¶1specially concurring.
¶2This court has accepted the amicus curiae position taken by the State to require remand. With that result, I concur, since there is a “status” dispute factually remaining which had not been resolved by a court decision.
¶3Upon remand, the trial court will be called to determine whether Charles Ross had engaged in the game of “chicken” while driving a large dirt-hauling truck on a narrow countryside road and, if so, retained his status for immunity purposes of being within his scope of employment. The decision will be required, even though both the decedent’s survivors and Charles Ross received Worker’s Compensation benefits as a result of the fatal two-vehicle, head-on *383collision. This legal question of how workers can be covered for one purpose and not covered for another purpose at the same time within the same industrial accident will leave an interesting analysis for the trial court upon remand.
¶4This case and its yet undeveloped facts re-emphasize why the majority is wrong in Mills v. Reynolds, 807 P.2d 388 (Wyo.1991) and Bunker v. Niggemyer, 807 P.2d 383 (Wyo.1991), both in constitutional concept and work place damage analysis.
¶5Taking one contention of the facts in this case where a fact finding trial has not yet been provided, a co-employee, Charles Ross, was engaged in criminal driving misconduct in playing “chicken” on a narrow country road while driving a large earth-hauling vehicle. The available record would suggest that he did not know that it was his foreman, not a co-employee with whom he had previously played the game, that he met that October morning on that countryside -driveway. A man was killed as a result. If these facts are correct, a serious crime was committed and a wrongful death was caused by conduct which in no way related to the proper performance of his employee responsibilities.
¶6For whatever reasons of misguided policy, the legislative amendment took away from the survivors of the foreman century-old rights to recover redress for a most serious wrong — the killing of their husband and father. Significant specific and clear constitutional rights are lost by the legislative abrogation. See Mills, 807 P.2d 383, Urbigkit, Chief Justice, dissenting. As this case goes back to the trial court, and then most likely again to return, I will continue my objection to a Wyoming constitutional amendment by statutory enactments. I will also continue to believe that the specific rights clearly provided by the Wyoming Constitution both deserve and require our protection and maintenance. The insurance companies, which constitute the real parties in interest in these cases, do not deserve the largess provided by applied immunity of their insureds from responsibility. This is not litigation between an employer and employee — this involves two drivers on a country road, one of whom was killed when hit head-on by a vehicle which was in his lane at impact. In concurring to remand, I will not accept the validity of ultimate resolution by the immunizing application of W.S. 27-14-104(a).
¶7Consequently, I specially concur, although I believe that justice will not be served until constitutional rights under Wyo. Const, art. 10, § 4 and access to the courts under Wyo. Const, art. 1, § 8 are reaffirmed within our responsibility to preserve that standard for Wyoming society.