Price v. Howard, 2010 OK 26 (Okla. 3/16/2010)

• Decision Date: 16 March 2010
• Docket Number: No. 105943.,105943.
• Parties: DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/Appellees.
• Court: Oklahoma Supreme Court

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2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant,
v.
CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/Appellees. No. 105943. Supreme Court of Oklahoma. March 16, 2010.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

¶ 0 After recovering for her husband's work-related death under the Workers' Compensation Act (Compensation Act), 85 O.S. 2001 §1, et seq., the plaintiff/appellant, Darla K. Price (Mrs. Price/wife), filed a wrongful death suit in district court naming her husband's employer, ServiCenter, Inc. (ServiCenter/employer/defendant/appellee), and a variety of individuals and their estates as defendants. All defendants/appellees filed motions for summary judgment claiming protection from suit in district court by the exclusive remedy provision, 85 O.S. Supp. 2005 §12, of the Workers' Compensation Act. The trial court sustained the motions for summary judgment in toto. Having retained the cause, we hold that: 1) the evidence is insufficient under Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers' Compensation Act; 2) material questions of fact exist as to whether the employer was engaged in a joint venture sufficient to extend the protections of Oklahoma's workers' compensation law to other members of the alleged agreement; and 3) contested facts concerning the status of employee versus independent contractor preclude an award of summary judgment to the alleged employee for purposes of allowing him the protections of the Workers' Compensation Act.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

James A. Scimeca, Derek K. Burch, Oklahoma City, Oklahoma, John Jay Carwile, Tulsa, Oklahoma, for plaintiff/appellant, Darla K. Price.

Galen Lee Brittingham, Andrew G. Wakeman, Mark R. Mcphail, Oklahoma City, Oklahoma, Jamie Alison Rogers, Tulsa, Oklahoma, for defendants/appellees, Cathryn L. Howard, Cynthia Lynn Henning, and Charles J. Howard, Jr.

David C. Johnston, Oklahoma City, Oklahoma, for defendants/appellees, Cathryn L. Howard, Charles J. Howard, Jr., and Cathy Ann Olsen.

Rupert J. Anton, Oklahoma City, Oklahoma, Katherine A. Staton, Dallas, Texas, for defendant/appellee, David Hobza.

Bradley Donnell, Rodney Hunsnger, McAfee & Taft, Oklahoma City, Oklahoma, Elder A. Thomas, Jr., Oklahoma City, Oklahoma, Walter D. Haskins III, Tulsa, Oklahoma, for defendant/appellee, ServiCenter, Inc.

WATT, J.:

¶ 1 We retained this cause to answer two questions: 1) whether the various defendants/appellees are entitled to the protection of the exclusive remedy provision¹ of the Oklahoma Workers' Compensation Act; and 2) if so, whether the actions of the respective parties were sufficient to take them outside that protection under this Court's opinion in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572.

¶ 2 The employee, ServiCenter's President, and a majority stockholder in the company were killed when the airplane crashed. There is no evidence that the pilot or any of the other passengers on the plane had any intention of harming themselves or others. Under these facts and assuming ServiCenter was aware that the airplane was carrying passengers in violation of its temporary flight restrictions,² that it was overweight, and that it took off in foul weather, the record does not demonstrate that the employer understood there was a substantial certainty of injury. Therefore, we determine that the evidence is insufficient under Parrett v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers' Compensation Act. Nevertheless, material questions of fact exist as to whether the employer was engaged in a joint venture sufficient to extend the protections of Oklahoma's workers' compensation law to other members of the alleged agreement and to a third party claiming status as a co-employee under the Act.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 On October 15, 2006, an airplane crash took the life of Perry Price (Price/employee). It is undisputed that: 1) Price was an employee of ServiCenter; and 2) on the day of the plane crash, he was going to the convention as a part of that employment at the request of Wayne Radco, ServiCenter's President.³ Along with Price and Radko, Charles Howard, M.D. (Howard), a major stockholder in ServiCenter, and John Olsen (Olsen), Howard's son-in-law and the registered owner of the plane, also died in the crash. It is also undisputed that ServiCenter had done significant modifications to the plane. It is contended that the modifications and refurbishments, including the use of an improved experimental five-bladed propeller and the addition of slipper fuel tanks, arose from an agreement among Radco, on the behalf of ServiCenter, Howard, and Olsen to utilize the modified aircraft as a marketing tool to current and prospective customers of ServiCenter in an attempt to attract additional business.⁴

¶ 4 After recovering workers' compensation death benefits, Mrs. Price filed suit in district court on May 29, 2007 naming as defendants the Howard and Olsen estates, and an individual, David Hobza. Price alleged that the individually named defendants' negligence was the proximate cause of her husband's death. The first amended petition was filed on June 21, 2007. Mrs. Price added ServiCenter as a defendant, claiming the employer was negligent in performing maintenance and in making repairs and modifications to the plane. Mrs. Price also contended that, when the maintenance, repairs, and modifications were made, ServiCenter had assumed a persona independent of its employer/employee relationship with her husband.⁵

¶ 5 On February 1, 2008, Hobza filed a motion for summary judgment. Hobza alleged that, when the plane crashed, he was an employee of the ServiCenter entitled to the same protections under the Workers' Compensation Act as his employer. Three days later, ServiCenter filed a similar motion claiming immunity from suit in district court pursuant to the exclusivity provision of the Workers' Compensation Act. Thereafter, the Howard and Olsen estates also sought summary judgment claiming that, at the time of the accident, ServiCenter, Howard, and Olsen were engaged in a joint venture to develop and market the modification/refurbishment package implemented on the plane. Howard and Olsen contended that, as joint venturers with ServiCenter, they were immune from suit under the exclusive remedy provisions of the Workers' Compensation Act.

¶ 6 After conducting an extensive hearing on April 11, 2008, the trial court entered judgment in favor of each of the defendants/appellees which was filed on May 9th. Price filed a timely appeal and requested that the cause be retained. The request was granted on August 22, 2008. Although the cause stood ready for assignment on that date, it was not received in these chambers until October 22, 2009.

Standard of Review on Summary Judgment

¶ 7 On summary judgment all inferences and conclusions to be drawn from the underlying facts contained in the record are to be considered in the light most favorable to the party opposing the motion.⁶ Even when the basic facts are undisputed, motions for summary judgment should be denied, if, under the evidentiary materials, reasonable individuals could reach different factual conclusions.⁷ The trial court granted summary judgment based on a legal determination that all the defendants/appellees were entitled to the protection of the exclusive remedy provision of the Workers' Compensation Act. The district court concluded it had no jurisdiction to proceed. Jurisdictional issues present questions of law⁸ which this Court reviews de novo.⁹

The limited exception provided under Parrett v. UNICCO Service Center to the exclusive remedy protections afforded to employers under the Workers' Compensation Act.

¶ 8 Regardless of fault, 85 O.S. Supp. 2006 §11 of the Workers' Compensation Act places the duty upon employers to bear the responsibility for compensating employees for accidental personal injuries arising out of and in the course of employment.¹⁰ Section 12 provides in pertinent part:

"The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees . . . at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. . . ."

The statutory language makes it clear that the Legislature intended that accidental injuries will fall within the confines of the Workers' Compensation Act and that an employer's liability for these injuries is exclusive under the Act.¹¹ Each of the defendants/appellees seeks protection from suit in district court under §12's exclusive remedy provision.

¶ 9 Price invokes the intentional tort exception to workers' compensation liability as outlined by this Court in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. The employee in Parret died as a result of injuries occurring when he was electrocuted while replacing emergency lights. We determined that tort liability could be imposed upon the employer if the injuries were the result of actions the employer knew were substantially certain to cause injury.

¶ 10 Before tort liability may be imposed under Parret's substantial certainty test, the employer's conduct must amount to an intentional tort; and, the employer must have: 1) desired to bring about the worker's injury; or 2) acted with the knowledge...