Central Plains Const. v. Hickson
| Decision Date | 26 May 1998 |
| Docket Number | No. 90186,No. 3,90186,3 |
| Citation | 959 P.2d 998 |
| Parties | CENTRAL PLAINS CONSTRUCTION and The State Insurance Fund, Petitioners, and C.J. Tate & Sons and The State Insurance Fund, Counter-Petitioners, v. Dennis Leverne HICKSON and the Workers' Compensation Court, Respondents. Court of Civil Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Darren Derryberry, Victor F. Trautmann, Oklahoma City, for Petitioners.
William W. Wiles, Oklahoma City, for Counter-Petitioners.
Brandon J. Burton, Lew Gravitt, Oklahoma City, for Respondents.
¶1 After he was injured in an attack by a co-worker, Claimant Dennis Hickson filed a workers' compensation claim naming Central Plains Construction (Central Plains) as his employer. Subsequently, Central Plains moved to join C.J. Tate & Sons (Tate), contending Tate was the actual employer. Tate ultimately agreed that Claimant was its employee but argued that it was engaged in a joint venture with Central Plains on the project on which Claimant worked.
¶2 After hearing, the Workers' Compensation Court trial judge entered an order containing special findings that Central Plains and Tate were joint venturers on a construction project for the Oklahoma Department of Transportation four miles west of Mangum, Oklahoma, and that Claimant worked on that project. The trial judge also found that Claimant was injured in the course of his employment with the joint venture and that Claimant's injury arose out of his employment, and entered an order directing Central Plains and Tate to pay Claimant benefits for temporary total disability, permanent partial disability, and disfigurement. 1 An en banc appeal resulted in a three-judge panel order modifying the amount of benefits due Claimant, but leaving intact the remainder of the order. This review proceeding followed. 2
¶3 Claimant's claim arises from injuries due to an attack upon him by a co-worker, L, with whom Claimant was sharing a two-bed motel room. The room had been rented by Joe Skeith (who was identified by Claimant and a representative of Tate as owner of Central Plains) for the use of the workers from Central Plains and two or three regular employees of Tate during the Mangum project. On October 19, 1995, the workers were paid, and, as was their custom, several of them had dinner and then went out to socialize that evening. L became "rowdy," "ornery" and aggressive towards other patrons while they were at a club. Skeith asked Claimant and another worker to take the man back to the motel and gave them the keys to his personal vehicle to do so. They took L to the motel and returned to the club for further socializing.
¶4 Claimant later returned to the motel room and found L and a partially clothed woman in the room. L promptly left (leaving his room key behind), and after she dressed, the woman also left the room. Claimant prepared for bed and went to sleep. In the early hours of the morning L returned, and Claimant let him back in the room. The next thing Claimant remembers was awakening to find himself being attacked. L, apparently in a delusional state, was astride Claimant on the bed. Claimant struggled with L and sustained a knife wound to the chest. Skeith, who had been asleep in the next room, was awakened by the struggle and Claimant's calls for help. Skeith summoned help, and Claimant was taken to hospital.
¶5 Whether an injury is incurred in the "course of" employment relates to the time, place or circumstances under which the injury was sustained. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201. An injury "arises" out of employment when there is a causal connection between the injury and the risks incident to employment. American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288.
¶6 Central Plains claims that because Claimant's presence in the motel room was purely voluntary and for his own personal convenience, there is no competent evidence to support the conclusion that his injury was incurred "in the course of" his employment. We disagree. It is unrefuted that when a job site was far enough away from a worker's home, Central Plains normally provided accommodations, along with transportation from the motel to the job site. Although there is some controversy over whether Claimant was entitled to stay in the motel room or whether his presence there was permissive, this record contains competent evidence from which the trial court could conclude that Claimant lived far enough away from the work site that he would have been entitled to stay in a room under the policy described. 3 Where, as here, a claimant is away from home due to employment and stayed overnight as a result, an injury sustained while in that travel status is one "in the course of" employment. Accord, Burns, 1995 OK 58, p 5, 903 P.2d at 291.
¶7 Tate and Central Plains argue the risk encountered by Claimant did not arise from his employment. In support, Tate cites the rejection of the "positional risk" test or doctrine 4 by the Court in Burns, and notes that, as stated in Copeland v. Boots Pharmaceuticals, 1996 OK CIV APP 8, p 11, 916 P.2d 277, 280, "it is no longer sufficient to prove merely that the employment required a worker to be in a particular place and that he was injured while there." This analysis is correct insofar as it goes, but this record contains evidentiary materials requiring further analysis.
¶8 The workers on this job were expected to share a room. Skeith preferred to room with a particular co-worker from Central Plains. Skeith did not want to room with L or Claimant, apparently because they snored, and let the workers know his choice of roommate. A third room was occupied by the workers from Tate, who preferred to room together. Therefore, because of the way the other workers associated, Claimant had no option of which room to occupy. The only vacant bed was in the room with L. Unlike in Burns, Claimant's assailant was not an unknown third party but the very co-worker his employer caused to be present in the room.
¶9 There was no evidence of personal animosity between L and Claimant, and the two had roomed together on a prior job for over six months without incident. Skeith knew L had a drug problem in the past and that he had been fired, given a second chance at Central Plains, and thereafter was working on this job with Tate. L was described as acting drunk and/or drugged as well as being belligerent while at the club immediately prior to when Skeith instructed Claimant and the other worker take him back to the motel.
¶10 Whether an injury arises out of employment is a fact question for the Workers' Compensation Court, and the increased risk test applies when determining if an injury arises out of employment. Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309. Under that test, the question is whether Claimant's employment subjected him to a risk that exceeded the ordinary hazards to which the general public is exposed. This record contains competent evidence from which the Workers' Compensation Court could conclude that the risks attendant to being confined in a motel room with L were not shared by the general public or otherwise neutral, and were causally related to Claimant's employment on this job. Accord, Superior Stucco v. Daniels, 1995 OK 127, 912 P.2d 317.
¶11 Even if Claimant's injury arose out of and in the course of his employment on the Mangum project, Central Plains denies the existence of a joint venture and of an employer-employee relationship between itself and Claimant at the time of injury. Tate and Claimant argue the Workers' Compensation Court correctly concluded Central Plains is jointly and severally liable with Tate for the benefits due Claimant.
¶12 No single factor alone is sufficient to establish that parties are in a joint venture, but three requisite elements have been identified: (1) the parties possess a joint interest in the property utilized in the venture; (2) the parties agree, either by express or implied agreement, to share in the profits and losses of the venture; and (3) the action or conduct of the parties evidences cooperation in the performance of the venture. Pfleider v. Smith, 1962 OK 31, 370 P.2d 17; Boren v. Scott, 1996 OK CIV APP 115, 928 P.2d 327. Tate stipulated that Claimant was its employee. Whether a joint venture is an employer is a fact question, but because the Workers' Compensation Court's ability to also order payment by a joint venturer raises an issue about that Court's jurisdiction, we conduct an independent review. Mendonca Dairy v. Mauldin, 1966 OK 233, 420 P.2d 552.
¶13 Tate argues the relationship of the parties is similar to that of the joint venturers described in Gragg v. James, 1969 OK 58, 452 P.2d 579. Central Plains argues Gragg is only superficially similar because in that case the prime contractor allowed others to perform virtually all the work on the project in exchange for the use of its name and bonding capacity, whereas here Tate hired the workers and thereby conformed to contract limitations on subcontracting and both bonded the project and obtained workers' compensation insurance for its employees.
¶14 Although the relationship between Tate and Central Plains is structured differently than that of the parties in Gragg, the involvement of Central Plains was as important to the completion of this job as was the work of the subcontractors there. As in that case, the parties' status as joint venturers may be inferred from the purpose of the enterprise, their acts, and their conduct in relation to the engagement, which "may speak more strongly than the express declarations." Gragg, 1969 OK 58, p 36, 452 P.2d at 587.
¶15 The arrangements between Tate and Central Plains were described in...
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