Cattlemen's Steakhouse, Inc. v. Waldenville
| Decision Date | 12 November 2013 |
| Docket Number | No. 111562.,111562. |
| Citation | 318 P.3d 1105 |
| Parties | CATTLEMEN'S STEAKHOUSE, INC., and Starnet Insurance Co., Petitioners, v. John David WALDENVILLE, Oklahoma County Sheriff's Department, Oklahoma County (Own Risk # 14772), and The Workers' Compensation Court, Respondents. |
| Court | Oklahoma Supreme Court |
318 P.3d 1105
CATTLEMEN'S STEAKHOUSE, INC., and Starnet Insurance Co., Petitioners,
v.
John David WALDENVILLE, Oklahoma County Sheriff's Department, Oklahoma County (Own Risk # 14772), and The Workers' Compensation Court, Respondents.
No. 111562.
Supreme Court of Oklahoma.
Nov. 12, 2013.
[318 P.3d 1106]
Proceeding to Review an Order of the Workers' Compensation Court.
¶ 0 The respondent, John David Waldenville (Waldenville/claimant/employee), was injured in an employment-related incident on May 21, 2011, while acting as a security guard for the petitioner, Cattlemen's Steakhouse, Inc. (Cattlemen's/employer). Initially, Cattlemen's contended that Waldenville was an independent contractor but later conceded that it had workers' compensation coverage for the claimant through their insurer. Nevertheless, the employer continued to assert that Waldenville was an employee of the respondent, Oklahoma County Sheriff's Department (Oklahoma County/Sheriff's Department), when injured. The trial court determined that: Cattlemen's was the employing entity when the employment-related injury occurred; Oklahoma County should be dismissed pursuant to 85 O.S.2001 § 2b (G); Cattlemen's was estopped to dispute employee status based on the payment of workers' compensation premiums associated with Waldenville's employment; no evidence existed indicating that the employee was acting in his official capacity as a Deputy Sheriff at the time of the incident; and because the duties that Waldenville was carrying out at the time of his injury were the same or similar to those he executed as a Deputy Sheriff, the claimant's salaries were to be combined for establishment of weekly rates. Having retained this cause, we hold that: 1) the plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of 85 O.S.2011 § 313(G) mandates that private employers, hiring off-duty municipal employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer; and 2) under the facts of this case, both the clear weight of the evidence and the overwhelming majority of extant jurisprudence support a determination that the claimant was engaged in the same, or substantially similar, employment to that of his profession as a Major with the Oklahoma County Sheriff's Department when he was injured, warranting the combination of salaries for purposes of determining workers' compensation benefits.
WORKERS' COMPENSATION COURT'S ORDER IS SUSTAINED.
Jeffrey D. Nachimson, Pierce, Couch, Hendrickson, Baysinger & Green, LLP, Oklahoma City, Oklahoma, for petitioners.
Bruce V. Winston, James C. Ferguson, Walker Ferguson & Ferguson, Oklahoma City, Oklahoma, for respondent, Oklahoma County.
W.C. Doty, The Bell Law Firm, Norman, Oklahoma, for respondent, John David Waldenville.
WATT, J.
¶ 1 We retained this cause to address two issues. The first is whether a political-subdivision employer may be required to provide workers' compensation benefits to an
[318 P.3d 1107]
off-duty employee injured while providing services to a private entity. Second, we are asked whether, under the facts presented, the claimant's salaries from his full-time employment as a deputy sheriff and his part-time job as a security officer may be combined when determining the amount of benefits to which the employee is entitled.1
¶ 2 The answer to the first question is controlled by the plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of 85 O.S.2011 § 313(G)2 providing that private employers, hiring off-duty municipal employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer. The second issue requires that we determine whether the claimant's private sector employment was the same or similar to that of his duties as a deputy sheriff.3 Here, the employee drove an official cruiser to the job site, was dressed in uniform, and was carrying his badge and personal sidearm while engaged in transporting, on foot, his employer's money to a local night depository. Waldenville was shot in the head and so severely injured that he could not give chase. Under these unique facts, we determine that the employee's two salaries should be combined for the purpose of determining benefits. The clear weight of the evidence and the overwhelming majority of extant jurisprudence support the conclusion that, while acting as a security guard for the employer, the claimant was engaged in an employment substantially the same or similar to his duties as a Deputy Sheriff.
¶ 3 On May 21, 2011d Waldenville was delivering a night deposit to UMB Bank for Cattlemen's when he was ambushed, shot in the head, and robbed of two (2) money bags.
[318 P.3d 1108]
At the time, Waldenville was employed full-time as a Major with the Oklahoma County Sheriff's Department and was working part-time for the employer as a security guard hired and paid by Cattlemen's. His regular duties as a Deputy were with the Administrative Bureau as Chief Financial Officer for the Sheriff's Office. Waldenville was also over the training division. Previously, he had been part of the SWAT team tactical unit. On the evening of the injury, the employee had permission from the Sheriff's Office to act as a security guard for Cattlemen's and other private employers.
¶ 4 When shot, Waldenville was being paid for his services by Cattlemen's and was conducting business as the employer's part-time security guard. Nevertheless, with the permission of Oklahoma County, he was wearing his Deputy Sheriff's uniform, carrying his personal sidearm, and was utilizing a County police vehicle as transportation. Waldenville's regular duties for Cattlemen's involved providing security, i.e. protecting vehicles from vandalism in the parking lot, ensuring that transients did not interfere with customers, escorting employees from the place of business to their cars, and making the nightly deposit at the stockyard's bank. On occasion, during the hours of his employment with the employer, Waldenville issued tickets in the area for speeding and considered himself to be an active, on-duty Deputy Sheriff with the Oklahoma County Sheriff's Department at all times.
¶ 5 On June 7, 2011, a form 3 was filed in the Workers' Compensation Court alleging Waldenville suffered an accidental personal injury arising out of his employment with Cattlemen's. When Cattlemen's denied that Waldenville was their employee, the trial court allowed the joinder of the Oklahoma County Sheriff's Department. Initially, Cattlemen's denied that they had workers' compensation insurance coverage on the employee and asserted that he was an independent contractor. On February 13, 2013, the day of trial, Cattlemen's formally acknowledged that premiums were paid to the insurance carrier based on Waldenville's salary.4 A week later, the trial court issued an order finding that the claimant was entitled to compensation, dismissing Oklahoma County, and combining the claimant's wages from his two employments for the purpose of determining benefits.
¶ 6 Cattlemen's filed its petition for review on March 11, 2013. The motion to retain was granted on June 26th. The briefing cycle was completed with the filing of the petitioner's reply. The record was provided to this Court on July 25, 2013.
¶ 7 To the extent that we are called upon to construe the statutory language at issue herein, we are presented with a pure question of law subject to our de novo review without deference to the workers' compensation court. 5 The evidentiary standard of “against the clear weight of the evidence,” having been in effect on the date of injury, is applicable here. 6
¶ 8 a) The plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of
[318 P.3d 1109]
85 O.S.2011 § 313(G) mandates that private employers, hiring off-duty county employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer.
¶ 9 Cattlemen's contends that it is not liable for payment of workers' compensation to Waldenville because the employee was not an “off-duty” municipal employee for whom it would be liable to pay workers' compensation benefits pursuant to 85 O.S.2011 § 313(G).7 Rather, the employer insists, the employee was operating in his capacity as a police officer when he was shot while safeguarding money for the night deposit. Oklahoma County argues that the employee was acting purely in his capacity as a part-time security guard for Cattlemen's and was not performing the duties of a Deputy for the Sheriff's Department. Waldenville asserts that the trial court was correct in ruling that Cattlemen's was solely liable for compensation for the injuries he sustained. We agree with both Oklahoma County's and the employee's positions.
¶ 10 The employer relies primarily on two decisions from sister jurisdictions for support of its arguments. The first, City of Hialeah v. Weber, 491 So.2d 1204 (D.C.Fla.1986), involved a situation where a police officer was seeking workers' compensation benefits from the City for injuries incurred by an off-duty policeman who was providing his part-time employer with security services. The Weber Court determined that the City was responsible for workers' compensation benefits for injuries sustained by the off-duty policeman. It did so on grounds that the actions the officer undertook, i.e. attempting to arrest individuals committing acts of vandalism outside the employer's private club, were such that he was performing his job as a police officer for the City when injured.
¶ 11 The second case upon which Cattlemen's relies is State v. Wilen, 4 Neb.App. 132, 539 N.W.2d 650 (1995). Wilen...
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