dissenting.
If this case were resolved by pure application of law only, there can be no question but that the decision would be for the workman by allowing recovery upon proof of negligence in coemployee suits. Unfortunately, courts have never felt constrained by the law if they dislike the result of its application. And so we have here a discussion of legislative intent and reliance upon cases from other jurisdictions, neither of which have any application to this case.
Let us review the historical background of this controversy. The prohibitions upon the limitation of damages and the right to recover damages were dealt with separately by the framers of our constitution. Meyer v. Kendig, 641 P.2d 1235, 1239 (Wyo.1982). To begin with, Wyoming Constitution, art. 10, § 4 provides:
No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void. As to all extrahazardous 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, except in case of injuries due solely to the culpable negligence of the injured employee. The fund or funds shall be accumulated, paid into the state treasury and maintained in such manner as may be provided by law. The right of each employee to compensation from the 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 the fund in favor of any person or persons by reason of the injuries or death. Subject to conditions specified by law, the legislature may allow employments not designated extrahazardous to be covered by the state fund at the option of the employer. To the extent an employer elects to be covered by the state fund and contributes to the fund as required by law, the employer shall enjoy the same immunity as provided for extrahazardous employments.
The common law of England was adopted by Wyoming in 1876. Wyoming Statute 8-1-101 provides:
The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the *1129sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.
In Markle v. Williamson, 518 P.2d 621 (Wyo.1974), this court recognized the adoption of the common law and the existence of coemployee liability for ordinary negligence. We iterated the pervading rule that valuable common law rights shall not be deemed destroyed by a statute except by clear language. We require clear and precise language before compensation rights can be taken away, so also must there be clear and precise language before common law rights are abolished. Id., at 624.
In 1975 the legislature provided coem-ployee immunity for “employees acting within the scope of their employment unless the employees are grossly negligent.” 1975 Wyo.Sess.Laws ch. 149. The words “culpably negligent” were substituted for “grossly negligent” by the legislature in 1977. 1977 Wyo.Sess.Laws ch. 142.
In Meyer v. Kendig, 641 P.2d 1235, we held that the provision granting' coemploy-ees immunity except for culpable negligence was constitutional and not violative of art. 10 § 4 of our constitution because it did not limit the amount of damages to be recovered. Instead, the statute specifically limited the causes of action available for recovery.
In 1989, the legislature again amended W.S. 27-14-104(a) providing for total immunity of coemployees:
The rights and remedies provided in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the scope of their employment, but do not supersede any rights and remedies available to an employee and his dependents against any other person, [emphasis added]
Mills v. Reynolds, 837 P.2d 48 (Wyo.1992), held W.S. 27-14-104(a) unconstitutional inasmuch as it violated the equal, protection clause of the Wyoming Constitution, art. 3 § 27, by creating classifications which treated similarly situated people differently. The court further held that § 27-14-104(a) was violative of art. 1 § 8 of the Wyoming Constitution because it denied access to courts in granting complete immunity from suits, including immunity for intentional acts and for willful and wanton misconduct, by coemployees to employees who were acting within the scope of their employment.
In declaring W.S. 27-14-104(a) unconstitutional, no provision was made for revival of the predecessor statute. Wyoming Statute 8-1-106 provides:
If any law is repealed which repealed a former law, the former law is not thereby revived unless it is expressly provided.
Thus, the question we are presented is: In the absence of an express provision for revival as required by § 8-1-106, is the predecessor statute, W.S. 27-12-103(a) limiting recovery for injury by the coemployee to culpable negligence, nevertheless revived? That question has been answered in this way:
a) If holding a statute unconstitutional leaves no void in the law, the prior statute is not revived.
b) If, on the other hand, a void in the law will occur upon declaration of unconstitutionality, the prior statute is revived.
In Wyoming, there is no void in the law upon declaration of unconstitutionality because the common law provides for recovery by the worker upon proof of negligence. The common law right to sue a fellow employee remained unchanged throughout the amendments to art. 10 § 4 of the Wyoming Constitution, and that right continues to date. Markle v. Williamson, 518 P.2d at 625. Revival of the predecessor statute, § 27-12-103(a), does not occur because revival was not provided *1130for as required by § 8-1-106. Without revival, the worker’s right of recovery against a coemployee is governed by common law. I find support for this conclusion in the cases cited by appellants. Each case provides for revival of a prior statute because the invalidated statute left a void due to the lack of a common law counterpart. Here there is a common law rule and hence no void. The cases cited are as follows: State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976); State v. Kolocotronis, 73 Wash.2d 92, 436 P.2d 774 (1968); Selective Life Ins. Co. v. Equitable Life Assurance Soc’y, 101 Ariz. 594, 422 P.2d 710 (1967); Bongard v. Bongard, 342 N.W.2d 156 (Minn.App.1983); Boeing Co. v. State, 74 Wash.2d 82, 442 P.2d 970 (1968); State ex rel. Musa v. Minear, 240 Or. 315, 401 P.2d 36 (1965); Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975); Frost v. Corp. Comm’n, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929); Weissinger v. Boswell, 330 F.Supp. 615 (Ala.1971); Stewart v. Waller, 404 F.Supp. 206 (Miss.1975); State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981); Clark County v. City of Las Vegas, 97 Nev. 260, 628 P.2d 1120 (1981); Clark v. State, 287 A.2d 660 (Del.1972); State v. Greenburg, 187 Neb. 149, 187 N.W.2d 751 (1971); State ex rel. Thornton v. Wannamaker, 248 S.C. 421, 150 S.E.2d 607 (1966); State v. Reed, 75 S.D. 300, 63 N.W.2d 803 (1954); Henderson v. Antonacci, 62 So.2d 5 (Fla.1952); State ex rel. Dieringer v. Bachman, 131 W.Va. 562, 48 S.E.2d 420 (1948); People ex rel. Farrington v. Mensching, 187 N.Y. 8, 79 N.E. 884 (1907); State ex rel. Malott v. Bd. of County Comm’rs, 89 Mont. 37, 296 P. 1 (1931).
It is curious also that the worker’s compensation fund, always facing bankruptcy, gains funds by reimbursement from third party recoveries, yet takes no position in this dispute. And the complaint of the eleven amici curiae companies and corporations is that they pay accident insurance premiums to workers compensation for their industrial accident insurance and also to private carriers for separate insurance to cover their employees. Three thoughts immediately come to mind. First, the eleven amici do not have to provide insurance coverage for their employees. Second, if they choose to do so by buying insurance, what is wrong with that? And, third, they could pay the premiums now paid to private insurance carriers to worker’s compensation for coemployee coverage.
And so, my final thought. There has always been a quid pro quo for the workman giving up his right to sue for injury. “In ádopting 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.” Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989 (1918). The act “protects both employer and employee; the former from wasteful suits and extravagant verdicts; the latter from the expense, uncertainties and delays of litigation in all cases and from the certainty of defeat if unable to establish a case of actionable negligence.” Id., quoting Jensen v. Southern Pac. Co., 215 N.Y. 514, 109 N.E. 600 (1915). If now the worker is to give up the right to sue coemployees, then perhaps additional premiums should be paid to worker’s compensation to provide industrial accident insurance for coemployees. These additional premiums would provide a corresponding increase in benefits to injured employees awarded benefits under worker’s compensation. See Mills v. Reynolds, 837 P.2d at 58 (Cardine, Justice, specially concurring).
I am still of the opinion, as previously stated in Mills v. Reynolds, 837 P.2d at 58-59, that as a constitutional amendment was necessary to abrogate a worker’s right to recover from his employer for his injuries during employment, so too a constitutional amendment is necessary to abrogate his right to sue someone other than his employer for such injuries.
For the reasons stated, I would hold the prior statute not revived.