(dissenting).
I respectfully dissent.
All statutory references are to Utah Code Ann., 1953, unless otherwise indicated.
In the main opinion, this Court reverses the District Court and remands in order to determine whether Hayes, the employer of plaintiff, was an independent contractor whose employees were not subject to the right of control by defendant. I would concur that there is conflict on a material issue of fact concerning the matter of right of control by defendant and therefore summary judgment on this point cannot be sustained except for matters discussed infra.
But the resolution of the question for which this Court now remands does' not .decide the critical issue in this action, viz., whether defendant is immune from action against it in this case assuming that defendant is not an independent contractor, i. e., assuming that defendant is a statutory employer of plaintiff.1
This Court recognized the purpose of the 1975 amendments to Sec. 35-1-62 in its majority opinion in Shupe v. Wasatch Electric Company, Inc., Utah, 546 P.2d 896,2 where a wrongful death action was brought by the wife and daughters of a deceased employee of the general contractor against the electrical subcontractor, by stating:
The legislature, undoubtedly being aware of the decision of this court construing the terms “same employment” in 1975 amended Section 35 — 1—62, U.C.A. 1953, by adding the following provision:
*564“For the purposes of this section and notwithstanding the provisions of Section 35-1-42, the injured employee or his heirs or personal representative may also maintain an action for damages against subcontractors, general contractors, independent contractors, property owners or their lessees or assigns, not occupying an employee-employer relationship with the injured or deceased employee at the time of his injury or death.”
The amendment if applicable would leave the plaintiffs in court.
Because the plaintiff’s cause of action arose before the 1975 amendments, the majority opinion held retroactive application would not however be applied against the subcontractor. Of course, the amendments are unquestionably applicable in this matter.
An analysis and review — in brief — of the historical development of the workmen’s compensation legislation and case law thereunto appertaining are not only aidful but vital in resolving what I perceive to be the crucial issue in this case.
Under Utah’s original Workmen’s Compensation Act,3 a no-fault system was inaugurated to guarantee an employee some financial compensation for injuries incurred by him in the scope of his employment without burdening him with the uncertain and expensive task of his establishing negligence on the part of his employer. That system did not however prevent him from pursuing traditional common law remedies against anyone not his employer or co-employees for wrongful acts causing those injuries. He was given an option to claim compensation or pursue an action against the third-party tortfeasor.
Later, the law was changed, allowing the employer of the injured employee or the former’s insurance carrier to pursue a civil action if the employee decided to accept workmen’s compensation.4 Then in 19455 that section was amended to permit the injured employee to pursue both his claim for compensation as well as an action against “another person not in the same employment.” As illuminative of “same employment” this Court stated:6
[t]he term “same employment” as set out in our Workmen’s Compensation Act should be given the meaning which had been attached to it under the cases decided up to that time.
Prior to the enactment of the Workmen’s Compensation Act, an employee could not sue his employer for injuries resulting from the negligent acts of a fellow servant. In determining what constituted fellow servants, the courts were in practical uniformity in holding that unless they were engaged in the same employment at the same time, they were not fellow servants so as to prevent an action against their common employer. If they were employed in separate departments of the same enterprise, they were not considered fellow servants unless their work was so related that they were likely to be in such proximity to one another that some special risk could be anticipated towards one if the other were negligent. 493 P.2d at 999.
Early workmen’s compensation acts did not precisely define who was an employer..7 This Court, though, used the touchstone of common law principles defining the master-servant relationship in aid of this definition and suggested the guidelines of who was responsible for employment and discharge of the servant, who paid his wages and controlled him as well as whose work he did.8
Remedial legislation was needed and secured in this state and generally elsewhere *565to correct a problem triggered by a strict adherence to master-servant principles. This strictness tended to subvert the protection offered by workmen’s compensation by relieving primary contractors of responsibility to insure their workers if these contractors delineated their subcontractors as independent contractors, who then hired the workers. Often — when these facts unfolded — the worker could not successfully pursue compensation against the primary contractor because a master-servant relationship did not strictly obtain and the independent contractor had secured no insurance and was judgment proof. Hence, the concept of “statutory” employer was adopted. This Court noted9 that the purpose of this corrective legislation was:
. to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer, who has general control of the business in hand, liable as if he had directly employed all who work upon any part of the business which he has undertaken.
Though the status of independent contractors was not abolished, it was retained in circumstances more consonant with the actual state of affairs10 than formerly.
Yet the inclusion of statutory employer into law — adopted to expand protection to workers — had the ironic effect of providing a conduit by which the rights of an injured worker to pursue civil third-party actions against an employer not in immediate adjacency to him under Sec. 35-1-62 were restricted.11
The 1975 amendments to Sec. 35-1-62 are of enormous significance. They are a direct response to prior statutory law on workmen’s compensation and this Court’s interpretation thereof. These amendments are underlined in the relevant portion of Sec. 35-1-62, which now provides:
When any injury or death for which compensation is payable under this title shall have been caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of said employer, the injured employee, or in case of death his dependents, may claim compensation and the injured employee or his heirs or personal representative may also have an action for damages against such third person. If compensation is claimed and the employer or insurance carrier becomes obligated to pay compensation, the employer or insurance carrier shall become trustee of the cause of action against the third party and may bring and maintain the action either in its own name or in the name of the injured employee, or his heirs or the personal representative of the deceased, provided the employer or carrier may not settle and release the cause of action without the consent of the commission. Before proceeding against the third party, the injured employee, or, in case of death, his heirs, shall give written notice of such intention to the carrier or other person obligated for the compensation payments, in order to give such person a reasonable opportunity to enter an appearance in the proceeding.
For the purposes of this section and notwithstanding the provisions of section 35-1-42, the injured employee or his heirs or personal representative may also maintain an action for damages against subcontractors, general contractors, independent contractors, property owners or their lessees or assigns, not occupying an employee-employer relationship with the injured or deceased employee at the time of his injury or death. [Emphasis added.]
The amendment which states “other than an employer, officer, agent or employee of said employer” is a substitute for the pre-1975 language of “not in the same employment”; and the last paragraph noted above was added to this section. The interpreta*566tion by this Court to the phrase “same employment” in Sec. 35-1-62 was that any person who was a statutory employee of the contractor, as defined in See. 35-1-42, was in the same employment as all other statutory employees of such contractor, regardless of the nature of work being performed. The 1975 amendment of “employer, officer, agent or employee of such employer” was inserted to define those persons who then and thenceforward would be immune from third-party civil actions and is a manifestation of legislative intent to eliminate from immunity those persons who fell under the umbrella of statutory employer prior to the amendment. And as further evidence of this intent, the Legislature added the paragraph which begins with “For purposes of this section and notwithstanding the provisions of section 35-1-42 . . . .” (Emphasis added.)
Because of these amendments, the only persons who now enjoy immunity from civil action should be the direct and actual employer (and, of course, his officers, agents, and employees) of the injured workman.
The respondent asserts, as an additional ground for affirming the judgment, that a statutory employer is entitled to immunity from suit because he might become liable secondarily for the benefits of workmen’s compensation if his worker’s actual employer fails to provide coverage for the latter’s employees.
First, there is no language in Utah’s Workmen’s Compensation Act extending this immunity to those who might be secondarily liable. And the interpretation which I have suggested in this opinion would disallow such an extension.
Second, the majority of jurisdictions— and from which, I believe, the better reasoned opinions emanate — hold that contingent liability by a statutory employer is an insufficient basis to allow immunity to that employer from third-party actions by injured workmen.12
I would reverse and remand for a trial on the issues.
MAUGHAN, J., concurs in the views expressed in the dissenting opinion of WILKINS, J.. The amicus brief of the Utah State AFL-CIO is compellingly sensitive and scholarly concerning this major issue.
. It is interesting and not insignificant, I believe, to note that the minority opinion in Shupe would have allowed the plaintiffs therein to remain “in court” notwithstanding the majority’s holding of the inapplicability of the 1975 amendments to Sec. 35-1-62.
. Laws of Utah, 1917, Chapter 100, Sec. 72.
. Utah Code Ann., 1943, Sec. 42-1-58.
. Utah Code Ann., 1953, Sec. 35-1-62 reflects this change.
. Peterson v. Fowler, 27 Utah 2d 159, 493 P.2d 997 (1972).
. See Laws of Utah, 1917, Chapter 100, Sections 50 and 51.
. See Murray v. Wasatch Grading Co., 73 Utah 430, 274 P. 940 (1929) and Weber County-Ogden City Relief Committee v. Industrial Comm., 93 Utah 85, 71 P.2d 177 (1937).
. Lee v. Chevron Oil Co., Utah, 565 P.2d 1128, 1130 (1977).
. Sec. 35-1-42.
. See Smith v. Alfred Brown Co., 27 Utah 2d 155, 493 P.2d 994 (1972) and Adamson v. Oakland Construction Co., 29 Utah 2d 286, 508 P.2d 805 (1973).
. See, e. g. Colon Nunez v. Horn-Linie, 423 F.2d 952 (1st Cir., 1970); Fonseca v. Pacific Construction Co., Ltd., 54 Haw. 578, 513 P.2d 156 (1973); Lindler v. District of Columbia, 164 U.S.App.D.C. 35, 502 F.2d 495 (1974).