Blailock v. O'BANNON

• Decision Date: 27 September 2001
• Docket Number: No. 2000-CA-00664-SCT.,2000-CA-00664-SCT.
• Citation: 795 So.2d 533
• Parties: Wanda BLAILOCK v. Shirley O'BANNON and Higbee Company d/b/a Dillard's Department Stores, Inc.
• Court: Mississippi Supreme Court

795 So.2d 533

Wanda BLAILOCK v. Shirley O'BANNON and Higbee Company d/b/a Dillard's Department Stores, Inc.

No. 2000-CA-00664-SCT.

Supreme Court of Mississippi.

September 27, 2001.

Michael Breland, Robert Fred Lingold, Jr., Florence, Attorneys for Appellant.

Christy D. Jones, Jackson, Mary Margaret Sams, Attorneys for Appellees.

EN BANC.

WALLER, Justice, for the Court:

¶ 1. Wanda Blailock filed a complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against her employer, Higbee Company d/b/a Dillard's Department Stores, Inc. (Dillard's), and another of its employees, Shirley O'Bannon. Blailock claimed that, while she was working as a saleswoman at Dillard's, O'Bannon, a management-level employee, intentionally assaulted her, committed battery, falsely imprisoned her, and caused emotional distress when O'Bannon grabbed Blailock's arm and began pulling her to an office for disciplinary action. Blailock further claimed that Dillard's was aware of the "bullying and threatening tactics" used by O'Bannon and it therefore ratified her conduct.

¶ 2. Dillard's filed a motion to dismiss, contending that the Mississippi Workers' Compensation Commission (WCC) had exclusive original jurisdiction to hear the claims raised in Blailock's complaint. This motion to dismiss was granted after a hearing and after Dillard's presented evidence that a file pertaining to the matter had been opened at the WCC.

ANALYSIS

I. DID THE CIRCUIT COURT ABUSE ITS DISCRETION BY DISMISSING BLAILOCK'S COMPLAINT?

¶ 3. Blailock contends that the WCC does not have exclusive original jurisdiction to hear her claims because her claims consist of intentional torts which are not compensable under the Act. See Miss.Code Ann. § 71-3-3(b)(2000) (To be compensable under the Act, there must be an accidental injury or an accidental death); Miller v. McRae's, Inc., 444 So.2d 368, 372 (Miss.1984) (WCC has exclusive jurisdiction if the injury arose out of and in the course of employment and if the injury is compensable under the Act). The standard of review for questions of law is de novo. Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997). ¶ 4. We have set out two elements which must be met in order to avoid the exclusivity of the Act:

(1) The injury must be caused by the willful act of the employer or another employee acting in the course of employment and in the furtherance of the employer's business; and

(2) The injury must be one that is not compensable under the Act.

Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss.1988) (citing Miller, 444 So.2d at 371-72).

¶ 5. Many states which have enacted statutory exclusivity provisions which allow civil claims, as opposed to physical injury claims which are compensable under the Act, by the employee against the employer's insurance carrier for the commission of an intentional tort.¹ We have held that a mere willful and malicious act is insufficient to give rise to the intentional tort exception to the exclusive remedy provisions of the Act. There must be a finding of an "actual intent to injure." Reckless or grossly negligent conduct is not enough to remove a claim from the exclusivity of the Act. Peaster v. David New Drilling Co., 642 So.2d 344, 348, 349 (Miss.1994). For a civil suit based on an intentional tort to proceed, the injury has been something other than physical injury or death, which are compensable under the Act. Id. at 348.

¶ 6. We find that the circuit court's dismissal of Blailock's complaint was error, and we reverse and remand for further proceedings. Part of the damages sought by Blailock (physical pain and suffering due to the alleged wrenching of her arm, emotional distress, loss of wages, special damages for the loss of the opportunity to compete in the Senior Olympics and punitive damages) are not compensable under the Act because they are alleged to have been caused by willful and intentional acts, not negligent or grossly negligent acts. The damages did not arise from an accidental injury or an accidental death. The allegations of Blailock's complaint certainly meet the two criteria set out by the Court in Griffin. Blailock must prove that O'Bannon was working in the course and scope of her employment when she allegedly committed the intentional torts, that O'Bannon's alleged acts were committed with an actual intent to inflict injury, and that Blailock suffered injuries as a result, but the allegations of intentional acts certainly take Blailock's non-compensable claims out of the jurisdiction of the WCC. Of course, a claim for her injuries that are compensable under the Act are still subject to the WCC. See, e.g., Sharpe v. Choctaw Elecs. Enters., 767 So.2d 1002, 1007 (Miss.2000).

II. WHETHER BLAILOCK WAS PROVIDED WITH AN ADEQUATE OPPORTUNITY TO BE HEARD.

¶ 7. Blailock contends that the circuit court summarily dismissed her complaint after it reviewed the file opened at the WCC. However, Blailock admits that a hearing was held on the motion to dismiss and that the court's decision was taken under advisement until such time the file could be reviewed.

¶ 8. Because we reverse the circuit court's grant of Dillard's motion to dismiss, this issue is moot.

III. DOES THE FILING OF AN INJURY REPORT WITH THE WCC ESTOP A PARTY FROM PURSUING A CIVIL CLAIM FOR AN INTENTIONAL TORT?

¶ 9. The filing of a Notice of Injury Report with the WCC is required by Miss. Code Ann. § 71-3-67 (2000). However, the Notice does not ripen into a claim until the employee files a Petition to Controvert. M.W.C.C. Proc. R. 2. We find that an injured employee is not estopped from filing a complaint based on an employment-related intentional tort merely because a file has been opened at the WCC by the filing of a Notice of Injury Report.

CONCLUSION

¶ 10. We reverse the order dismissing Blailock's complaint and action and remand this case to the Circuit Court of the First Judicial District of Hinds County for further proceedings consistent with this opinion.

¶ 11. REVERSED AND REMANDED.

PITTMAN, C.J., BANKS, P.J., MILLS, DIAZ and EASLEY, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COBB, J.

SMITH, Justice, dissenting:

¶ 12. In my view, the majority errs in finding that the Mississippi Workers' Compensation Commission did not have exclusive original jurisdiction to hear Blailock's claims. First, there was no intent to injure Blailock; therefore, there is no question that any injury she incurred was the result of an accident. It is undisputed that Blailock filed a workers' compensation claim. Second, there are cases that have compensated workers for injuries resulting from intentional torts; thus, the majority is in error when it finds that such torts are not compensable under workers' compensation law. This Court reiterated the two elements necessary for an injured employee to avoid the Mississippi Workers' Compensation Exclusive Liability Provision:

(1) the injury must have been caused by the willful act of another employee acting in the course of employment and in the furtherance of the employee's business, and

(2) the injury must be one that is not compensable under the Act.

Griffin v. Futorian Corp., 533 So.2d 461, 463-64 (Miss.1988) (citing Miller v. McRae's, Inc., 444 So.2d 368, 371-72 (Miss. 1984)). If both of these elements are met, then it is appropriate to pursue a claim outside of the confines of the statute. Otherwise, the claimant is only entitled to the compensation provided under the statute. Under either theory stated above, Blailock's claims are compensable, and thus subject to the exclusivity provision. Therefore, I respectfully dissent.

¶ 13. If the claims do not meet both elements of the Griffin test, then the claims are subject to the exclusivity provisions. I believe that the claims are compensable, and thus subject to the exclusivity provisions, based on either of the theories presented below:

(1) THE CLAIMS ARE COMPENSABLE BECAUSE UNDER THE FACTS PRESENTED THERE WAS NO INTENT TO INJURE.

¶ 14. If there was no intent to injure, then the injury is clearly covered by the Act, and Blailock is thus limited to the remedy provided under the Act. Section 71-3-3 defines injury as:

accidental injury ... arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner ... and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job.

Miss.Code Ann. § 71-3-3 stated that "[i]f the harm to the worker includes physical results, there is an "accidental injury" if either the event resulting in harm or the harm itself is unexpected." KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991) (quoting J. Bradley, Two Workers' Compensation Law Amendments: Definition of "Injury" and Method of Stating Maximum Benefits 14 (May 13, 1988) (Paper published by Third Annual Mississippi Workers' Compensation Educational Conference, Miss. Workers' Compensation Commission)). Under the short fact statement found in the complaint filed below and that in the appellant's brief, no intent to commit the alleged acts is demonstrated. This is like this Court observed "[d]espite these allegations [regarding intentional torts], the overwhelming language and facts point to negligence, including gross negligence." Peaster v. David New Drilling Co., 642 So.2d 344, 346 (Miss. 1994). Further in Peaster, this Court quoted Griffin, stating:

Dunn, Mississippi Workmen's Compensation, (3d ed. 1982 & Supp.1984), notes that in order for a willful tort to be outside the exclusivity of the Act, the employee's action must be done "with an actual intent to injure the employee. It is not enough to destroy the immunity that the employer's conduct leading to the injury consists of

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