Zontelli v. Smead Manufacturing

TODD, Justice (concurring in part, dissenting in part). I concur in that portion of the majority opinion which indicates that the Worker’s Compensation Court of Appeals could avoid the problem created in this case by adopting an appropriate rule. However, I would affirm the decision precluding the employer from raising the issue of primary liability at this time. I would not do so on the grounds of res judicata, but on the grounds of laches. The employer had four separate opportunities to raise the issue. To allow the issue to be raised nine years later puts the employee in a very tenuous position regarding proof of her claim. Witnesses may be gone. Recollections dim. Such a result is unjust. WAHL and YETKA, JJ., concur.