Curtis v. Michael Lemna & New Champions Golf & Country Club

• Decision Date: 18 September 2014
• Docket Number: No. CV-13-1048,CV-13-1048
• Parties: WILLIAM CURTIS APPELLANT v. MICHAEL LEMNA and NEW CHAMPIONS GOLF & COUNTRY CLUB APPELLEES
• Court: Arkansas Supreme Court

2014 Ark. 377

WILLIAM CURTIS APPELLANT v. MICHAEL LEMNAand NEW CHAMPIONS GOLF & COUNTRY CLUB APPELLEES

No. CV-13-1048

SUPREME COURT OF ARKANSAS

September 18, 2014

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. G101427]

AFFIRMED; COURT OF APPEALS' OPINION VACATED.

KAREN R. BAKER, Associate Justice

This appeal is before us on petition for review from the Arkansas Court of Appeals; therefore, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(e) (2013).

The case arises from a golf-cart accident that occurred on August 8, 2007, at the Pinnacle Country Club in Benton County, Arkansas owned and operated by New Champions Golf & Country Club in Benton County, Arkansas. Appellant, William Curtis, and appellee, Michael Lemna, were both employees of Henkel of America (d/b/a/ Dial Corporation) headquartered in Scottsdale, Arizona, at the time of the accident. The two were similarly situated in the corporate hierarchy. Curtis was employed as the director of the channel global development team in the operations department. Lemna was employed in the finance department in sales operations. At the Scottsdale headquarters, their offices were approximately thirty to forty feet from each other, and they had known each other for five to seven years. However, it is undisputed that neither was the other person's supervisor.Dial's northwest Arkansas office served roughly thirty-five percent of Dial's customers, including two of its largest customers, Wal-Mart and Sam's Club. In August 2007, Marc Mollere, the team leader for Dial's northwest Arkansas field office, planned a sales meeting for August 8, 2007, at the Pinnacle Country Club where individuals from Dial's headquarters were brought in to meet with Dial's local team in northwest Arkansas regarding the Wal-Mart account. Curtis and Lemna traveled to northwest Arkansas to the Dial sales meeting event to meet with the Wal-Mart team. On August 8, 2007, the day of the accident, the two attended the sales meeting. During a game of golf scheduled as part of the sales meeting, Lemna accidentally drove the golf cart over a retaining wall near the sixth hole, and both men were ejected from the golf cart. Curtis suffered a shoulder injury in the golf-cart accident.

As a result of the accident and injury, Curtis filed a worker's compensation claim under the Arizona Workers' Compensation Act and received benefits from his employer and its insurer. Subsequently, on September 10, 2008, Curtis filed an "Amended and Substituted Complaint" in Benton County Circuit Court alleging that Lemna's negligence was the proximate cause of the accident resulting in Curtis's injury. Lemna responded with a motion to dismiss alleging that Curtis and Lemna were co-employees at the time of the accident and that the Arkansas Workers' Compensation Commission ("the Commission") maintained exclusive jurisdiction to determine whether Lemna was entitled to tort immunity pursuant to Ark. Code Ann. § 11-9-105 (Repl. 2012). On November 24, 2010, the Benton County Circuit Court granted Lemna's motion to dismiss and dismissed the case without prejudice for lack of jurisdiction until the issues could be addressed by the Commission.Subsequent to the circuit court's order, Curtis pursued a determination from the Commission. In a May 11, 2011 prehearing conference, the parties stipulated that Curtis was not making a claim for workers' compensation benefits under the Arkansas Workers' Compensation Act ("the Act"). Rather, Curtis sought determination of whether the Act was applicable, whether Curtis and Lemna were acting within their scope of employment on August 8, 2007, and whether Lemna was entitled to immunity. On July 14, 2011, the Administrative Law Judge ("ALJ") held a hearing. On August 8, 2011, citing Ark. Code Ann. § 11-9-410 (Repl. 2012), the ALJ found that at the time of the accident, Curtis and Lemna were acting within the scope of their employment, and Lemna was performing his employer's duty to provide a safe place to work for Curtis and was entitled to immunity pursuant to Ark. Code Ann. § 11-9-105. On November 21, 2011, the full commission adopted the ALJ's findings and affirmed the ALJ's determination.

Curtis appealed to the court of appeals, and on November 6, 2013, the court of appeals affirmed the Commission's decision. On February 13, 2014, we granted Curtis's petition for review. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999).

Curtis presents three issues on appeal: (1) the Commission lacks jurisdiction over Curtis's action; (2) there is not substantial evidence to support the Commission's decision that Curtis and Lemna were acting within the scope of their employment and that co-employee immunity was extended to Lemna acting as the employer providing a safe work environment;and (3) the extension of employer immunity to co-employees in tort actions is unconstitutional in violation of article 5 section 32 as amended by amendment 26 to the Arkansas Constitution.

Points on Appeal

Jurisdiction

For his first point on appeal, Curtis asserts that the Commission erred in its decision because it lacked jurisdiction over his case, erroneously shifted the burden of proof to Curtis, refused to rule on the applicability of Arizona law, and erroneously applied the exclusivity provision of the Act. In sum, Curtis urges us to reverse the Commission's decision based on lack of jurisdiction.

First, we addressed a similar jurisdiction issue in Miller v. Enders, 2010 Ark. 92, at 1-3, (Miller I), and explained,

Subject-matter jurisdiction is an issue that can and, indeed must, be raised by this court sua sponte. See Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (citing Viravonga v. Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008)). If the [lower court] lacked jurisdiction, this court lacks jurisdiction to hear the appeal. See Brock, supra; Clark v. State, 362 Ark. 545, 210 S.W.3d 61 (2005); Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000).

Arkansas Code Annotated section 11-9-105 provides in relevant part:

(a) 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. . . .

This court has held that:

[T]he exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.

VanWagoner v. Beverly Enters., 334 Ark. 12, 16, 970 S.W.2d 810, 812 (1998) (internal citations omitted). In adopting this rule, we have explained that the Commission has vast expertise in this area, and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Workers' Compensation Act. See Carter v. Georgia-Pacific Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006) (citing Johnson v. Union Pac. R. R., 352 Ark. 534, 541, 104 S.W.3d 745, 748 (2003).

Therefore, when a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Workers' Compensation Act, the Commission must first decide the issue. See McCarthy v. Pulaski County Circuit Court, Sixth Div., 366 Ark. 316, 235 S.W.3d 497 (2006) (citing Moses v. Hanna's Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006); Stocks v. Affiliated Foods Southwest, Inc., 363 Ark. 235, 213 S.W.3d 3 (2005)). In McCarthy, supra, an employee died of injuries he suffered in an airplane accident while returning home from a business trip. At the time of the accident, McCarthy, who had served as the pilot, was president of the company that employed the deceased. The wife of the deceased employee argued that McCarthy was a third person who did not enjoy immunity under the Workers' Compensation Act, and this court held that the Commission had exclusive, original jurisdiction to determine whether McCarthy was an employer under the circumstances presented in that case. See id.

Similar facts are presented here in Curtis's case. Curtis argues that Lemna, as a co-employee who drove the golf cart during the accident that occurred in Arkansas, is a third person who does not enjoy immunity under the Act.

We further note that Curtis could seek workers' compensation benefits under Arkansas law because his injury occurred while he was working in Arkansas and the Commission had a legitimate interest in the injury. See Williams v. Johnson Custom Homes, 374 Ark. 457, 461-62, 288 S.W.3d 607, 610 (2008) (internal citations omitted) ("[T]he law has been wellsettled that all states having a legitimate interest in the injury have the right to apply their own diverse workers' compensation rules and standards, either separately, simultaneously, or successively. Claims for compensation benefits may be instituted in both states having jurisdiction of the claim. Of course, there can be no double recovery. The Full Faith and Credit Clause does not preclude successive workers' compensation awards, even if one statute or the other purports to confer an exclusive remedy on the claimant."). Accordingly, Curtis could file for benefits in both states because both Arizona and Arkansas maintained jurisdiction of the claim. However, the record demonstrates that Curtis stipulated that he was not seeking benefits in Arkansas; rather, he filed a tort action in the Benton County Circuit Court. In response to his lawsuit, Lemna filed a motion to dismiss asserting that the Commission...