Earnest, Inc. v. LeGrand
| Decision Date | 25 November 1980 |
| Docket Number | No. 54177,54177 |
| Citation | 621 P.2d 1148,1980 OK 180 |
| Parties | EARNEST, INC., and United General Insurance Co., Petitioners, v. Teresa LeGRAND and Workers' Compensation Court, Respondents. |
| Court | Oklahoma Supreme Court |
Original proceeding brought by employer and its insurance carrier to review order on appeal entered by Workers' Compensation Court en banc, awarding death benefits and holding that under the Workers' Compensation Act there is no right of subrogation in a claim for death benefits and claimant widow is not required to make an election between death benefits or third party action; Yvonne Sparger, Trial Judge.
Albert M. Morrison, Oklahoma City, for petitioners.
K. D. Bailey, Bailey, Romine & Seacat, Okmulgee, Jan Eric Cartwright, Atty. Gen., of Oklahoma, Oklahoma City, for respondents.
Gene C. Howard, R. K. Pezold, Howard & Rapp, Tulsa, Bruce O. Taliaferro, James R. Elder, Tulsa, George J. McCaffrey, Lampkin, Wolfe, McCaffrey & Tawwater, Oklahoma City, for amici curiae Townley's Dairy Co., Sentry Ins. Co., Oklahoma Trial Lawyers Assoc.
The facts surrounding the employee's (Mr. LeGrand's) death are not in dispute. Claim by the widow and children was timely filed and the employer does not contest the amount of the award.
The sole issue presented in the present petition for review is whether or not in death benefit claims cases the employer and/or carrier has a right of subrogation against the negligent third party. In Updike Advertising System v. State Industrial Commission 1 this court held that no such right existed under 85 O.S.1951, § 44. This statutory provision was, however, amended by Section 32, Chapter 234, O.S.L.1977, effective July 1, 1978, and the petitioners initially contend that the right of subrogation in death benefit claims is now provided for under 85 O.S.Supp.1979, § 44(a).
Following the filing of the claim the employer timely filed a motion to require the claimant to elect under 85 O.S.Supp.1979 § 44(a), and if the election was to proceed under Workers' Compensation law to assign the cause of action to the employer, who would then be subrogated to the right of action against the third party. At that time the employer also contended that subsection (b) of § 44 was unconstitutional in that it was an arbitrary and capricious taking of the employer's common law right of subrogation, it was an arbitrary and capricious classification based upon distinctions between death and personal injury, it was a denial of due process, and it was in direct conflict with 85 O.S.Supp.1979, § 44(a). The trial court made no order on the motion, holding that it had no jurisdiction to rule on the questions of election, assignment, or subrogation. Upon appeal to the court en banc, its order upheld the award of death benefits and held that there is no right of subrogation under 85 O.S.Supp.1979, § 44 applicable to claims for death benefits under the Workers' Compensation Act, and that therefore the motion to require the widow to elect should be and was denied.
Petitioners, employer and insurance carrier, contend in their first proposition that subsection (a) of 85 O.S.Supp.1979 § 44 requires an election in a claim for death benefits where the worker is "killed" by the negligence or wrong of a third party, and if compensation is elected they are subrogated to claimant's cause of action for wrongful death against the third-party tortfeasor. Petitioners argue that the language in subsection (a) is clear and unambiguous and that the 1977 amendment thereto, which added the words "or killed", was the only substantive change in the section as a result of that amendment. In order to determine this, the entire statutory section should be considered. 2, 3 The amendment of § 44, effective July 1, 1978, by § 32 of the Workers' Compensation Act added to subsection (a) of § 44, the words "or killed" and also simultaneously amended subsection (b) by strengthening the prohibition on subrogation in claims for death benefits. The use of the words "or killed" in subsection (a) is obviously in direct conflict with the prohibition on subrogation in death benefit claims contained in subsection (b) of § 44. In addition, from a reading of subsection (a) it also appears that the words "or killed" are in direct conflict with the rest of the context of that subsection, i. e. "such injured worker shall ... elect." No provision is made in subsection (a) for an election by anyone other than "such injured worker", which in the case of worker being "killed", is impossible. Subsection (a) of § 44 does not provide for an election by the widow, next of kin, or any personal representative of the estate.
We do not view § 44 as being clear and unambiguous. In fact, the amendatory language contained in subsection (a) cannot be reconciled with the rest of the language and the contest of subsection (a), nor with the language of subsection (b) of that section. In construing a statute, the whole must be considered and all parts given their obvious intended meaning, and no part stricken down, unless in irreconcilable conflict with the remainder. 4 In addition, if it be considered that there is a conflict between one provision of a section of statue and another, one matter to consider is that the last in order or position and arrangement possibly should prevail. 5
The amendatory language to subsection (a) of § 44, "or killed", irreconcilably conflicting with the remainder of both subsection (a) and subsection (b) of § 44, as amended effective July 1, 1978, coupled with the fact that the simultaneous amendment to subsection (b) is last in order of position or arrangement, leads to the conclusion that a right of subrogation in death claims has not been provided for under 85 O.S.Supp.1979, § 44, as a result of its amendment effective July 1, 1978.
In their second proposition, petitioners contend that subsection (b) of 85 O.S.Supp.1979 § 44 is unconstitutional in that it constitutes an arbitrary and capricious taking of the employer's common law right of subrogation, is an arbitrary and capricious classification based upon a distinction between death and personal injury, and is a denial of due process. It is presumed that any legislative enactment is constitutional and should be held constitutional unless its unconstitutionality is shown beyond a reasonable doubt. 6
In Updike Advertising System v. State Ind. Comm., 7 this court held that 85 O.S.1951, § 44(b) prohibiting subrogation in death claims or for death benefits under the Workers' Compensation Law, was not unconstitutional as being a deprivation of property without due process of law, nor did it otherwise constitute a denial of due process. Petitioners now seek to have the decision in Updike, supra, overturned, and argue that there is a common law right of subrogation in favor of an employer for payment of death benefits under the Workers' Compensation Act. In support of this, petitioners cite cases which predate the Updike decision and cases which were decided subsequent to Updike. 8 A review of these cases clearly shows that in each case the claim in question under the Workmen's Compensation Law was for personal injury and not death. We think this distinction is extremely material in view of the historic background of Workers' Compensation legislation, and the constitutional prohibition contained in Section 7, Article 23 of the Oklahoma Constitution.
At common law, there was no right of action to recover damages for wrongful death of a human being. 9 No right of action for wrongful death existed in the State of Oklahoma until the statutory enactment of what are now 12 O.S.Supp.1979, § 1053 and 12 O.S.1971 § 1054. 10 At the time of adoption of the first Workers' Compensation law in the State of Oklahoma, benefits were provided for accidental personal injury, but not for death. 11 This was an abrogation of the employee's common law right of action for personal injury against an employer. 12
It was not until 1950, with the amendment of § 7, Art. 23 of the Oklahoma Constitution, carving out an exception to the prohibition contained therein, that authority was given the Legislature to provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered on the job. 13 This provision of the constitution now reads as follows:
"The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive." (Emphasis added)
The 1950 amendment to § 7 of Art. 23, adding the above proviso constitutes the only exception to the prohibition of § 7 against abrogating the right of action for injury resulting in death and statutorily limiting the amount recoverable in damages for injury resulting in death. Following this constitutional amendment, the Workmen's Compensation Law was amended to provide for death benefits. 14 This addition of death benefits to the Workmen's Compensation Law did not abrogate any common law right of action since no common law right of action for death existed. Both the right to obtain death benefits under the Workmen's Compensation Law and the right to pursue a wrongful death action are purely statutory rights neither stemming from the common law. How, then, can a common law right of subrogation exist in death benefit claims cases when no common law right of action for death existed? We hold that no such common law right of subrogation exists.
It would therefore follow, as pointed out previously in Updike, supra, that the statutory prohibition on subrogation in death claims or for death benefits contained in 85 O.S.Supp.1979...
To continue reading
Request your trial
-
Torres v. Seaboard Foods, LLC
...abrogate the worker's common law right of action with the substitution of an exclusive statutory remedy. See, e.g., Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148, 1152 (“At the time of adoption of the first Workers' Compensation law in the State of Oklahoma, benefits were provided fo......
-
Yocum v. Greenbriar Nursing Home, 100,282.
...Co. Inc., 2004 OK 66, ¶ 6, 95 P.3d 1087, 1088; Red Rock Mental Health v. Roberts, 1996 OK 117, 940 P.2d 486, 491; Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148, 1152; Pine, Adm'r v. Davis, 1944 OK 10, 193 Okl. 517, 145 P.2d 378; Brooks v. A.A. Davis & Co., 1926 OK 965, ¶ 14, 124 Okl.......
-
Clifton v. Clifton
...v. Curl, 115 Idaho 997, 772 P.2d 204, 210 (1989).8 Cowart v. Piper Aircraft Corp., 665 P.2d 315, 317 (Okla.1983); Earnest, Inc. v. LeGrand, 621 P.2d 1148, 1151 (Okla.1980).9 Humphrey v. Denney, 757 P.2d 833, 835 (Okla.1988); Fuller v. Odom, 741 P.2d 449, 452 (Okla.1987).10 Dana P. v. State,......
-
Red Rock Mental Health v. Roberts
...655 (1948)).24 Dewitt, supra note 17 at 304. There is no right of subrogation in a claim for death benefits. See Earnest, Inc. v. LeGrand, Okl., 621 P.2d 1148, 1151-1152 (1980); Updike Advertising System, Inc. v. State Indus. Com'n, Okl., 282 P.2d 759, 762-763 (1955).25 Earnest, supra note ......