Johnson v. Union Pacific R.R.

• Decision Date: 17 April 2003
• Docket Number: No. 02-602.,02-602.
• Citation: 104 S.W.3d 745
• Parties: Scipio JOHNSON and Bessie Johnson v. UNION PACIFIC RAILROAD; Bonds Fertilizer, Inc.; and Bonds Brothers.
• Court: Arkansas Supreme Court

Page 745

104 S.W.3d 745

Scipio JOHNSON and Bessie Johnson v. UNION PACIFIC RAILROAD; Bonds Fertilizer, Inc.; and Bonds Brothers.

No. 02-602.

Supreme Court of Arkansas.

April 17, 2003.

Parker Law Firm, Ltd. by: Tim S. Parker, Eureka Springs, for appellants.

William H. Sutton, Scott Tucker and Joseph P. McKay, for appellee Union Pacific Railroad Company.

Barber, McCaskill, Jones & Hale, P.A., by: John S. Cherry, Jr. and D. Keith Fortner, for appellees Bonds Fertilizer, Inc. and Bonds Brothers, Inc.

DONALD L. CORBIN, Justice.

This case arises from an accident in which a train collided with a truck near Tamo, Arkansas, on June 28, 1995. Appellant Scipio Johnson was a passenger in the truck and was seriously injured when he was thrown from the vehicle upon impact. He and his wife, Bessie Johnson, filed suit in the Jefferson County Circuit Court against Appellees Union Pacific Railroad, Bonds Fertilizer, Inc., and Bonds Brothers, Inc., alleging negligence and a loss of consortium. The trial court granted summary judgment to Bonds Fertilizer and Bond Brothers.¹ The trial court granted partial summary judgment to Union Pacific, on the issue of inadequate warning devices. Following a jury trial against the railroad on the remaining issue of negligence, the jury returned a verdict in favor of Union Pacific. For reversal, Appellants argue that the trial court erred by (1) finding that the claim against Bonds Fertilizer was barred based on the exclusive-remedy of the Workers' Compensation Act; and (2) refusing to find that Union Pacific was collaterally estopped from raising the defense of federal preemption on the claim of inadequate warning devices. The latter point is one of first impression, while the former raises a significant issue needing further development or clarification of the law. Our jurisdiction is thus pursuant to Ark. Sup.Ct. R. 1-2(b)(1) and (5). We reverse and remand on the first point and affirm on the second point.

I. Summary Judgment to Bonds Fertilizer

For his first point on appeal, Johnson² argues that the trial court erred in granting summary judgment to Bonds Fertilizer, based on the finding that it was Johnson's employer at the time of the accident and had paid workers' compensation benefits to him. Johnson contends that on the date of the accident, he was working for Bonds Brothers Partnership Trust ("the Farm"), not for Bonds Fertilizer. He admits, however, that he was employed by both entities. He maintains that despite his concurrent employment, he was performing work exclusively for the Farm at the time of the accident and immediately prior to the accident. Thus, he contends that he may proceed in circuit court against Bonds Fertilizer.

The record reflects that, on the date of the accident, Johnson was an employee of both the Farm and Bonds Fertilizer. Both companies, along with Bonds Brothers, were either owned or controlled by Kenny Bonds and Brian Bonds. Kenny and Brian each owned fifty percent of Bonds Brothers. Bonds Brothers is the sole shareholder of Bonds Fertilizer. The Farm is a partnership comprised of Kenny Bonds Farms, Brian A. Bonds Trust, and Bonds Brothers. When Johnson performed work for either the Farm or Bonds Fertilizer, he reported to the same supervisor, Allan Maxey. Some weeks, Johnson would perform tasks for both employers, but he would receive only one paycheck, from the company that he did the most work for that week. The week before the accident and the week of the accident, Johnson was paid by Bonds Fertilizer.

On the morning of the accident, Johnson was performing work for the Farm, because one of the Farm's employees was out sick. That afternoon, Johnson was supposed to deliver a load of fertilizer that was coming in at 3:00 p.m. for Bonds Fertilizer. In the meantime, around 1:00 p.m., Maxey instructed Johnson to pick up a tractor for the Farm and begin laying irrigation pipe. Maxey instructed Johnson to ride with Frances Birmingham, an employee of Bonds Fertilizer. Alyston Luster, an employee of the Farm, also rode with them. The truck they were riding in was owned by Bonds Brothers, and it had a 1,000-gallon water tank hooked to the back.

When they approached the railroad crossing at Clemmons Road, Birmingham applied the brakes and slowed the truck to one or two miles per hour. She did not come to a complete stop. According to their depositions, both Birmingham and Johnson looked both ways to see if a train was coming. Neither of them saw or heard a train. Birmingham then began driving the truck across the track, when Johnson hollered for her to "step on it." The train collided with the bed of the truck, throwing all three passengers from the vehicle. Johnson and Birmingham received serious injuries from the collision, but Luster's injuries were fatal.

Following the accident, Kenny Bonds reported Johnson's accident to the insurance carrier for Bonds Fertilizer. The insurance carrier approved the claim and paid approximately $61,000 in medical and temporary total disability benefits to or on behalf of Johnson. Johnson accepted these benefits for over nine months, from July 1995 to April 1996. Subsequently, in February 1998, Johnson made a claim for additional benefits, listing as his employer: "Bonds Fertilizer, Inc. or Bonds Brothers Farms, Inc." That claim was later withdrawn by Johnson, in favor of the civil suit.

Based on these facts, the trial court granted summary judgment to Bonds Fertilizer. The trial court found that Bonds Fertilizer was Johnson's employer at the time of the accident. The trial court also found that because Johnson had received workers' compensation benefits and had made no attempt to repay those benefits, his exclusive remedy against the company was under the Workers' Compensation Act.

Johnson urges us to reverse the grant of summary judgment. However, before we may reach the merits of his argument, we must first address the argument made by Bonds Fertilizer that the trial court lacked jurisdiction to determine which employer Johnson was working for at the time of the accident. Bonds argues that the exclusive jurisdiction to determine this issue belongs to the Arkansas Workers' Compensation Commission. We agree.

In Van Wagoner v. Beverly Enters., 334 Ark. 12, 13, 970 S.W.2d 810, 811 (1998), this court held that "the commission has exclusive, original jurisdiction to determine the fact issues establishing its jurisdiction." There, the appellant had filed suit against her employer in circuit court. On motion of her employer, the circuit court dismissed with prejudice the tort action on that ground that it was barred by the exclusive-remedy provision of the Act. The appeal was certified to us from the Arkansas Court of Appeals, to decide whether the Commission or the circuit court should determine the applicability of the Workers' Compensation Act. This court held that such determination belonged exclusively to the Commission:

We believe that the better rule is to recognize the administrative law rule of primary jurisdiction and to allow the Workers' Compensation Commission to decide whether an employee's injuries are covered by the Workers' Compensation Act.

. . . .

We hold that the 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. See Angle v. Alexander, 328 Ark. 714, 719, 945 S.W.2d 933 (1997) (citing Miller v. Ensco, Inc., 286 Ark. 458, 461, 692 S.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort action for damages against an employer, the facts must show that the employer had a "desire" to bring about the consequences of the acts, or that the acts were premeditated with the specific intent to injure the employee). In so holding, we overrule all prior decisions to the extent that they are inconsistent with this opinion.)

Id. at 15-16, 970 S.W.2d at 812 (emphasis added). In adopting this rule, this court pointed out 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 Act.

Two years later, in WENCO Franchise Mngm't, Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000) (per curiam), this court reiterated the holding in VanWagoner. There, the appellee injured her back when she slipped and fell at the Wendy's restaurant where she worked. Her injury was accepted as compensable, and she received benefits. When she later sought additional benefits, her employer responded by arguing that she was not performing employment services at the time of her accident. A hearing was scheduled before the Workers' Compensation Commission, but was later canceled by the appellee. Thereafter, the appellee filed a negligence suit against her employer in circuit court. The employer filed a motion for summary judgment on the ground that the appellee's exclusive remedy was under the Act and that only the Commission had the authority to determine jurisdiction in the matter. The circuit court denied summary judgment, and the employer petitioned for a writ of prohibition. This court granted the writ based on the holding in VanWagoner and held:

In the present case, there is no dispute that Chamness was employed by WENCO at the time of the injury or that the injury occurred on WENCO's premises. Nor is it disputed that Chamness has already received workers' compensation benefits for her injury. Furthermore, it is not alleged by Chamness that her injury resulted from an intentional tort by WENCO. Accordingly, the Commission has exclusive authority to determine the facts that...