Stone v. M & M Welding & Construction, Inc.

2013 UT App 233
_________________________________________________________

THE UTAH COURT OF APPEALS

TERRY LEE STONE,
Plaintiff and Appellant,
v.
M&M WELDING AND CONSTRUCTION, INC.,
Defendant and Appellee.

Memorandum Decision
No. 20120359‐CA
Filed September 26, 2013

Eighth District, Vernal Department
The Honorable Edwin T. Peterson
No. 110800080

Loren M. Lambert, Attorney for Appellant
Clark B. Allred and A. Erin Bradley, Attorneys for
Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES CAROLYN B. MCHUGH and
STEPHEN L. ROTH concurred.

VOROS, Judge:

¶1 This appeal involves a “pretaliatory” discharge—an
employee alleges that his employer discharged him not because he
had filed a workers’ compensation claim but because he was about
to. The district court granted summary judgment in favor of the
employer. We reverse and remand for further proceedings.

¶2 The employee, Terry Lee Stone, challenges the district
court’s grant of summary judgment in favor of the employer, M&M
Welding and Construction, Inc., on the issue of wrongful
termination. “An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
Stone v. M&M Welding

correctness and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”1
Accordingly, we recount the facts in the light most favorable to
Stone.2

¶3 Stone was injured during or after a party hosted by M&M in
November 2009. Within four days of the injury, Stone informed
M&M’s president that he wanted to file a workers’ compensation
claim; M&M’s president dissuaded him from doing so. M&M held
Stone’s position for him until he was able to return to work two
months later. However, Stone’s hours of employment were
subsequently reduced. Stone consequently informed M&M’s
president (or the president’s secretary) on March 23, 2010, and
April 15, 2010, that he intended to file a workers’ compensation
claim based on his 2009 injury.3

¶4 On May 1, 2010, Stone was performing work on a job site
belonging to one of M&M’s customers when he reported to the
customer a spill of contaminated water. The customer felt that
Stone’s report was exaggerated and demanded that M&M fire
Stone. On May 5, 2010, Stone contacted M&M to obtain insurance
information for his workers’ compensation claim. The next day,
May 6, 2010, M&M terminated him.

¶5 Stone sued M&M. He alleged that his termination was in
retaliation for his announced intent to seek workers’ compensation

1
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations
and internal quotation marks omitted).
2
Magana v. Dave Roth Constr., 2009 UT 45, ¶ 5, 215 P.3d
143.
3
The Workers’ Compensation Act provides employees
with the right to recover compensation for injuries arising out
of their employment. See generally Utah Code Ann. § 34A‐2‐105
(LexisNexis 2011).

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Stone v. M&M Welding

benefits. M&M moved for summary judgment, arguing that
because Stone had been terminated in May 2010 and did not file a
workers’ compensation claim until February 2011, his termination
could not have been in retaliation for filing the claim. The district
court agreed and granted M&M’s motion, ruling that “[Stone]
could not have been fired in retaliation for filing a workers[’]
compensation claim since he was fired 8 months before he filed the
claim.” Stone appeals that judgment.

¶6 Stone contends that the district court’s ruling “places undue
importance on the date Stone’s workers’ compensation claim was
filed.” He argues that “[i]t is irrelevant that he had not yet filed for
workers’ compensation.” M&M responds that Stone must show a
causal connection between his discharge and his filing of a
workers’ compensation claim. Accordingly, the question before us
is whether an employee must actually have filed a workers’
compensation claim to be protected from retaliatory termination.

¶7 The parties agree that the issue is controlled by the Utah
Supreme Court’s decision in Touchard v. La‐Z‐Boy Inc.4 There, the
court addressed 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.”5

¶8 The supreme court held 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

4
2006 UT 71, 148 P.3d 945.
5
Id. ¶ 1 (internal quotation marks omitted); see generally
Utah Code Ann. §§ 34A‐2‐101 to ‐1005 (LexisNexis 2011).

20120359‐CA 3 2013 UT App 233
Stone v. M&M Welding

discharged in retaliation for claiming workers’ compensation
benefits has a wrongful discharge cause of action.”6 The court
concluded that “workers’ compensation represents a clear and
substantial public policy” and thus “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.”7 However, the court declined to
extend this cause of action “to an employee who has been retaliated
against for opposing an employer’s treatment of employees who
are entitled to claim workers’ compensation benefits.”8

¶9 In the foregoing excerpts the supreme court sometimes
refers to filing and sometimes speaks more broadly of exercising
workers’ compensation rights. But elsewhere in its opinion the
court stated with precision the elements of a cause of action for
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.”9

¶10 The test is broadly worded. While the filing of a workers’
compensation claim is obviously relevant, we conclude that the
public policy embodied in the Workers’ Compensation Act may be
“brought into play” by conduct short of actually filing a workers’
compensation claim. Such conduct could include preparing a claim,
notifying the employer of the intent to file a claim, or discussing the
claim with coworkers—although, as Touchard holds, opposing an

6
Touchard, 2006 UT 71, ¶ 1.
7
Id. ¶¶ 17, 25.
8
Id. ¶ 1.
9
Id. ¶ 28 (citation and internal quotation marks omitted).

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Stone v. M&M Welding

employer’s treatment of other employees who are entitled to claim
workers’ compensation benefits is insufficient.10

¶11 A rule protecting employees only after filing would create
a perverse incentive for an employer to discharge an injured
employee as soon as the employer learns of the employee’s
intention to file a claim. Such a rule would be inimical to the
“policy of overarching importance to the public” embodied by the
Workers’ Compensation Act.11

¶12 We reverse and remand for further proceedings.12

10
See id. ¶ 1.
11
See id. ¶ 14 (citation and internal quotation marks omit‐
ted).
12
Stone claims that the existence of genuine issues of
material fact precluded summary judgment. Because of its ruling
on the law, the district court did not reach these questions.
Consequently, we decline to address them.

20120359‐CA 5 2013 UT App 233