Brown v. Finney

Steven A. BROWN v. Leonard S. FINNEY

95-1329                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 22, 1996


1.   Workers' compensation -- exclusivity provision mirrors general
     purpose of Workers' Compensation Act -- exclusive-benefits
     provision favors both employer and employee. -- The reason for
     the exclusivity provision in Ark. Code Ann.  11-9-
     105(a)(Repl. 1996) mirrors the general purpose behind the
     Workers' Compensation Act, which was to change the common law
     by shifting the burden of all work-related injuries from
     individual employers and employees to the consuming public
     with the concept of fault being virtually immaterial; in other
     words, the exclusive benefits provision of the workers'
     compensation law favors both the employer and the employee. 

2.   Workers' compensation -- employer has duty to provide safe
     place for employee to work -- duty cannot be delegated. --  
     The duty to provide a safe place to work is that of the
     employer, and it cannot be delegated to an employee.

3.   Workers' compensation -- failure to provide safe place to work
     -- both supervisory and nonsupervisory employees are immune
     from suit for negligence. -- Supervisory as well as
     nonsupervisory employees are immune from suit for negligence
     in failing to provide a safe place to work.

4.   Workers' compensation -- work place defined. -- The work place
     is not static in the sense of being limited to the employer's
     physical premises or actual place of business. 

5.   Workers' compensation -- appellee was performing an assigned
     task when injury to appellant occurred -- employer alone had
     duty to provide safe place to work. -- Where appellant and
     appellee were fellow employees, neither having supervisory
     powers or duties over the other, where appellee had been
     assigned the task of driving the employees to the work sites
     by his supervisors, and where he was in the process of
     transporting the employees between jobs when the accident
     occurred, appellee was acting as an arm of the employer,
     fulfilling its duty to provide a safe work place; the employer
     had elected to provide its part-time employees with
     transportation in a company van both to and from particular
     farm work sites, and in doing so had an obligation to provide
     safe transportation; it was solely the duty of the employer to
     provide its employees with a safe place to work, and such a
     duty could not be delegated to its employees, supervisory or
     otherwise; that duty extended to transportation of the
     employees between work sites.  
     
6.   Workers' compensation -- appellee was immune from suit for
     appellant's injuries -- trial court's judgment affirmed. --
     Appellant's assertion that a nonsupervisory coemployee is a
     "third party" within the meaning of Ark. Code Ann.  11-9-410
     (Repl. 1996), and that he should not be prohibited from
     bringing suit in tort against such a coemployee was meritless
     where appellee was performing the duties of his employer on
     the night in question; as such, he was also immune from suit
     in tort for the injuries sustained by appellant; the judgment
     of the trial court was affirmed.


     Appeal from Sharp Circuit Court; Harold S. Erwin, Judge;
affirmed.
     Blair & Stroud, by:  H. David Blair and Robert D. Stroud, for
appellant.
     Walmsley Law Firm, by:  Tim Weaver, for appellee.

     Donald L. Corbin, Justice.
     Appellant Steven A. Brown appeals the judgment of the Sharp
County Circuit Court granting summary judgment to Appellee Leonard
S. Finney Jr. on Appellant's complaint that Appellee was negligent
in his operation of a vehicle that resulted in an accident and
caused injuries to Appellant.  The trial court granted summary
judgment on the basis that Appellant's exclusive remedy was through
a workers' compensation claim against his employer pursuant to Ark.
Code Ann.  11-9-105 (Repl. 1996).  As this appeal involves
statutory interpretation, our jurisdiction is pursuant to Ark. Sup.
Ct. R. 1-2(a)(17).  Appellant's sole point on appeal is that the
trial court erred in granting summary judgment because section 11-
9-105 does not provide the exclusive remedy of a worker injured by
the active negligence of a non-supervisory coemployee. 
     According to the information contained in the abstract,
Appellant and Appellee were part-time employees of ConAgra, working
around ten hours per week catching chickens.  Neither Appellant nor
Appellee had any supervisory duties on the job.  ConAgra provided
its part-time employees with transportation in the company van to
the work site, or farm, where the chickens were located.  For some
time before the accident, ConAgra had delegated to Appellee the job
of driving the part-time employees to the work sites in the company
van.  The part-time employees were not actually required to ride in
the company van, but they were certainly encouraged to do so by
their supervisors.  According to Tim Hicks, the ConAgra supervisor
of both Appellant and Appellee, the employees normally parked their
vehicles at a location in Cave City, Arkansas, and then rode to the
work site together in the company van, normally driven by Appellee. 
In fact, Tim Hicks stated that other than the night of the
accident, he was aware of only one other time when any of the
employees drove their personal vehicles to a work site.  
     On August 18, 1993, Appellee picked up the company van at
ConAgra in Batesville, Arkansas, as was his normal procedure, and
drove to Cave City, Arkansas, to pick up the employees.  For
reasons unclear, two of the employees elected to drive their
personal vehicles to the work site that night.  Apart from
Appellee, the driver of the van, and Appellant, there were four
other young men riding in the van that night.  The employees drove
from Cave City to Dwight Smith's farm and proceeded to catch
chickens on that farm.  When the job was finished at Smith's farm,
the employees left for the next work site.  Along the way, an
accident occurred when the company van, driven by Appellee, went
off the roadway on Highway 58 and overturned.  As a result of the
crash, several of the young men in the van, including Appellant,
were injured, some seriously.  Through ConAgra's investigation of
the accident, there was some indication by the employees who were
riding in the van, along with the two employees in their personal
vehicles, that the van was travelling at a high rate of speed and
that there may have been some racing going on between the vehicles. 
     As a result of the injuries he sustained in the accident,
including a fractured hip, Appellant was awarded workers'
compensation indemnity benefits as well as medical benefits. 
Appellant brought this action against Appellee in circuit court
pursuant to a tort claim that Appellee was negligent in his
operation of the van on the night of the accident.  Specifically,
Appellant's complaint alleged that Appellee was operating the van
at an extremely high rate of speed, and that when he tried to pass
another vehicle, he lost control of the vehicle, which became
airborne, crashed, and overturned.  Appellee answered the complaint
by denying all material allegations and asserting that the circuit
court lacked jurisdiction to hear the claim, as section 11-9-105
provides an exclusive remedy for work-related injuries.  The trial
court agreed that Appellant's exclusive remedy under the
circumstances was through a workers' compensation claim and granted
Appellee's motion for summary judgment.  Appellant now appeals the
order of summary judgment, asserting that the Workers' Compensation
Act does not prohibit an employee from maintaining an action in
tort against a coemployee for injuries suffered as a result of the
coemployee's negligence.  We affirm the judgment of the trial
court.
     Section 11-9-105(a) provides in part:  
          The rights and remedies granted to an employee
     subject to the provisions of this chapter, on account of
     injury or death, shall be exclusive of all other rights
     and remedies of the employee, his legal representative,
     dependents, next of kin, or anyone otherwise entitled to
     recover damages from the employer, or any principal,
     officer, director, stockholder, or partner acting in his
     capacity as an employer, or prime contractor of the
     employer, on account of the injury or death, and the
     negligent acts of a coemployee shall not be imputed to
     the employer.  [Emphasis added.]

     As this court has previously observed, the reason for the
exclusivity provision in that section mirrors the general purpose
behind our Workers' Compensation Act, which was to change the
common law by shifting the burden of all work-related injuries from
individual employers and employees to the consuming public with the
concept of fault being virtually immaterial.  See Simmons First
Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).  With
the passage of such statutes, employers gave up the common-law
defenses of contributory negligence, fellow servant, and assumption
of the risk and, likewise, employees gave up the chance of
recovering unlimited damages in tort actions in return for certain
recovery in all work-related cases.  Id.  In other words, the
exclusive benefits provision of our workers' compensation law
favors both the employer and the employee, and thus we take a
narrow view of any attempt to seek damages beyond that favored,
exclusive remedy.  
     Appellant argues that this action is not within the exclusive
confines of the Workers' Compensation Act because he is not seeking
a damage award from the employer, ConAgra; rather, he is seeking
damages from a non-supervisory coemployee for negligence. 
Appellant asserts that a non-supervisory coemployee is a "third
party" within the meaning of Ark. Code Ann.  11-9-410 (Repl.
1996), and that he should not be prohibited from bringing suit in
tort against such a coemployee.  Section 11-9-410(a)(1)(A)
provides:
          The making of a claim for compensation against any
     employer or carrier for the injury or death of an
     employee shall not affect the right of the employee, or
     his dependents, to make a claim or maintain an action in
     court against any third party for the injury, but the
     employer or his carrier shall be entitled to reasonable
     notice and opportunity to join in the action.

Appellant also distinguishes a non-supervisory coemployee from a
fellow coemployee in an attempt to reconcile our prior case law
with his theory for recovery.  To that extent, Appellant relies
heavily on our decision in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).  King involved an action for the wrongful death of
Dyer, who was struck and killed by a dump truck being driven by
King, who was Dyer's fellow employee.  Dyer's estate sued King as
a third-party tortfeasor, alleging that King was negligent in his
operation of the dump truck, and that his negligence caused the
death of Dyer.  There was testimony that Dyer was struck twice by
the dump truck driven by King, and that after Dyer was hit the
first time, the truck rocked as if King had applied the brakes, but
then the truck continued to back and struck Dyer again, causing the
fatal injuries.  It was shown at trial that at the time of the
accident, King had been backing up the dump truck to the Barber
Green asphalt machine while the machine was off, and that it was
understood by all the crew members that the dump trucks were not to
be backed up to the asphalt machine while its motor was shut off. 
As to King's argument that such an action in tort was prohibited by
the Workers' Compensation Act, this court held:         
          We are not impressed by the argument that the
     Workmen's Compensation Act prevents an employee, or his
     personal representative, from maintaining an action for
     the negligence of a fellow employee. Our statute merely
     provides that the remedies under the act are exclusive of
     other remedies against the employer. Ark. Stats.,
      81-1304. The making of a claim for compensation does
     not affect the right of the employee or his dependents to
     maintain an action against a third person.  81-1340.
     Under a statute like ours a negligent coemployee is
     regarded as a third person.

Id. at 933, 319 S.W.2d  at 218 (citations omitted).     
     Since that decision, we have examined negligent or injurious
actions by fellow employees in the context of whether such
employees were third parties not immune from suit based upon the
duties they were performing or the roles they were undertaking at
the time.  In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969),
this court held that the president and owner of a family-owned
corporation was not a coemployee, or a third party, for purposes of
sustaining an action brought by an employee for negligence.  The
negligence alleged in that case was that the appellee-owner had
failed to provide a safe place to work as required by state law. 
This court concluded that "[c]ertainly the safety requirements
under the labor laws should be enforced in this state and their
violation should not go unpunished, but if [appellee-owner] was
merely a third party fellow-employee, he had no duty to furnish a
place for appellant to work -- safe or otherwise."  Id. at 388, 438 S.W.2d  at 319.  The duty to provide a safe place to work is that of
the employer and it cannot be delegated to an employee.  Id; see
also Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987).  Neal
established the precedent for our later holdings providing immunity
to supervisory employees and coemployees who were engaged in the
performance of the duties of the employer.  
     In Simmons First Nat'l Bank, 285 Ark. 275, 686 S.W.2d 415,
this court held that since an employer is immune from a negligent
failure to provide employees with a safe place to work, the same
immunity protects supervisory employees when their general duties
involve the overseeing and discharging of that same responsibility. 
We afforded supervisory employees with the same cloak of immunity
from suit enjoyed by employers because supervisory employees
fulfill those duties that are exclusively the responsibility of the
employer.  Hence, our determination of immunity has been based upon
the particular role undertaken by the employee at the time of the
injury.  
     In Allen, 294 Ark. 1, 740 S.W.2d 137, this court concluded
that supervisory as well as non-supervisory employees are immune
from suit for negligence in failing to provide a safe place to
work.  This court reasoned that because the non-supervisory
employee was a maintenance employee of the mill, whose duties
included checking and repairing electrical equipment, he was immune
from suit.  We held that "[e]ven assuming that he was negligent in
the maintenance of the bare wires that caused the death by
electrocution of Allen, he is immune from suit because failing to
repair or check for bare wires involves failure to provide a safe
place to work."  Id. at 6, 740 S.W.2d  at 140 (emphasis added).
     In Barnes v. Wilkiewicz, 301 Ark. 175, 783 S.W.2d 36 (1990),
we expanded the definition of the work place, determining that such
a place was not static in the sense of being limited to the
employer's physical premises or actual place of business.  In that
case, Barnes brought suit for negligence against Wallace, his
supervisor, for injuries sustained when they were working on a
company truck which had stalled alongside the road.  Barnes alleged
that Wallace negligently parked his truck partly in the roadway and
that his negligence was a cause of Barnes's injuries, which
occurred when a motorist struck the parked vehicle, which in turn
struck Barnes.  This court held that the supervisor was immune from
suit because Barnes's claim amounted to one of failure to provide
a safe work place.  We determined that Barnes was injured during,
and within, the course and scope of his employment; that the
accident scene was the work place because their job required them
to attend to the stalled company truck; and that Wallace was acting
in his supervisory capacity at the time of the accident.  Barnes
cited our decision in King, 229 Ark. 929, 319 S.W.2d 214, in
support of his contention that the duty Wallace owed to him was a
personal duty of due care in the use of the public streets,
unrelated to any duty between fellow employees.  This court
disagreed that King stood for such a proposition, holding that the
decision merely recognized that an employee may be a "third party"
under section 11-9-410 and that, as such, the Workers' Compensation
Act does not bar claims between coemployees.
     Subsequent to our decision in Barnes, 301 Ark. 175, 783 S.W.2d 36, the court of appeals addressed the issue of injury to one
employee by the act of a fellow employee occurring in a non-static
work place.  In Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513
(1992), Rea filed a negligence suit against Fletcher, his fellow
employee, alleging that Fletcher's negligent operation of a vehicle
in which Rea was riding caused injury to Rea's spine.  As in the
present case, the parties' employer provided transportation from a
designated parking lot to the work site and back during lunch and
after work.  On the day of the accident, their supervisor told
Fletcher to bring his truck to the work site for the purpose of
transporting the employees back and forth for lunch, as both
company trucks were unavailable.  Fletcher agreed to use his truck
to transport the employees.  It was during the transport that Rea
fell off the back of the truck.  The trial court granted Fletcher's
motion for summary judgment on the basis that an employer is
required to provide its employees with a safe place to work. 
Relying on our decision in Allen, 294 Ark. 1, 740 S.W.2d 137, the
court of appeals affirmed, holding:
          Even assuming appellee was somehow negligent in
     driving his vehicle, he is immune from suit because under
     the facts of this case providing transportation from the
     employer-designated parking area to the job site involves
     the duty to provide a safe place to work.
Rea, 39 Ark. App. at 13, 832 S.W.2d  at 515.  
     The decision reached by the court of appeals in Rea, 39 Ark.
App. 9, 832 S.W.2d 513, does not conflict with our holding in King,
229 Ark. 929, 319 S.W.2d 214, as the negligent coemployee in King
was not in any way, shape, or form fulfilling the employer's
responsibility to provide a safe work place; rather, he was merely
attempting to carry out his separate, individual duty as an
employee to drive a dump truck used in asphalt operations.  In that
particular situation, King was not responsible for the safety of
his coemployee, Dyer, and as such, under our workers' compensation
statutes, King was a third party.  In Rea, as in this case, the
coemployee was performing the employer's duty to provide a safe
work place for the employees.
     We believe the conclusion reached by the court of appeals is
sound and is dispositive of the issue at hand as the factual
scenarios in both cases are very similar.  As in the Rea case,
Appellant and Appellee are fellow employees, neither having
supervisory powers or duties over the other.  ConAgra had elected
to provide its part-time employees with transportation in a company
van both to and from particular farm work sites, and in doing so
had an obligation to provide safe transportation.  Appellee had
been assigned the task of driving the employees to the work sites
by his supervisors, and he was in the process of transporting the
employees between jobs when the accident occurred.  It is solely
the duty of the employer to provide its employees with a safe place
to work, and such a duty cannot be delegated away to its employees,
supervisory or otherwise.  Furthermore, that duty extends to
transportation of the employees between work sites.  In
transporting the employees, Appellee was acting as an arm of the
employer, fulfilling its duty to provide a safe work place, as the
work place is not a static entity, especially when the job requires
transporting workers from farm to farm.     
     We conclude that Appellee was performing the duties of his
employer that night, and as such, he is also immune from suit in
tort for the injuries sustained by Appellant.  We note that while
we have upheld the denial of immunity for employers who commit
intentional or willful torts on employees, no such allegation is
made here.  See, e.g., Sontag v. Orbit Valve Co., Inc., 283 Ark.
191, 672 S.W.2d 50 (1984).  Although, arguably, Appellee's actions
on the night in question may have been less than prudent, the facts
as alleged in the complaint do not present a case of intentional,
deliberate intent to injure, as Appellant alleges only that
Appellee's operation of the van was negligent.  We thus affirm the
judgment of the trial court.  
     Dudley, Glaze, and Roaf, JJ., dissent.
=================================================================
              Robert H. Dudley, Justice, dissents.
     In the summer of 1993, Leonard S. Finney, Jr., age twenty, and
Steven Brown, age sixteen, were part-time employees of ConAgra. 
They caught chickens in chicken houses at various farms and loaded
them into trucks.  Neither had any supervisory authority
whatsoever.  Their supervisor, Tim Hicks, was the supervisor on the
job at Dwight Smith's chicken house near Sidney on the night of
August 18, 1993.  Finney and Brown, along with other co-employees,
caught the chickens inside Smith's chicken house and were
instructed by Hicks to go to Cave City next and wait for a ConAgra
van that would take them to Smithville where the chickens would be
unloaded.  Finney, Brown, and three other part-time employees got
into another van owned by ConAgra.  Finney started driving the van
to Cave City.  He drove exceedingly fast, perhaps ninety miles per
hour, tried to pass a car going up a hill, hit a mailbox, lost
control of the van, skidded across the highway, flew off the
roadway, and landed in a ditch.  Brown, among others, was seriously
injured.  Brown filed this tort suit against Finney, who responded
that he was immune to suit by reason of the Workers' Compensation
Act.  The trial court ruled that the Workers' Compensation Act
provided the exclusive remedy and granted summary judgment in
defendant Finney's favor.  The majority opinion affirms.
     The issue is whether the Workers' Compensation Act gives
immunity from suit to a nonsupervisory employee.  Article 5,
section 32, of the Arkansas Constitution, as amended by Amendment
26, in pertinent part, is as follows:
The General Assembly shall have power to enact laws
prescribing the amount to be paid by employers for
injuries to or death of employees, and to whom said
payment shall be made. ... Provided, that otherwise no
laws shall be enacted limiting the amount to be recovered
for injuries resulting in death or for injuries to person
or property ... .  
Id. (emphasis added).  The Initiated Measure that enacted the
Workers' Compensation Act provides that "the rights and remedies
herein granted to an employee subject to the provisions of this
act, on account of injury or death, shall be exclusive of all other
rights and remedies of such employee to recover damages from such
employer."  Initiated Act No. 4,  4, Acts of 1949 (emphasis
added).  The employer's immunity arising out of the Workers'
Compensation Act is expressed in Ark. Code Ann.  11-9-105(a)
(Repl. 1996), as follows:
The rights and remedies granted to an employee ... shall
be exclusive of all other rights and remedies of the
employee ... to recover damage from the employer, or any
principal, officer, director, stockholder, or partner
acting in his capacity as an employer, or prime
contractor of the employer ... . 
Id. (emphasis added).  The clear language of the statute limits
immunity to the "employer, or any principal, officer, director,
stockholder or partner."  This language is given emphasis by Ark.
Code Ann.  11-9-410(a)(1)(A) (Repl. 1996), which provides in
pertinent part:  "The making of a claim for compensation against
any employer shall not affect the right of the employee ... to make
a claim or maintain an action in court against any third party."
     The question then becomes whether a co-employee with no
supervisory authority whatsoever is an "employer" or a "third
party."  We answered that question in  King v. Cardin, 229 Ark.
929, 319 S.W.2d 214 (1959), as follows:
Our statute merely provides that the remedies under the
act are exclusive of other remedies against the employer.
Ark. Stats.,  81-1304 [now Ark. Code Ann.  11-9-105, as
amended by Act 796 of 1993].  The making of a claim for
compensation does not affect the right of the employee or
his dependents to maintain an action against a third
person.  81-1340. [now Ark. Code Ann.  11-9-410, as
amended by Act 796 of 1993].  Under a statute like ours
a negligent coemployee is regarded as a third person. 
Botthof v. Fenske, 280 Ill. App. 362; Kimbro v. Holladay,
La. App., 154 So. 369; Churchill v. Stephens, 91 N.J.L.
195, 102 Atl. 657.
Id. at 933, 319 S.W.2d  at 218 (emphasis added). 
     Ten years after King v. Cardin we extended the employer's
immunity to the president and general manager of a closely held
family corporation.  In that case, Neal v. Oliver, 246 Ark. 377,
438 S.W.2d 313 (1969), the plaintiff, who had collected workers'
compensation, sued the president and general manager of the closely
held corporation for failing to provide a safe work place as
required by state law.  In our reasoning, we noted that an
employer-employee relationship existed between the president and
the employee.
     In 1960, when we decided King v. Cardin, the statute that is
now codified as Ark. Code Ann.  11-9-105, provided:  "The rights
and remedies herein granted to an employee ... shall be exclusive
of all other rights and remedies of such employee ... to recover
damage from such employer ... ."  Ark. Stat. Ann.  81-1304 (Repl.
1960).  This statute was amended by Act 253 of 1979 to incorporate
our Neal v. Oliver holding as follows:
The rights and remedies herein granted to an employee ... 
shall be exclusive of all other rights and remedies of
the employee ... to recover damage from such employer, or
any principal, officer, director, stockholder, or partner
... .
Ark. Stat. Ann.  81-1304 (Repl. 1980) (emphasized language added
by 1979 amendment).  Thus, our cases and the statutes were in
complete agreement.  
     In 1985, in Simmons First Nat'l Bank v. Thompson, 285 Ark.
275, 686 S.W.2d 415 (1985), we extended the employer's immunity to
supervisory employees.  In doing so, we wrote:
     [S]ince an employer is immune under the statute from a
     negligent failure to provide employees with a safe place to
     work, the same immunity protects supervisory employees when
     their general duties involve the overseeing and discharging of
     that same responsibility.
Id. at 278, 686 S.W.2d  at 417.
The next year we followed our precedent, quoting Simmons First
Nat'l Bank v. Thompson, and again held that the employer's immunity
extended to supervisory employees.  Lewis v. Industrial Heating &
Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986).  The same rationale
was applied in granting a writ of prohibition in Fore v. Circuit
Court, 292 Ark. 13, 727 S.W.2d 840 (1987).  
     In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), we
extended the immunity provided by the Act even further.  We held
that a nonsupervisory co-employee who was responsible for a safe
work place would be treated as an employer under the applicable
statutes.  We wrote: "[W]e conclude that supervisory as well as
non-supervisory employees are immune from suit for negligence in
failing to provide a safe work place."  Id. at 6, 740 S.W.2d  at
140.  Then, in Rea v. Fletcher, 39 Ark. App. 9, 832 S.W.2d 513
(1992), the court of appeals followed Allen v. Kizer and extended
the definition of "safe work place" to vehicles driven by
nonsupervisory co-employees.  
     In summary, we interpreted the two applicable statutes in King
v. Cardin to mean that "a negligent co-employee is regarded as a
third party" and therefore is subject to tort suit by a co-
employee.  Under that interpretation of the statutes the appellant
in this case would be able to sue his co-employee for his
negligence in driving the employer's van exceedingly fast, perhaps
ninety miles per hour, and attempting to pass while going up a
hill.  However, the majority opinion does not follow King v.
Cardin, and it extends the exception created in Allen v. Kizer for
a negligent co-employee when he or she has a duty to provide a safe
work place.  The result is that the exception is being allowed to
consume the general rule, and that is wrong.  The complaint in this
case does not allege that the van supplied by the employer was
defective in any way; there is nothing mentioned about a safe work
place.  Rather, the allegation is that Finney, the co-employee,
negligently operated the van.  Under the Workers' Compensation Act
the remedy given to the employee is exclusive against the employer,
but it is not exclusive of remedies against co-employees.  The
immunity arising out of the Workers' Compensation Act is the
employer's immunity, not the employee's immunity.  The workers'
compensation provision in the Arkansas Constitution provides that
"otherwise no laws shall be enacted limiting the amount to be
recovered for injuries resulting in death or for injuries to person
or property."  Ark. Const. art. 5,  32 (as amended by Amendment
26).  
     The General Assembly has incorporated King v. Cardin and Neal
v. Oliver into Ark. Code Ann.  11-9-410 so that it now defines the
word "employer" to include officers, directors, stockholders,
partners, and prime contractors, but the General Assembly has never
attempted to extend immunity to co-employees.  The statute lists
those who are immune, and it is a fundamental principle of
statutory construction that the express designation of one thing
may properly be construed to mean the exclusion of another. 
Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233 (1993).  Further, section 14 of Act 796 of 1993 still provides,
in material part, "The making of a claim for compensation ... shall
not affect the right of the employee ... to make a claim or
maintain an action in court against any third party."  In addition,
it is significant that the General Assembly added subparagraph (4)
to section 14 of Act 796, which provides, "The purpose and intent
of the reenactment of this statute is to annul any and all case law
inconsistent herewith."  See notes to Ark. Code Ann.  11-9-410
(Repl. 1996).  In summary, Steven Brown was allegedly injured
because Leonard Finney allegedly operated ConAgra's van in a
negligent manner.  It is undisputed that Leonard Finney was a co-
employee and had no supervisory authority whatsoever.  Steven Brown
has recovered pursuant to the Workers' Compensation Act from
ConAgra, but Ark. Code Ann.  11-9-410 provides that "[t]he making
of a claim for compensation against any employer ... shall not
affect the right of the employee ... to make a claim or maintain an
action in court against any third party."  Leonard Finney is a
third party under our holding in King v. Cardin.  He is not an
employer and is not entitled to immunity as an employer.  There is
no allegation that the employer negligently furnished the van, or
that the van was defective.  The allegation is that the co-employee
negligently operated the van.  I would reverse the ruling of the
circuit court and allow Brown to pursue an action against his co-
employee, Finney.
     Glaze and Roaf, JJ., join in this dissent.