IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48853
ROBERT WADE FULFER, )
)
Plaintiff-Appellant, ) Boise, May 2022 Term
)
v. ) Opinion filed: November 1, 2022
)
SORRENTO LACTALIS, INC., a Delaware ) Melanie Gagnepain, Clerk
corporation and a wholly-owned subsidiary of )
LACTALIS AMERICAN GROUP, INC., a )
Delaware corporation, )
)
Defendants-Respondents, )
)
and )
)
JOHN and JANE DOES, I through X, whose )
true identities are presently unknown, )
)
Defendants. )
Appeal from the District Court of the Third Judicial District of the State of
Idaho, Canyon County. Andrea Courtney, District Judge.
The judgment of the district court is reversed and remanded.
Johnson & Monteleone, Boise, for Appellant. Jacob Bottari argued.
Eberle, Berlin, Kading, Turnbow & McKlveen, Boise, for Respondent. Bradley
Vandendries argued.
_______________________________________________
MOELLER, Justice.
Robert Fulfer, a truck driver making a milk delivery, exited his truck and stepped down
into a nine-inch-deep pothole, resulting in serious personal injuries. He was working for Ruan
Logistics Corporation (“RLC”), which was contracted as a transportation and cargo-hauling
provider by Sorrento Lactalis, Inc. (“SLI”). SLI provided a designated on-site parking area for
drivers like Fulfer to pick up and drop off their loads.
1
Fulfer filed a personal injury action against SLI seeking damages based on premises
liability and negligence. SLI moved to dismiss pursuant to Idaho Rules of Civil Procedure 12(b)(6)
and 12(c), arguing that it was immune from a tort action because it was a statutory employer of
Fulfer, meaning that Idaho’s Workers’ Compensation laws provided Fulfer’s exclusive remedy. In
response, Fulfer argued that an exception to the exclusive remedy rule applied. That exception
allows an action in tort when an employer, statutory or otherwise, consciously disregards
knowledge of a hazardous situation, which amounts to willful or unprovoked physical aggression.
The district court determined Fulfer’s complaint failed to state a claim upon which relief could be
granted because he (1) failed to comply with Idaho’s notice pleading requirements by not
addressing statutory employer immunity, and (2) failed to allege specific facts required for
establishing an exception to the exclusive remedy rule based on this Court’s decision in Gomez v.
Crookham Co., 166 Idaho 249, 457 P.3d 901, 904 (2020), which was controlling at the time. 1
Accordingly, the district court dismissed Fulfer’s complaint without prejudice and later denied
Fulfer’s motion to reconsider and for leave to file a second amended complaint. Fulfer appealed.
For the reasons set forth below, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Robert Fulfer is a truck driver employed by RLC. RLC is a transportation and cargo-
hauling provider for SLI, a Delaware corporation. SLI is a wholly owned subsidiary of Lactalis
American Group, Inc., also a Delaware corporation.
On April 21, 2018, at approximately 11:30 p.m., Fulfer arrived at SLI’s facility in Nampa,
Idaho, to deliver milk. Fulfer parked his truck in the parking area designated by SLI for the drivers
of providers, like RLC, to pick up or drop off their loads. When Fulfer exited his truck, his right
foot unexpectedly stepped down into a nine-inch-deep pothole, causing him to lose his balance,
hyperextend portions of his body, and suffer serious personal injuries. Fulfer alleges he suffered
“a right arm bicep tear and injury to his right arm rotator cuff, both of which required surgery,
injuries to his left thumb, low back, and right hip, … [the] back injury also required surgical repair,
1
Following our decision in Gomez, the Idaho Legislature amended Idaho Code section 72-209(3) in 2020. Gomez
interpreted the phrase “unprovoked physical aggression of the employer,” which was not defined in the prior version
of the statute. The current version of section 72-209(3) now defines an act of “unprovoked physical aggression of the
employer,” as “include[ing] clear and convincing evidence the employer, its officers, agents, servants, or employees
either specifically intended to harm the employee or engaged in conduct knowing that injury or death to the employee
was substantially likely to occur.” 2020 Idaho Laws Ch. 208 (S.B. 1321). Thus, although Gomez was the standard
applied in this case, it is no longer controlling for cases arising after June 30, 2020.
2
[and caused] physical and mental pain and suffering, loss of the enjoyment of life, emotional
distress, and the impairment of faculties and physical function.”
On April 10, 2020, Fulfer filed a complaint against SLI, alleging tort theories of premises
liability and negligence. SLI filed a motion for judgment on the pleadings pursuant to Idaho Rule
of Civil Procedure 12(b)(6) and a motion to dismiss the complaint pursuant to Rule 12(c). SLI
argued that the complaint should be dismissed as a matter of law because SLI was Fulfer’s statutory
employer under Idaho’s Workers’ Compensation laws and was, therefore, immune from the tort
claims. SLI claimed that under Idaho Code section 72-211, the exclusive remedy for an employee
for injuries arising in the course of employment is provided under Idaho’s Workers’ Compensation
laws. Fulfer opposed the motion, arguing that Fulfer met the requirements of the exception to the
exclusive remedy for “willful or unprovoked physical aggression.” In reply, SLI argued that a
motion to dismiss looks only at the pleadings and that Fulfer’s complaint failed to state a claim
upon which relief could be granted.
At the hearing on the motion to dismiss, the district court requested supplemental briefing
on two issues:
1) Whether the physical aggression exception to the Worker’s [sic] Compensation
exclusive remedy rule, as restated in Gomez v. Crookham Co., 457 P.3d 901 (Idaho
2020), extends beyond direct employers to statutory employers such as [SLI]; and
2) [w]hether [Fulfer’s] use of the words “careless, negligent, and/or reckless
manner” in Paragraph 16 of the Complaint satisfies the “conscious disregard of
knowledge that injury would occur” standard as restated in Gomez.
SLI filed a supplemental memorandum arguing that the exception for willful or unprovoked acts
of physical aggression did not apply to statutory employers because, unlike direct employers,
statutory employers lack control or direction over the actions of an employee. SLI also argued that
the complaint was not sufficient to allege application of the exception because the complaint did
not include the words “willful and wanton” or “gross negligence.” Fulfer responded by noting that
the Idaho Rules of Civil Procedure only require a short and plain statement of the claim—enough
to notify the other party of the claims against it. Fulfer argued that he was not required to
specifically address a potential affirmative defense, like the applicability of the statutory employer
exclusion, in the complaint. Fulfer additionally argued that neither Gomez nor the Idaho Code
restrict application of the exception to the exclusive remedy rule to only direct employers. In
response, SLI argued that the pleading standard was irrelevant because the motion to dismiss only
3
asked the court to determine whether Fulfer’s claims of premises liability and negligence were
actionable against SLI.
Following supplemental briefing, the district court took up the motion for judgment on the
pleadings and motion to dismiss on September 18, 2020. Following the hearing, but before the
district court issued its decision, Fulfer moved to amend his complaint. Attached to the motion
was a draft first amended complaint, which included additional language alleging that SLI knew
of the dangerous condition of the designated parking lot and “acted in a careless, reckless, wanton,
and grossly negligent manner.” The proposed first amended complaint stated that SLI’s actions
qualified for the willful physical aggression exception to the statutory employer rule. On October
16, 2020, the district court issued an oral decision granting Fulfer’s motion to amend the complaint
and allowed SLI the opportunity to renew the motion to dismiss. The district court deferred ruling
on whether to grant or deny the motion for judgment on the pleadings and motion to dismiss
inasmuch as it had just granted Fulfer’s motion to amend. 2
After Fulfer filed an amended complaint, SLI filed a second motion for judgment on the
pleadings and motion to dismiss the amended complaint. SLI again argued that because SLI is a
statutory employer of Fulfer without control over Fulfer’s actions on the job, SLI is immune from
Fulfer’s tort claims. Fulfer opposed the motion, arguing that judgment on the pleadings was
improper because SLI had not yet filed an answer and whether SLI had control over Fulfer was an
issue of fact not yet raised by the pleadings. SLI replied, arguing that Fulfer failed to meet his
burden of proof that the exception applies because he did not plead any facts or theories that SLI
specifically engaged in conduct knowing that injury to Fulfer was substantially likely to occur.
At the conclusion of the hearing on the pending motions on December 18, 2020, the district
court issued an oral ruling. The court concluded that Fulfer’s amended complaint “does not meet
the high bar of pleading any facts related to willful or unprovoked physical aggression on the part
of [SLI].” Accordingly, the district court dismissed Fulfer’s first amended complaint without
prejudice for failure to state a claim upon which relief could be granted pursuant to Idaho Rule of
2
Later, at the hearing for the second motion to dismiss on December 18, 2020, the district court stated that the first
motion to dismiss had been granted orally at the hearing on October 16th on 12(b)(6) grounds. Counsel stated that
they had both missed that. Notably, the district court’s statement that the motion was granted is not supported by the
transcript of the October 16 hearing. At that hearing, the district court explicitly stated it was choosing not to rule on
the motion to dismiss because the motion to amend the complaint was being granted.
4
Civil Procedure 12(b)(6). 3 On December 22, 2020, the district court issued a judgment dismissing
Fulfer’s first amended complaint without prejudice.
Fulfer then moved the district court to reconsider its order dismissing his first amended
complaint, to set aside or alter the judgment, or, to grant him leave to file a second amended
complaint. Fulfer argued that “1) [the district court] prematurely ruled on the merits of this case,
2) all reasonable inferences were not drawn in [his] favor [], 3) [he] properly stated a claim for
relief, and 4) [he] is not required to plead facts that negate the affirmative defense of the Exclusive
Remedy Rule.” SLI opposed the motion, arguing that dismissal was correct and granting leave to
file a second amended complaint would be procedurally incorrect since the claim had been
dismissed. Following a subsequent hearing, the district court denied Fulfer’s motion to reconsider
and his request for leave to file the second amended complaint. The district court determined the
first amended complaint’s “broad strokes sounding in negligence [were] insufficient to trigger the
exclusivity exception. . . .” Fulfer timely appealed, asserting three categories of error: the District
Court erred in (1) dismissing the First Amended Complaint Pursuant to Rule 12(b)(6) for failure
to plead around an affirmative defense; (2) determining that Fulfer could not satisfy the elements
set forth in Gomez by looking solely to the language of the First Amended Complaint; and (3)
denying his subsequent motions for relief.
II. STANDARDS OF REVIEW
A district court’s dismissal of a complaint pursuant to Idaho Rule of Civil Procedure
12(b)(6) is reviewed de novo. Paslay v. A&B Irrigation Dist., 162 Idaho 866, 868, 406 P.3d 878,
880 (2017). “In reviewing the district court’s order granting the motion to dismiss, the standard of
review is the same as that used in summary judgment.” McCabe v. Craven, 145 Idaho 954, 956,
188 P.3d 896, 898 (2008).
A 12(b)(6) motion looks only at the pleadings to determine whether a claim for
relief has been stated. On review of a dismissal, this Court determines whether the
non-movant has alleged sufficient facts in support of his claim, which if true, would
entitle him to relief. In doing so, the Court draws all reasonable inferences in favor
of the non-moving party.
Hammer v. Ribi, 162 Idaho 570, 572, 401 P.3d 148, 150 (2017) (internal quotations and citations
omitted).
3
The district court later explained that it “did not rule on the motion for judgment on the pleadings [Rule 12(c)], as
the pleadings were still technically open because Defendant did not file an Answer.”
5
III. ANALYSIS
A. The district court erred in dismissing Fulfer’s first amended complaint pursuant to Idaho
Rule of Civil Procedure 12(b)(6) because it satisfies Idaho’s pleading requirements.
1. Fulfer did not need to “plead around” an unpled affirmative defense.
The district court dismissed Fulfer’s first amended complaint after finding “[t]here is
simply not enough alleged within the amended complaint at this point to show that the exception
[to statutory employer immunity and the exclusive remedy rule] would apply.” Fulfer argues that
the district court erred when it dismissed his first amended complaint because the first amended
complaint satisfied Idaho’s pleading requirement. Fulfer suggests that because “Idaho is a notice
pleading state,” he “is not required to plead an exception to an affirmative defense” in his
complaint.
Idaho Rule of Civil Procedure 8(a) sets forth the controlling pleading requirements: “A
pleading that states a claim for relief must contain: . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief. . . .” We have explained that the focus of this standard
is to provide notice to the opposing party of the claims presented, rather than a detailed legal
analysis:
Under the Idaho Rules of Civil Procedure for pleadings, “[e]ach allegation must be
simple, concise, and direct. No technical form is required.” I.R.C.P. 8(d)(1). These
rules comport with Idaho’s notice-pleading requirement, which requires a pleading
to put the adverse party “on notice of the claims brought against it.” Hodge for &
on behalf of Welch v. Waggoner, 164 Idaho 89, 96, 425 P.3d 1232, 1239 (2018)
(citation omitted). Accordingly, notice pleading requires the complaint to provide
“some indication” of the basis for relief, but not always an exact statutory basis or
formal cause of action. Brown v. City of Pocatello, 148 Idaho 802, 807, 229 P.3d
1164, 1169 (2010).
Noell Industries, Inc. v. Idaho State Tax Comm’n, 167 Idaho 367, 371, 470 P.3d 1176, 1180 (2020).
“The key issue in determining the validity of a complaint is whether the adverse party is put on
notice of the claims brought against it.” Gibson v. Ada Cnty. Sheriff’s Dep’t, 139 Idaho 5, 9, 72
P.3d 845, 849 (2003). “Courts should ‘make every intendment to sustain’ a complaint that contains
a ‘concise statement of the facts constituting the cause of action and a demand for relief.’ ” Carrillo
v. Boise Tire. Co., Inc., 152 Idaho 741, 752, 274 P.3d 1256, 1267 (2012) (quoting Gibson, 139
Idaho at 9, 72 P.3d at 849).
Of course, there are some exceptions when “heightened pleading requirements are imposed
by rule or statute.” Id.; see, e.g., I.R.C.P. 9(b) (“In alleging fraud or mistake, or a violation of civil
6
or constitutional rights, a party must state with particularity the circumstances constituting the
fraud or mistake or the violation of civil or constitutional rights.”). However, SLI cannot point to
any requirement within Idaho’s Workers’ Compensation laws or the Idaho Rules of Civil
Procedure stating that a higher level of pleading must be satisfied in cases like this. Thus, since
Fulfer’s complaint is governed by Rule 8, it should not be held to a heightened pleading standard.
Fulfer’s first amended complaint contains short and plain statements putting SLI on notice
of the claims against it. However, SLI argues that this is not enough because, as a statutory
employer, it is protected by the exclusive remedy rule. Therefore, SLI argues that the first amended
complaint is insufficient because it failed to allege why Fulfer was entitled to relief under the
exception to the exclusive remedy rule. In response, Fulfer argues that he is not required to plead
around the affirmative defense of statutory employer immunity, especially where SLI has not yet
even formally asserted the defense in an answer.
Idaho Rule of Civil Procedure 8(c) states “In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense.” It then contains a list of 19 affirmative
defenses. This Court has “made it clear that Rule 8(c)’s list is not intended to be exhaustive.”
Kenworth Sales Co. v. Skinner Trucking, Inc., 165 Idaho 938, 943, 454 P.3d 580, 585 (2019).
“Statutory employer immunity is an affirmative defense. Like other affirmative defenses, if not
properly raised it may be waived.” Krinitt v. Idaho Dep’t of Fish & Game, 162 Idaho 425, 429,
398 P.3d 158, 162 (2017). However, “[w]hile it is true a plaintiff is not required to plead around
affirmative defenses, ‘a complaint is subject to dismissal under Rule 12(b)(6) when an affirmative
defense appears on the face of the complaint itself.’ ” Dickinson Frozen Foods, Inc. v. J.R. Simplot
Co., 164 Idaho 669, 680, 434 P.3d 1275, 1286 (2019).
In Dickinson Frozen Foods, J.R. Simplot (“Simplot”) commenced a legal action in
Washington, which allegedly contained defamatory statements against Dickinson Frozen Foods
(DFF), even though DFF was not party to the litigation. Id. at 673, 434 P.3d at 1279. Simplot
sought dismissal of the defamation suit, arguing that the statements were protected by the litigation
privilege. Id. The litigation privilege is a low bar, requiring only that two requirements be satisfied:
“(1) ‘the defamatory statement was made in the course of a proceeding’ and (2) it ‘had a reasonable
relation to the cause of action of that proceeding . . . .’ ” Id. at 678, 434 P.3d at 1284 (quoting Weitz
v. Green, 148 Idaho 851, 862, 230 P.3d 743, 754 (2010)). The parties conceded that the statements
were made in the course of a proceeding. Id. Although Simplot had not filed an answer and had
7
only raised the defense in the 12(b)(6) motion, this Court affirmed the district court’s granting of
the motion for dismissal because the complaint contained quotes from the Washington complaint
sufficient for the district court to determine that those statements had a reasonable relation to the
cause of action of that proceeding. Id. at 680, 434 P.3d at 1286.
Unlike Dickinson, resolution of this case would require us to look beyond the four-corners
of the complaint because the nature of the business relationships between the parties are not fully
explained. While these facts may ultimately become necessary for resolution of this case—if SLI
files an answer asserting an affirmative defense to the complaint—Idaho’s notice pleading rules
did not require Fulfer to anticipate and fully address every possible affirmative defense when he
filed his complaint. Thus, to establish a basis for SLI’s unpled affirmative defense, additional
evidence beyond the complaint itself is needed. As with many cases, this may require discovery to
fully flesh out the facts before they can be properly addressed in a Rule 56 motion for summary
judgment, rather than through a Rule 12(b)(6) motion for failure to state a claim upon which relief
may be granted or a Rule 12(c) motion for judgment on the pleadings.
This Court has held that “[t]he corollary to the standard governing a district court’s decision
on a 12(b)(6) motion is this: a complaint is not subject to dismissal simply because it does not
negate an affirmative defense.” Hammer, 162 Idaho at 574–75, 401 P.3d at 152–52. 4 We have
further held that “a judge, in determining the sufficiency of a complaint accompanying a petition
to intervene, shall not reject the petition on the ground that the complaint appears to allege a claim
barred by the statute of limitations.” Duff v. Draper, 96 Idaho 299, 305, 527 P.2d 1257, 1263
(1974). This Court in Duff explained its reasoning:
First, Rule 8(c), I.R.C.P., provides that the statute of limitations is an affirmative
defense which must be asserted in a responsive pleading to the original claim. This
in effect says that no complaint can be dismissed under a Rule 12(b)(6) motion for
failure to state a claim merely because it does not negate any possible statute of
limitations defenses. . . . Secondly, there are a number of possible ways in which
the statute of limitations may have been tolled and thus the petitioner is entitled to
pursue his claim against the defendants. . . .
4
Sorrento tries to distinguish Hammer from this case, claiming that Fulfer’s reliance on Hammer is “misguided”
because “the Idaho Supreme Court relied on the fact that the plaintiff in Hammer did in fact plead around the
affirmative defense.” (Emphasis in original). However, Sorrento improperly relies on a footnote in which this Court
stated: “[e]ven if a plaintiff were required to anticipate and negate affirmative defenses in her complaint, Hammer’s
complaint would have satisfied the more rigorous standard.” The remainder of the footnote explains how Hammer’s
complaint did in fact plead around the affirmative defense. This discussion, however, is dicta and was not the basis
for this Court’s holding.
8
Id. at 305–06, 527 P.2d at 1263–64 (emphasis added); see also Dumas v. Ropp, 98 Idaho 61, 558
P.2d 632 (1977) (Bakes, J., concurring) (“One wonders how the pleading philosophy behind those
simple statements of a claim for relief . . . could ever be interpreted to require the plaintiff to negate
the defense of statute of limitations in his complaint.”)
Mindful of such authority, SLI attempts to distinguish this case in three ways: (1) since the
facts alleged in Fulfer’s complaint prove SLI is a statutory employer, he is required to plead around
the defense of statutory employer immunity; (2) SLI met the requirement to raise the affirmative
defense by asserting it in the Rule 12(b)(6) motions; and (3) Fulfer has never challenged SLI’s
claim that it is a statutory employer. SLI is correct that Fulfer has not disputed that SLI is a statutory
employer. However, Duff and Hammer make clear that Fulfer’s complaint is not required to plead
around the affirmative defense of statutory employer immunity, even if it could be anticipated that
it might be asserted. Duff states that affirmative defenses can only be asserted in a responsive
pleading. Duff, 96 Idaho at 305, 527 P.2d at 1363. Under Idaho Rule of Civil Procedure Rule 7(a),
the only pleadings allowed are a complaint, an answer to a complaint, an answer to a counterclaim,
an answer to a cross claim, a third party complaint, an answer to a third party complaint, and a
reply to an answer if the court orders one. A motion to dismiss is not among these listed pleadings.
Likewise, Idaho Rule of Civil Procedure 12(b) sets forth a list of eight exclusive defenses that may
be raised in a motion rather than a responsive pleading—statutory employer immunity is not listed
among those eight. Therefore, before the district court can consider whether Fulfer has properly
asserted a colorable claim for tort liability against its statutory employer, SLI is required to first
raise its affirmative defense in an answer. Once that occurs, either a motion for judgment on the
pleadings can be considered under Rule 12(c) or a summary judgment motion can be brought under
Rule 56.
Because Fulfer is not required to plead around an unpled affirmative defense, and the
affirmative defense asserted by SLI cannot be established on the face of the complaint alone, we
conclude that the district court erred in dismissing Fulfer’s case pursuant to Rule 12(b)(6).
2. Since Fulfer did not need to plead around an unpled affirmative defense, we need not
address whether the specific facts, as alleged in his First Amended Complaint, adequately
state a claim under Gomez.
We will next briefly address the second basis for the district court’s dismissal: that Fulfer’s
complaint failed to allege specific facts demonstrating that the exception to the exclusive remedy
rule applied. Inasmuch as we have held that Fulfer did not need to plead around an affirmative
9
defense that had not yet been formally plead by SLI, it was unnecessary for Fulfer to allege facts
required by Gomez for establishing an exception to the exclusive remedy rule. Accordingly, we
will not address that basis for the district court’s decision. This is a matter that may be revisited on
remand, if SLI properly pleads such an affirmative defense and then seeks summary judgment on
that basis.
B. The exception to the exclusive remedy rule contained in Idaho Code section 72-209(3)
applies to direct and statutory employers.
In its briefing and at oral argument, SLI raises an additional issue of first impression for
this Court: does the exception to the exclusive remedy rule contained in Idaho Code section 72-
209(3) also apply to statutory employers? As a preliminary matter, although we have already
determined to remand this case, we will nonetheless take up the question at this time. We conclude
that addressing this issue now will promote the orderly and timely administration of justice.
Leaving it as an open issue on remand would essentially invite a second appeal and unacceptably
delay final resolution of this matter. Because of the posture of this case, this question was not
answered by the district court below. We commonly answer questions of law presented in an initial
appeal if it appears it will aid the trial court upon remand.
Addressing the question, we first note that Idaho’s Workers’ Compensation laws provide
the exclusive remedy for employees against their employer for an injury arising from and in the
course of employment:
Subject to the provisions of [Idaho Code] section 72-223, the rights and
remedies herein granted to an employee on account of an injury or occupational
disease for which he is entitled to compensation under this law shall exclude all
other rights and remedies of the employee, his personal representatives, dependents
or next of kin, at common law or otherwise, on account of such injury or disease.
I.C. § 72-211 (emphasis added). Idaho Code section 72-209(1) also explains that recourse under
Idaho’s Workers’ Compensation laws is the exclusive remedy: “[s]ubject to the provisions of
section 72-223, Idaho Code, the liability of the employer under this law shall be exclusive and in
place of all other liability of the employer to the employee, his spouse, dependents, heirs, legal
representatives or assigns.”
The exclusive remedy rule applies to statutory employers as well as direct employers. As
defined by current workers’ compensation laws, an employer means:
any person who has expressly or impliedly hired or contracted the services of
another. It includes contractors and subcontractors. It includes the owner or lessee
of premises, or other person who is virtually the proprietor or operator of the
10
business there carried on, but who, by reason of there being an independent
contractor or for any other reason, is not the direct employer of the workers there
employed.
I.C. § 72-102(12)(a) 5 (emphasis added). “The case law surrounding the definition of the term
‘employer’ is what the Court refers to as the statutory employer analysis.” Robison v. Bateman-
Hall, Inc., 139 Idaho 207, 210–11, 76 P.3d 951, 954–55 (2003). “[T]he concept of [a] statutory
employer ‘[is] designed to prevent an employer from avoiding liability under the workmen’s
compensation statutes by sub-contracting the work to others.’ ” Venters v. Sorrento Delaware,
Inc., 141 Idaho 245, 251, 108 P.3d 392, 398 (2005) (quoting Spencer v. Allpress Logging, Inc.,
134 Idaho 856, 860, 11 P.3d 475, 479 (2000)).
“The statutory definition of ‘employer,’ when read and applied in conjunction with I.C. §
72-216(1), makes a statutory employer liable for payment of worker’s compensation to an
employee of its contractor whenever a contractor is liable to its employee under the Worker’s [sic]
Compensation Laws.” Venters, 141 Idaho at 251, 108 P.3d at 398. In the case at bar, Fulfer was
employed as a truck driver by RLC, and RLC is a trucking company contracted to make deliveries
and pickups for SLI. Therefore, SLI is a statutory employer of Fulfer. See id. (holding that Sorrento
qualified as a statutory employer of Venters “simply because of its contractual relationship with
3-C Trucking,” the company which employed Venters). This conclusion is undisputed by Fulfer.
Therefore, as a statutory employer, SLI is liable for qualifying injuries under Idaho’s Workers’
Compensation laws but, as a result, also enjoys immunity from other tort claims related to an
employee’s injuries.
Notwithstanding the general protection from additional tort liability, there is an exception
to the exclusive remedy rule. The version of Idaho Code section 72-209(3) in effect at the time of
Fulfer’s injury explains this exception:
in any case where the injury or death is proximately caused by the wilful or
unprovoked physical aggression of the employer, its officers, agents, servants or
employees, the loss of such exemption applying only to the aggressor and shall not
be imputable to the employer unless provoked or authorized by the employer, or
the employer was a party thereto.
5
This definition was previously enumerated as Idaho Code section 72-102(13)(a) but was renumbered as of July 1,
2021. This definition has not changed in the meantime.
11
I.C. § 72-209(3) (emphasis added). 6 “The employee bears the burden of showing that the exception
applies.” Gomez, 166 Idaho at 256, 457 P.3d at 908. “[N]egligence—no matter how gross—is
insufficient to trigger the exclusivity exception under section 72-209(3).” Id. at 257-58, 457 P.3d
at 909-10 (quoting Marek v. Hecla, Ltd., 161 Idaho 211, 220, 384 P.3d 975, 984 (2016)).
As to the merits of the question SLI has raised, it argues that because a statutory employer
lacks the same level of control over an employee that a direct employer has, the exception to the
exclusive remedy rule contained in section 72-209(3) should not apply. SLI further argues:
“nothing in Gomez indicates that the physical aggression exception to the Exclusive Remedy Rule
extends beyond direct employers to [SLI].” We note that there is no statute, rule, or case that
explicitly states, or even implicitly suggests, that the exception only applies to direct employers.
By using the general term “employer” in section 72-209(3), the statutory scheme made no
distinction between types of employers in creating this exception to the exclusive remedy rule.
Importantly, when a tort claim is brought against a direct employer, the exception to the exclusive
remedy rule only applies in rare circumstances. This would also be true for a statutory employer.
However, while the definition of a direct employer is narrow, statutory employer status applies
under very expansive circumstances. I.C. § 72-102(12)(a). It would make no sense for the
legislature to, on the one hand, craft an exception intended to help employees who are the victims
of egregious acts, while on the other hand excluding a broadly defined category of employees who
would be benefited by the exception.
SLI offers no compelling reasons why only a statutory employer should be afforded
complete immunity when its “officers, agents, servants and employees” engage in “willful or
unprovoked physical aggression.” I.C. § 72-209(3). The short answer is it should not. As we noted
above, this would be inconsistent with our recognition that “the concept of [a] statutory employer
‘[is] designed to prevent an employer from avoiding liability under the workmen’s compensation
statutes by sub-contracting the work to others.’ ” Venters, 141 Idaho at 251, 108 P.3d at 398
6
As previously noted, Idaho Code section 72-209(3) was amended in 2020—two years after Fulfer sustained his
injuries. The amended version now states that the exclusive remedy rule does not apply “in any case where the injury
or death is proximately caused by the willful or unprovoked physical aggression of the employer, its officers, agents,
servants or employees, which physical aggression must include clear and convincing evidence the employer, its
officers, agents, servants, or employees either specifically intended to harm the employee or engaged in conduct
knowing that injury or death to the employee was substantially likely to occur. The loss of such exemption applies
only to the aggressor and shall not be imputable to the employer unless provoked or authorized by the employer or
the employer was a party thereto.” I.C. § 72-209(3) (2020).
12
(quoting Spencer, 134 Idaho at 860, 11 P.3d at 479). SLI's argument does not account for the
reasons the exception exists, nor does it analyze the purpose of extending workers’ compensation
protections to the employees of statutory employers (i.e., contractors and subcontractors).
Therefore, we conclude that since Idaho’s Workers’ Compensation laws essentially equate direct
employers with statutory employers, those laws should not be read to treat such relationships
disparately when it comes to exceptions to exclusive remedy rule. Accordingly, we hold that the
exception to the exclusive remedy rule found in section 72-209(3) applies equally to direct
employers and statutory employers.
IV. CONCLUSION
We reverse the district court’s decision to dismiss the first amended complaint pursuant to
Rule 12(b)(6) and remand the case for further proceedings. As the prevailing party, Fulfer is
entitled to costs as a matter of course pursuant to Idaho Appellate Rule 40(a).
Chief Justice BEVAN, Justices BRODY, STEGNER and ZAHN CONCUR.
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