concurring.
I concur. I agree with the analysis of the majority concerning the “dual capacity” issue and concur in the reinstatement of the claim against Corkran, Hedglin’s co-employee. I write separately to express some concerns as to the vagueness of current Missouri law on the issue of co-employee liability.
Section 287.120.1, RSMo 19941 provides that an employer subject to the provisions of Missouri Workers’ Compensation Law “shall be released from all other liability therefor whatsoever, whether to the employee or any other person.” Section 287.150.1 states that:
*928Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover....
Missouri has consistently held that a co-employee is a third person within the meaning of § 287.150. See, e.g., Kelley v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. banc 1993); Tauchert v. Boatmen’s Nat. Bank, 849 S.W.2d 573 (Mo. banc 1993); Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497 (1931). Thus, a co-employee may be sued for negligence by an injured employee. However, the courts have said that in order to maintain such action, the injured employee must allege “[sjomething more” beyond the co-employee’s failure to implement the employer’s duty of providing a safe workplace. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App.1982). The action in question must, according to our decisions, be an “affirmative negligent act,” Tauchert, 849 S.W.2d at 574, one that “affirmatively causes or increases his fellow employee’s risk of injury,” Felling v. Ritter, 876 S.W.2d 2, 5 (Mo.App.1994) or a “breach of [the] personal duty of care owed to the plaintiff.” Marshall v. ETI Explosives Technologies Int’l., 874 S.W.2d 442, 444 (Mo.App.1994). No easily applied formula has been developed, the courts instead saying frequently that the “something more” must be sorted out “on a ease-by-case basis.” Badami, 630 S.W.2d at 181. In Tauchert, the court found that a coworker’s “alleged act of personally arranging the faulty hoist system for the elevator” could constitute “an affirmative negligent act outside the scope of his responsibility to provide a safe workplace for plaintiff.” 849 S.W.2d at 574. In Kelley, the court held that co-employees who designed and constructed equipment which exploded, injuring plaintiff, were immune from liability because there was no showing that they had “jerry-rigged” the equipment. While these decisions have a certain logic, one wonders whether we are not searching for a better way to describe conduct actionable by the co-employee. One also wonders whether the status of the coworker as a supervisor may be more of a red herring than a primary factor in the analysis.
Missouri is one of a distinct minority of jurisdictions which allow an injured employee to sue a co-employee for negligence. 2A A. Larson, The Law of Workmen’s Compensation, § 72.11 n. 13.2 (1994 Supp.). Some states have enacted statutes granting immunity from suit to both the employer and his employees and some states have extended immunity to employees by judicial decision. The immunity extended co-employees by these states is often limited to negligent acts; many states allow co-employee liability for intentional torts.2
Different jurisdictions utilize different approaches to reach the conclusion that the immunity for negligence provided by workers’ compensation should be extended to co-employees. In Montana, for example, it is reasoned that “[c]o-employee protection is a natural extension of enterprise liability and relieves the employee of justifiable apprehension about the possibility of a suit against him.” Massey v. Selensky, 225 Mont. 101, 731 P.2d 906, 907 (1987). In Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328 (1954), the Supreme Court of Tennessee expressed concern about the effect of allowing the insurance carrier to be subrogated against the negligent co-employee, pointing out that often the negligent co-employee may also be injured, and could be deprived of benefits by the right of subrogation. Id. at 331. The Supreme Court of Idaho focused on the idea that a co-employee is merged in *929the identity of the employer, reasoning that an employee acting within the scope of his employment is an agent of the employer. White v. Ponozzo, 77 Idaho 276, 291 P.2d 843, 846 (1956). In Dunn v. Peabody Coal Co., 856 F.2d 426 (7th Cir.1988), the philosophical underpinnings of the Illinois workers’ compensation statute are scrutinized. The court points out that the general purpose of workers’ compensation was to substitute an entirely new system of rights and remedies for the common law and older statutory schemes governing the relationships between employer and employee. Id. at 428. This provides a “uniform, speedy, and cost-efficient” mechanism of getting benefits into the hands of injured employees. Id. The court explained that the basic purpose of placing the cost of industrial accidents on industry, and the elimination of fault as a basis for liability, are undermined where the cost is shifted from one employee to another. Id.3
In Missouri, one concern noted has been the employer’s sense of responsibility to provide indemnity to its employees when they are sued for their negligent acts. Badami, 680 S.W.2d at 180. If the employer must provide a defense and offer indemnity to its employees who are sued, the employer will, after first paying the worker’s compensation claim, then also pay the additional compensation awarded in the tort claim. This will undermine the immunity provisions of the worker’s compensation laws.4 If the employer does not defend and indemnify, the employer risks creating morale problems by appearing to be disloyal to its workers. The employer also has the option of choosing to seek subrogation, which would not only further disharmony between employer and workers, but would also theoretically cause the cost of the injury to be passed on to the negligent co-employee instead of being borne by the industry. See Rylander v. Chicago Short Line Ry. Co., 17 Ill.2d 618, 161 N.E.2d 812, 817-18 (1959). Consequently, a rule allowing a co-employee to be sued as a third party for negligent acts tends to undermine the basic scheme of the worker’s compensation statutes.
In my view, the inquiry need not logically focus on the status of the culpable co-employee, as to whether that person is a supervisor or otherwise. Nor, in my view, is it appropriate to emphasize the scope of the employer’s duty to provide “a safe place in which to work.” Rather, the focus should be on the conduct of the co-employee causing the injury. Negligent acts of any kind (nonfeasance or misfeasance) logically should be shielded from liability if we wish to be consistent with the spirit of the worker’s compensation laws. However, such logic does not require that we shield from liability co-employees guilty of intentional torts or misconduct tantamount thereto.
In the instant case, it is alleged that Cor-kran ordered Hedglin to hang from the forks of a forklift over a large vat of scalding water. It is further alleged that Corkran “deliberately, intentionally, and in conscious disregard” for the safety of Hedglin, subjected Hedglin to an “extreme and unreasonable risk” of injury and death, “far beyond that anticipated or contemplated by the ordinary duties and responsibilities” of Hedglin’s employment. I suggest that this petition alleges the “something more” required by existing case law.
. All sectional references are to Missouri Revised Statutes 1994, unless otherwise indicated.
. States with statutory provisions excepting intentional torts from immunity are Alabama, Arizona, California, Connecticut, Florida, Hawaii, Idaho, Iowa, Louisiana, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, Oregon, Pennsylvania, South Dakota, Texas, West Virginia, Wisconsin and Wyoming. States that have carved out an intentional tort exception through judicial decision are Alaska, Illinois, Indiana, Michigan, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Utah and Washington. 2A A. Larson, The Law of Workmen’s Compensation, § 72.21 n. 23.1 and n. 23.2 (1994 Supp.).
. For further analysis of how various jurisdictions handle this issue the reader is referred to Right to Maintain Direct Action Against Fellow Employee for Injury or Death Covered by Workmen's Compensation, 21 A.L.R.3d 845 (1968).
. This issue was a concern to the Eastern District of this Court, which transferred to the Missouri Supreme Court a case in which, at trial, a police officer had obtained a $473,000 judgment against a fellow officer who had negligently operated, without proper equipment, the vehicle in which plaintiff had been injured. Dierkes v. Sanaban, No. 59931, slip op., - S.W.2d - [1992 WL 59719] (Mo.App.E.D. March 31, 1992). This case was settled in the Supreme Court before submission.