Berry v. Rods
| Decision Date | 24 August 2011 |
| Docket Number | Case No. 10-CV-321-GKF-TLW |
| Parties | JOHN RANDALL BERRY, Plaintiff, v. 1) NORRIS SUCKER RODS, 2) NORRIS RODS, 3) NORRIS, 4) NORRIS CORP., 5) THE NORRIS COMPANY, 6) NORRIS OIL CO., 7) NORRIS, A DIVISION OF DOVER FLUID MANAGEMENT, INC., 8) DOVER CORPORATION, AND 9) DOVER, INCORPORATED, Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
This matter comes before the court on the Motion to Dismiss Second Amended Complaint (Dkt. #38) of defendant Norris, a Division of D over Fluid Management, Inc. ("Norris"). Norris argues that the Second Amended Complaint (Dkt. #33) should be dismissed for three reasons: 1) a 2010 amendment to Oklahoma's Workers' Compensation Act eliminated "substantial certainty" tort claims, 2) another 2010 amendment precludes plaintiff from maintaining claims in both Workers' Compensation Court and district court, and 3) plaintiff failed to state a plausible claim upon which relief can be granted.
Section 11 of the Oklahoma Workers' Compensation Act (the "OW CA") prescribes employer liability for the "disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault." 85 O.S. § 11. Section 12 of the OWCA makes that liability "exclusive and in place of all other liability of the employer." 85 O.S. § 12. The Oklahoma Supreme Court has long recognized, however, that in some cases "an employee who has been wilfully injured by his employer [may] ha[ve] a common law action for damages." Roberts v. Barclay, 369 P.2d 808, 809 (Okla. 1962). In 2005, the Oklahoma Supreme Court "rejected the proposition that the specific intent to harm is required for an employer's conduct to be actionable in tort," and adopted the "substantial certainty" standard. Parret v. UNICCO Serv. Co., 127 P.3d 572, 578-579 (Okla. 2005). Under the "substantial certainty" standard, an employer's conduct amounts to an intentional tort if the employer "acted with the knowledge that such injury was substantially certain to result from the employer's conduct." Id. at 579.
On December 25, 2007, two years after the Oklahom a Supreme Court decided Parret, plaintiff John Randall Berry ("Berry") was injured on the job. Berry timely filed this Parret tort action in state district court on September 1, 2009.
In 2010, the Oklahom a Legislature eliminated Parret tort claims with the following amendment to § 12 of the OWCA: "[a]llegations or proof that the employer had knowledge thatsuch injury was substantially certain to result from its conduct shall not constitute an intentional tort." The amendment took effect on August 27, 2010.2
The initial issue posed by the motion to dismiss is whether the 2010 amendment eliminating Parret tort claims applies retroactively to require the dismissal of Berry's Parret claim. The Legislature did not expressly make the amendment retroactive.
Generally, "the law in effect at the time of the employee's injury controls." Am. Airlines Inc., v. Crabb, 221 P.3d 1289, 1291 (Okla. 2009) (citations omitted). This is because "the right of an employee to workers' compensation arises from the contractual relation between the employee and employer on the date of injury,"and "[t]he statute in effect on the date of injury forms a portion of the contract of employment and determines the substantive rights and obligations of the parties." Scruggs v. Edwards, 154 P.3d 1257, 1261 (Okla. 2007) (citing Cole v. Silverado Foods, Inc., 78 P.3d 542, 546 (Okla. 2003)3 "Thus, the general rule is that no subsequent statutory amendment can operate retrospectively to affect in any way the substantive rights and obligations which are fixed on the date of injury."Id. (citing King Mfg. v. Meadows, 127 P.3d 584, 589 (Okla. 2005)); CNA Ins. Co. v. Ellis, 148 P.3d 874, 877 (Okla. 2006).
An exception to the general rule is that amendments relating solely to remedies and affecting only modes of procedure "are generally held to operate retroactively and apply to pending proceedings. Id. (citing King Mfg. v. Meadows, 127 P.3d at 589). "Statutes that relate solely to remedies and hence affect only modes of procedure - i.e., enactments which do not create, enlarge, diminish, or destroy accrued or contractual rights - are generally held to operate retroactively and apply to pending proceedings (unless their ope ration would affect substantive rights)." Cole v. Silverado Foods, Inc., 78 P.3d 542, 546 (Okla. 2003) (emphasis in original).
The 2010 amendment eliminating Parret tort claims explicitly eliminates an employee's right to bring an intentional tort claim premised on the "substantial certainty" standard. Chief Judge Eagan of this Court recently reached the same conclusion: "it is clear that the amendment substantively alters a party's right to bring an intentional tort claim outside of the scope of the OWCA" Shue v. High Pressure Transports, LLC, 2010 WL 4824560 at *5 (N.D. Okla. 2010) (emphasis added). "[T]he substantial certainty test had not been legislatively overruled when plaintiff filed this case, and plaintiff m ay proceed with an intentional tort based on a substantial certainty theory." Id.4 Because the statutory elimination of Parret tort claims affected substantive rights, it may not be applied retroactively. The court therefore rejects Norris's first ground for dismissal.
The 2010 amendments also added the following new provision to § 12 of the OWCA: "in the case of an intentional tort, the injured employee or his legal representative may maintain an action either in the Workers' Compensation Court or in the courts, but not both." 85 O.S. § 12(v). Norris contends the amendment applies to existing Parret tort claims and requires dismissal of this action.
Like the amendment addressed in Section I, above, the amendment prohibiting an employee from maintaining both a Parret action and an OWCA action substantively alters an employee's right to maintain a Parret claim outside the scope of the OWCA. If, as Norris contends, the amendment is applicable to pre-existing claims, injured workers like Berry who brought both claims prior to 2010 may maintain only one of the rights of action. Thus, the new amendment alters Berry's previously-accrued, substantive right to pursue both rights of action.5
Norris argues that when the Legislature amended the statute to permit an injured employee to "maintain an action either in the Workers' Compensation Court or in the courts, but not both," it necessarily implied that the amendment has retroactive effect on pending actions. In Oklahoma, statutes are considered to have prospective operation only unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used." Rea v. Wichita Mortg. Corp., 747 F.2d 567, 571 (10th Cir. 1984) (citing State Bd. of Registration for Prof'l Engineers & Land Surveyors v. Engineered Coatings, Inc., 542 P.2d 508, 509 (Okla. 1975)).
Article V, Section 52 of the Oklahoma Constitution prohibits the result Norris seeks. "After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." 6 Once plaintiff Berry commenced his Parret tort action and his Workers' Compensation action, the Legislature had no power to take one of the actions away by forcing Berry to elect between them Moreover, this Court is unconvinced that the word "maintain" necessarily implies legislative intent to apply the amendment to pre-existing actions.
To satisfy the "substantial certainty" standard, more than knowledge and appreciation of the risk is necessary:
Berry has alleged that the turret lathe machine that injured him was "so designed that it was substantially certain to malfunction," that two other employees had previously been injured when the turret lathe machine malfunctioned in the same or similar manner, that one of the prior injuries had occurred shortly before Berry's, and that Norris had removed the "emergency stop(s)" on the turret lathe machine which would have prevented Berry's injury.
In evaluating a motion to dismiss for failure to state a claim upon which relief may be granted, a court must take the allegations in the complaint as true. In doing so, this Court concludes that Berry has stated a Parret claim upon which relief can be granted.
For the reasons stated above, the court concludes that the amendments to the Workers' Compensation Act cannot be retroactively applied to this action. Berry has pleaded facts sufficient to state a claim for a Parret tort. Therefore, the Motion to Dismiss Second Amended Complaint (Dkt. #38) of defendant Norris, a Division of Dover Fluid Management, Inc., is denied.
IT IS SO ORDERED this 24th day of August, 2011.
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