Barfield v. Barfield

• Decision Date: 21 July 1987
• Docket Number: No. 62801,62801
• Citation: 1987 OK 72,742 P.2d 1107
• Court: Oklahoma Supreme Court
• Parties: Jacqueline A. BARFIELD, Appellant, v. Judy Beth BARFIELD, Executrix of the Estate of Robert E. Barfield, Deceased; and Kansas City Fire & Marine Insurance Company, a corporation, Appellees.

Page 1107

742 P.2d 1107

1987 OK 72

Jacqueline A. BARFIELD, Appellant, v. Judy Beth BARFIELD, Executrix of the Estate of Robert E.

Barfield, Deceased; and Kansas City Fire & Marine

Insurance Company, a corporation, Appellees.

No. 62801.

Supreme Court of Oklahoma.

July 21, 1987.

Rehearing Denied Sept. 29, 1987.

Glen Mullins, Abel, Musser, Sokolosky & Clark, Oklahoma City, for appellant.

James A. Jennings, III, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellees.

ALMA WILSON, Justice:

On January 16, 1983, Vern L. Barfield and Robert E. Barfield were killed in a one-vehicle accident, while in the course of their employment.

At the time of this fatal accident, Robert Barfield, an experienced truck driver for United Petroleum Transports, was providing on-the-job training for his brother, Vern Barfield. Vern began his employment relationship with United Petroleum Transports the previous week, and was a passenger in the tractor-trailer driven by Robert in order to learn the routes and procedures to be used in transporting tanks of fuel for United Petroleum Transports.

Judy Beth Barfield, the surviving spouse of Robert E. Barfield, and Jacqueline Ann Barfield, the surviving spouse of Vern L. Barfield, both sought workers' compensation benefits from United Petroleum Transports and its insurance carrier. On May 11, 1982, Judy Beth Barfield and Bobby Scott Barfield, the minor son of Robert Barfield, were awarded death benefits as provided by the Oklahoma Workers' Compensation Act. On July 9, 1982, Jacqueline Ann Barfield was likewise awarded death benefits as provided by the Oklahoma Workers' Compensation Act.

Thereafter, on January 16, 1984, Jacqueline Ann Barfield brought the instant wrongful death action in district court against Judy Beth Barfield as executrix of the estate of Robert E. Barfield; and against Kansas City Fire and Marine Insurance Company to recover on her husband's uninsured motorist policy. Jacqueline alleged that her husband's injuries and death resulted from the negligence of Robert Barfield; that Robert Barfield at the time of the accident was an uninsured or underinsured motorist; and that at such time Kansas City Fire and Marine Insurance Company had a policy of uninsured motorist insurance in force and effect in favor of Jacqueline and Vern L. Barfield for injuries received and caused by the negligence of uninsured or underinsured motorists.

Judy Beth Barfield and Kansas City Fire and Marine Insurance Company demurred to Appellant Jacqueline Barfield's petition on the ground that it failed to state facts sufficient to constitute a cause of action against them. Kansas City Fire and Marine Insurance Company additionally answered and interposed affirmative defenses of contributory negligence and assumption of the risk; and for further defense the insurance company asserted that Appellant's decedent and the alleged underinsured motorist were both employees of the same employer, therefore, the court did not have jurisdiction in this matter, as the liability of the employer, United Petroleum Transports, and its employees (including the alleged underinsured motorist) under the Oklahoma Workers' Compensation Act is exclusive. Judy Beth Barfield for her answer and defense to the wrongful death action also alleged that the district court was without jurisdiction due to the exclusivity provisions of the Workers' Compensation Act; and further asserted that insofar as she is concerned, the accident and resulting injuries of the decedents were the result of unavoidable accident, occurring through no fault of Robert E. Barfield, deceased.

Appellant, Jacqueline Barfield, denied all defenses and asserted that Robert E. Barfield and Vern L. Barfield were not employees of the same employer so as to make recovery under the Oklahoma Workers' Compensation Act the exclusive remedy.

Following discovery procedures, Kansas City Fire and Marine Insurance Company filed a Motion for Summary Judgment pursuant to Rule 13 of the Rules of the District Court. Upon reviewing the file and the briefs submitted by the parties, and after hearing argument of counsel, the trial court granted summary judgment for Kansas City Fire and Marine Insurance Company as a matter of law. Jacqueline Barfield now prosecutes this appeal contending that the trial court erred in granting the summary judgment because (1) the evidence before the district court established a substantial controversy as to the status of Robert E. Barfield as an independent contractor or servant of United Petroleum Transports, such that the district court erred in relying upon the exclusivity provisions of the Workers' Compensation Act to bar re-litigation of the employment status of the Barfield brothers in this action in tort; (2) the insurance company is liable regardless of the decedents' employment status; and (3) decedent's spouse is "legally entitled to recover" from the insurance company under the uninsured/underinsured motorist policy in question.

I

Jacqueline Barfield submits that her decedent, Vern L. Barfield, was an independent contractor of United Petroleum Transports, and not a servant-employee. In support thereof, Mrs. Barfield alleged that each driver used by United Petroleum Transports provided his own vehicle and was responsible for providing liability insurance for that vehicle. The drivers were not required to accept each "run" offered by United Petroleum Transports and were permitted to have someone else drive their truck on a run. Mrs. Barfield further alleged that drivers were paid by United Petroleum Transports on a percentage basis according to the number of loads they hauled, the gallons of fuel carried, and the destination of the run. United Petroleum Transports did not provide health or medical insurance for the drivers and the drivers paid their own taxes. United Petroleum Transports, however, did provide for its employees Workers' Compensation Insurance coverage, as required by law; and also specified the routes and procedures to be implemented in transportation of tanks of fuel for United Petroleum Transports.

An "independent contractor" is one who engages to perform a certain service for another, according to his own manner, and method, and free from control and direction by his employer in all matters connected with the performance of the service, except as to result or product of the work. Hawk Ice Cream Co. v. Rush, 198 Okl. 544, 180 P.2d 154 (1947). Generally, the decisive test to determine whether one is an independent contractor or servant is to ascertain whether the employer had the right to control, or purported or attempted to control, the manner of the doing of the work, and if he did have that right, or exercised it regardless of his right to do so, the relationship is that of master and servant. Sawin v. Nease, 186 Okl. 195, 97 P.2d 27 (1939). In the instant case, Appellant (plaintiff-below) conceded "that her decedent, Vern L. Barfield, had began his relationship with United Petroleum Transports a short time before the accident in question. As part of his arrangement with United Petroleum Transports, Vern L. Barfield was to undergo a period of on-the-job training whereby he would go on hauls with experienced drivers used by United Petroleum Transports in order to learn the routes and procedures. " It is thus uncontroverted that the "routes and procedures" required to be implemented by United Petroleum Transports drivers were in some measure dictated by United Petroleum Transports and such transportation services were not performed wholly according to the driver's own manner and method, free from control and direction of United Petroleum Transports. We find the trial court did not commit error in determining as a matter of law on the basis of uncontroverted facts that the relation between United Petroleum Transports and its drivers was not that of employer and independent contractor. Appellant's allegations regarding other factors surrounding the employment relationship are non-decisive in law. The decisive test as to whether a person has been hired as an independent contractor is whether or not the employer retains control as to the means or methods of the work. If such control exists, then the person hired is not an independent contractor. Kaw Boiler Works v. Frymyer, 105 Okl. 177, 231 P. 1059 (1924).

In its Journal Entry of Judgment, dated July 6, 1984, the trial court did not recite as reason therefor the previous orders entered by the Workers' Compensation Court on May 11, 1982, and July 9, 1982, respectively finding that Robert and Vern Barfield were both engaged in the employ of United Petroleum Transports on the date of their fatal accident. However, the Appellee insurance company did rely upon the exclusivity provisions of the Workers' Compensation Act and the fact that the Workers' Compensation Court awarded benefits to both of the surviving spouses of Vern L. Barfield and Robert E. Barfield as reason why Appellant is not "legally entitled to recover" any damages from the estate of Robert E. Barfield in this action.

Section 12 of the Oklahoma Workers' Compensation Act, 85 O.S. § 1, et seq., provides in pertinent part:

"The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees, at common law or otherwise, for such injury, loss of services or death, to the employee, spouse, personal representative, parents, dependents, or any other person ..." [Emphasis supplied.]

The Appellee insurance company argues that, since an employer is liable for compensation benefits even where there is no fault or negligence, it is proper and fair to limit his liability to compensation benefits and grant immunity from common law tort liability even where there is negligence or fault on the part of the employer or his employees. Therefore, an injured employee has no right to proceed in negligence against the employer...