¶1Justice, dissenting.
¶2I dissent.
¶3The essence of the majority opinion is that
“(tjhere is nothing in this statute [W.S. 27-12-103] which requires an employee to make an election to either receive benefits under the Act or sue his employer.”
¶4There is nothing in the act that requires an employee to do anything. In this case, however, the employee did something: he applied for and elected to receive worker’s compensation benefits. The question with which we are presented is what was the effect of that election.
W.S. 27-14-203(a) provides that
“[a]ny employer not applying for coverage of eligible employees or, after obtaining coverage under this act, any employer failing, neglecting or refusing to make payments required by this act on the date due and against whom any injured employee is held entitled to worker’s compensation benefits is liable to the state for an amount equal to all awards entered for payment to or for *181the employee under this act. If the employer fails, neglects or refuses to satisfy his liability, the amount shall be recovered by civil action in the name of the director. The entry of final order by the division or hearing examiner approving and allowing an award of compensation is prima facie proof of the liability of an employer failing to comply with this act.” (emphasis added)
¶5In this case the employer had not, at the time of injury, applied for coverage under the worker’s compensation statute. Appellant was an eligible employee under the act. The employer obtained coverage under the act. When appellant applied for worker’s compensation benefits, the employer became liable to the State to continue payments or for all awards entered for payment to the employee under the act. The order awarding benefits to the employee resulted in liability of the employer, although at the time of the injury he had not complied with the worker’s compensation act.
¶6I have no difficulty concluding that the legislature intended that the employee have the right either to sue the employer in a civil action to recover his damages or make claim against his employer not contributing under the act and thereby secure an award of worker’s compensation benefits. This choice of remedies is a considerable advantage to the employee for often his injury results from his own activity and the employee does not have a viable civil case against his employer. (Appellant may have that problem in this case.)
¶7If the employee chooses to pursue a civil case rather than worker’s compensation, substantial damages can be recovered. The employer who failed to contribute is penalized, for he has exposure to a civil action and to strict liability in worker’s compensation. That is a just result for all parties. This conclusion finds support among authorities which have held that an injured employee has “the option of either pursuing a civil action against the employer or filing an application for workmen’s compensation benefits.” Shaughnessy v. Bohnet, 303 N.W.2d 337, 341 (N.D.1981). See also Shope v. Don Coe Const. Co., 92 N.M. 508, 590 P.2d 656 (1979). In Llewellyn v. Smith, 593 P.2d 771, 773 (Okla.1979), the court, quoting from H.L. Hutton & Co. v. District Court of Kay County, 398 P.2d 530, 531 (Okla.1965), stated:
‘“One injured in the course of his employment, who has made application for compensation under the Workmen’s Compensation Law and has been awarded compensation for his injury, has made his election of remedies and is precluded thereby, and he cannot thereafter maintain an action for damages against his employer for the same injuries, even though the latter has failed to provide compensation insurance under the provisions of that act.’ ”
¶8Our worker’s compensation act provides a right to compensation for an employee against an employer not contributing under the act at the time of the accident. When the employee avails himself of that remedy and is awarded worker’s compensation under the act, the employer is entitled to the immunity afforded by the act from suit in a civil action. Reading all sections of the Wyoming Worker’s Compensation Act in pari materia, it seems clear the legislature intended to afford to the employee of an employer not contributing under the act a choice of remedies, i.e., a recovery under worker’s compensation or a civil action against the employer. The employee is entitled to one remedy or the other but not both.