Stamper v. Johnson

2010 UT 26
232 P.3d 514
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Jeff Stamper, Aaron Stamper, 	No. 20090062
David Stamper, and Christopher
Stamper, the heirs and children
of Sharon Stamper, deceased,
Plaintiffs and Appellants,
v.
F I L E D
Rebecca Johnson,
Defendant and Appellee. 	April 30, 2010
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Fifth District, St. George
The Honorable Eric A. Ludlow
No. 070500331
Attorneys: 	Kevin J. Sutterfield, Provo, for plaintiffs
Robert C. Keller, Stephen T. Hester, Salt Lake City,
for defendant
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PARRISH, Justice:
INTRODUCTION
¶1 	The heirs of Sharon Stamper (“Stamper”) appeal the
district court’s entry of summary judgment for appellee, Rebecca
Johnson (“Johnson”). 	In entering summary judgment, the district
court ruled that the Stampers’ wrongful death claim against
Johnson was barred by the exclusive remedy provision of the
Workers’ Compensation Act (the “Act”) because Johnson and Stamper
were fellow servants at the time of the accident that caused
Stamper’s death. 	The district court erred in so ruling. 	While
the status of Johnson and Stamper as fellow servants would have
been determinative under a previous version of the Act, the
applicability of the exclusive-remedy provision in the current
Act does not turn on application of the fellow-servant doctrine.
We therefore reverse the district court’s grant of summary
judgment.

1 While the district court’s order cites to the current
version of the Workers’ Compensation Act, it relied on the
fellow-servant doctrine to reach the determination that Johnson
(continued...)
No. 20090062 	2
BACKGROUND
¶2 	Stamper and Johnson were each employed by corporations
owned by Steve Gilbert. 	Stamper was an employee of Gilbert
Development Corporation (“Gilbert Development”), a general
engineering and general contracting company. 	Her duties included
cooking, cleaning, and performing other tasks assigned by Mr.
Gilbert or his wife, Cyndi Gilbert. 	Johnson was an employee of
Diamond G Rodeos (“Diamond G”), a rodeo organization company.
Her duties included working with computers, welding, electrical
work, and landscaping. 	As part of her job, Johnson frequently
drove from the Gilberts’ office in Toquerville, Utah, to their
office in Mesquite, Nevada, in either a Gilbert Development or a
Diamond G vehicle, whichever was available. 	Sometimes Johnson
brought Stamper along as a passenger. 	Despite their employment
with two different companies and their distinct job duties,
Stamper’s and Johnson’s tasks often overlapped, and they
sometimes worked together at the request of the Gilberts.
¶3 	On the morning of May 6, 2005, Cyndi Gilbert asked
Johnson and Stamper to travel from Toquerville to Mesquite in
order to move the Gilberts’ home office to its new location.
Johnson drove a Gilbert Development vehicle and Stamper rode in
the front passenger seat. 	Shortly after leaving Toquerville,
Johnson lost control of the vehicle and failed to safely
negotiate a turn in the road. 	The vehicle rolled, landing on the
passenger side. 	Stamper died as a result of injuries sustained
in the accident.
¶4 	Stamper’s family received workers’ compensation
benefits under the Utah Workers’ Compensation Act on behalf of
Stamper’s estate because Stamper had been killed in the course of
her employment with Gilbert Development. 	The Stampers
subsequently filed this suit against Johnson, alleging that her
negligent driving caused Stamper’s death. 	The district court
granted summary judgment in favor of Johnson, ruling that the
Stampers’ claims against Johnson were barred by the exclusive
remedy provision of the Act. 	See Utah Code Ann. § 34A-2-105(1)
(Supp 2009). 	In so ruling, the district court relied on Peterson
v. Fowler, where this court interpreted the term “same
employment” found in the pre-1975 Act’s exclusive remedy
provision as requiring application of the common-law fellow-
servant doctrine. 1 	493 P.2d 997, 999-1000 (Utah 1972). 	Under

1 (...continued)
and Stamper were “engaged in the same employment,” thereby
barring the Stampers’ claim against Johnson. 	This was error
because when the legislature revised the Act in 1975, it removed
the language “same employment” from the exclusive-remedy
provision, thereby rendering the fellow-servant doctrine
inapplicable.
3 	No. 20090062
the pre-1975 Act, an injured employee was barred from asserting
an injury claim against his fellow servants. 	See id. 	The
district court held that Johnson and Stamper were fellow servants
because it was undisputed that Johnson and Stamper were “directly
operating with each other in the particular business at hand
[and] . . . were engaged in the ‘same employment’” at the time of
the accident. 	Accordingly, the district court granted summary
judgment in favor of Johnson.
¶5 	The Stampers appeal the district court’s ruling on two
grounds. 	First, they argue that the court erred in granting
Johnson’s motion for summary judgment because there were disputed
material facts about whether Stamper and Johnson were fellow
servants at the time of the accident. 	Second, they argue that
the district court misapplied the fellow-servant doctrine to the
facts.
¶6 	We agree that the district court erred, but not for the
reasons advanced by the Stampers. 	We conclude that the court
erred by relying on the common-law fellow-servant doctrine in its
analysis of the Act. 	The 1975 amendments to the Act removed the
term “same employment” from the Act. 	And it was the “same
employment” provision that we determined had incorporated the
common-law fellow-servant doctrine into the pre-1975 Act.
Therefore, the common-law fellow-servant doctrine is no longer
controlling in determining whether the benefits received under
the Act are the exclusive remedy for the Stampers. 	Instead, the
Act requires a determination of whether Johnson was an agent or
an employee of Stamper’s employer. 	We have jurisdiction in this
case pursuant to Utah Code section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶7 	We review an appeal from a grant of summary judgment
for correctness, giving no deference to the trial court’s
conclusions of law. 	Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d
600. 	We view the facts in the light most favorable to the
nonmoving party. 	Id.

2 The Act was significantly amended in 1975.
3 The court in Peterson cited to the 1953 version of the
Utah Code. 	The language of section 35-1-62 did not change
between 1953 and 1972. 	However, in 1966 the relevant section was
moved from volume 4 to volume 4B of the Code. 	We therefore cite
to the 1966 version for clarity.
No. 20090062 	4
ANALYSIS
I. 	THE ACT NO LONGER INCORPORATES THE FELLOW-SERVANT DOCTRINE
¶8 	The district court erroneously relied on the fellow-
servant doctrine in finding that the Stampers’ claim was barred
by the Act. 	At common law,
in order to constitute servants of one
master[,] fellow-servants . . . must be
engaged in the same line of work; be under
the control of the same foreman; be employed
and discharged by the same head of the
department under which they work; that they
labor together in such personal relations
that they can exercise an influence upon each
other promotive of proper caution in respect
of their mutual safety; that they shall be at
the same time of the injury directly
operating with each other in the particular
business in hand . . . .”
Pool v. S. Pac. Co., 58 P. 326, 331 (Utah 1899) (quoting Daniels
v. Union Pac. Ry. Co., 23 P. 762, 762 (Utah 1890)). 	In other
words, to qualify as fellow servants, at the time of the injury,
the employees must have been working together on the same task,
or their separate tasks must have brought them together in such a
way that they could influence each other to use caution. 	See
Peterson v. Fowler, 493 P.2d 997, 1000 (Utah 1972).
¶9 	This court had occasion to apply the common-law fellow-
servant doctrine in Peterson v. Fowler, where we were asked to
determine the reach of the pre-1975 exclusive-remedy provision of
the Act. 2 	493 P.2d at 999. 	Under the statute at that time, an
“injured employee, or in the case of death his dependents[,]
. . . [could] have an action for damages against” a third person
who caused the injury or death so long as the third person was
“not in the same employment.” 	Utah Code Ann. § 35-1-62 (1966). 3
In Peterson, we recognized that “the idea of ‘same employment’
was well known in connection with the fellow-servant [doctrine]
prior to the enactment of the [Workers’] Compensation Act” and

4 In Goheen v. Yellow Freight Sys., the Tenth Circuit
(continued...)
5 	No. 20090062
determined that the same language in the statute “should be given
the meaning which had been attached to it under the cases decided
up to that time.” 	493 P.2d at 999. 	Thus, we held that the Act’s
use of the term “same employment” was meant to incorporate the
common-law fellow-servant doctrine. 	Id. at 999-1000.
¶10 	In 1975, the legislature amended the Act. 	The 1975
amendment altered the exclusive remedy provision by replacing the
reference to those in the “same employment” with the more
specific phrase “a person other than an employer, officer, agent
or employee of the employer.” 	Compare Utah Code Ann. § 35-1-62
(1974), with Utah Code Ann. §§ 34A-2-105(1), -106(1) (2005).
In granting summary judgment for Johnson, the district court
relied on Peterson and its progeny, which had applied the fellow-
servant doctrine under the prior version of the Act. 	493 P.2d at
999-1000; see also Bambrough v. Bethers, 552 P.2d 1286, 1292-93
(Utah 1976) (using the fellow-servant doctrine to determine “same
employment”). 	In their briefs and at oral argument, both sides
continue to rely on Peterson in claiming that the exclusive
remedy provision should or should not bar the Stampers’ claim.
However, the parties’ and the district court’s reliance on
Peterson as controlling law is misplaced.
¶11 	After the 1975 amendment, the Act no longer
incorporated the fellow-servant doctrine, and any analysis of the
exclusive remedy provision must be based on the current statutory
language. 	“To interpret a statute, we always look first to the
statute’s plain language in an effort to give effect to the
legislature’s intent . . . .” 	In re Olympus Constr., L.C., 2009
UT 29, ¶ 10, 215 P.3d 129.
¶12 	The plain language of the Act no longer refers to “same
employment” or makes any reference to the fellow-servant
doctrine. 	We thus turn to the plain language of the Act. 	The
current exclusive-remedy provision of the Act provides employees
injured during the scope of their employment with the exclusive
remedy against their employer and “against any officer, agent, or
employee of the employer.” 	Id. § 34A-2-105(1). Conversely, an
employee may have a cognizable claim against a third party if the
person who caused the employee’s injury is not “an employer,
officer, agent, or employee of the employer.” 	Id. § 34A-2-
106(1). 	The removal of those in the “same employment” with the
injured worker from the categories of individuals who cannot be
sued under the exclusive remedy provision indicates that the
legislature intended to abolish the fellow-servant doctrine’s
applicability under the Act. 4 	By changing the plain language of

4 (...continued)
determined that the change in the language of the statute did not
indicate “that the Utah legislature intended to eliminate the
recognized Utah loaned servant doctrine.” 32 F.3d 1450, 1453
(10th Cir. 1994). 	As explained herein, we disagree.
No. 20090062 	6
the statute, the legislature eliminated the connection between
the Act and the fellow-servant doctrine and further
interpretation of the Act utilizing the common-law fellow-servant
doctrine is therefore inappropriate.
¶13 	We now turn to the proper application of the Act to
determine if the Stampers’ claim is barred by the exclusive-
remedy provision.
II. 	WHETHER THE ACT IS THE EXCLUSIVE REMEDY FOR THE STAMPERS IS
A QUESTION OF FACT
¶14 	The district court held that the fellow-servant
doctrine controlled and that it was undisputed that Stamper and
Johnson were fellow servants at the time of the accident. 	It
therefore granted summary judgment in favor of the Johnsons. 	But
the correct inquiry is whether Johnson was an employee, officer,
agent, or employee of Stamper’s employer, which was Gilbert
Development.
¶15 	The exclusive-remedy provision prevents injured workers
who are eligible for workers’ compensation benefits from bringing
a separate action against “an employer, . . . officer, agent, or
employee of the employer” who may have contributed to the cause
of the injury. 	Utah Code Ann. § 34A-2-105(1) (2005). 	The
provision applies to any injury, except for injuries caused by
intentional misconduct, that occurs “in the course of or because
of or arising out of the employee’s employment.” 	Id.; Helf v.
Chevron U.S.A., Inc., 2009 UT 11, ¶ 18, 203 P.3d 962; Bryan v.
Utah Int’l, 533 P.2d 892, 894 (Utah 1975).
¶16 	By definition, if an employee is collecting workers’
compensation benefits under the Act, his injury occurred within
the course of his employment because that is a prerequisite to
the receipt of benefits. 	See Utah Code Ann. § 34A-2-401 (2005);
see also Salt Lake City Corp. v. Labor Comm’n, 2007 UT 4, ¶¶ 23,
27, 153 P.3d 179 (holding that a police officer could receive
benefits when injured while driving a patrol car home because
“the [police officer] [was] engaged in an activity that [was] at
least incidental to employment”). 	Therefore, the critical
inquiry is whether a personal injury action or wrongful death
claim brought by an employee or the employee’s heirs is precluded

7 	No. 20090062
because the defendant was an employer, officer, agent, or
employee of the employer.
¶17 	If Johnson was an officer, agent, or employee of
Stamper’s employer, Gilbert Development, at the time of the
accident, then the Stampers’ claim is barred by the exclusive
remedy provision of the Act. 	While the facts do not indicate
that Johnson was an officer of Gilbert Development, it is
possible that she may have been its agent or employee.
A. 	Agency Relationship
¶18 	“To be an agent, a person must be authorized by another
to ‘act on his behalf and subject to his control.’” 	Gildea v.
Guardian Title Co., 970 P.2d 1265, 1269 (Utah 1998) (quoting
Restatement (Second) of Agency § 1 (1958)). 	There must be a
manifestation of consent to create an agency relationship.
Wardley Corp. v. Welsh, 962 P.2d 86, 89 (Utah Ct. App. 1998)
(citing Restatement (Second) of Agency § 1(1) (1958)). 	Much like
a contract, there must be a meeting of the minds between the
parties. 	Wardley, 962 P.2d at 89; 3 Am. Jur. 2d Agency § 15
(1986). 	“Whether an agency relationship exists depends upon all
the facts and circumstances of the case.” 	Gildea, 970 P.2d at
1269.
¶19 	An agency relationship between Johnson and Gilbert
Development may have existed if the relationship meets three
factual elements: 	(1) there was a manifestation by Gilbert
Development that Johnson would act on its behalf, (2) Johnson
accepted the proposed undertaking, and (3) the parties understood
that Gilbert Development controlled the undertaking. 	See
Wardley, 962 P.2d at 89; Restatement (Second) of Agency § 1(1)
cmt. a (1958). 	These are questions of fact that must be decided
on remand.
B. 	Employment Relationship
¶20 	The Act defines “employee” as a person in the service
of an employer “under any contract of hire: 	(A) express or
implied; and (B) oral or written.” 	Utah Code Ann. § 34A-2-
104(1)(b)(I). 	In general, a person is considered an employee if
she is “‘hired and paid a salary, a wage, or at a fixed rate, to
perform the employer’s work as directed by the employer and who
is subject to a comparatively high degree of control in
performing those duties.’” 	Utah Home Fire Ins. Co. v. Manning,
1999 UT 77, ¶ 11, 985 P.2d 243 (quoting Harry L. Young & Sons v.
Ashton, 538 P.2d 316, 318 (Utah 1975)). 	It is the right to
control, not the actual assertion of control, that is essential.

No. 20090062 	8
Id. ¶ 10. 	All of these factors should be considered in
determining whether an employer-employee relationship exists.
¶21 	Johnson might be considered an employee of Gilbert
Development if, at the time of the accident, she was under an
express or implied contract of hire and was receiving pay from
Gilbert Development to do the work of Gilbert Development and if
she was subject to the control of Gilbert Development in the
performance of that work.
¶22 	The district court assumed that the Gilberts were “the
employer” of both Stamper and Johnson even though the record
indicates that the women were actually employed by two separate
companies with common ownership. 	But the fact that both parties
took direction from the same individuals, Steve and Cyndi
Gilbert, does not independently justify disregarding the
corporate entities and is not determinative of the separate
question of whether Johnson was an agent or employee of Stamper’s
employer, Gilbert Development. 	The record before us raises
questions as to whether Cyndi Gilbert was acting on behalf of
Gilbert Development, Diamond G, or both when she requested that
Johnson drive Stamper to Mesquite, Nevada on May 6. 	Answers to
these questions, which must be decided on remand, are relevant in
determining whether Johnson was an employee of Gilbert
Development at the time of the accident.
CONCLUSION
¶23 	Because the district court concluded that Johnson and
Stamper were fellow servants at the time of the accident, it held
that the Stampers’ claims against Johnson were barred by the
exclusive-remedy provision of the Act. 	But the Act does not
call for an analysis of the fellow-servant doctrine. 	Rather, it
requires a determination of whether the injuring party was an
officer, agent, or employee of the injured party’s employer at
the time of the injury. 	We accordingly vacate the district
court’s grant of summary judgment and remand for further
proceedings consistent with this opinion.
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¶24 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.