Oklahoma Bar Journal
Wells, Whipple and the Election of Remedies
By Dustin Vanderhoof
The following is a discussion of recent Oklahoma Supreme Court cases addressing workers’ compensation exclusivity and intentional torts, election of remedies and the constitutionality of the Oklahoma Legislature’s limitation of workers’ compensation death benefits to spouses, children and legal guardians of employees killed in work-related incidents.
CURRENT STATUS OF THE PARRET EXCEPTION TO WORKERS’ COMPENSATION EXCLUSIVITY
It has long been the law in Oklahoma that the exclusive remedy for accidents arising out of and in the course of one’s employment was found within the Oklahoma Workers’ Compensation Court/Commission. In 2005, things changed, and an exception to the exclusivity provisions was born. Later referred to as “Parret claims,” a new type of hybrid tort was solidified by the Oklahoma Supreme Court in Parret v. UNICCO Service Co.1 In Parret, the deceased, an employee of defendant UNICCO Service Co. (UNICCO), was electrocuted and killed while replacing emergency lights at the Dayton Tire Plant owned by Bridgestone/Firestone Inc. (Bridgestone) in Oklahoma City.2 UNICCO assisted the widow in filing and ultimately receiving workers’ compensation death benefits.3 The widow then pursued an action in the Western District of Oklahoma against multiple defendants, alleging “her husband’s death resulted from the defendants’ willful and intentional acts of having the decedent work on the lights despite their knowledge of the substantial dangers associated with the task.”4
The Western District asked the Oklahoma Supreme Court to certify the “standard of intent necessary for an employee’s tort claim against an employer to fall outside the protection of the Oklahoma Workers’ Compensation Act.”5 Under the Workers’ Compensation Act in place at the time, an employer was liable “for the disability or death of an employee resulting from an accidental injury sustained by the employee arising out of and in the course of employment, without regard to fault.”6 The act also made the employers' liability under the act "exclusive and in place of all other liability of the employer.”7 In other words, the act provided the exclusive remedy for employees (or a surviving spouse) seeking redress from employers for injuries occurring on the job.
However, the Supreme Court noted, under the common law, employees could seek redress outside the workers’ compensation scheme for injuries caused by an employer’s intentional conduct.8 The question facing the court was what level of intent was required for a tort to fall outside the Workers’ Compensation Act’s exclusivity protection. While clearly outside the act’s protection, the court rejected a specific intent to harm standard as being necessary for a plaintiff to circumvent the act’s exclusivity provision. Instead, the court adopted a substantial certainty standard. In its certified answer to the Western District, the court held that an employer’s conduct is the functional equivalent to an intentional tort (and thus exempted from the jurisdiction of Oklahoma’s Workers’ Compensation Court) where the employer “(1) desired to bring about the worker’s injury or (2) acted with the knowledge that such injury was substantially certain to result from the employer’s conduct.”9
In 2010, the Oklahoma Legislature amended the exclusivity provision of the Workers' Compensation Act to exclude an employer’s intentional torts from the Workers' Compensation Act's reach.10 The Legislature also appeared to try to limit the reach of the Parret decision by attempting to remove the substantial certainty language from the definition of an intentional tort:
An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court.11
The Legislature carried over this characterization of intentional tort when it enacted the Workers’ Compensation Code in 201112 and again when it limited the protections afforded to injured Oklahoma workers in the enactment of the Administrative Workers’ Compensation Act in 2013.13a>
The Legislature’s characterization of an intentional tort was put to the test in Wells v. Okla. Roofing & Sheet Metal, L.L.C.14 In Wells, the deceased, a roofer, was killed when he fell from a three-story building.15 To cross over two co-workers while on a roof, the deceased was required to unhook a lanyard used to prevent a fall and walked 10 feet untethered when he fell.16 The decedent's daughter, individually and as the administrator of the decedent's estate, filed a civil action against the decedent's employer. The daughter specifically alleged an intentional tort by the employer. Specifically, her petition alleged the employer knew its fall prevention system was faulty (the employer had been cited for its fall prevention in the past) and knew the system would lead to the decedent's death.17 Her petition also challenged the constitutionality of the Legislature’s newly created characterization of “intentional tort.”18
The district court ultimately found the newly crafted exclusivity provision in Okla. Stat. tit. 85, §12 constitutional and granted the employer’s motion to dismiss, holding “while [plaintiff’s] allegations met the “substantial certainty” element set forth in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572, it did not satisfy the specific intent definition prescribed in §12.”19 On appeal, the Court of Appeals reversed and found Section 12 unconstitutional as a special law. The employer sought certiorari review with the Oklahoma Supreme Court.
The Oklahoma Supreme Court granted certiorari but never reached the constitutionality of Section 12. Instead, the court clarified its ruling in Parret. The court held that specific intent and substantial certainty were only different "nomenclatures of an intentional tort."20 As the court noted, “In short, Parret did not recognize two types or levels of intentional torts … Rather, Parret clarified what kinds of conduct constitute an intentional tort.”21 The court also noted:
An employer’s “specific intent” to injure, or knowledge that an injury is “substantially certainty to result,” equate to an intentional tort. Both require a knowledge of foreseeable consequences and are interpreted to mean intentionally knowing culpable acts. The belief that one has a different level or degree of a tortious act, and thereby concluding that specific intent and substantial certainty are different animals, is a fallacy.22
Finally, the court held that the “willful, deliberate, specific intent of the employer to cause injury, and those injuries that an employer knows are substantially certain to occur, are both intentional torts that are not within the scheme of the workers’ compensation system or its jurisdiction.”23 The court reversed the district court and remanded the case for further proceedings.
THE PRECLUSIVE EFFECT OF WORKERS’ COMPENSATION
Awards on Subsequent Intentional Tort Claims
Even though intentional torts fall outside the Workers' Compensation Commission's exclusive jurisdiction, a plaintiff can still be precluded from bringing an intentional tort claim if the plaintiff successfully recovered for the same injuries before the commission. In May 2020, the Oklahoma Supreme Court addressed this issue in Farley v. City of Claremore.24 In Farley, the plaintiff was the spouse of a former Claremore firefighter killed while responding to an emergency request for assistance during a flash flood.25 Months before filing the district court action, the plaintiff sought and successfully obtained death benefits before the Workers’ Compensation Commission.26 The city did not contest the workers’ compensation award, stipulated to the underlying facts and did not appear at the hearing before the commission.27 Ten months after the commission's order awarding death benefits, the plaintiff filed a wrongful death action against the city.28 The city specially appeared and moved to dismiss on several grounds, including that the "Workers’ Compensation remedy was the sole remedy for plaintiff, and plaintiff had previously and successfully pursued that remedy and was seeking a double recovery.”29 Without stating a ground, the district court dismissed the plaintiff's action. The plaintiff appealed and argued that the "District Court erred because the Petition alleged death as a result of an ‘intentional tort.’”30
On appeal, the Supreme Court examined whether the plaintiff was barred from bringing a subsequent district court action after successfully pursuing death benefits in the Workers' Compensation Commission. The court held that a successful death benefits award from the commission bars or precludes a subsequent wrongful death action against the employer – even if the action is for an intentional tort under Wells.31 The court relied on its precedent in Pryse Monument Co. v. District Court32 and Dyke v. Saint Francis Hosp. Inc.33and reasoned that the plaintiff was only entitled to a single recovery for an injury.34 The court held that allowing the plaintiff to recover before the commission and in a subsequent wrongful death action in state court would amount to double recovery.35While the court acknowledged that Wells permitted an intentional tort against an employer in state court outside the workers’ compensation scheme, it did not “recognize multiple causes of action for the same wrongful death or injury.” In discussing Wells, the court stated:
Wells explained the workers’ compensation statutes provide a remedy for accidental injuries but a remedy for willful or intended injuries lies in a District Court, and … an intentional injury includes those injuries which an employer possessed knowledge that an injury was substantially certain to result. Wells did not recognize multiple causes of action for the same wrongful death or injury. We did not approve the concept that an injured employee possessed one cause of action with a workers’ compensation remedy, three actions based upon each degree of negligence, … and one action based upon an intentional tort. … Wells determined an injured employee could bring an action in District Court against an employer based upon the employer’s intentional conduct as shown by the substantial-certainty standard. Wells did not authorize double or multiple recoveries for the same injury.36
Based on the spouse’s successful recovery before the commission, the court affirmed the district court’s dismissal of the intentional tort claims against the same employer for the same injury with prejudice.37
A possible dent in the employer’s single recovery armor can be found in the original Parret case. After the Oklahoma Supreme Court issued its answers to the Western District’s certified questions,38 the employer moved for summary judgment because, as the employer argued, under Pryse and Dyke, the plaintiff was barred from recovery. In the summary judgment briefing before the Western District, the employer in Parret argued that the plaintiff:
[E]lected to pursue her remedy in workers’ compensation court and is now precluded from maintaining a civil action for the same injury. … Under the Pryse Monument “election of remedies” rule, an employee who has two remedies for the same injury and has prosecuted one of them to conclusion is barred from resorting to another remedy.39
The court noted under Pryse, the “waiver by election” rule only applies when three elements are met: “(a) two or more remedies must be in existence (b) the available remedies must be inconsistent [and] (c) choice of one remedy and its pursuit to conclusion must be made with knowledge of alternatives that are available.”40 In Parret, the Western District concluded the plaintiff did not knowingly pursue “a workers compensation claim to the exclusion of other remedies she might have.”41 The court noted, “Although nominally represented by counsel at the hearing, the plaintiff was essentially unrepresented throughout the brief workers’ compensation process. [The employer] prepared all of the paperwork and submitted the claim on her behalf.”42 There could be situations, like Parret, where a company attempts to resolve workers' compensation claims on the plaintiff's behalf. Arguably, under Parret, that would not preclude a subsequent action if the plaintiff was not aware of alternative recovery methods.
What if the Decedent Did Not Have a Spouse, Child or Legal Guardian at the Time of Death?
Under Okla. Stat. tit. 85A, §47, only a spouse, child or legal guardian may file a workers’ compensation death benefit claim when a work-related death occurs. In a recent decision, the Oklahoma Supreme Court held that a mother of the decedent had no choice but to file a wrongful death claim in the district court and ruled that Section 47 was an unconstitutional attempt to limit the right of recovery. In Whipple v. Phillips and Sons Trucking, LLC,43 the plaintiff's son was killed in a work-related incident. The decedent was unmarried without kids, so his mother brought a wrongful death action in state court, alleging under Wells and Parret “that employer ‘knew or should have known that the injury’ to [decedent] and that ‘the resulting death was substantially certain to occur.’”44 Despite Section 47's limitation for workers’ compensation death benefits to a spouse, child or legal guardian, the district court granted summary judgment for the employer. It held that a plaintiff's only remedy can be sought in the workers' compensation system.45 On interlocutory appeal, the Supreme Court reversed. The court held that under Okla. Const. art. 23, §746 and Okla. Stat. tit. 12, §1053,47 the mother has a constitutional right to bring a wrongful death claim. By limiting workers' compensation wrongful death claims to the spouse, children or legal guardians, the Legislature nullified the mother's right. The court concluded, "At this time to avoid the constitutional prohibition against abrogation of the right of action for death, is for this Mother is to bring her cause of action in the district court.”48 The court did not address the intentional tort aspect of the case; however, under the law discussed in Wells and Farley, because the mother did not recover death benefits before the commission, she should not be precluded from seeking recovery for an intentional tort.
In 2020, the Oklahoma Supreme Court brought clarity to the many questions left unanswered for decades in the context of work-related injuries resulting from intentional torts or that were deemed substantially certain to occur. Under the Oklahoma Supreme Court’s rulings, a successful death benefits award to a spouse, child or legal guardian from the commission bars or precludes a subsequent wrongful death action against the employer – even if the action is for an intentional tort. The law is now clearly established as to what constitutes an election of remedies, what type of plaintiff can elect said remedies and the long-term implications of following those elections to a final conclusion.
ABOUT THE AUTHOR
Dustin Vanderhoof is an attorney with Smolen Law PLLC based in Tulsa. He is a litigation advocate for victims of catastrophic torts and civil rights violations. He received his J.D. from the TU College of Law.
- 2005 OK 54, 127 P.3d 572.
- Id. at ¶3.
- Id.; see also, Parret v. Unicco Service Co., No. CIV-01-1432-HE, 2006 WL 752877, at *2 n. 5 (W.D. Okla. March 21, 2006) (“UNICCO prepared all of the paperwork and submitted the claim on her behalf”).
- Id. at *1. In addition to workplace safety, the Supreme Court in Parret noted the policy considerations at play: “To facilitate workers’ compensation and its objectives, an “industrial bargain” was imposed. The employee gave up the right to bring a common-law negligence action against the employer and in return received automatic guaranteed medical and wage benefits. The employer gave up the common-law defenses and received reduced exposure to liability. Thus, under section 11 of the Workers’ Compensation Act “[e]very employer ... shall pay ... compensation ... for the disability or death of an employee arising out of and in the course of employment without regard to fault.” Id. at ¶20.
- Id. at ¶1.
- Id. at ¶7 (quoting Okla. Stat. tit. 85, §1-211 (2001)).
- Id. at ¶7 (quoting Okla. Stat. tit. 85, §12 (2001)).
- Id. at ¶7 (quoting Roberts v. Barclay, 369 P.2d 808, 809 (Okla.1962)).
- Id. at ¶24 (emphasis added). The court added that the employer’s knowledge is subjective and may be established by circumstantial evidence, such as the “employer’s conduct and all surrounding circumstances.”
- Laws 2010, HB 2650, c. 452, §3.
- See, Laws 2011, SB 878, c. 318, §2.
- See, Okla. Stat. tit. 85A, §5.
- 2019 OK 45, 457 P.3d 1020.
- Id. at ¶2.
- Id. at ¶3.
- Id. at ¶4.
- Id. at ¶¶7-8.
- Id. at ¶11.
- Id. at ¶17.
- Id. at ¶24.
- 2020 OK 30, 465 P.3d 1213.
- Id. at ¶2.
- Id. at ¶4.
- Id. at ¶5.
- Id. at ¶3.
- Id. at ¶9.
- Id. at ¶¶48, 51.
- 1979 OK 71, 595 P.2d 435.
- 1993 OK 114, 861 P.2d 295.
- Farley, 2020 OK 30, at ¶50 n. 138 (quoting Dykes, 861 P.2d at 302, “Under the teachings of Pryse Monument Co. v. District Court an employee who has two remedies for the same injury and has prosecuted one of them to conclusion (securing an award or judgment), is barred from resort to the other remedy. This rule, which in essence erects a res judicata bar, is applicable to compensation claimants who may also press a tort remedy.”)
- Id. at ¶¶47-48.
- Id. (internal footnotes omitted).
- Id. at ¶68.
- See, Parret, 2005 OK 54.
- Parret, 2006 WL 752877, at *2 (internal citations and footnotes omitted).
- Id. at *3.
- Id. at *2 n. 5.
- 2020 OK 75, 474 P.3d 339.
- Id. at ¶3.
- Id. at ¶0.
- “The right of action to recover damages for injuries resulting in death shall never be abrogated … .”
- Under Okla. Stat. tit. 12, §1053, “a decedent’s representative may maintain an action against the tortfeasor, and if no personal representative has been appointed, the action may be brought by a surviving spouse or in their absence, next of kin.” Whipple, 2020 OK 75, at ¶11.
- Id. at ¶16.
Originally published in the Oklahoma Bar Journal – OBJ 92 Vol 6 (August 2021)