(concurring in part, dissenting in part).
I agree with the majority that the intentional injury exception to the Workers’ Compensation Act does not apply under the alleged facts of this case. I take exception only to the majority’s conclusion that respondent’s act of incorporating his orthodontics business should allow him to be immune from tort suit under the common law because of application of the Act’s exclusive remedy provision as it applies to employers.
The majority states that “to deny respondent the protection of the exclusive liability provision because he chose to do business as a corporation would eviscerate the Workers’ Compensation Act.” To do otherwise would eviscerate appellant’s common law right to sue for damages in favor of upholding a legal fiction. Respondent’s act of incorporating his business has not altered the fundamental nature of his business, except to shield him from liability. But he now derives his income as an employee, not as a shareholder. Therefore, he has a dual status as employee and shareholder. Because employees may sue each other, respondent should not be immune from liability for his assault on appellant. Other states that have considered this question have ruled that an injured employee is not barred from initiating a tort action against a co-employee who is also a corporate officer. See, e.g., Barnette v. Doyle, 622 P.2d 1349, 1354-55 (Wyo. 1981) (workers’ compensation act “does not bar an injured employee from bringing an action against a coemployee who is also a corporate officer”); Crees v. Chiles, 437 N.W.2d 249, 252 (Ia.Ct.App.1988) (“legislature did not intend any person who may be determined an ‘alter ego’ of a corporate employer to be immune from suit for gross negligence by a co-employee”); see also 2 Arthur Larson, Larson’s Worker’s Compensation, 72.13 (2000) (“most courts have held that * * * status [as a corporate officer, director or shareholder] is not in itself a bar to liability as a coemployee, since the corporate entity is the employer”). I would reverse the district court’s grant of summary judgment on this issue.