Whipple v. Phillips & Sons Trucking, LLC

• Decision Date: 22 September 2020
• Docket Number: No. 118,360,118,360
• Citation: 474 P.3d 339
• Parties: Sharla WHIPPLE, individually, Next of Kin, & Personal Representative of the Estate of Taylor Ray Borth, deceased, Plaintiff/Petitioner, v. PHILLIPS AND SONS TRUCKING, LLC., a Domestic Corporation, JDC Drilling, LLC., a Domestic Corporation, Titan Drilling, LLC., a Domestic Corporation, Steve Jernigan, an Individual, Bradford G. Barby, an Individual, Steve Powless, an Individual, Robert L. Snyder, an Individual, Roy Roundtree, an Individual, Abel Gregory Ortega, an Individual, Matthew Dow Hughes, an Individual, Rafael Marquez, an Individual, Gary Jennings, an Individual, Deering Safety Consulting LLC., a Domestic Corp., Aaron Deering, an Individual, Defendants/Respondents.
• Court: Oklahoma Supreme Court

474 P.3d 339

Sharla WHIPPLE, individually, Next of Kin, & Personal Representative of the Estate of Taylor Ray Borth, deceased, Plaintiff/Petitioner,

v.PHILLIPS AND SONS TRUCKING, LLC., a Domestic Corporation, JDC Drilling, LLC., a Domestic Corporation, Titan Drilling, LLC., a Domestic Corporation, Steve Jernigan, an Individual, Bradford G. Barby, an Individual, Steve Powless, an Individual, Robert L. Snyder, an Individual, Roy Roundtree, an Individual, Abel Gregory Ortega, an Individual, Matthew Dow Hughes, an Individual, Rafael Marquez, an Individual, Gary Jennings, an Individual, Deering Safety Consulting LLC., a Domestic Corp., Aaron Deering, an Individual, Defendants/Respondents.

No. 118,360

Supreme Court of Oklahoma.

FILED SEPTEMBER 22, 2020

Jack Zurawik, Micah Felton, Timothy P. Clancy, Tulsa, Oklahoma, for Plaintiff/Petitioner.

Don W. Danz, Rebecca S. Woodward, Tulsa, Oklahoma, for Defendants/Respondents.

KAUGER, J.:

¶1 The determinative issue on certiorari is whether a parent of an adult, unmarried, childless decedent killed in the course of employment may bring a wrongful death action in the district court. We hold that the right of a parent as the next of kin to bring a wrongful death action when the decedent is an adult, unmarried, and childless, is crystalized in the law pursuant to 12 O.S. 2011 § 1053 and art. 23 § 7 of the Oklahoma Constitution. Therefore, the Legislative attempt to deny recovery for wrongful death pursuant to 85A O.S. Supp. 2014 § 47 to the mother of her unmarried childless son is unconstitutional. Her remedy lies in the District Court.

FACTS

¶2 The plaintiff/petitioner, Sharla Whipple (mother), lost her adult, twenty-three year old, unmarried, childless son, Taylor Ray Borth (Borth) in a work related accident on October 6, 2016. Borth was crushed to death by a gin pole truck operated during an oilfield mud pump unloading procedure. At the time of his death, the Workers' Compensation Act, 85A O.S. Supp. 2014 § 47 only allowed wrongful death benefits to a spouse, child, or legal guardian, if the guardian was dependent on the employee.¹

¶3 Therefore, the mother was forced to bring this action in the District Court. She alleged the wrongful death of her son, and that the employer "knew or should have known that the injury" to Borth and that "the resulting death was substantially certain to occur." The employer filed a motion for summary judgment on May 29, 2019, arguing that the mother was attempting to avoid the workers compensation system. On July 25, 2019, the trial court granted summary judgment, in part, because it believed the mother's exclusive remedy was in the workers' compensation regime. The grant of summary judgment was in error because there is no provision for the mother to seek redress in the Workers Compensation system because of the statutory exclusion under 85A O.S. Supp. 2014 § 47.²

¶4 On October 2, 2019, the trial court certified its ruling as a certified interlocutory appeal. On October 25, 2019, the trial court stayed all further proceedings until the appeal was resolved. The same day, the mother filed her appeal in this Court. We granted certiorari to review the certified interlocutory order on March 25, 2020, and the briefing cycle was completed on July 27, 2020.

THE RIGHT OF A PARENT AS NEXT OF KIN TO BRING A WRONGFUL DEATH ACTION WHEN THE DECEDENT IS AN ADULT, UNMARRIED, AND CHILDLESS, IS ESTABLISHED PURSUANT TO 12 O.S. 2011 § 1053 AND art. 23 § 7 OF THE OKLAHOMA CONSTITUTION. THE LEGISLATIVE ATTEMPT TO DENY RECOVERY FOR WRONGFUL DEATH PURSUANT TO 85A O.S. Supp. 2014 § 47 BY LIMITING IT TO A SPOUSE, CHILD, OR LEGAL GUARDIAN DEPENDENT ON THE DECEDENT IS UNCONSTITUTIONAL, LEAVING THE ONLY OPTION FOR RECOVERY IN THE DISTRICT COURT.

¶5 The employer argues that the Legislature has not abrogated the right of the mother to recover under the workers compensation provisions, but rather just limited any recoverable amount which is within its constitutional authority.³ The mother argues that limiting an amount of recovery to nothing is the equivalent to abrogating her right to bring an action for recovery.

¶6 The Okla. Const. art. 23, § 7 provides:

The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions. (Emphasis supplied).

The history of this Constitutional provision is quite clear and well chronicled. In Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, the Court discussed art. 23 § 7 in the context of applying a statute of repose. The Court recognized that this section was originally taken nearly verbatim from the New York Constitution and that it was amended in 1950 to add the provision allowing for some wrongful death actions to be governed by the Workers' Compensation Act.

¶7 The Riley Court said that " Section 7 had the effect of freezing into our law the right of action for wrongful death as it existed when the Constitution was adopted." The provision was intended to "crystalize and embody in the fundamental law of the state — the law of the land — the entire statutory right of action with its incidents."

¶8 Statutorily, the rights of wrongful death actions are found at 12 O.S. 2011 §§ 1051 - 1055. Section 1053(A) currently provides:

A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his or her personal representative if he or she is also deceased, if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission. The action must be commenced within two (2) years.

In Riley, supra., the Court also discussed the history of § 1053, noting:

¶10 At the time of the Constitution's adoption, Section 4313 Oklahoma Statutes of 1893, was the only statute allowing for an action for wrongful death. CapitolSteelandIronCo. v. Fuller, 206 Okl. 638, 245 P.2d 1134, 1137 (1952). With only slight modifications Section 4313 became the current 12 O.S. 1981 § 1053 ....

At early common law and before Lord Campbell's Act, an action for personal injuries abated with the death of the injured person; no action for wrongful death existed. Haws v. Luethje, 503 P.2d 871, 873 (Okla. 1972). Now, a cause of action for wrongful death "accrues to the personal representative of the decedent solely by virtue of the statute." Haws, at 873. The action for wrongful death is not a separate and distinct tort, but is an action which derives from the rights of the decedent. Whatever rights the decedent might have had in his life accrue to the personal representative at death, thus overcoming the common law barrier of death.

¶11 It is this right - the right of action provided by Section 1053 - that the Oklahoma Constitution protects. The constitutional provision does not create a right of action; rather it buttresses the statute which does so. In other words, the constitutional provision protects the right of action for wrongful death as provided by the legislature in Section 1053.

¶12 Article 23, Section 7 is meant to guarantee the individuals protected under Section 1053 the right to bring an action for wrongful death. See Roberts, 386 P.2d at 783. Our Section 1053, a form of the widely adopted Lord Campbell's Act, does away with the common law idea that an action died when the person who had suffered the injury died. Instead, the wrongful death statute leaves intact the rights of the deceased to now be asserted by a personal representative. Death is no longer a barrier to the assertion of these rights. Article 23, Section 7 says the legislature can never again reimpose the death of the injured person as an obstacle to an action by his survivors. (Footnotes omitted).

¶9 In Capitol Steel and Iron Co. v. Fuller, 1952 OK 209, ¶14, 206 Okla. 638, 245 P.2d 1134, the Court in discussing the 1950 amendment to art. 23 § 7, which expressly provided for work-related wrongful death actions to be brought under workers compensation laws, said:

... The 1950 constitutional amendment did not authorize the Legislature to make a distinction in the applicability of any provision of the Workmen's Compensation Law based upon whether or not the injury resulted in death except as to the amount of recovery. Therefore, any provision contained in said House Bill No. 312 which makes such distinction is unconstitutional and void to that extent. For the same reason, any provision in said act which modifies the provisions of sections 1053 and 1054 of Title 12 O.S. 1941, except to ‘provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered in employment covered by such law,’ is also void ....

In Hammons v. Muskogee Medical Center Authority, 1985 OK 22, ¶7, 697 P.2d 539 we said that art. 23 § 7 "forbids elimination of the right to recover damages for injuries resulting in death." Hammons, supra, involved the issue of whether a provision of the then Political Subdivision Tort Claims Act, 55 O.S. Supp. 1979 § 152, should apply retroactively.

¶10 In F.W. Woolworth Co., v. Todd, 1951 OK 36, ¶11, 204 Okla. 532, 231 P.2d 681, a case involving the validity of a release, we said regarding art. 23 § 7, that the "words ‘shall never be abrogated,’ as there used, mean: Shall never be annulled or repealed by an authoritative act, that is, shall never be withdrawn or taken away by the authority which bestowed it, that is, the legislative act, or other legislative...