Lorrain v. Ryan

Annotate this Case
LORRAIN_V_RYAN.92-238; 160 Vt. 202; 628 A.2d 543


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-238


 Derek & Patricia Lorrain                     Supreme Court

                                              On Appeal from
      v.                                      Chittenden Superior Court

 Kevin & Elaine Ryan                          November Term, 1992



 Alden T. Bryan, J.

 E. William Leckerling and Pamela J. Fitzgerald of Lisman & Lisman,
   Burlington, for plaintiffs-appellants

 Richard H. Wadhams, Jr., of Pierson, Wadhams, Quinn & Yates, Burlington,
   for defendants-appellees


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiffs Derek and Patricia Lorrain appeal the rulings
 of the Chittenden Superior Court on two post-judgment motions.  The trial
 court (1) denied plaintiffs' motion for a new trial on the issue of damages,
 in which plaintiffs argued that defendants failed to produce sufficient
 evidence for the jury to apportion damages and that the award of damages was
 grossly inadequate; and (2) granted defendants' motion for a judgment
 notwithstanding the verdict, in which defendants asserted that a damage
 award for loss of consortium was barred by the exclusivity provision of the
 worker's compensation statute.  We affirm the denial of plaintiffs' motion
 for a new trial and reverse the grant of defendants' motion for a judgment
 notwithstanding the verdict.
                                     I.
      Plaintiff Derek Lorrain was an employee of Derek Lorrain Carpet
 Installers, Inc., a business he owned and operated.  On July 16, 1985, while
 working at the home of defendants Kevin and Elaine Ryan, he carried a roll
 of vinyl down a flight of stairs leading off defendants' raised deck.  When
 one of the steps snapped, he fell and suffered an injury to his cervical
 spine.  Plaintiff underwent extensive medical treatment, culminating in
 March 1991 in diskectomy and spinal fusion surgery.  Plaintiffs filed suit,
 alleging that defendants' negligence in maintaining their property was the
 cause of the accident and all of plaintiffs' injuries.  The suit included a
 claim for loss of consortium by Patricia Lorrain.
      The case was tried before a jury, and the medical testimony offered was
 extensive and conflicting.  Plaintiff's general physician and his orthopedic
 surgeon both testified that plaintiff's disabilities were due to the 1985
 accident, not a preexisting condition.  The general physician treated
 plaintiff for neck pains on the day of the accident and numerous times
 thereafter.  Although evidence was presented that plaintiff's condition was
 "much improved" and had "stabilized" in the months following the accident,
 plaintiff periodically returned for neck treatment.  The physician referred
 plaintiff to the orthopedic surgeon in October of 1990, attributing the
 complaints of neck pain to "a continuation of the July [1985] accident that
 was never resolved."  The surgeon testified that his treatment of plaintiff,
 including the 1991 surgery, stemmed from the 1985 accident.
      The general physician had also treated plaintiff several times for neck
 and arm pain in the six years preceding the accident, and twice referred
 plaintiff to specialists.  The first was to a neurologist, who confirmed the
 absence of nerve damage; the second was to a specialist in the cervical
 spine.  X-rays taken in spring of 1984 by an assistant to the cervical spine
 specialist revealed the presence of degenerative arthritis in plaintiff's
 neck, although several weeks later the assistant noted that plaintiff's
 range of motion was normal and the muscular strain was resolved.  The
 general physician noted that he had not seen plaintiff for any neck-related
 complaints for more than a year prior to the accident, and both he and the
 orthopedic surgeon testified that the degenerative condition shown in the x-
 rays did not necessarily indicate that plaintiff's neck problems would
 continue.
      The general physician testified that the medical bills plaintiff
 presented, totaling over $20,000, all resulted from the accident.
 Plaintiffs also presented an economist who testified that plaintiff will
 lose future earnings, the present value of which was $300,000.  Defendants
 disputed this figure.
      Defendants introduced the testimony of another orthopedic surgeon who
 examined plaintiff prior to and after the 1991 surgery, and reviewed
 plaintiff's medical records dating back to 1980.  Defendants' expert
 testified that plaintiff's disabilities were at least partially attributable
 to a preexisting degenerative arthritis of the cervical spine.  He stated
 that plaintiff's medical records established a natural progression of the
 degenerative condition, which only stops at death.  He also noted that
 plaintiff had suffered at least three minor injuries within approximately
 one year after the 1985 accident.  Defendants' expert testified that the
 1985 accident caused "an increase in symptoms" that subsequently subsided, a
 diagnosis supported by an August 1986 note from plaintiff's physical
 therapist stating that the neck injury had stabilized.  In the opinion of
 defendants' expert, most of the treatments, including the 1991 operation,
 were necessitated by the continued progression of the degenerative
 arthritis, not the subject accident.
      On February 19, 1992, the jury found that defendants' negligence
 proximately caused the 1985 accident and awarded damages in the amount of
 $8,610.33, including $2,298 for medical bills and $2,000 to Patricia Lorrain
 for loss of consortium.  Defendants moved for a judgment notwithstanding the
 verdict on the loss of consortium claim, contending that it was barred by 21
 V.S.A. { 622, the exclusivity provision of the workers' compensation
 statute.  The trial court granted defendants' motion, striking the $2,000
 award, and denied plaintiffs' motion for a new trial on the issue of
 damages.
                                     II.
      Plaintiffs assert that the trial court erred in failing to grant them a
 new trial on the issue of damages for two reasons: defendants produced
 insufficient evidence for the jury to apportion damages, and the jury award
 was grossly inadequate.
                                     A.
      Plaintiffs' first argument relates to apportionment of damages between
 those caused by the accident and those attributable to other causes.  In its
 charge, the trial court instructed the jury on apportionment of damages in
 accordance with the principles set out in {{ 433A and 433B of the
 Restatement (Second) of Torts.  These principles apply "whenever two or more
 causes have combined to bring about harm to the plaintiff, and each has been
 a substantial factor in producing the harm."  Restatement (Second) of Torts
 { 433A comment a (1965). Consistent with these principles, the trial court
 charged the jury:
      A plaintiff's recovery for damages caused by a defendant's
      wrongful act may not be proportionately reduced because of a
      preexisting weakness or susceptibility to injury such as an
      arthritic condition or weakness caused by a previous injury.
      However, there are two exceptions to the general rule.  First,
      when a plaintiff is incapacitated or disabled prior to an
      accident, the defendant is liable only for the additional harm or
      aggravation that he caused.  The burden of proof is on the
      Defendants to prove the extent of the damages which were caused by
      the preexisting condition.  Second, when a plaintiff has a
      preexisting condition that would inevitably worsen, a defendant
      causing subsequent injury is entitled to have the plaintiff's
      damages discounted to reflect the proportion of damages that would
      have been suffered even in the absence of subsequent injury.
      Again, the burden of proof in such cases is on the defendant to
      prove the extent of the damages that the preexisting condition
      would inevitably have caused.

 Plaintiffs do not challenge the charge as inaccurate.  Instead, they assert
 that the jury apportioned damages by awarding them less than their full
 damages.  Plaintiffs argue that the court should not have allowed the jury
 to apportion damages because defendants did not produce sufficient medical
 evidence to support apportionment.
      Assuming plaintiffs are correct that there was insufficient evidence to
 apportion damages, they are not entitled to a new trial on damages for two
 reasons.  First, although they claim to challenge the sufficiency of the
 evidence to support the damage award, they really challenge the trial
 court's decision to charge that damages could be apportioned.  Plaintiffs,
 however, have failed to show that they objected to the charge below
 following its delivery. (FN1) See V.R.C.P. 51(b)(party may not assign error to
 an instruction unless an objection is made following the charge).  Failure
 to make an objection to the charge is a waiver that precludes raising the
 issue on appeal.  See O'Brien v. The Island Corp., 157 Vt. 135, 141, 596 A.2d 1295, 1298 (1991); Green v. Sherburne Corp., 137 Vt. 310, 311, 403 A.2d 278, 279-80 (1979).
      Second, the jury verdict can be explained by an alternative theory of
 damages that does not involve apportionment of damages.  Defendants' expert
 testified that the accident resulted in only a temporary increase in
 plaintiff's symptoms, and that plaintiff's continuing physical problems were
 due solely to the degenerative condition, which he described as permanent
 and likely to worsen over time.  Other evidence indicated that the increased
 symptoms caused by the July 1985 accident had subsided by August 1986.  The
 jury award covered all of the medical expenses incurred during the July
 1985 to August 1986 period, and none thereafter.  Thus, the jury apparently
 concluded that 100 percent of plaintiff's damages incurred in the thirteen-
 month period were attributable to the accident and all damages incurred
 after August 1986 were attributable to the preexisting condition or later
 accidents.
      Plaintiff was awarded damages for medical expenses, pain and suffering,
 mental anguish, loss of enjoyment of daily activities, and lost earnings to
 August 1986.  The jury awarded plaintiff no damages whatsoever for future
 lost earning capacity, future pain and suffering, or future general
 disability.  It is clear that the jury concluded that the disability
 plaintiff suffered as a result of defendants' negligence was merely
 temporary, and did not create or substantially contribute to the continuing
 medical problems plaintiff experienced.
      This result does not implicate the concept of apportionment described
 by { 433A of the Restatement.  As set out above, apportionment applies when
 two or more causes combine to bring about plaintiff's harm.  Here,
 defendants argued, and the jury found, that only one cause produced
 plaintiff's harm.  Before August of 1986, the cause was this accident;
 thereafter, it was a different cause.  This determination is fully
 consistent with our law.  See Woodcock's Adm'r v. Hallock, 98 Vt. 284, 290,
 127 A. 380, 382 (1925) (once negligence is established, liability attaches
 to "all the injurious consequences that flow [therefrom] until . . . the
 force set in motion by the negligent act has so far spent itself as to be
 too small for the law's notice"); Restatement (Second) of Torts { 434 (1965)
 (jury's responsibility to determine whether defendant's conduct was a
 substantial factor in causing plaintiff's harm).
      Contrary to plaintiffs' contention, the theory accepted by the jury was
 supported by the evidence.  Although defendants' expert testified that he
 was unable to separate precisely the harm caused by the accident from the
 harm caused by the preexisting condition, he was clear in his opinion that
 the accident produced only a temporary increase in symptoms.  The jury was
 entitled to accept the evidence that, despite at least two other back or
 neck injuries in the interim, plaintiff's condition had resolved by August
 1986.  Thus, the jury reasonably could have taken the expert's testimony on
 the divisibility of cause to refer to the period from the date of the
 accident through August 1986, for which full damages were awarded.  The
 expert medical testimony and other evidence was sufficiently informative for
 the jury to decide the relatively direct question of whether or when
 plaintiff recovered from the harm inflicted by the accident.  See Largess v.
 Tatem, 130 Vt. 271, 278-79, 291 A.2d 398, 403 (1972) (sufficient expert
 testimony required for jury to answer scientific or technical questions of
 fact).
      This is not an instance where the jury had to resort to the sort of
 pure speculation disapproved by this Court in Howley v. Kantor, 105 Vt. 128,
 133-34, 163 A. 628, 631 (1933).  The record reveals that the parties' expert
 witnesses presented the jury with sharply conflicting testimony regarding
 the cause of plaintiff's disability.  It is the province of the jury to
 decide on which evidence it will rely in awarding damages.  "The weight of
 the evidence and the witnesses' credibility are for the jury, and, on
 appeal, all conflicts are to be resolved against the excepting party."
 Brunelle v. Coffey, 128 Vt. 367, 373, 264 A.2d 782, 785 (1970).
      Plaintiffs must show that an error in instructing the jury produced
 prejudice.  Silva v. Stevens, 156 Vt. 94, 108, 589 A.2d 852, 860 (1991).
 Where there are multiple theories that could support the jury's action, it
 is appellant's responsibility to demonstrate either that all theories are
 erroneous or that the jury relied on the erroneous theory.  Contractor's
 Crane Serv. v. Vermont Whey Abatement Auth., 147 Vt. 441, 446, 519 A.2d 1166, 1171 (1986).  Here, the record supports the conclusion that the jury
 relied on the correct theory, not the theory plaintiffs argue is erroneous.
                                     B.
      Plaintiffs' second ground for a new trial on damages is that the jury
 damage award was grossly inadequate.  In considering this question, we must
 consider the evidence "in an aspect favorable to the amount of damage found
 by the jury and approved by the trial court."  Quesnel v. Raleigh, 128 Vt.
 95, 97, 258 A.2d 840, 842 (1969).  We need only determine "whether the jury
 could reasonably have found its verdict for damages on the evidence before
 it."  Brunelle v. Coffey, 128 Vt. at 370, 264 A.2d  at 784.  "[F]irst the
 jury, and then the court ruling on a motion to set aside have the liberty
 of broad discretionary judgment."  Kerr v. Rollins, 128 Vt. 507, 510, 266 A.2d 804, 806 (1970).   Further, "'we will not interfere [with the award]
 unless it appears that the jury's determination is so small that it plainly
 indicates the award was the product of prejudice or other misguidance which
 undermines its validity as a verdict.'"  Fournier v. Estate of Loiselle, 132
 Vt. 601, 602, 326 A.2d 155, 156 (1974)(quoting Quesnel v. Raleigh, 128 Vt.
 at 100, 258 A.2d at 843).
      The jury had reasonable grounds for calculating the amount of damages
 it awarded.  Although the total amount is far below that which plaintiffs
 requested, the award is "the result of seriously conflicting testimony as to
 the extent of the plaintiff's damages," where the jury chose to believe
 defendants' evidence.  Id. at 603, 326 A.2d  at 156-57.  There is no evidence
 of improper compromise.  The court did not err in denying plaintiffs' motion
 for a new trial on damages.
                                    III.
      Plaintiffs also allege error in the trial court's grant of defendants'
 motion for judgment notwithstanding the verdict on Patricia Lorrain's loss-
 of-consortium claim.  This issue arises because Derek Lorrain was entitled
 to receive workers' compensation from the carrier for Derek Lorrain Carpet
 Installers, Inc. (FN2) As a result, two statutes apply that bear on plaintiffs'
 right to sue defendants.
      The first is 21 V.S.A. { 622, the exclusive remedy provision of the
 workers' compensation statute:
             The rights and remedies granted by the provisions of
           this chapter to an employee on account of a personal
           injury for which he is entitled to compensation under
           the provisions of this chapter shall exclude all other
           rights and remedies of such employee, his personal
           representatives, dependents or next of kin, at common
           law or otherwise on account of such injury.
 If this were the only relevant statute, neither plaintiff could sue because
 the availability of workers' compensation would cut off all other remedies
 of the "employee [and] . . . dependents or next of kin."  The exclusivity
 provision, however, is tempered by { 624(a), which states, in part:
             Where the injury for which compensation is payable
           under the provisions of this chapter was caused under
           circumstances creating a legal liability in some person
           other than the employer . . . the acceptance of
           compensation benefits . . . shall not act as an election
           of remedies, but the injured employee or his personal
           representative may also proceed to enforce the liability
           of such third party for damages . . . .
 21 V.S.A. { 624(a).  The import of this section is that the exclusivity
 provision bars the employee's tort recovery only with respect to claims
 against the employer.  See Dubie v. Cass-Warner Corp., 125 Vt. 476, 478, 218 A.2d 694, 696 (1966).
      The anomaly involved in this case arises from the drafting of {{ 622
 and 624(a) with respect to a spouse's claim.  This Court has stated that {
 622 applies to the spouse of an injured worker and bars the spouse's loss of
 consortium claim where the injured worker is entitled to compensation.
 Derosia v. Book Press, Inc., 148 Vt. 217, 221, 531 A.2d 905, 908 (1987).
 Further, we stated that because a spouse who brings a loss-of-consortium
 claim is neither the employee nor, for the purposes of that claim, the
 employee's personal representative, { 624(a) provides no exception to the {
 622 statutory bar that would allow a spouse to maintain the action against
 third parties.  Id. at 222, 531 A.2d  at 909.  Putting these conclusions
 together, we held:
      Plaintiff is not within the class of parties to which the
      legislature extended the right to enforce the liability of third-
      party tortfeasors.  Even though the express language of the
      statute, allowing third-party actions to be brought by only the
      injured employee or his personal representative, may be to some
      degree inconsistent with the broad underlying purpose of third-
      party actions, it is not our prerogative to correct this apparent
      internal inconsistency in the statutory scheme.  The express
      language of { 624(a) does not, as currently written, allow a loss
      of consortium claim by the spouse of an injured employee against a
      third party.

 Id., 531 A.2d  at 908-09 (footnote omitted).  Because the plaintiff failed to
 preserve the argument, we declined to consider her claim that the statutory
 bar violates the remedy guarantee of Chapter I, Article 4 of the Vermont
 Constitution.  In this case, plaintiff Patricia Lorrain made that claim
 below and renews it here, along with a claim that the distinctions created
 by the statutory language are irrational.
      Plaintiff's claim is properly, and most easily, resolved under her
 alternative argument, and therefore we do not reach the issue of whether the
 barrier to recovery of loss-of-consortium is consistent with Article 4.
 Plaintiff argues that the statutory scheme allowing an injured employee who
 receives workers' compensation to sue a third-party tortfeasor while denying
 the same right to the employee's spouse is irrational.  Plaintiff bases this
 claim on Sienkiewycz v. Dressell, 151 Vt. 421, 561 A.2d 415 (1989) and the
 familiar equal protection analysis contained therein.  In Sienkiewycz, the
 plaintiff challenged the application of the exclusivity bar to a defendant
 who was both the employer and a co-worker.  The challenge was premised on
 our holding in an earlier case that an employee can sue a co-employee who is
 also a corporate owner or officer.  See Steele v. Eaton, 130 Vt. 1, 4, 285 A.2d 749, 751 (1971).  The plaintiff argued that barring a suit against a
 sole proprietor, who is also a co-worker, is discriminatory.  We stated that
 the distinction between the rights of corporate and non-corporate employees
 is valid if there is a "rational relation between the classification and a
 legitimate governmental interest."  Sienkiewycz, 151 Vt. at 424, 561 A.2d  at
 417.  We went on to hold that the distinction is constitutional because it
 rationally furthers the purpose of providing an expeditious workers'
 compensation remedy for all employees.  Plaintiff in this case argues that
 the discrimination that denies her a remedy cannot meet the rational
 relationship test of Sienkiewycz.
      The test applied in Sienkiewycz is grounded in the common benefits
 clause of Article 7, and applies when no fundamental right or suspect class
 is involved.  See Venman v. Patrissi, 156 Vt. 257, 259, 590 A.2d 897, 899
 (1991); Choquette v. Perrault, 153 Vt. 45, 52, 569 A.2d 455, 459 (1989).
 Under Article 7, the test is "whether the law is reasonably related to the
 promotion of a valid public purpose."  Choquette, 153 Vt. at 52, 569 A.2d  at
 459.  The test is the same under the Equal Protection Clause of the
 Fourteenth Amendment to the United States Constitution.  See Oxx v. Vermont
 Dep't of Taxes, ___ Vt. ___, ___, 618 A.2d 1321, 1324 (1992).
      In essence, plaintiff is arguing that it is irrational to allow an
 injured worker to recover from a third-party tortfeasor but to deny the
 spouse loss-of-consortium damages from that same party.  A woman has a right
 to recover for loss of consortium against a tortfeasor who injures her
 spouse.  Whitney v. Fisher, 138 Vt. 468, 472, 417 A.2d 934, 936 (1980); see
 also 12 V.S.A. { 5431 ("action for loss of consortium may be brought by
 either spouse").  Apparently, the only exception to this right is in the
 circumstances present here.  Thus, the overall rule created by the statutory
 scheme is that a worker's spouse has a right to recover for loss of
 consortium unless the injured employee is also entitled to workers'
 compensation as a result of the accident.  Plaintiff challenges the
 distinction between her situation and that of a spouse who may sue a
 tortfeasor for loss of consortium because the injured employee does not
 receive worker's compensation.
      Defendants support their claim that the statutory scheme is rational
 by defending the individual parts.  They point out that some courts have
 applied the exclusive remedy provisions to claims against co-employees, and
 conclude from this that the provisions may apply to third parties.  They
 also point to cases upholding the application of exclusivity provisions to
 spouses' loss-of-consortium claims brought against employers.  Defendants
 essentially argue that these lines of decision, taken together, demonstrate
 that it is rational to deny plaintiff the right to recover loss of
 consortium against a third-party tortfeasor.  This approach to the question,
 however, ignores the rationale behind the decisions on which defendants'
 rely as well as the factual distinctions between those decisions and the
 present case.  Further, it fails to present any legitimate public purpose
 for the resultant discrimination.
      The first line of cases cited by defendants concerns an exception to
 the general rule that an employee may recover against a third-party
 tortfeasor, even though the employee is also entitled to workers'
 compensation.  While this general rule is recognized in every state, some
 states have developed a limited exception that bars such recovery against a
 co-employee.(FN3) See 2A A. Larson, The Law of Workmen's Compensation {{ 71.00,
 72.21 (1992).  As may be seen from the disagreement on this issue, there are
 a number of reasons both for and against recognizing this exception.  None
 of the reasons provided by courts that have adopted it, however, support
 defendants' position.
      As Larson points out, the exception may be seen as a corollary to the
 quid pro quo that underlies workers' compensation law: the employee gives up
 the right to sue the employer in tort in return for which the employer
 assumes strict liability and the obligation to provide a speedy and certain
 remedy.  Id. { 72.22.  The corollary is that employees have a similar quid
 pro quo with each other: they give up the right to sue each other in return
 for immunity from suit and the speedy and certain remedy.  Further, one
 commentator has explained:
        [I]f co-employees were routinely subject to negligence claims by
      other co-employees, employers would be pressured to provide them
      with liability insurance.  Accordingly, the costs of subjecting
      co-employees to tort liability might well ultimately end up being
      borne by employers, not by way of vicarious liability, but by
      their employees' insistence upon employer-financed insurance
      against their individual liability.  This could indirectly subvert
      the employer's immunity.

 King, The Exclusiveness of an Employee's Workers' Compensation Remedy
 Against His Employer, 55 Tenn. L. Rev. 405, 436 (1988).  In addition,
 jurisdictions adopting this view often state that immunity from co-employee
 suits promotes peace and harmony between co-employees.  See Bazley v.
 Tortorich, 397 So. 2d 475, 484 (La. 1981).  Clearly, courts that recognize
 the distinction between co-employees and other third-parties base their
 approach on differences directly related to the public policies behind the
 workers' compensation laws.
      The second group of cases on which defendants rely upholds the
 application of exclusivity provisions to bar a spouse's loss of consortium
 claims where the injured employee also cannot sue because of the exclusive
 remedy provision.  These cases typically involve suits by the employee's
 spouse against the employer, see, e.g., Wright v. Action Vending Co., 544 P.2d 82, 86 (Alaska 1975), or parties protected by the employer's status,
 such as the worker's compensation insurance carrier.  The vast majority of
 courts have found that the application of exclusivity provisions to bar
 derivative claims by a spouse or dependents of the employee is
 constitutional.  See 2A A. Larson, supra { 66.23.  The obvious rationale is
 that it is reasonable to extend the tort immunity of the employer to
 dependents who normally will benefit from the workers' compensation received
 by the employee.
      The lines of case law cited by defendants do not support the denial of
 plaintiff's right to recover in the present case.  Even if this Court
 recognized the bar against co-worker lawsuits, defendants are not co-
 employees and have nothing to do with the employer-employee relationship.
 No public purpose is fostered by immunizing them from any part of their
 normal liability.  Further, there is no rational basis for allowing the
 injured party's tort claim while denying his spouse's loss-of- consortium
 claim.  Nothing in our workers' compensation law or policy justifies the
 arbitrary discrimination that is involved here.  The denial of loss-of-
 consortium damages to Patricia Ryan violated Chapter I, Article 7 of the
 Vermont Constitution.
      The denial of plaintiffs' motion for a new trial on the issue of
 damages is affirmed; the grant of defendants' motion for judgment
 notwithstanding the verdict on the loss-of-consortium claim is reversed; the
 verdict on the loss-of-consortium claim is reinstated.




                                              ___________________________
                                              Associate Justice



FN1.    Defendants have made no claim that they objected to the jury
 instructions.  Further, they failed to have the proceedings following the
 charge to the jury transcribed.  It is their burden to produce an adequate
 record to support their points on appeal.  See In re S.B.L., 150 Vt. 294,
 297, 553 A.2d 1078, 1081 (1988).  We will not assume there was an objection
 in the absence of a record demonstrating one.

FN2.    Derek Lorrain received compensation from Aetna Casualty and Surety
 Co., which entered an appearance pursuant to 21 V.S.A. { 624(a) seeking
 reimbursement for compensation paid as set forth in 21 V.S.A. { 624(e).

FN3.    Vermont is not one of these states.  See Libercent v. Aldrich, 149
 Vt. 76, 80, 539 A.2d 981, 983 (1987) (co-employee actions not barred).