Harrington v. Certified Systems, Inc.

• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: REIF, J.
• Citation: Harrington v. Certified Systems, Inc., 2001 OK CIV APP 53, 45 P.3d 430 (Okla. Civ. App. 2000)
• Decision Date: 01 August 2000
• Docket Number: No. 94,040.,94,040.
• Parties: Michael HARRINGTON and Shirley Harrington, husband and wife, Appellants, v. CERTIFIED SYSTEMS, INC., an Oklahoma corporation; the Select Group, Inc., an Oklahoma corporation; Mackellar Oil Company, an Oklahoma corporation; and Mackellar Services, Inc., an Oklahoma corporation, Appellees.

45 P.3d 430

2001 OK CIV APP 53

Michael HARRINGTON and Shirley Harrington, husband and wife, Appellants, v. CERTIFIED SYSTEMS, INC., an Oklahoma corporation; the Select Group, Inc., an Oklahoma corporation; Mackellar Oil Company, an Oklahoma corporation; and Mackellar Services, Inc., an Oklahoma corporation, Appellees.

No. 94,040.

Court of Civil Appeals of Oklahoma, Division No. 4.

August 1, 2000.

Margo M. Brown, Holloway, Dobson, Bachman & Jennings, Oklahoma City, for Appellants.

Matthew J. Graves, Oldfield & Coker, Oklahoma City, for Appellees Certified & Select.

C. William Threlkeld, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for Appellees MacKellar.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

REIF, J.

¶ 1 Injured worker Michael Harrington and his co-plaintiff wife appeal the summary judgment that denied recovery on their tort and statutory claims against four defendants who had an employment relationship with Mr. Harrington. Two of the defendants were related corporate entities that were in the business of supplying temporary employees. The parties stipulated that Mr. Harrington was an employee of these employment agency defendants at the time of his injury. The other two defendants were related corporate entities that were in the business of developing oil and gas interests. It was undisputed that the employment agency defendants had hired out Mr. Harrington to work on an oil rig operated by one of the oil developing defendants at the time of his injury.

¶ 2 Mr. Harrington was injured when the floor of the drilling rig slid out of place and struck him in the head. Mr. Harrington has noted evidentiary materials that show the supervisory personnel of the defendant who operated the rig (1) knew that the rig floor did not fit properly; (2) were aware the floor could slide out unless secured; (3) made a conscious decision not to secure the floor by means that were readily available; and (4) directed Mr. Harrington to work near the rig without the protection of a hard hat, after denying his request to retrieve his hard hat from a nearby storage room. At the rig, Mr. Harrington worked under the direction and control of the supervisory personnel of the defendant that operated the rig. Despite allowing the defendant that operated the rig to direct and control Mr. Harrington, the employment agency defendants agreed to, and did in fact, provide workers' compensation coverage for Mr. Harrington. It was conceded that the workers' compensation carrier for the employment agency defendants paid Mr. Harrington benefits for the injury at issue.

¶ 3 The employment agency defendants successfully argued to the trial court that the Workers' Compensation Act provided Mr. Harrington with his exclusive remedy and provided them immunity from liability "at common law or otherwise." The oil developing defendants likewise successfully argued that they also had this immunity because Mr. Harrington was a "loaned servant" for whom they shared workers' compensation liability with the employment agency defendants.

¶ 4 Both in the trial court and here on appeal, Mr. Harrington has contended that none of the employing entities can claim immunity under the Workers' Compensation Act. Mr. Harrington has argued that workers' compensation immunity does not apply, because workers' compensation was not his exclusive remedy. He has maintained that (1) his injury falls within the statutory remedy provided employees injured by defects in an employer's machinery under 40 O.S.1991 § 178, and (2) his injury was the direct result of intentional acts on the part of the defendant that operated the rig. Mr. Harrington has further contended that the employment agency defendants had a non-delegable duty to provide him a safe place to work and, therefore, any intentional acts or violations of 40 O.S.1991 § 178 can be imputed to the employment agency defendants. Mr. Harrington has maintained that the circumstances of this case, at least, present issues of fact concerning liability for injury by reason of a known defect in machinery under 40 O.S.1991 § 178, or intentional injury. Upon review, we disagree with Mr. Harrington's propositions and affirm.

I.

¶ 5 Mr. Harrington has relied on King's Van & Storage Co. v. Criner, 1956 OK 236, 301 P.2d 1015, to support his right to sue both the employment agency defendants and the oil developing defendants under 40 O.S. 1991 § 178. Mr. Harrington has maintained that § 178 gives employees a right to sue their employers that is distinct from and unaffected by the exclusive remedy of workers' compensation. Mr. Harrington has based this contention on the rule that the repeal of statutes by implication is not favored. He has stressed that § 178 was enacted prior to the first Workers' Compensation Act and that the legislature has never expressly repealed § 178.

¶ 6 The employment agency defendants and the oil developing defendants have noted that the Oklahoma Court of Civil Appeals recently considered the effect of the Workers' Compensation Act on § 178 in Ragsdale v. Wheelabrator Clean Water Systems, 1998 OK CIV APP 58, ¶ 3, 959 P.2d 20, 22. They have stressed that Ragsdale held "the Workers' Compensation Act prohibits injured employees from proceeding in tort against his/ her employer in district court." They assert that this prohibition included suits under § 178. In response, Mr. Harrington has contended that Ragsdale is not controlling.

¶ 7 We note that the Ragsdale opinion expressly found that § 178 was not applicable to that case. We further note that the court also stated that it did not decide if § 178 constitutes an exception to the rule giving exclusive jurisdiction to the Workers' Compensation Court of job-related injuries. Accordingly, we must agree with Mr. Harrington that Ragsdale is not controlling.

¶ 8 The Ragsdale case does correctly allude to the exclusive operation of the Workers' Compensation Act as set forth in 85 O.S.1991 § 12. This statute provides, in pertinent part, that "[t]he liability prescribed [by the Act] shall be exclusive and in the place of all other liability of the employer and any of his employees . . . at common law or otherwise." (Emphasis added.)

¶ 9 As a general rule, "[u]nless the statute otherwise provides . . . as between the employer and the employee, the rights and remedies provided by the [workers'] compensation acts are exclusive, within the area of their operation [and] the remedy provided by the act is exclusive of all other statutory or common-law remedies, and of any other liability on the part of the employer." 101 C.J.S. Workmen's Compensation § 918 at 354-57 (1958) (emphasis added) (footnotes omitted). This general rule further states that "an employee whose claim is within the act cannot maintain an action at law, or at common law, in tort against his employer for damages." Id. at 359 (footnote omitted).

¶ 10 Another widely recognized statement of this general rule provides that "workers' compensation remedies are exclusive of all other remedies for injuries within the coverage of the act suffered by employees against an employer." 82 Am.Jur.2d Workers' Compensation § 62 (1992) (emphasis added) (footnote omitted). This statement of the general rule also observes, "a legal action cannot be maintained for personal injuries compensable under a workers' compensation act." 82 Am.Jur.2d Workers' Compensation § 64 (1992) (footnote omitted).

¶ 11 One of the chief exceptions to the exclusive liability of workers' compensation for a work-related disability is when the disability is excluded from workers' compensation coverage. 82 Am.Jur.2d Workers' Compensation § 65 (1992). An example of this exception is found in Dixon v. Gaso Pump & Burner Mfg. Co., 1937 OK 656, 80 P.2d 678. This case held that an employee could sue his employer at common law and under § 178 for carbon monoxide poisoning that the employee sustained in his employment as a mechanic. The court reached this conclusion because carbon monoxide poisoning was an occupational disease that was not covered by the workers' compensation law in effect at the time.

¶ 12 If the legislature had included the occupational disease of carbon monoxide poisoning within the Act, there is little doubt, however, that the court's conclusion in Dixon would have been different, even though the disability in that case was due to circumstances arguably within § 178. The Dixon court, 80 P.2d at 681, expressed its approval of the general rule: "Where the right to an award of compensation [for] injury or death exists by virtue of the provisions of the Workmen's Compensation Act, the remedy for its enforcement is by many of the statutes made exclusive, and no action at law may be instituted against the employer."

¶ 13 Similarly, up until 1951, the accidental death of an employee, even an employee killed while engaged in a covered hazardous employment, was not within the scope of workers' compensation. An example of an employee who was killed while engaged in a covered hazardous employment (a derrick hand) and whose personal representative was permitted to sue under § 178 as a basis to recover for the employee's death is found in Connelly v. Jennings, 1952 OK 61, 252 P.2d 133. In 1951, however, the legislature brought accidental deaths within the coverage of workers' compensation under Session Laws 1951, ch. 2, p. 267, approved May 29, 1951. ¶ 14 Another exception to the exclusive remedy of workers' compensation is where the employment is not covered by the Act. 82 Am.Jur.2d Workers' Compensation § 65 (1992). An example of this under Oklahoma law is found in Myers v. Luttrell, 1961 OK 248, 373 P.2d 22. This case concerned a judgment in favor of a farm laborer (not covered by the Workers' Compensation Act in effect at the time of his injury) in the laborer's suit against his employer under § 178. The supreme court reversed the judgment because § 178 requires a...