In re: Miley, Lance; — Plaintiff(s); Applying for Writ of Certiorari and/or Review; to the Court of Appeal, First Circuit, Number CA90 1146; Parish of St. Tammany 22nd Judicial District Court Div. “A” Number 89,10937.

Denied.

dissents from the denial of certiorari and assigns reasons.

After plaintiff was injured in the course of his employment in a vehicular accident caused by the driver who was plaintiff’s co-employee, plaintiffs employer failed to fulfill his obligation under the compensation act to pay compensation benefits or to provide compensation insurance coverage. Therefore, the statutory tort immunity that usually flows to the employer and the co-employee should not be allowed. Absolute tort immunity is a trade-off between the employer and the employee for absolute compensation liability. When the employee receives no compensation recovery because of his employer’s intentional failings, he should be allowed tort recovery against the allegedly negligent co-employee and his insurer.