554 F.2d 1361 (5th Cir. 1977), 75-2788, Huffman v. Mobil Oil Corp.

Docket Nº:75-2788.
Citation:554 F.2d 1361
Party Name:Judy HUFFMAN, Individually and as mother and next friend of William H. Sowders and Donald W. Sowders, minors, Plaintiffs-Appellants, v. MOBIL OIL CORPORATION, Defendant-Third-Party Plaintiff-Appellee, v. RAY GEOPHYSICAL DIVISION, MANDREL INDUSTRIES, INC., Third-Party Defendant-Appellee.
Case Date:July 01, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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554 F.2d 1361 (5th Cir. 1977)

Judy HUFFMAN, Individually and as mother and next friend of

William H. Sowders and Donald W. Sowders, minors,



MOBIL OIL CORPORATION, Defendant-Third-Party Plaintiff-Appellee,



Third-Party Defendant-Appellee.

No. 75-2788.

United States Court of Appeals, Fifth Circuit

July 1, 1977

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[Copyrighted Material Omitted]

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Windle Turley, R. Edward Pfiester, Jr., Dallas, Tex., Lynn E. Ables, Madill, Okl., for plaintiffs-appellants.

John H. Hall, Royal H. Brin, Jr., Dallas, Tex., for Mobil Oil.

Gerald W. Benson, Jack Pew, Jr., Dallas, Tex., for Ray Geo., etc.

Appeal from the United States District Court for the Northern District of Texas.

Before MORGAN and RONEY, Circuit Judges, and KING [*], District Judge.

RONEY, Circuit Judge:

Plaintiffs brought this third-party, common-law negligence action against Mobil Oil Corporation for the death of Donald W. Sowders, an employee of Ray Geophysical, an independent contractor engaged in oil exploration activities for defendant. Oklahoma law governs this diversity case. Prior to bringing this suit, plaintiffs had recovered workmen's compensation benefits from Ray in the Oklahoma State Industrial Court. The sole question presented for review is whether under Oklahoma law the defendant, as principal employer 1 of the decedent, was secondarily liable for workmen's compensation benefits so as to render it immune from suit for the alleged negligence of one of its employees. Based on its independent finding that the decedent was covered by the Workmen's Compensation Act, and that Mobil was secondarily liable for benefits payable thereunder, the district court held that plaintiffs were not entitled to a tort recovery. We affirm.

The facts of this case are essentially undisputed. On March 15, 1971, Mobil and Ray Geophysical entered into a "Basic Agreement for Ray Geophysical Services" under which Ray was to perform seismographic surveys of underground formations in an effort to locate petroleum for Mobil. The geophysical surveys were conducted by measuring on a recording device the vibrations produced from an energy source. Pursuant to the terms of the contract, Ray had been using either a vibrator or dynamite as its energy source. Several days prior to the accident resulting in Sowders' death, Mobil decided a different energy source called a thumper should be used. An auxiliary pickup containing specialized equipment was required to operate the thumper. Earl Brown, a Mobil supervisor, asked Ray for an employee to drive the auxiliary pickup from Chickasha, Oklahoma, where the thumper and its equipment were located, to McAlester, Oklahoma, where the seismographic work was being performed. Sowders was sent by Ray for this purpose. In order to transport Sowders to Chickasha, Brown leased a private plane, which he had previously been told was against Mobil policy. With Brown piloting, the plane collided with some electric wires, crashed, and both Brown and Sowders were killed.

In this common-law negligence suit brought by Sowders' widow and children against Brown's employer, Mobil asserts immunity

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from suit based on its secondary liability for the death benefits paid to plaintiffs by Ray Geophysical under the Oklahoma Workmen's Compensation Act in the State Industrial Court. 2

The Oklahoma Workmen's Compensation Act makes an independent contractor liable for compensation benefits due direct employees, but then holds the principal employer liable if he has failed to require the independent contractor to comply with the Act. 3 Compensation is exclusive of all other common-law liabilities of the employer and any of his employees. 4 These provisions

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have been construed by the Oklahoma Supreme Court to provide immunity from common-law liability not only to the independent contractor but also to the principal employer if the independent contractor has complied with the Workmen's Compensation Act, and the injured employee has recovered benefits thereunder. See, e. g., Skelly Oil Co. v. District Court, 401 P.2d 526 (Okl.1964); Horwitz Iron & Metal Co. v. Myler, 207 Okl. 691, 252 P.2d 475 (1952); Jordon v. Champlin Refining Co., 200 Okl. 604, 198 P.2d 408 (1948); Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okl. 335, 193 P.2d 586 (1948). See also Burk v. Cities Service Oil Co., 266 F.2d 433 (10th Cir. 1959) (applying Oklahoma law). Before an employer of an independent contractor may invoke the protections of these provisions in a common-law suit, however, he must qualify as a principal employer secondarily liable for workmen's compensation benefits paid or payable to the employee. The courts have held that this requires the employment in which the employee was engaged to be an "integral and necessary" part of the principal employer's business. Dunn v. Public Service Co. of Okl., 487 P.2d 711 (Okl.1971); Aycox v. Pepsi Cola Bottling Co., 331 P.2d 367 (Okl.1958); Amerada Petroleum Corp. v. Vaughan, 200 Okl. 226, 192 P.2d 639 (1948).

Unlike many other state compensation statutes, the Oklahoma Act limits coverage to specifically enumerated "hazardous employments." 5

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Mobil's immunity turns on two issues: (1) whether Sowders was engaged in "hazardous" employment within the meaning of Okla.Stat. tit. 85, §§ 2, 3 (1970) so as to be covered by the Workmen's Compensation Act; and (2) whether his employment was an "integral and necessary" part of Mobil's business. Basically, the parties disagree on how broadly these tests should be applied to the facts of the instant case.

To determine whether the decedent was engaged in a hazardous employment, plaintiffs assert the focus should be on decedent's specific activity at the time of the accident. Plaintiffs do not contend that his general occupation as an employee of a geophysical survey company was not hazardous. They argue, however, that under the Workmen's Compensation Act his act of flying as a passenger in the airplane at the time of the accident must be considered separate from his usual work. They cite several Oklahoma cases in which travel by automobile on company business was held not to be a "hazardous" activity, see, e. g., Hieronimus v. Phillips Petroleum Co., 460 P.2d 944 (Okl.1969); In re Foree, 289 P.2d 649 (Okl.1955), and an airplane crash case in which a commercial pilot was held not to be engaged in a "hazardous" occupation, Marr v. American Flyers Airline Corp., 443 P.2d 961 (Okl.1968). Defendant, on the other hand, asserts that the proper focus is on the nature of the decedent's employment, rather than on the isolated activity in which he was engaged at the time of the accident.

An examination of the Oklahoma case law supports the test advocated by defendant. In Updike Advertising System, Inc. v. State Industrial Commission, 282 P.2d 759 (Okl.1955), the Oklahoma Supreme Court stated "it is the nature of the employment in which the employee is engaged, rather than the specific act which he may be performing at the time of the injury, which determines his right or lack of right to compensation...

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