Parret v. Unicco Service Co.

• Decision Date: 12 September 2005
• Docket Number: No. 99,883.,99,883.
• Citation: 127 P.3d 572,2005 OK 54
• Parties: Gwendolyn Kay PARRET, Plaintiff, v. UNICCO SERVICE COMPANY, a Delaware Corporation, and Bridgestone/Firestone, Inc., d/b/a Dayton Tire, an Ohio Corporation, Defendants.
• Court: Oklahoma Supreme Court

127 P.3d 572

2005 OK 54

Gwendolyn Kay PARRET, Plaintiff, v. UNICCO SERVICE COMPANY, a Delaware Corporation, and Bridgestone/Firestone, Inc., d/b/a Dayton Tire, an Ohio Corporation, Defendants.

No. 99,883.

Supreme Court of Oklahoma.

June 28, 2005.

Order Denying Rehearing September 12, 2005.

Certified Questions of Law.

¶ 0 The United States District Court, Western District of Oklahoma, Honorable Joe Heaton, certified two questions. Question One concerns the intent necessary for an employee's tort claim against an employer to fall outside the protection of the workers' compensation exclusivity provision. Question Two concerns the scope of the test for determining statutory employer status.

CERTIFIED QUESTIONS ANSWERED.

John S. Gladd, James N. Edmonds, J. Craig Buchan, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, Tulsa, Oklahoma; and G. Thorne Stallings, Jr., Stallings Law Offices, Blanchard, OK, for Plaintiff.

Robert B. Mills, Margaret K. Myers, The Mills Firm, Oklahoma City, for Defendant, UNICCO Service Company.

Michael C. Felty, Michael T. Maloan, Robyn G. Price, Foliart, Huff, Ottaway & Bottom, Oklahoma City, OK; and Linda G. Alexander, Niemeyer, Alexander, Austin & Phillips, P.C., Oklahoma City, OK, for Defendant, Bridgestone/Firestone, Inc.

COLBERT, J.

¶ 1 The electrocution death of a worker resulted in an action in the District Court for the Western District of Oklahoma. That court has certified two questions pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat. tit. 20, §§ 1601-1611 (2001):

1. What is the standard of intent necessary for an employee's tort claim against an employer to fall outside the protection of the Oklahoma Workers' Compensation Act? Is the standard the "true intentional tort" test, requiring deliberate specific intent to cause injury, or is the standard the "substantial certainty" test[?] Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, 23 P.3d 288.

2. Whether the scope of the test for determining principal or statutory employer status under the third tier of the three-tiered test adopted in Bradley v. Clark, 1990 OK 73, at ¶ 6 n. 10, 804 P.2d 425, 428 n. 10, is based upon all of the facilities owned by a hirer, including those owned in other states and/or countries, or whether it is improper to consider a private hirer's plants outside of the state of Oklahoma in determining whether the hirer was actually engaged in the contract work at the time of the accident?

In response, this Court adopts the "substantial certainty" standard and holds that in determining statutory employer status, an Oklahoma court should consider only those facilities located within the State of Oklahoma.

FACTS

¶ 2 Pursuant to section 1604(A)(2) of title 20, the federal court has submitted "[t]he facts relevant to the question[s], showing fully the nature of the controversy out of which the question[s] arose." Those facts are repeated here verbatim.

¶ 3 On July 20, 1999, Glenn Parret, an employee of UNICCO Service Company (UNICCO), was electrocuted while replacing emergency lights at the Dayton Tire Plant owned by defendant Bridgestone/Firestone, Inc. (Bridgestone) in Oklahoma City, Oklahoma. He died as a result of his injuries two days later and his widow, plaintiff Gwendolyn Kay Parret, received workers' compensation death benefits. Bridgestone is a tire manufacturer and distributor with plants in the United States, Canada, Mexico, and Costa Rica and hired UNICCO, an independent contractor, to provide a wide range of maintenance services at its Oklahoma tire plant.

¶ 4 While the decedent was working on the emergency lights, he was approached by another UNICCO employee, who warned him not to work on the lights while they were "hot" or energized and advised him that other UNICCO employees had refused to do the work because they felt it was unsafe. The decedent responded that he would do the work he was asked to perform and would be careful when working on "hot" lights.

¶ 5 Fact disputes exist as to the level of the decedent's understanding of electricity and his experience in working on electrical circuits, controls, and lights. Although both UNICCO and Bridgestone had written policies prohibiting employees from working on energized equipment, the evidence is contested regarding whether the decedent and other UNICCO employees were required to work on the emergency light system while it was "hot," or without turning the electricity off, knowing the employees were unable to de-energize the 227 volt electrical system and that death was substantially certain to occur. The parties disagree whether UNICCO and Bridgestone's conduct rose to the level of intentional conduct sufficient to maintain an action in tort, notwithstanding the exclusive remedy provision of Oklahoma's Workers' Compensation Act.

¶ 6 Also disputed are fact issues pertinent to a determination of whether Bridgestone was a statutory or principal employer of UNICCO workers under the Workers' Compensation Act, including whether the work being performed by decedent was non-specialized and was necessary and integral to Bridgestone's operation of its tire plant. In its other plants in North America, Bridgestone performs maintenance on its equipment with its own employees and does not hire outside contractors like UNICCO for such work.

QUESTION 1

INTENTIONAL TORT EXCEPTION TO WORKERS' COMPENSATION EXCLUSIVITY

¶ 7 Section 11 of the Workers' Compensation Act, Okla. Stat. tit. 85, §§ 1-211 (2001), prescribes employer liability "for the disability or death of an employee resulting from an accidental injury sustained by the employee arising out of and in the course of employment, without regard to fault." Section 12 makes that liability "exclusive and in place of all other liability of the employer." This Court has long recognized, however, that in some cases "an employee who has been wilfully injured by his employer [may] ha[ve] a common law action for damages." Roberts v. Barclay, 369 P.2d 808, 809 (Okla.1962).

¶ 8 Oklahoma decisions involving the exception were reviewed in Harrington v. Certified Systems, Inc., 2001 OK CIV APP 53, 45 P.3d 430. That review included Thompson v. Madison Machinery Co., 684 P.2d 565 (Okla.Ct.Civ.App.1984), which held that "the workers' compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker's employment [and] were not designed to shield employers or co-employees from willful, intentional or even violent conduct." Id. at 568. The Harrington court noted that, in each case reviewed, "the court decided whether the conduct of the defendant employer involved a willful or intentional injury without specifying how the court defined willful or intentional." 45 P.3d at 434. It then defined a willful or intentional injury "to involve knowing and purposeful conduct on the part of the employer to injure the employee." Id. at 435.

¶ 9 In that same year, a decision from this court was issued in Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, 23 P.3d 288. There, this Court, consistent with Harrington, reaffirmed that only intentional misconduct on the part of an employer would remove a worker's injury from the exclusive remedy provision of the Workers' Compensation Act. Davis foreshadowed this Court's allegiance to one of two standards commonly applied to determine whether a worker's injury resulted from the "intentional" conduct of the employer. Which standard would be adopted, however, remained undecided because the employer's conduct in Davis was not "intentional" under either standard. Id. at 296. Today, precisely that issue is presented in the form of Question One: "Is the standard the `true intentional tort' test, requiring deliberate specific intent to cause injury, or is the standard the `substantial certainty' test?"

¶ 10 To date, some states do not recognize an intentional tort exception to workers' compensation exclusivity. 6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 103.01 (Math.Bend.2004). Some states that do, limit the exception to instances in which the employer injures the employee deliberately and with the actual intent to cause injury. Id. at § 103.03 n. 1. In a few states, the exception is expressly limited to cases of intentional assault. See 7 Causes of Action 2d 197, § 17 at 245 (1995). But, in any jurisdiction applying the "specific intent" standard, "unless the case involves an assault or a battery, recovery will probably be denied." 48 Am.Jur. Proof of Facts 2d 1, § 2 at 12 (1987). "Nevertheless, in recent years there has been a trend toward permitting common law suits when the injury is a result of actions the employer knew were `substantially certain' to cause injury. About a dozen states now follow this or a similar rule." 6 Larson, at § 103.03 n. 1.

¶ 11 The first court to reject the "specific intent" standard in workers' compensation observed that it originated from very early workers' compensation decisions in Washington and Oregon which defined employer intent in the same terms applied to murder statutes. See Mandolidis v. Elkins Indus. Inc., 161 W.Va. 695, 246 S.E.2d 907, 912-913 (1978). That court found "no adequate justification for adhering to the construction of a statute which is not only erroneous but which works an injustice on persons injured as a result of conduct which is so likely to produce injury or death that its performance, under all circumstances, could perhaps warrant criminal liability." Id. at 913. Since that time, "both courts and legislatures in a fair number of other jurisdictions have rejected the proposition that actual intent to harm is required for an employer's conduct to be actionable in tort and not protected by the exclusivity provisions of workers' compensation." Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 230 (1991). Essential to the determination of which standard will be...