been terminated for
reporting to a bank officer and the bank president that the bank
had misstated its income and assets, thereby creating a
deficiency between the bank’s stated capital and its actual
capital. 	Id. 	While Mr. Heslop eventually reported the
deficiency to federal and state bank regulators, id. at 832, this
court recognized that Mr. Heslop’s reporting furthered a
substantial public policy because he “pursued all internal
methods for resolving the problem.” 	Id. at 838. 	This court did
not require him to go “outside the Bank to try to correct the
policy violation.” Id.
¶39 	Several years later, we returned to the reporting
question in Fox v. MCI Communications Corp., 931 P.2d 857 (Utah
1997). 	In Fox, a sales representative reported to her employer
that her coworkers were “making existing customer accounts appear
new on the corporate records so that they could meet sales quotas
and earn higher commissions.” 	Id. at 858-59. 	She was terminated
shortly after reporting her coworkers’ practices. 	Id. 	The
employee claimed she had been terminated in violation of public
policy because her internal 	reporting furthered the public
policy found in the sections of the Utah Code that criminalized
computer-assisted fraud, Utah Code Ann. § 76-6-703 (1995), and
“acts of fraud or embezzlement,” Utah Code Ann. §§ 76-6-403, 405
(1995), as well as a statute regulating corporate
responsibility, Utah Code Ann. § 76-2-204 (1995). 	Fox, 931 P.2d
at 859. 	This court disagreed. 	Id. at 861. 	While we recognized
that the criminal code implicated a clear and substantial public
policy, id. at 860, we held that “if an employee reports a
criminal violation to an employer, rather than to public
authorities, and is fired for making such reports, that does not,
in our view, contravene a clear and substantial public policy.”
Id. 	In so holding, we explained that “[a]lthough employees may
have a duty to disclose information concerning the employer’s
business to their employer, that duty ordinarily serves the

No. 20050361 	18
private interest of the employer, not the public interest.” 	Id.
at 861.
¶40 	Despite its holding, Fox did not eliminate a cause of
action for internal reporting in all cases. 	We recognized as
much in Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 408 n.7
(Utah 1998). 	While internal reporting was not at issue in Ryan,
we discussed both Heslop and Fox in a footnote to illustrate that
“determining what employee conduct . . . furthers a clear and
substantial public policy is a still-developing inquiry.” 	Id. at
408 & n.7. 	The footnote suggests that Fox held only that
internal reporting does not automatically further a clear and
substantial public policy. 	See id. at 408 n.7. 	Specifically, we
stated, “Although Heslop suggests that any internal reporting
will support a wrongful discharge claim, we emphasize that only
internal reporting that furthers a clear and substantial public
policy will satisfy the third element of a wrongful discharge
claim.” 	Id. 	We now endorse this conclusion anew and hold that
internal reporting can give rise to a wrongful discharge cause of
action where it furthers a clear and substantial public policy.
¶41 	Thus, the inquiry in this case is whether Ms.
Touchard’s complaints to La-Z-Boy management about La-Z-Boy’s
workers’ compensation and ergonomic practices furthered a clear
and substantial public policy. 	As we have previously stated, we
“‘narrowly construe the public policies’ which might be used to
support a public policy claim.” 	Ryan, 972 P.2d at 405 (quoting
Peterson v. Browning, 832 P.2d 1280, 1282 (Utah 1992)). 	Although
we rely on the Workers’ Compensation Act to conclude that an
employee who is terminated for exercising his or her workers’
compensation rights has a wrongful discharge cause of action, it
does not follow that all employee complaints relating to workers’
compensation also further the same clear and substantial public
policy.
¶42 	We first discuss Ms. Touchard’s objections to the
menial tasks being assigned to injured employees. 	Reporting
employee harassment in retaliation for the employees’ exercise of
workers’ compensation rights does not further a clear and
substantial public policy. 	The assignment of demeaning job
responsibilities in retaliation for the exercise of workers’
compensation rights constitutes harassment. 	As we discussed in
the previous section, an employee who has claimed that he or she
was harassed for filing a workers’ compensation claim does not
have a cause of action under our wrongful discharge tort or under
the Act. 	Because the La-Z-Boy employees who have been assigned
demeaning tasks do not have a cause of action, it follows that
Ms. Touchard also does not have a cause of action for complaining
about the way in which the employees were being treated.

19 	No. 20050361
¶43 	Likewise, Ms. Touchard’s complaints about La-Z-Boy’s
management of claims did not further a clear and substantial
public policy. 	Ms. Touchard told La-Z-Boy that she believed
claims were being “intentionally mismanaged,” that La-Z-Boy’s
claims adjuster had a hostile attitude toward injured employees
who sought workers’ compensation benefits, and that the claims
adjuster had, in the past, attempted to deny a claim to an
employee with a documented injury. 	Ms. Touchard reported her
findings as a result of an investigation, which she was hired to
conduct, regarding La-Z-Boy’s workers’ compensation costs. 	Thus,
it appears she conducted her study and reported her findings to
further her employer’s interests, to wit: 	to determine the
cause of high workers’ compensation costs. 	However, even if her
reported findings furthered a public interest, we do not think it
was sufficiently clear and substantial. 	Reporting the attempted
denial of a past claim, however valid, does little to prevent an
employer from avoiding its current or future obligations under
the Act. 	Further, we think we would be construing public policy
too broadly if we were to hold that an employee’s complaint about
a hostile claims adjuster or mismanagement of claims further a
clear and substantial public policy. 	We fear that such a
construction would render any complaint about an employer’s
workers’ compensation practices actionable.
¶44 	Moreover, Ms. Touchard’s objections to the production
line and the proposed 120-day rule did not invoke the actual
policies furthered by the Workers’ Compensation Act. 	For
example, her claim that the production line had the potential to
cause shoulder injuries did not directly implicate her employer’s
obligation to compensate employees for injuries incurred in the
scope of employment; rather, it appears that Ms. Touchard’s
report regarding the ergonomics of the production line furthered
the private interests of La-Z-Boy and its employees. 	Indeed, one
reason to have an ergonomics team is to minimize employee
injuries, thereby preventing a decrease in work productivity and
an increase in workers’ compensation claims. 	Likewise, while Ms.
Touchard was opposed to the 120-day return-to-work rule, there is
no indication that an employer may not implement such a rule
under the Act. 	Ms. Touchard has not provided us with any
evidence suggesting that her opposition to this rule furthered a
clear and substantial public policy.
¶45 	We note that Ms. Touchard’s complaints about La-Z-Boy
policies were all made in furtherance of her job duties. 	La-Z-
Boy hired her to conduct investigations regarding both workers’
compensation and ergonomics. 	Ms. Touchard did so, and as part of
these duties, reported her concerns and recommendations to La-Z-
Boy. 	Employers are free to create internal monitoring or
investigation positions. 	While the public may benefit when an
employer chooses to create such a position, the creation of an

4 We note that our holding is limited to the question
certified to us--whether an employee who opposes an employer’s
treatment of employees who are entitled to workers’ compensation
has a wrongful discharge cause of action. 	Our opinion in this
case does not address whether a wrongful discharge cause of
action exists for an employee who goes beyond opposing employer
practices and actually assists injured employees to file workers’
compensation claims. 	Cf. McKenzie v. Renberg’s Inc., 94 F.3d
1478, 1486 (10th Cir. 1996) (holding that a personnel manager who
was terminated for reporting violations of the federal Fair Labor
Standards Act did not allege a cause of action under that Act’s
anti-retaliation provision because she reported the violations
within the scope of her employment, but recognizing that she
would have had a cause of action under the anti-retaliation
(continued...)
No. 20050361 	20
investigatory or supervisory position is likely designed to serve
the employer’s private interests by minimizing its risk of
liability. 	See Robinson v. Wal-Mart Stores, Inc., 341 F. Supp.
2d 759, 763 (W.D. Mich. 2004) (noting that an employee’s
complaints to the employer were made with “an eye toward
correcting [improprieties in employer’s wage and work hour
reporting practices] and minimizing [the employer’s] risk of
liability”). 	Just as employers are free to create such
positions, they likewise are free to disagree with the findings
made by such employees and terminate employees who make findings
with which the employer does not agree.
¶46 	Finally, we hold that Ms. Touchard’s allegation that
she challenged La-Z-Boy’s purported unfair treatment of an
employee’s claim also did not further a clear and substantial
public policy. 	In this case, there is no evidence that Ms.
Touchard was responsible for processing or overseeing claims or
that she had any personal knowledge regarding the employee’s
claim. 	The public policy exception would be expanded beyond its
intended narrow scope if we were to hold that an employee with no
authority over or personal knowledge of an individual workers’
compensation claim has a cause of action for expressing her
beliefs about the propriety of the employer’s treatment of that
claim. 	We fear that if we were to so hold, employers could be
held hostage by employees who complain about matters of which
they have no personal knowledge.
¶47 	We commend Ms. Touchard’s willingness to express her
objections to her employer’s practices that she believed were
unfair, but her complaints cannot be viewed to further a clear
and substantial public policy. 	We therefore hold that Ms.
Touchard does not have a wrongful discharge cause of action for
complaining about La-Z-Boy’s treatment of injured employees. 4

4 (...continued)
provision if she had “actively assist[ed] other employees in
asserting their FLSA rights”). 	While the briefs in this case
address whether a coworker’s assistance furthers a clear and
substantial public policy, that is not the question certified to
us by the federal court, nor has Ms. Touchard alleged, either
before us or in her complaint before the federal court, that she
ever actually assisted an employee in filing a workers’
compensation claim. Moreover, our opinion today does not address
whether a wrongful discharge cause of action exists when an
employer fires an employee who refused to follow the employer’s
order to interfere with an employee’s workers’ compensation
claim, see Wilkerson v. Standard Knitting Mills, Inc., 1989 Tenn.
App. LEXIS 666, *1-3, 7-8 (Tenn. Ct. App. 1989) (granting a
wrongful discharge cause of action to a company nurse who claimed
she had been terminated for her refusal to participate in the
employer’s scheme to cut workers’ compensation costs by not
sending injured employees for outside medical treatment), or to
an employee who refused to terminate an employee who has filed a
workers’ compensation claim, see Lins v. Children’s Discovery
Ctrs. of Am., Inc., 976 P.2d 168, 172 (Wash. Ct. App. 1999)
(recognizing the policy of workers’ compensation would be
“jeopardized if, without incurring liability, an employer can
fire an employee for refusing to carry out a clearly unlawful
order” (emphasis added)).
21 	No. 20050361
CONCLUSION
¶48 	Based on the foregoing, we hold that retaliatory
discharge for filing workers’ compensation violates this state’s
clear and substantial public policy as pronounced by the Workers’
Compensation Act. 	Thus, an employee who has been terminated or
constructively discharged from his or her job in retaliation for
the exercise of workers’ compensation rights has a wrongful
discharge cause of action against his or her employer under the
public policy exception to the at-will rule. 	However, we do not
believe the same policy is implicated when an employee suffers
retaliatory harassment or discrimination, or when an employer
discharges an employee who opposes the employer’s treatment of
employees who are entitled to benefits.
---
¶49 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.