Brown v. Finney

• Decision Date: 25 November 1996
• Docket Number: No. 95-1329,95-1329
• Parties: Steven A. BROWN, Appellant, v. Leonard S. FINNEY Jr., Appellee,
• Court: Arkansas Supreme Court

Page 769

932 S.W.2d 769

326 Ark. 691

Steven A. BROWN, Appellant, v. Leonard S. FINNEY Jr., Appellee,

No. 95-1329.

Supreme Court of Arkansas.

Nov. 25, 1996.

H. David Blair, Batesville, for Appellant.

Tim Weaver, Batesville, for Appellee.

CORBIN, Justice.

Appellant Steven A. Brown appeals the judgment of the Sharp County Circuit Court granting summary judgment to Appellee Leonard S. Finney Jr. on Appellant's complaint that Appellee was negligent in his operation of a vehicle that resulted in an accident and caused injuries to Appellant. The trial court granted summary judgment on the basis that Appellant's exclusive remedy was through a workers' compensation claim against his employer pursuant to Ark.Code Ann. § 11-9-105 (Repl.1996). As this appeal involves statutory interpretation, our jurisdiction is pursuant to Ark.Sup.Ct.R. 1-2(a)(17). Appellant's sole point on appeal is that the trial court erred in granting summary judgment because section 11-9-105 does not provide the exclusive remedy of a worker injured by the active negligence of a non-supervisory coemployee.

According to the information contained in the abstract, Appellant and Appellee were part-time employees of ConAgra, working around ten hours per week catching chickens. Neither Appellant nor Appellee had any supervisory duties on the job. ConAgra provided its part-time employees with transportation in the company van to the work site, or farm, where the chickens were located. For some time before the accident, ConAgra had delegated to Appellee the job of driving the part-time employees to the work sites in the company van. The part-time employees were not actually required to ride in the company van, but they were certainly encouraged to do so by their supervisors. According to Tim Hicks, the ConAgra supervisor of both Appellant and Appellee, the employees normally parked their vehicles at a location in Cave City, Arkansas, and then rode to the work site together in the company van, normally driven by Appellee. In fact, Tim Hicks stated that other than the night of the accident, he was aware of only one other time when any of the employees drove their personal vehicles to a work site.

On August 18, 1993, Appellee picked up the company van at ConAgra in Batesville, Arkansas, as was his normal procedure, and drove to Cave City, Arkansas, to pick up the employees. For reasons unclear, two of the employees elected to drive their personal vehicles to the work site that night. Apart from Appellee, the driver of the van, and Appellant, there were four other young men riding in the van that night. The employees drove from Cave City to Dwight Smith's farm and proceeded to catch chickens on that farm. When the job was finished at Smith's farm, the employees left for the next work site. Along the way, an accident occurred when the company van, driven by Appellee, went off the roadway on Highway 58 and overturned. As a result of the crash, several of the young men in the van, including Appellant, were injured, some seriously. Through ConAgra's investigation of the accident, there was some indication by the employees who were riding in the van, along with the two employees in their personal vehicles, that the van was travelling at a high rate of speed and that there may have been some racing going on between the vehicles.

As a result of the injuries he sustained in the accident, including a fractured hip, Appellant was awarded workers' compensation indemnity benefits as well as medical benefits. Appellant brought this action against Appellee in circuit court pursuant to a tort claim that Appellee was negligent in his operation of the van on the night of the accident. Specifically, Appellant's complaint alleged that Appellee was operating the van at an extremely high rate of speed, and that when he tried to pass another vehicle, he lost control of the vehicle, which became airborne, crashed, and overturned. Appellee answered the complaint by denying all material allegations and asserting that the circuit court lacked jurisdiction to hear the claim, as section 11-9-105 provides an exclusive remedy for work-related injuries. The trial court agreed that Appellant's exclusive remedy under the circumstances was through a workers' compensation claim and granted Appellee's motion for summary judgment. Appellant now appeals the order of summary judgment, asserting that the Workers' Compensation Act does not prohibit an employee from maintaining an action in tort against a coemployee for injuries suffered as a result of the coemployee's negligence. We affirm the judgment of the trial court.

Section 11-9-105(a) provides in part:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. [Emphasis added.]

As this court has previously observed, the reason for the exclusivity provision in that section mirrors the general purpose behind our Workers' Compensation Act, which was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public with the concept of fault being virtually immaterial. See Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). With the passage of such statutes, employers gave up the common-law defenses of contributory negligence, fellow servant, and assumption of the risk and, likewise, employees gave up the chance of recovering unlimited damages in tort actions in return for certain recovery in all work-related cases. Id. In other words, the exclusive benefits provision of our workers' compensation law favors both the employer and the employee, and thus we take a narrow view of any attempt to seek damages beyond that favored, exclusive remedy.

Appellant argues that this action is not within the exclusive confines of the Workers' Compensation Act because he is not seeking a damage award from the employer, ConAgra; rather, he is seeking damages from a non-supervisory coemployee for negligence. Appellant asserts that a non-supervisory coemployee is a "third party" within the meaning of Ark.Code Ann. § 11-9-410 (Repl.1996), and that he should not be prohibited from bringing suit in tort against such a coemployee. Section 11-9-410(a)(1)(A) provides:

The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action.

Appellant also distinguishes a non-supervisory coemployee from a fellow coemployee in an attempt to reconcile our prior case law with his theory for recovery. To that extent, Appellant relies heavily on our decision in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). King involved an action for the wrongful death of Dyer, who was struck and killed by a dump truck being driven by King, who was Dyer's fellow employee. Dyer's estate sued King as a third-party tortfeasor, alleging that King was negligent in his operation of the dump truck, and that his negligence caused the death of Dyer. There was testimony that Dyer was struck twice by the dump truck driven by King, and that after Dyer was hit the first time, the truck rocked as if King had applied the brakes, but then the truck continued to back and struck Dyer again, causing the fatal injuries. It was shown at trial that at the time of the accident, King had been backing up the dump truck to the Barber Green asphalt machine while the machine was off, and that it was understood by all the crew members that the dump trucks were not to be backed up to the asphalt machine while its motor was shut off. As to King's argument that such an action in tort was prohibited by the Workers' Compensation Act, this court held:

We are not impressed by the argument that the Workmen's Compensation Act prevents an employee, or his personal representative, from maintaining an action for the negligence of a fellow employee. Our statute merely provides that the remedies under the act are exclusive of other remedies against the employer. Ark. Stats., § 81-1304. The making of a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a third person. § 81-1340. Under a statute like ours a negligent coemployee is regarded as a third person.

Id. at 933, 319 S.W.2d at 218 (citations omitted).

Since that decision, we have examined negligent or injurious actions by fellow employees in the context of whether such employees were third parties not immune from suit based upon the duties they were performing or the roles they were undertaking at the time. In Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969), this court held that the president and owner of a family-owned corporation was not a coemployee, or a third party, for purposes of sustaining an action brought by an employee for negligence. The negligence alleged in that case was that the appellee-owner had failed to provide a safe place to work as required by state law. This court concluded that "[c]ertainly the safety requirements under the labor laws should be enforced in this state and their violation should not go unpunished, but if [appellee-owner] was merely a third party fellow-employee, he had no duty to furnish a place for appellant to work--safe or otherwise." Id. at 388, 438 S.W.2d at 319....