concurring in part and dissenting in part, with whom ROONEY, Justice, joins.
I agree that the Hamlin estate lacks standing to sue the state because of the exclusive remedy provisions of the worker’s compensation law. Also, I agree that the Hamlin estate cannot seek relief from the state based on a third-party beneficiary theory between Befus and the state under § 1 — 39—104(b), W.S.1977, 1984 Cum.Supp., of the Governmental Claims Act.
I disagree with that portion of the majority opinion regarding the state’s obligation to indemnify Befus.
Stripped to its essentials, the majority holds in the Befus cross-claim against the state that his claim fails because it did not state a cause of action; and furthermore, that a motion to conform the pleadings to the evidence would not save the case because the evidence was insufficient. If the majority had stopped there I could concur in the result. In an apparent effort to breath vitality into the opinion and extend its normal life span the majority goes on and renders an advisory opinion, in effect writing a set of instructions on how to proceed in similar cases that may arise in the future.1
Imaginative people in the future may be able to show payment from a Befus to a Hamlin when in fact no payment was made. Creative courts may simply short-circuit the whole cumbersome process and create a fiction that Befus has' suffered damage when he has not. The small problem precluding Hamlin from recovery in this case can easily be solved in the future now that the majority has shown the way.2
I find myself in the peculiar situation of dissenting to dicta. I do this because with the passage of time the rule of law in a case and dicta become blurred and eventually indistinguishable. Quote dicta twice and it oft evolves into a rule of law.
The majority opinion addresses the issue of Hamlin being a third-party beneficiary of the statutory agreement between Befus and the state found in § l-39-104(b), and bases such theory in contract. The opinion concludes that Hamlin cannot assert such claim because she is not within the class of persons intended for protection under the indemnity provisions of the Wyoming Governmental Claims Act. I am not aware of, nor has any authority been cited, which states a third-party has standing as a contractual third-party beneficiary to enforce rights created by the statute in favor of another. One authority states:
“The general rule is that a statutory right of action may be maintained only against persons who are within the contemplation of the statute, and upon whom the duty prescribed by the statute is placed. * * * ” 73 Am.Jur.2d Statutes § 434, p. 531 (1974).
The purpose of the Governmental Claims Act is to indemnify “public employees against a tort claim or judgment arising out of an act or omission occurring within the scope of their duties.” § l-39-104(b). But where the judgment arises out of an action by a state employee against another state employee, it seems such indemnification should be barred by the exclusive pro*620visions of the Wyoming worker’s compensation law.
“ * * * As to all extra hazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries. * * * The right of each employee to compensation from such fund shall be in lieu of and, shall take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injuries or death.” (Emphasis added.) Article 10, § 4, Wyoming Constitution.
Section 27-12-103(a), W.S.1977 (June 1983 Replacement), also provides:
“The rights and remedies provided in this act [§§ 27-12-101 through 27-12-804] for an employee and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer making contributions required by this act * * *.” (Emphasis added.)
In this case, both Hamlin and Befus were employees of the state, and both received compensation under the Wyoming Worker’s Compensation Act through their dependent survivors. It seems, therefore, that under both Art. 10, § 4 of the Wyoming Constitution and § 27-12-103(a), the dependents of both Hamlin and Befus have no additional remedies against the state beyond the benefits received under worker’s compensation.
I believe that it was the intent of the legislature, in enacting the Governmental Claims Act, to render the State of Wyoming liable for certain torts of its employees in the case of a plaintiff who is not a state employee. I do not believe the legislature intended to create an additional cause of action in behalf of a state employee who is entitled to worker’s compensation benefits.
In Van Houten v. Ralls, 411 F.2d 940, 943 (9th Cir.1969), the court discussed the relationship between the Federal Employees’ Compensation Act (FECA), 5 U.S.C. (Supp. II) §§ 8101, et seq. (1967), and the Federal Drivers’ Act, 28 U.S.C. § 2679(b) through (e) (1964). The court said:
“ * * * The federal legislative objective in enacting the Federal Drivers Act while leaving the exclusivity provision of the FECA intact was apparently to protect federal drivers from personal liability by rendering the Government liable in tort, in the case of non-federal employee plaintiffs, and by rendering the Government liable only under the FECA in the case of federal employee plaintiffs.”
See also Noga v. United States, 411 F.2d 943 (9th Cir.1969).
In Pan American Petroleum Corporation v. Maddux Well Service, Wyo., 586 P.2d 1220, 1224 (1978), this court said:
“ * * * [T]he enactment of the Worker’s Compensation statutes resulted in a trade-off of rights and liabilities between the employer and employee. [Citations.] Third parties seeking indemnity, received no benefits and, therefore, should not be held to have impliedly given up any rights. [Citation.]”
While the holding in the Pan American Petroleum case recognizes the right to indemnity in certain circumstances, it does not support either Hamlin’s or Befus’ theory regarding a right to indemnity. The parties seeking indemnity in the Pan American case and those seeking indemnity here are different. Both Hamlin and Befus were employees of the State of Wyoming, and as a result of their deaths, each of their estates was entitled to and received worker’s compensation benefits. In Pan American, the party seeking indemnity was not a party entitled to worker’s compensation benefits, and therefore did not impliedly give up any rights to a common-law cause of action.
Appellants argue that the Governmental Claims Act, §§ 1-39-101, et seq., creates a *621cause of action against the state in favor of a state employee and his dependents. According to appellants, this claimed cause of action is in addition to the right to receive worker’s compensation. The express policy of the Governmental Claims Act does not support appellants’ theory. Section 1-39-102(a) states:
“The Wyoming legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity and is cognizant of the Wyoming supreme court decision of Oroz v. Board of County Commissioners, 575 P.2d 1155 (1978). It is further recognized that the state and its political subdivisions as trustees of public revenues are constituted to serve the inhabitants of the state of Wyoming and furnish certain services not available through private parties and, in the case of the state, state revenues may only be expended upon legislative appropriation. This act is adopted by the legislature to balance the respective equities between persons injured by governmental actions and the taxpayers of the state of Wyoming whose revenues are utilized by governmental entities on behalf of those taxpayers. * * * ”
Before the enactment of the Governmental Claims Act, nonstate employee plaintiffs had no cause of action for injuries caused by the negligence of a state employee or the state of Wyoming, but injured state employees had a right to receive worker’s compensation benefits from a fund to which the state contributes as an employer. The Governmental Claims Act was intended to provide the nonstate employee plaintiff with a remedy where none previously existed. The injured state employee is not in the same inequitable position as the injured nonstate employee. The injured state employee is entitled to receive worker’s compensation benefits as a result of injuries incurred or death.
I believe that the legislature intended to leave intact the exclusive provisions of the Worker’s Compensation Act, § 27-12-103(c), with respect to state employees, and to impose liability on the state for the nonstate employee under the Governmental Claims Act. The last section of the Governmental Claims Act supports this conclusion:
“The provisions of this act shall not affect any provision of law, regulation or agreement governing employer-employee relationships.” § 1-39-119, W.S.1977, 1984 Cum.Supp.
The legislature could not, by the Governmental Claims Act, create a right of action against the state in favor of a state employee or his dependents, who are entitled to receive compensation under the Worker’s Compensation Act, since Art. 10, § 4 of the Wyoming Constitution prohibits such a cause of action. Any language in the Governmental Claims Act that purports to create a cause of action in favor of a state employee or his dependents in addition to a claim for worker’s compensation must fail because of the constitutional bar.
The effect of the dicta in the majority opinion is that the state must pay twice in apparent derogation of the constitutional provision quoted above.3 Worker’s compensation is to be the sole remedy for wrongful death or injury and the only compensation an employer must pay. The majority opinion allows that to be done indirectly which cannot be done directly; i.e., holding the state liable for indemnification as well as worker’s compensation. Surely the legislature never intended such a result; it negates the effect and meaning of the exclusiveness of worker’s compensation on the part of the employer. Jackson v. Dravo Corporation, 603 F.2d 156 (10th Cir.1979).4
The majority opinion seems to say that worker’s compensation immunity is re-*622strieted solely to tort actions. Yet, no conclusive authority is cited for this conclusion. Conversely, Art. 10, § 4, Wyoming Constitution, says “ * * * [S]uch fund shall be in lieu of, and shall take the place of any and all rights of action against any employer * * (Emphasis added.)
The majority imposes liability on the state to indemnify Befus by virtue of a “statutory indemnity contract.” This concept sounds like a mutation or hybrid. To my knowledge a “statutory indemnity contract” has no legal basis. I do not feel the legislature in this state created such a concept. Even if there was such a concept, I seriously doubt the legislature ever meant it to apply to a situation such as this. Obviously the holding in this case has doubtful ramifications for future application. Furthermore, the “statutory indemnity contract” invented by the majority cannot be compared to an express or implied indemnity contract as discussed in Pan American Petroleum Corporation v. Maddux Well Service, supra.
In his dissent in the Pan American case, Justice Raper disagreed with allowing a third-party claim for indemnity from the employer, stating:
“The majority decision has rendered meaningless the concept of workmen’s compensation that ' “[i]n adopting the new system both employees and employers gave up something that they each might gain something else, and it was in the nature of a compromise; * * *.” ’ Stephenson v. Mitchell, ex rel. Workmen’s Compensation Department, Wyo.1977, 569 P.2d 95, quoting from Zancanelli v. Central Coal & Coke Company, 1918, 25 Wyo. 511, 173 P. 981. What they got was: ‘ * * * The right of each employee to compensation from such fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injuries or death,’ § 4, Art. X, Wyoming Constitution.
“But now, through the employment of an artful manipulation of words, misdirection of legal hypotheses and disregard for the clear language of the constitution, the employer does not have the insurance he has paid for. The employee now may indirectly, through use of a third party go-between, obtain an additional recovery from the employer he could not obtain directly. When that is the case, then as observed by the trial judge, ‘it appears the constitutional immunity is nearly at an end.’ ” Pan American Petroleum Corporation v. Maddux Well Service, supra, at 1226-1227.
For the reasons stated, I would affirm the district court’s disallowance of Befus’ claim for indemnification, as well as the Hamlin claims.
. In discussing what I believe to be the ramifications of the advisory portion of the majority opinion I will use the names of Hamlin and Befus to illustrate a future Hamlin-Befus relationship.
. I think the majority opinion should tell Befus in the beginning that he is not going to win his case. Reading the opinion, Befus will think he is winning until he gets to the bottom line.
. I am aware, of course, that § 27-12-104(a)(i), W.S.1977 (June 1983 Replacement), provides that if a worker or his estate collect from a third party there is a payback formula to the worker’s compensation fund. This payback is only partial, however, and an injured worker can still get tens of thousands of dollars from the worker’s compensation fund even though he has been fully paid by a third party.
. This court is not philosphically consistent in its application of the worker’s compensation scheme. An employer contributing to the fund *622could murder his employees and be absolutely immune from civil liability. Conversely, the heirs of a murdered employee could only collect worker’s compensation. Parker v. Energy Development Company, Wyo., 691 P.2d 981 (1984); and Baker v. Wendy’s of Montana, Inc., Wyo., 687 P.2d 885 (1984).
Under the circumstances of this case, however, the majority is not so solicitous of the state of Wyoming as an employer paying into the worker’s compensation fund. Under the authority of this case a plaintiff (Hamlin) can do indirectly what he could not do directly. He can use a straw man or conduit (Befus) and collect twice from the state.