That paragraph bars actions for non-intentional torts by an employee or his personal or legal representatives against "any officer, director, agent, servant or employee" of his employer for personal injury, as defined in RSA 281:2, V (Supp. 1983). We hold that this provision is unconstitutional, except when liability would rest on acts performed by a defendant as the alter ego of a corporate employer while performing a corporate responsibility as described in Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978). One of the cases also challenges the constitutionality of RSA 281:12 (Supp.
2. Workmen's Compensation — Actions Against Employer — Negligence Decision of supreme court in Stevens v. Lewis 118 N.H. 367 (1978), which permitted an employee to bring a negligence action against his employer in his capacity as a co-employee, was limited to the facts in that case, i.e. where the defendant was both the corporate alter ego and was performing a corporate responsibility, and it contained no suggestion that the dual capacity theory, which permits negligence actions against employers in certain instances, should be extended to permit employees to sue their employer in his additional capacity as a landowner. RSA 281:12 (Supp.
This holding was expanded, again in 1977, to permit action by one employee against a supervisory employee, the court considering and rejecting the contention that such supervisor should be viewed as the employer's alter ego. Vittum v. New Hampshire Insurance Company, 117 N.H. 1, 369 A.2d 184 (1977). And on May 17, 1978, the court rendered its decision in Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978). Therein, the plaintiff sustained injuries while operating a machine used in the manufacture of shoe components, and successfully recovered from the defendant, who was the president, treasurer, and sole stockholder as well as a director of the corporate employer.
The New Hampshire courts, however, have established exceptions, realizing that in some instances a person can be both an employer and a supervisory or fellow employee of the injured workman. Where such a situation exists, there is no immunity. Liberty Mutual Insurance Company v. Home Insurance Indemnity Company, 116 N.H. 12, 351 A.2d 891 (1976); Vittum v. New Hampshire Insurance Company, 117 N.H. 1, 369 A.2d 184 (1977); Stevens v. Lewis, 118 N.H. ___, 387 A.2d 637. The primary question for decision in such cases is whether the named defendant is an "alter ego" of the corporation, that is, whether he acts solely as a corporate officer performing only a corporate responsibility, rather than as a fellow employee.
While these cases clearly stand for the proposition that an employer may not shed its own liability, we find no New Hampshire case directly addressing the issue of whether an employee may also assume the duty to ensure a safe workplace. In Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978), the court recognized that when a person who is an alter ego of a corporation performs a corporate responsibility, that person is immune from liability under RSA 281:12 for failure to provide a safe workplace. However, Stevens did not precisely address the question of what duty an employee, who is not a corporate alter ego, owes to a co-employee.
Estabrook v. American Hoist Derrick, Inc., 127 N.H. 162, 498 A.2d 741 (1985). See Stevens v. Lewis, 118 N.H. 367, 369-70, 387 A.2d 637, 639 (1978). The question of whether or not an individual is a corporate alter ego is a question for the jury, unless the evidence would support only one finding as a matter of law.
If that is so, and if Paine was acting only as the owner of the corporation, Paine is entitled to immunity from suit under § 281-A:8. Stevens v. Lewis, 118 N.H. 367, 369-70 (1978) ("The jury must determine whether the defendant is the corporate alter ego . . . [I]t must next determine whether the function [the defendant] allegedly performed negligently is a responsibility of the corporation or a responsibility of one employee to another.") However, even if Paine was the alter-ego of the corporation, if she acted in a "dual capacity," as employer and as an employee, she may be sued as a co-employee under § 281-A:8. Id. See also Robbins v. Seekamp, 122 N.H. 318, 321 (1982) (recognizing dual capacity doctrine where employee is injured by a machine negligently designed by employer); Quinn v. National Gypsum, Co., 124 N.H. 418, 420 (1983) (recognizing, but not adopting, dual capacity doctrine); Tanguay v. Marston, 127 N.H. 572, 576 (1986) (president and principal shareholder of corporation was not alter ego, therefore not immune to suit).
Through the notice of appeal stage, the plaintiffs consistently referred to him as their co-employee, but in their brief, the plaintiffs term him their employer. Generally, a principal of a corporation who performs work on behalf of the corporation is treated as an employee, see Stevens v. Lewis, 118 N.H. 367, 369, 387 A.2d 637, 638 (1978); however, where a principal is an alter ego of his corporation, id., and is performing corporate responsibilities, he will be treated as the employer. Tanguay v. Marston, 127 N.H. 572, 576, 503 A.2d 834, 836 (1986).
Because this appeal is taken from a decision on the pleadings, the factual question of whether BSG is OA's alter ego remains. See Tanguay, supra at 576, 503 A.2d at 836; Stevens v. Lewis, 118 N.H. 367, 370, 387 A.2d 637, 639 (1978). If on remand, the finder of fact determines that BSG has failed to demonstrate its status as OA's alter ego, and thus has no claim to the statutory employer immunity, the second question presented by this appeal will remain.
In other words, under the workers' compensation law, "an employee who in reality is the employer should not be held liable where he is performing a corporate duty." Id. at 77, 550 A.2d at 101 (citing Stevens v. Lewis, 118 N.H. 367, 370, 387 A.2d 637, 639 (1978)). Applying the same logic to the case of an employee who in reality is not the employer, we concluded that "the purpose of the workers' compensation law similarly demands that an employee, who is charged with carrying out the employer's responsibility to provide a safe workplace, should not be subject to liability."