Arrington v. Michigan-Wisconsin Pipeline Co., MICHIGAN-WISCONSIN

• Decision Date: 24 October 1980
• Docket Number: PIPE-LINE,MICHIGAN-WISCONSIN,Nos. 78-1577,s. 78-1577
• Citation: 632 F.2d 867
• Parties: Erma Joyce ARRINGTON, Special Administratrix of the Estate of Michael R. Shafer, Deceased, Johneta Contreras, Special Administratrix of the Estate of Bennie Paul Contreras, Deceased, Esequiel Sanchez, Jesus Manuel Nieto Garcia, a/k/a Gabriel Vega, Franklin Stecher, Administrator of the Estate of Marcos Antonio Melendez Pando, Deceased, and Leticia Almanza Saenz De Melendez, Widow of Marcos Antonio Melendez Pando, personally and as next friend of Marcos Antonio Melendez Almanza, a minor, Mae Redus, Special Administratrix of the Estate of Russell Lee Warren, Deceased, Leona Noble, Individually and as Administratrix of the Estate of Carl A. Noble, Deceased, Debra Neioma Shafer, Individually, and Jewell Weeks, as Administratrix of the Estate of Michael Ray Shafer, Deceased, Plaintiffs-Appellants, v.COMPANY, a Delaware Corporation, Defendant-Appellee, Ford, Bacon & Davis Construction Corporation, a New York corporation; and Grove Valve and Regulator Company, a California corporation, Defendants. to 78-1581, 78-1698, 79-1041 and 79-1042.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 867

632 F.2d 867

Erma Joyce ARRINGTON, Special Administratrix of the Estate of Michael R. Shafer, Deceased, Johneta Contreras, Special Administratrix of the Estate of Bennie Paul Contreras Deceased, Esequiel Sanchez, Jesus Manuel Nieto Garcia, a/k/a Gabriel Vega, Franklin Stecher, Administrator of the Estate of Marcos Antonio Melendez Pando, Deceased, and Leticia Almanza Saenz De Melendez, Widow of Marcos Antonio Melendez Pando, personally and as next friend of Marcos Antonio Melendez Almanza, a minor, Mae Redus, Special Administratrix of the Estate of Russell Lee Warren, Deceased, Leona Noble Individually and as Administratrix of the Estate of Carl A Noble, Deceased, Debra Neioma Shafer, Individually, and Jewell Weeks, as Administratrix of the Estate of Michael Ray Shafer, Deceased, Plaintiffs-Appellants, v. MICHIGAN-WISCONSIN PIPE-LINE COMPANY, a Delaware Corporation, Defendant-Appellee Ford, Bacon & Davis Construction Corporation, a New York corporation; and Grove Valve and Regulator Company, a California corporation, Defendants.

Nos. 78-1577 to 78-1581, 78-1698, 79-1041 and 79-1042.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 22, 1980.

Decided Oct. 24, 1980.

Don Manners, Oklahoma City, Okl. (W. R. Cathcart, of Manners, Cathcart & Lawter, Oklahoma City, Okl., on brief), for plaintiffs-appellants Erma Joyce Arrington, Special Administratrix of the Estate of Michael R. Shafer, Deceased, Johneta A. Contreras, Special Administrator of the Estate of Bennie Paul Contreras, Deceased, Esequiel Sanchez, and Mae Redus, Special Administratrix of the Estate of Russell Lee Warren, Deceased.

Ed Parks III, of Boyd & Parks, Tulsa, Okl., for plaintiffs-appellants Jesus Manuel Nieto Garcia, a/k/a Gabriel Vega, Franklin Stecher, as Administrator of the Estate of Marcos Antonio Melendez Pando, Deceased, and Leticia Almanza Saenz De Melendez, Widow of Marcos Antonio Melendez Pando, personally and as next friend of Marcos Antonio Melendez Almanza, a minor.

Robert K. McCune, Oklahoma City, Okl. (Gene Stipe, of Stipe, Gossett, Stipe, Harper & Estes, Oklahoma City, Okl., with him on brief), for plaintiffs-appellants Leona Noble, Individually and as Administratrix of the Estate of Carl A. Noble, Deceased, Debra Neioma Shafer, and Jewell Weeks, Administratrix of the Estate of Michael Ray Shafer, Deceased.

James W. Shepherd, Oklahoma City, Okl. (William J. Legg, of Andrews Davis Legg Bixler Milsten & Murrah, Inc., Oklahoma City, Okl., with him on briefs), for defendant-appellee Michigan-Wisconsin Pipeline Co.

Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

These are consolidated appeals from dismissals for lack of subject matter jurisdiction of the complaints against Michigan-Wisconsin Pipeline Company brought by workmen injured, and representatives of deceased workmen killed, in an explosion and fire in a pipeline ditch in Oklahoma. Jurisdiction is based upon diversity of citizenship.

The trial court determined that plaintiffs' exclusive remedy was under the Oklahoma Workers' Compensation Act (Compensation Act or Act). On appeal plaintiffs argue that (1) the Compensation Act permits employees of an independent contractor to sue the principal employer as a third party tort-feasor for the negligence of its servants; (2) the injuries alleged in the complaints cannot be termed "accidental" within the meaning of the Act for purposes of a motion to dismiss; and (3) Michigan-Wisconsin must be retained in the litigation under Fed.R.Civ.P. 19.

The essential facts set forth in the complaints against Michigan-Wisconsin reveal that it engaged Trend Construction Company to perform construction work on a compressor station on Michigan-Wisconsin's pipeline in Oklahoma. In the cold winter weather, Trend employees maintained a fire in the construction ditch for warmth; the pipeline itself was plugged and shut off. While the workmen were working in the ditch, an employee of Michigan-Wisconsin erroneously turned on a valve at the compressor station, allowing natural gas distillant to flow into the excavated area where it came into contact with the fire maintained by the Trend employees. The resulting explosion and flash fire killed some workmen and injured others.

Plaintiffs received workers' compensation from their immediate employer, Trend Construction Company, but also brought common law tort actions against Michigan-Wisconsin and other defendants, seeking both actual and punitive damages. They alleged that when the supervisory employees of Michigan-Wisconsin sent the employee to open the gas valve they were aware not only of the danger of opening a wrong valve, but also that the particular employee might not be able to correctly identify the valve he was directed to open. Plaintiffs charged that Michigan-Wisconsin's acts "of negligence were gross, willful and wanton" or "so grossly negligent and exhibited such a reckless and wanton disregard of the rights of the (workmen) that the injuries resulting must be regarded as willfully inflicted."

Upon motion, Michigan-Wisconsin was dismissed from the action on the ground that the sole remedy available to the plaintiffs was under the Compensation Act. This appeal is before us because plaintiffs obtained a Fed.R.Civ.P. 54(b) certification.

Plaintiffs assert that under the plain meaning of Okla.Stat.Ann. tit. 85, § 44 (West Supp.1979) they are entitled to sue Michigan-Wisconsin, the principal employer here, as a third party tort-feasor. In relevant part, section 44 provides that:

(a) If a worker entitled to compensation under the Workers' Compensation Act is injured or killed by the negligence or wrong of another not in the same employ, such worker shall elect whether to take compensation under the Workers' Compensation Act, or to pursue his remedy against such other

(b) all common law rights against other than the employer and his employees (are) preserved and (are) to be in those persons who would have had such rights had there been no death claim or death benefits under the Workers' Compensation Act.

Plaintiffs claim the injuries were caused "by the negligence or wrong of another not in the same employ," and that common law rights against "other than the employer and his employees (are) preserved." They also argue that Okla.Stat.Ann. tit. 85, §§ 11 (West Supp.1979) and 12 (West 1970), treating the exclusivity of remedies, should be construed as applying only to the principal employer's secondary liability, in the event it has failed to require the immediate employer to comply with the workers' compensation law.

The answer to plaintiffs' arguments is that the Oklahoma courts have clearly held to the contrary in many cases, commencing with 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); Sun Oil Co. v. Martin, 541 P.2d 841 (Okl.1975); Manhattan Const. Co. v. District Court, 517 P.2d 795 (Okl.1973); W. P. Atkinson Enterprises, Inc. v. District Court, 516 P.2d 541 (Okl.1973); Dunn v. Public Service Co., 487 P.2d 711 (Okl.1971); Skelly Oil Co. v. District Court, 401 P.2d 526 (Okl.1964); Sumpter v. Lawton Coop. Ass'n, 384 P.2d 908 (Okl.1963); Creighton v. District Court, 359 P.2d 581 (Okl.1961); Lee Evans Oil & Gas Co. v. Superior Court, 344 P.2d 670 (Okl.1959); Baldwin v. Big X Drilling Co., 322 P.2d 647 (Okl.1958); Jordon v. Champlin Refining Co., 200 Okl. 604, 198 P.2d 408 (1948). These decisions hold the Compensation Act provisions are exclusive, and the principal employer is free from at least ordinary tort claims when sued by employees of an independent contractor who were injured while doing work that was an integral part of the principal employer's business. It is apparently agreed that Michigan-Wisconsin is the principal employer secondarily liable under the Act, and that both the injured or deceased workmen and the Michigan-Wisconsin employees who were allegedly negligent were doing the work of Michigan-Wisconsin.

The Compensation Act applies only to "accidental" personal injuries sustained by covered employees. Okla.Stat.Ann. tit. 85, § 11 (West Supp.1979). Plaintiffs contend their allegations of gross, willful and wanton negligence, or negligence so reckless and wanton that the acts must be regarded as willfully inflicted, take the case out of the Act, at least for purposes of a motion to dismiss for lack of jurisdiction. We do not agree.

Plaintiffs build their argument upon statements in Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 945 (1917), that the Act was not intended to cover willful or intentional injuries inflicted by the employer, and in Hull v. Wolfe, 393 P.2d 491, 496 (Okl.1964) (involving whether accepting workers' compensation released medical malpractice claim against treating physician), that "malicious, willful and unprofessional acts resulting in injury are not within the purview of the Compensation Act."

Many cases, however, have held that injuries are "accidental" within the meaning of the Act when caused by willful or criminal assault by the employer, fellow employees or others. E. g., Burrell v. Prewitt, 445 P.2d 279 (Okl.1968); Toklan Production Co. v. Toops, 301 P.2d 646 (Okl.1956); Nelson Electric Mfg. Co. v. Cartwright, 277 P.2d 163 (Okl.1954); Pawnee Ice Cream Co. v. Cates, 164 Okl. 48, 22 P.2d 347 (1933) (assault by employer with hammer); Indian Territory Illuminating Oil Co. v. Jordan, 140 Okl. 238, 283 P. 240 (1929); Dillon v. Dillman, 133 Okl. 273, 272 P. 373 (1928) (gunshot wound inflicted by customer); Oklahoma-Arkansas Tel. Co. v. Fries, 128 Okl. 295, 262 P. 1062 (1928) (gunshot wound from supervisory employee); Stasmas v. State Industrial Comm'n, 80 Okl. 221, 195 P. 762 (1921). In characterizing assaults as accidents, the Oklahoma Court seems to declare that the expectation of the event by the employee is determinative.

Accident in the legal signification is difficult...