                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 43538
JOSEPH JERRY MARAVILLA,                    )
                                           )
      Claimant-Respondent-Cross Appellant, )
                                                             Idaho Falls, September 2016
                                           )
v.                                         )
                                                             2016 Opinion No. 158
                                           )
J.R. SIMPLOT COMPANY, Self-Insured         )
                                                             Filed: December 30, 2016
Employer,                                  )
                                           )
                                                             Stephen W. Kenyon, Clerk
      Defendant-Appellant-Cross            )
      Respondent.                          )
                                           )
       Appeal from the Industrial Commission.

       The order of the Industrial Commission is affirmed in part and reversed in part.

       Ludwig Shoufler Miller Johnson, LLP, Boise, for appellant. Daniel A. Miller
       argued.

       Racine, Olson, Nye, Budge & Bailey, Chtd., Pocatello, for respondent. Fred J.
       Lewis argued.

                          _________________________________
BURDICK, Justice
                                  I.   NATURE OF THE CASE
       Joseph Jerry Maravilla and J.R. Simplot Company both appeal the Industrial
Commission’s (Commission) August 11, 2015 Order on Petition for Declaratory Ruling.
Maravilla was injured in an industrial accident while working for Simplot, and Simplot paid
Maravilla’s worker’s compensation benefits for that injury. In a separate action, Maravilla
brought suit against Idaho Industrial Contractors, Inc. (IIC), the contractor performing repairs on
the area where Maravilla was injured. Maravilla and IIC settled the claim for $75,000 and
Simplot claimed subrogation against Maravilla. In its order, the Commission ruled that Maravilla
could argue that Simplot was partly at fault for Maravilla’s industrial accident and that Simplot’s
negligence, if proved, was not a bar to Simplot being reimbursed for worker’s compensation
payments it had paid Maravilla.



                                                1
       Simplot appeals the Commission’s decision that Maravilla’s settlement with IIC does not
preclude Maravilla from attempting to prove Simplot’s negligence. Maravilla appeals the
Commission’s ruling that Simplot is entitled to reimbursement even if Simplot’s negligence
contributed to Maravilla’s injury. We affirm in part and reverse in part.
                   II.   FACTUAL AND PROCEDURAL BACKGROUND
       On October 16, 2011, Maravilla, while working at Simplot, tripped on a hose that had
been placed across a walkway to transport a water/acid mix to a nearby pump. The water/acid
mixture was being transported because repairs were being performed on a nearby sulfuric acid
pad. The repairs were being performed by IIC, however, the hose had been placed by Simplot.
On the day of the accident, a rainstorm had caused a power outage at the sulfuric acid pad
causing acid to pool on the pad. Upon tripping, Maravilla’s foot went through a plastic barrier
erected by IIC and into the pooling acid. Maravilla suffered chemical burns to his right foot and
leg, which later required skin grafts and surgery. Maravilla then filed a worker’s compensation
claim. Simplot, in its capacity as a self-insured employer, paid out an undisclosed amount of
worker’s compensation benefits.
       On February 6, 2013, Maravilla filed a third-party lawsuit against IIC. Maravilla alleged
that his injuries were caused by the negligence of IIC. Simplot did not participate in this
litigation. At some point before trial, Maravilla and IIC settled the claim for $75,000. The district
court then dismissed the complaint with prejudice on January 22, 2015. Thereafter, Simplot
sought subrogation against the $75,000 settlement.
       On May 1, 2015, Maravilla filed a petition for declaratory ruling with the Commission.
Maravilla contended that in accordance with prior precedent, any negligence on the part of an
employer cuts off that employer’s right to subrogation under Idaho Code section 72-223. Simplot
argued that as a result of Idaho’s adoption of comparative fault, an employer’s right to
subrogation continues to exist even if the employer is shown to have been partly at fault in
contributing to the employee’s injury. Simplot also argued that Maravilla was precluded from
arguing Simplot’s negligence because he failed to do so during the third-party litigation with IIC.
       On August 11, 2015, the Commission issued its order. The Commission rejected
Simplot’s claim preclusion argument but adopted a new rule regarding employer’s subrogation
rights. The new rule, based on the fact that joint and several liability has been abolished in Idaho,
states that “employer’s negligence is no longer an absolute bar to the exercise of its right of

                                                 2
subrogation. Rather, an employer’s right of subrogation will be reduced by its proportionate
share of fault in contributing to claimant’s damages.”
       Simplot timely appeals from the Commission’s order with respect to the claim preclusion
issue. Maravilla cross-appeals with respect to the Commission’s adoption of the new employer
negligence rule.

                               III.    STANDARD OF REVIEW
       The facts pertinent to this appeal are not in dispute, only the legal conclusions drawn
from those facts, therefore, we exercise free review. Kelly v. Blue Ribbon Linen Supply, Inc., 159
Idaho 324, 326, 360 P.3d 333, 335 (2015).
                                        IV.    ANALYSIS
A. Maravilla is not barred from raising the issue of Simplot’s negligence before the
Commission.
       Simplot argues that the doctrine of claim preclusion precludes Maravilla from pursuing
the issue of Simplot’s negligence before the Commission. The Commission ruled that
Maravilla’s settlement with IIC was not a “final judgment rendered on the merits” and therefore
claim preclusion did not apply. We affirm the Commission but with modified reasoning.
       “Whether claim preclusion or issue preclusion bars relitigation between the same parties
of a prior litigation is a question of law upon which this Court exercises free review.” Ticor Title
Co. v. Stanion, 144 Idaho 119, 122, 157 P.3d 613, 616 (2007).
               The doctrine of res judicata covers both claim preclusion (true res
       judicata) and issue preclusion (collateral estoppel). Hindmarsh v. Mock, 138
       Idaho 92, 94, 57 P.3d 803, 805 (2002). Claim preclusion bars a subsequent action
       between the same parties upon the same claim or upon claims “relating to the
       same cause of action . . . which might have been made.” Id. Issue preclusion
       protects litigants from litigating an identical issue with the same party or its privy.
       Rodriguez v. Dep’t of Corr., 136 Idaho 90, 92, 29 P.3d 401, 403 (2001). Separate
       tests are used to determine whether claim preclusion or issue preclusion applies.
Id. at 123, 157 P.3d at 617.
       On appeal, Simplot does not assert that issue preclusion applies. Indeed, Simplot states in
its reply brief that “claim preclusion is the appropriate theory to analyze Simplot’s Res Judicata
defense.” Thus, because Simplot does not argue issue preclusion in its brief we only address
Simplot’s argument under the theory of claim preclusion. Martin v. Smith, 154 Idaho 161, 164,
296 P.3d 367, 370 (2013) (“When issues on appeal are not supported by positions of law,
authority, or argument, they will not be considered. An assignment of error is deemed waived,

                                                 3
and will not be discussed if there is no argument contained in the appellant’s brief.”
(quoting State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996)).
       “For claim preclusion to bar a subsequent action there are three requirements: (1) same
parties; (2) same claim; and (3) final judgment.” Ticor Title Co., 144 Idaho at 124, 157 P.3d at
618. In its order, the Commission ruled that claim preclusion did not apply because the district
court’s dismissal with prejudice after the parties reached a settlement “did not constitute a valid
final judgment rendered on the merits.” This was incorrect.
       We have clearly stated that a dismissal with prejudice operates as a final judgment for
purposes of res judicata. Scott v. Agric. Prods. Corp., 102 Idaho 147, 151, 627 P.2d 326, 330
(1981) (“[A] dismissal with prejudice will bar a subsequent action involving the same claim
between the parties or their privies.”). This is true even when the dismissal with prejudice is
stipulated to by the parties. Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 614, 826 P.2d 1322,
1326 (1992) (holding that for purposes of res judicata the effect of a stipulation of dismissal with
prejudice operates the same “as if the parties had proceeded to trial”). Here, IIC and Maravilla
stipulated to dismissal of the case with prejudice. Accordingly, the district court’s dismissal with
prejudice operated as a final judgment for purposes of res judicata and the Commission erred by
ruling otherwise.
       Having established that a final judgment was entered, we turn to whether the “same
claim” requirement of claim preclusion is met.
       A claim is considered the same claim when “the present claim arises out of the same
transaction or series of transactions as the original action.” Berkshire Invs., LLC v. Taylor, 153
Idaho 73, 81, 278 P.3d 943, 951 (2012). This has been broadly interpreted by this Court to
include situations “even where there is not a substantial overlap between the theories advanced in
support of a claim, or in the evidence relating to those theories.” Magic Valley Radiology, P.A. v.
Kolouch, 123 Idaho 434, 437, 849 P.2d 107, 110 (1993) (citation omitted). “Therefore, res
judicata’s preclusive effect bars ‘not only subsequent re-litigation of a claim previously asserted,
but also subsequent re-litigation of any claims relating to the same cause of action which were
actually made or which might have been made’ in the first suit.” State v. Wolfe, 158 Idaho 55,
63, 343 P.3d 497, 505 (2015) (quoting Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803, 805
(2002)).



                                                 4
        Here, the only two claims that have been asserted are Maravilla’s original negligence
claim against IIC and Simplot’s present claim of subrogation against Maravilla. 1 A critical
component in deciding whether claims are the same for purposes of res judicata is that the
subsequent or present claim must be one that arose out of the same cause of action and should
have been litigated in the first suit. E.g., Berkshire Invs., 153 Idaho at 81, 278 P.3d at 951; Ticor
Title Co., 144 Idaho at 126, 157 P.3d at 620. Maravilla’s cause of action in his negligence claim
against IIC is based on Maravilla’s October 16, 2011, industrial accident, which resulted in
chemical burns to Maravilla’s leg and foot. Simplot’s subrogation claim, however, is based on
Idaho Code section 72-223(3) and is derived from Maravilla’s recovery from IIC. Struhs v.
Protection Techs., Inc., 133 Idaho 715, 721, 992 P.2d 164, 170 (1999) (holding that an
employer’s “right to subrogation [is] derivative” of the employee’s recovery). It is Maravilla’s
recovery, rather than his injury, that acts as the cause of action for Simplot’s subrogation claim.
Simplot’s subrogation claim did not ripen until after Maravilla recovered from IIC. Therefore,
Simplot’s subrogation claim and Maravilla’s negligence claims do not share a cause of action.
Simplot could not bring its subrogation claim against Maravilla until Maravilla had recovered
from IIC. Accordingly, for purposes of claim preclusion, Simplot’s subrogation claim is not the
same claim as Maravilla’s negligence claim against IIC.
        In summary, the Commission erred by ruling that claim preclusion did not apply because
there was no final judgment; however, because the “same claim” requirement of claim preclusion
was not met the Commission reached the correct result. We therefore affirm the Commission.

1
  Simplot attempts to argue that Maravilla’s assertion of Simplot’s negligence as a defense to Simplot’s subrogation
claim is a “claim” for purposes of claim preclusion. However, a claim is “[a]n interest or remedy recognized at law;
the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing.” Black’s Law
Dictionary 264 (8th ed. 2004). By contrast, an issue is “a point in dispute between two or more parties.” Id. at 849.
Here, Maravilla is not asserting Simplot’s negligence to “obtain a privilege, possession, or enjoyment of a right or
thing.” Indeed, because Maravilla’s injury is covered by the Idaho Worker’s Compensation Act, Maravilla is
expressly barred from bringing a negligence claim against Simplot. E.g., Gerdon v. Rydalch, 153 Idaho 237, 242,
280 P.3d 740, 745 (2012) (“[I]n Idaho, pursuant to I.C. § 72-211, a person injured in the course of employment has
only one claim against the employer, and that claim is under the Worker’s Compensation Act, not a tort action.”
(quoting Baker v. Sullivan, 132 Idaho 746, 749, 979 P.2d 619, 622 (1998)). Rather, Maravilla is asserting Simplot’s
negligence as an issue—as a point in dispute—that bears on whether Simplot’s subrogation claim will succeed.
  Simplot also attempts to assert that its negligence “was a claim made by IIC in the [Maravilla v. IIC] suit.”
However, IIC never had a negligence claim against Simplot. See Coghlan v. Beta Theta Pi Fraternity, 133 Idaho
388, 399, 987 P.2d 300, 311 (1999) (listing the necessary elements for a claim of negligence). Rather, IIC asserted
the issue of Simplot’s negligence as a defense to Maravilla’s negligence claim against IIC. The only party with a
possible claim of negligence against Simplot would be Maravilla, however, as mentioned above, that claim is barred
by the Idaho Worker’s Compensation Act. Thus, in regard to the IIC litigation, Simplot’s negligence, if any, was
only an issue that bore on whether Maravilla’s negligence claim against IIC would succeed.


                                                         5
Martel v. Bulotti, 138 Idaho 451, 453, 65 P.3d 192, 194 (2003) (“This Court may uphold
decisions on alternate grounds from those stated in the findings of fact and conclusions of law on
appeal.”).
B. Whether the Commission erred by ruling that an employer’s negligence does not bar the
employer from asserting its subrogation rights.
       The Commission ruled that because the Legislature abolished joint and several liability,
an “employer’s negligence is no longer an absolute bar to the exercise of its right of
subrogation.” Instead, the Commission ruled that the “employer’s right of subrogation will be
reduced by its proportionate share of fault in contributing to claimant’s damages.” Maravilla
contends that this ruling was in error because it contravenes this Court’s clear precedent that an
employer’s negligence bars it from asserting its subrogation rights. Simplot urges us to adopt the
Commission’s ruling.
       In Liberty Mutual Insurance Company v. Adams, we first addressed the question of
whether an employer whose negligence contributed to the injury of an employee may enforce its
subrogation rights. 91 Idaho 151, 417 P.2d 417 (1966). In that case, we held that an employer
who was concurrently negligent in the worker’s injury was not entitled to subrogation. Id. at 156,
417 P.2d at 422. In support of our ruling, we relied on various cases from California and a
dissenting opinion by Justice Taylor in Brown v. Arrington Construction Co., 74 Idaho 338, 262
P.2d 789 (1953), both of which relied on various North Carolina cases. Central to these cases
was the principle that “it is contrary to the policy of the law for the employer, or his subrogee,
the insurance carrier, to profit by the wrong of the employer.” Id. (quoting Witt v. Jackson, 366
P.2d 641, 649 (Cal. 1961)). Indeed, we quoted extensively with approval from the California
case Witt v. Jackson:
               In the Brown case, supra, (Brown v. Southern Ry. Co., 204 N.C. 668, 169
       S.E. 419) it was stated that “when the employee or his estate has been satisfied,
       and the employer seeks to recover the amount paid by him, from such third party,
       his hands ought not to have the blood of the dead or injured workman upon them,
       when he thus invokes the impartial powers and processes of the law.” (169 S.E. at
       p. 420). The Lovette case, supra, (Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886,
       892) reiterated the same argument in more moderate language: “It is contrary to
       the policy of the law for the employer, or his subrogee, the insurance carrier, to
       profit by the wrong of the employer.”
       ....
               Thus, whether an action is brought by the employer or the employee, the
       third party tortfeasor should be able to invoke the concurrent negligence of the
       employer to defeat its right to reimbursement, since, in either event, the action is
                                                6
         brought for the benefit of the employer to the extent that compensation benefits
         have been paid to the employee.
Id. (quoting Witt, 366 P.2d at 649).
         In Tucker v. Union Oil Co. of California, we revisited the issue. 100 Idaho 590, 603 P.2d
156 (1979). We held that although under Liberty Mutual a negligent employer is barred from
seeking subrogation of an employee’s recovery against a third-party, an employee’s recovery in a
civil action against a third-party “should be reduced by the amount of the workmen’s
compensation benefits assessed against the concurrently negligent employer.” Id. at 604, 603
P.2d at 170. In reaching this decision, we quoted from the California case Associated
Construction & Engineering Co. v. Worker’s Compensation Appeals Bd., 587 P.2d 684 (Cal.
1978):
                 When the issue of an employer’s concurrent negligence arises in a judicial
         forum, application of comparative negligence principles is relatively
         straightforward. The third party tortfeasor should be allowed to plead the
         employer’s negligence as a partial defense, in the manner of Witt. Once this issue
         is injected into the trial, the trier of fact should determine the employer’s degree
         of fault according to the principles of American Motorcycle. The court should
         then deduct the employer’s percentage share of the employee’s total recovery
         from the third party’s liability up to the amount of the worker’s compensation
         benefits assessed against the employer.
                 Under the rule of American Motorcycle, the joint and several liability of
         joint tortfeasors is retained. (Citations omitted). Thus, except for his Witt-type
         deduction, the third party remains liable for all of employee’s damages, including
         the portion which represents the extent to which (the negligent employer is
         insulated) from the comparative responsibility he would otherwise incur. 150
         Cal.Rptr. at 896 and n.9, 587 P.2d at 692 and n.9.
Tucker, 100 Idaho at 604, 603 P.2d at 170 (quoting Associated Constr., 587 P.2d at 684 & n.9).
         The underlying principle of this rule was to prevent the employee from receiving a
double recovery. Id. (citing Shields v. Wyeth Labs., Inc., 95 Idaho 572, 513 P.2d 404 (1973)). We
reasoned that under the principles of joint and several liability the third-party tortfeasor was
liable for the entire judgment and that allowing the employee to recover both worker’s
compensation and the entire judgment amount would have resulted in a double recovery for the
employee.2 Id. Notably, however, we declined to apply the principles of comparative negligence


2
  This is illustrated by the facts of Tucker. In Tucker, the third-party tortfeasor was found 60% negligent, the
employer 30%, and the employee 10%. 100 Idaho at 597, 603 P.2d at 163. After deducting 10% for the employee’s
share of negligence, damages were fixed at $325,800. Id. At the time of trial, the employee had received $16,916.50
in worker’s compensation benefits. Id. at 593, 603 P.2d at 159. Under joint and several liability the third-party

                                                        7
and joint and several liability to worker’s compensation benefits as between the employer and
the employee.3
           Roughly a year later, in Pocatello Industrial Park Co. v. Steel West, Inc., we again
commented on the effect of employer negligence on subrogation. 101 Idaho 783, 621 P.2d 399
(1980). In that case, we noted that although Tucker referenced Liberty Mutual,4
                  Liberty Mutual was decided prior to the Idaho legislature’s adoption of a
           comparative negligence statute, I.C. § 6-801. For that reason, the status of the
           Liberty Mutual rule barring subrogation is currently unknown. In fact, in Tucker
           v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979), that question
           was expressly reserved for another day.
Id. at 788, 621 P.2d at 404.
           However, since Tucker and Pocatello Industrial we have reiterated the validity of the
Liberty Mutual rule, citing the rule with approval on multiple occasions. E.g., McBride v. Ford
Motor Co., 105 Idaho 753, 763–64, 673 P.2d 55, 65–66 (1983); Schneider v. Farmers Merch.,
Inc., 106 Idaho 241, 244, 678 P.2d 33, 36 (1983) (“The reimbursement of workmen’s
compensation benefits to a negligent employer has been denied largely because it is contrary to
the policy of the law for an employer (or his insurer) to profit from his own wrong.”); Runcorn v.
Shearer Lumber Prods., Inc., 107 Idaho 389, 395, 690 P.2d 324, 330 (1984) (“Our case law
implementing I.C. §§ 72-209 and -223 has held that the insurer of an employer who is jointly
negligent with the third party is not allowed the statutory subrogation rights or reimbursement for
workmen's compensation benefits . . . .”). Indeed, as recently as 2013, after the abolishment of
joint and several liability, we described the system of apportioning the employee’s damages
under Idaho Code section 72-223 as follows:


tortfeasor was liable for the entire $325,800. See id. at 597–98, 603 P.2d at 163–64. Thus, if the worker’s
compensation benefits were not deducted from the $325,800 the employee would have received a total of
$342,716.50 ($325,800 + $16,916.50), thereby resulting in a double recovery on the $16,916.50. See id. at 604–05,
603 P.2d at 170–71. To prevent this windfall, we reasoned that the $325,800 should be reduced by the $16,916.50 in
benefits. Id. Thus, the employee would end up with $308,883.50 ($325,800 – $16,916.50) from the third-party
tortfeasor, and $16,916.50 in worker’s compensation benefits, for the total judgment amount of $325,800. See id.
3
  Although we noted that Liberty Mutual was decided before the adoption of comparative negligence in Idaho,
Tucker, 100 Idaho at 604, 603 P.2d at 170, we stopped short of adopting Associated Construction’s reasoning that
the principles of comparative negligence and joint and several liability affected a negligent employer’s subrogation
rights. Id. (“As to that portion of the Associated decision relating to the right of the employer to be subrogated to a
portion or all of the workmen’s compensation benefits dependent upon the extent to which negligence has been
assessed against the employer, we find such to be unnecessary to our decision today.”).

4
    See supra note 1.

                                                          8
        [T]he system of apportionment generally works as follows. In those situations
        where the employer is not negligent, the employer is entitled to subrogate to the
        employee’s recovery against a third party, and thus obtain a reimbursement of the
        workmen’s compensation benefits he paid. Conversely, in those situations where
        the employer is negligent, the employer is denied this reimbursement . . . .
Izaguirre v. R & L Carriers Shared Servs., LLC, 155 Idaho 229, 235, 308 P.3d 929, 935 (2013)
(citation omitted).
        Thus, nothing in any of the cases following Liberty Mutual, or in the cases following the
adoption of comparative negligence, or in the cases after the abrogation of joint and several
liability indicate that the rule in Liberty Mutual has changed or been reversed. In fact, by citing
to the rule approvingly on multiple occasions we have continued to approve of the Liberty
Mutual rule.
        Nonetheless, the Commission ruled that the Legislature’s adoption of comparative
negligence and subsequent abrogation of joint and several liability in the tort law system requires
that the employer negligence rule in Liberty Mutual be abandoned in favor of a new rule taken
from Associated Construction, supra. This is because, as the Commission reasoned, the rationale
of the Liberty Mutual rule was based on the “concern . . . that prior to the abolition of joint and
several liability an uninsulated negligent employer would be liable for 100% of the injured
worker’s damages, absent from immunity from suit conferred by the worker’s compensation
laws.” This reasoning, however, misses the mark. The flaw in the Commission’s reasoning is that
it attempts to equate worker’s compensation benefits with tort damages. They are not equivalent.
The Worker’s Compensation Act was a compromise between injured workers and their
employers and was specifically intended to remove industrial accidents from the common law
tort system. Blake v. Starr, 146 Idaho 847, 851, 203 P.3d 1246, 1250 (2009); Yount v. Boundary
Cty., 118 Idaho 307, 307, 796 P.2d 516, 516 (1990) (“[S]uch being the quid pro quo for
eliminating the previous remedy of seeking a tort recovery from employers.”). Thus, while the
principles of comparative negligence and joint and several liability will affect the recovery of an
injured employee in his negligence tort claim against a third party,5 those same principles simply
do not figure into the determination of worker’s compensation benefits between an injured
employee and his employer.6 The Liberty Mutual rule does not rely on the principles of

5
 See Tucker, 100 Idaho at 604, 603 P.2d at 170.
6
 Indeed, by its own terms, Idaho’s comparative negligence statute only applies to actions “to recover damages for
negligence, gross negligence, or comparative responsibility . . . .” I.C. § 6-801. Notably absent from this list are

                                                         9
comparative negligence and joint and several liability. Rather, as explicitly stated in Liberty
Mutual and in the cases it relied upon, the rule is based upon the belief that
         when the employee or his estate has been satisfied, and the employer seeks to
         recover the amount paid by him, from such third party, his hands ought not to
         have the blood of the dead or injured workman upon them, when he thus invokes
         the impartial powers and processes of the law. Brown v. Southern Ry. Co., 129
         S.E. 419, 420 (1933).
Liberty Mutual, 91 Idaho at 156, 417 P.2d at 422 (quoting Witt, 366 P.2d at 649). The principle
behind the Liberty Mutual rule is that where the employer is concurrently at fault for the
worker’s injury it should not be allowed the benefit of subrogation because it runs counter to the
policy of law to allow someone to “take advantage of his own wrong.” Id. (quoting Witt, 366
P.2d at 649); Schneider, 106 Idaho at 244, 678 P.2d at 36 (“The reimbursement of workmen’s
compensation benefits to a negligent employer has been denied largely because it is contrary to
the policy of the law for an employer (or his insurer) to profit from his own wrong.”). 7 The
adoption of comparative negligence and the abrogation of joint and several liability do not affect
the rationale behind the Liberty Mutual rule, let alone require its abandonment.
                                             V.      CONCLUSION
         We affirm the Commission’s ruling that claim preclusion does not apply. However, we
reverse the Commission’s abrogation of the Liberty Mutual rule. Neither party requests attorney
fees. Costs to Appellants.
         Chief Justice J. JONES and Justices EISMANN, W. JONES and HORTON, CONCUR.




worker’s compensation claims. And for good reason. See I.C. § 72-201 (removing workplace injuries from the
common law tort system); see also, e.g., Kolar v. Cassia Cty. Idaho, 142 Idaho 346, 351, 127 P.3d 962, 967 (2005)
(noting that the Legislature removed workplace injuries from the tort system)
7
  See also Lovette v. Lloyd, 73 S.E.2d 886, 891–92 (N.C. 1953), relied on by Liberty Mutual, 91 Idaho at 155–56,
417 P.2d at 421–22 (“It is contrary to the policy of the law for the employer, or his subrogee, the insurance carrier,
to profit by the wrong of the employer. For this reason, where the negligence of the third party and independent
negligence on the part of the employer concur and proximately cause the injury to the employee, the third party may
plead and prove the independent concurring negligence of the employer as a bar, Pro tanto, to the recovery of the
compensation paid or payable by the employer or the insurance carrier.” (citations omitted)).

                                                         10
