O'Baugh v. Drilling Well Control, Inc.

• Decision Date: 25 March 1980
• Docket Number: No. 51645,51645
• Citation: 609 P.2d 355
• Parties: Samuel Langley O'BAUGH, Appellant, v. DRILLING WELL CONTROL, INC., Appellee.
• Court: Oklahoma Supreme Court

Page 355

609 P.2d 355

1980 OK 41

Samuel Langley O'BAUGH, Appellant, v. DRILLING WELL CONTROL, INC., Appellee.

No. 51645.

Supreme Court of Oklahoma.

March 25, 1980.

Certiorari to the Court of Appeals, Division 2.

Worker injured while employed by one of several contractors on a drilling job, brought a negligence suit against another contractor at the well site. District Court, Oklahoma County, Hon. Ray Naifeh, trial judge, viewed the worker's claim as abrogated by the Workers' Compensation Act and sustained contractor's demurrer to the evidence. Court of Appeals, Division 2, reversed ascribing to the defendant-contractor the status of a third-party tortfeasor who stands unprotected by the statutory immunity from common-law tort liability. On certiorari THE OPINION OF THE COURT OF APPEALS IS VACATED AND TRIAL COURT'S JUDGMENT REINSTATED.

King, Tague & Roberts, Oklahoma City, for appellant.

John T. Edwards, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, for appellee.

OPALA, Justice:

The dispositive question on certiorari is whether the plaintiff (worker) in a negligent-tort action was barred by the Workers' Compensation Act from pursuing his common-law remedy. He was injured while employed by one of several contractors on a drilling job. After collecting compensation from his own employer he brought this action against another contractor at the well site. The defendant an independent contractor was hired to supervise the drilling of a deep gas well. The worker's employer another contractor was engaged to unplug shale from the same well. The two contractors were working, side by side, at the well site under separate contracts with the same operator who was their "principal employer" in the sense in which that term is used in 85 O.S.1971 § 11. They were doubtless cooperating in the common task of accomplishing a joint result for their principal employer.

At issue here is the worker's status vis-a-vis the defendant-contractor. If the latter entity fits the description of "another not in the same employ", as that phrase, used in 85 O.S.1971 § 44, is to be understood in conjunction with the terms of § 11, then the instant action will lie. ¹ If not, the contractor would enjoy, under the provisions of 85 O.S.1971 §§ 12 and 44, ² construed together, absolute immunity from tort liability and the trial court's judgment must be reinstated.

Both contractors here were working in a cooperative manner on a common task the unplugging of the well and their cooperation in this joint endeavor was absolutely essential to attain their immediate goal. We hold that with respect to the common-task activities both contractors on the job and their workers must be deemed to be persons "in the same employ" as contemplated by the applicable provisions of the Act. Any common-law claim against them, if arising from a worker's on-the-job injury, stands abrogated. The worker must be relegated for redress to his exclusive statutory remedy in compensation.

Glover-Hefner-Kennedy, gas well operator (Operator) hired two contractors to assist it in the drilling of a deep gas well in Beckham County. Sharp Drilling Company (drilling contractor) supplied equipment and manpower, while Drilling Well Control, Inc. (DWC) provided a consultant to assist in the supervision of the operations. The consultant represented the Operator's interest at the well site and saw to it that the well was drilled according to specifications. The drilling contractor was paid at a daily rate for the use of the rig equipment and for the provisions of labor. The consultant shared this supervisory responsibility with the Operator's drilling superintendent. Both the consultant and superintendent were in daily contact with the Operator's engineer who made final decisions.

When the well was near completion high pressure caused production tubing to become clogged with formation shale at a point below the wellhead. This condition brought drilling to a halt. Otis Engineering (Otis) was called in to clean out "snub" shale from the production tubing. Otis provided its own snubbing equipment, a three-man crew and a supervisor. Before accepting the job assignment, Otis' representative went to survey the well site. He was advised the wellhead pressure was around 13,000 pounds per foot. Although Otis-owned equipment, designed for wellhead pressure of not more than 10,000 pounds, was obviously underpowered, Otis' snubbing operator considered it adequate for deployment at the well if it were used with an adjustable rather than a positive choke. ³

A decision was reached by the operator's drilling superintendent, engineering personnel and the consultant to use the 10,000-lbs. wellhead pressure snubbing unit (outfitted with a positive choke) instead of securing higher powered equipment from elsewhere. A well blowout followed. In its course Otis' snubbing operator (worker) was thrown 200 feet into the air and sustained multiple injuries. After receiving compensation benefits from his own employer in Louisiana, he brought a tort action against the consultant's employer, DWC. The trial court sustained DWC's demurrer to the evidence and this appeal was brought by worker. The Court of Appeals reversed. We granted certiorari to re-examine our past pronouncements' exposition of the applicable statutory law.

The Court of Appeals viewed as no longer efficacious this court's 1930 opinion in Thompson v. Kiester ⁴ and the construction accorded by it to the key phrase "another not in the same employ". In Thompson, an employee of a rig contractor was injured by an exploding boiler then in use by the drilling operator. We held that both contractors with all their workers on the job at the time of the injury were "in the same employ". We hence pronounced the drilling contractor statutorily immune from tort liability. The factors isolated by us in that case as helpful in the analysis of the "in-the-same-employ" status were: (a) both independent contractors on the job (b) at the time of the worker's injury (c) were in the process of performing a common task upon the work site (oil and gas lease) (d) in a cooperative manner (e) for the same party the "principal employer" (f) who specified the work to be done and the manner of getting it done, (g) although each of these contractors had a separate contract with the "principal employer". All of these critical factors are clearly present here.

The Court of Appeals declined to follow the Thompson analysis. Instead, it rested its conclusion on our seemingly conflicting decisions in Horwitz Iron & Metal Co. v. Myler, ⁵ Londagin v. McDuff, ⁶ Parkhill Truck Co. v. Wilson, ⁷ Dolese Brothers v. Tollett ⁸ and Rota-Cone Oil Field Operating Co. v. Chamness. ⁹ These cases were believed to cast a serious shadow over Thompson's continued efficacy as a viable precedent for the notion that § 44 "in-the-same-employ" class may include employees of several independent contractors working on the same project for the accomplishment of a common task under separate contractual engagements with the same person as the "principal employer".

The cited decisions, which no doubt influenced the Court of Appeals in its course, were anchored upon facts clearly distinguishable from those in the instant case. Horwitz, Londagin, Parkhill and Dolese all involved negligent activities by materialmen or truckers while in the process of delivering goods to, or loading them at, a job site. Their peculiar status, we held in those cases, qualified them under 85 O.S.1971 § 44 as "another not in the same employ". Rota-Cone, as well as the instant case, was a claim by an employee of an independent contractor against another such contractor both of whom, at the time of the injury, were engaged in performing tasks for the same entity.

Rota-Cone acknowledges the existence of two case-law tests. The first of these, first announced in Thompson, rests on an analysis of the elements described earlier in this opinion. The second depends on whether the defendant in a common-law action may be said to be either primarily or secondarily liable to the plaintiff-worker under the Workers' Compensation Act. Rota-Cone attributes the first test to the Thompson decision and the second to Dolese. It concludes that the two tests, though seemingly incompatible, are neither mutually exclusive nor contradictory. We are impressed with Rota-Cone's approach that allows both the Thompson and Dolese tests to co-exist for accommodation of a great variety of factual situations which may arise in determining the status of a defendant as a third-party tortfeasor.

The person immune from common-law tort liability is not necessarily one who has either primary or secondary liability to the worker-plaintiff under the compensation law. This is apparent from our case-law which clearly affords immunity to co-employees who can never bear either primary or secondary liability for compensation. The "in-the-same-employ" status under § 44, as shown by Thompson, is not necessarily dependent on the existence of secondary liability under § 11. ¹⁰ This is further demonstrated by our decision in Carroll v. District Court of Fifteenth Judicial District ¹¹ in which § 12 immunity was extended to a co-employee one who could never be within the sphere of secondary liability of § 11.

The tort immunity created by our compensation law is a conceptual complexity not capable of being reduced to one theory or formula or of being judicially applied under a single, all-inclusive test. Extant case law identifies several classes of persons who may not be made answerable in damages for the on-the-job injury or death of a worker protected by the statutory remedy in compensation. These classes are: ¹²

(a) the worker's immediate employer; ¹³

(b) all of the worker's co-employees under the immediate employer; ¹⁴

(c) the "immediate, intermediate and principal" hirers of the immediate employer, together with their employees, because under § 11...