Appeal from the District Court of Sheridan County The Honorable William J. Edelman, Judge
Representing Appellant: Bret F. King of King & King, LLC, Jackson, Wyoming.
Representing Appellees: Raymond W. Martin and Jane M. France of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming. Argument by Ms. France.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] Appellant Charley Collins appeals the order dismissing his claim for negligent infliction of emotional distress against his employer, COP Wyoming, LLC, and his co-employee, Roger Ross. Charley alleged he suffered emotional injuries after he witnessed the death of his son, Brett Collins,  who was also an employee of COP Wyoming, and whose death was covered by Wyoming worker's compensation. The district court found that the claims of the father were derivative of the covered death of the son and were therefore barred by worker's compensation immunity. Charley appeals and we reverse.
[¶2] Is the father's tort claim for negligent infliction of emotional distress barred by the Wyoming Worker's Compensation Act?
[¶3] Charley and his son, Brett, were both employed by Appellee COP Wyoming, LLC. Appellee Roger Ross was also employed by COP Wyoming, as the job superintendent and supervisor in charge of safety at the same job site. On August 20, 2012, Mr. Ross was operating a large track hoe excavator to excavate inside a trench box at the job site. Mr. Ross instructed Brett to enter the trench box and work there while Mr. Ross was operating the track hoe. Mr. Ross struck Brett in the head with the bucket of the track hoe, severely injuring him. Charley was notified, and he immediately came to the aid of his son and attempted to administer first aid. In spite of those efforts, Brett died. Brett's estate received worker's compensation benefits as a result of his death.Charley sued COP Wyoming and Mr. Ross, alleging they negligently inflicted emotional distress upon him.
[¶4] COP Wyoming and Mr. Ross filed a motion to dismiss, asserting that the suit against them was barred by the exclusive remedy provision of the Wyoming Worker's Compensation Act, Wyo. Stat. Ann. § 27-14-104(a). After a hearing, the district court granted the motion to dismiss, holding that Anderson v. Solvay Minerals, Inc., 3 P.3d 236 (Wyo. 2000) was controlling, and that the father's claim was barred because his injury was derivative of the son's covered death.
[¶5] Charley timely filed this appeal.
[¶6] When reviewing W.R.C.P. 12(b)(6) ...