Schreder v. Cities Service Co., 10360

• Decision Date: 21 July 1983
• Docket Number: No. 10360,10360
• Citation: 336 N.W.2d 641
• Parties: Phyllis SCHREDER, individually as widow of the deceased Paul Schreder and on behalf of Dawn Marie Schreder, the surviving minor daughter of the decedent, Paul Schreder, and as Trustee for the Workmen's Compensation Bureau, Plaintiff and Appellant, v. CITIES SERVICE COMPANY, Defendant, and Bomac Drilling, TRG Drilling Corp., a/k/a TRG Drilling Corporation (Bomac Drilling Division); and Alfred Hastings, individually and as agent, employee, and servant of TRG Drilling Corp.; Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 641

336 N.W.2d 641

Phyllis SCHREDER, individually as widow of the deceased Paul

Schreder and on behalf of Dawn Marie Schreder, the surviving minor daughter of the decedent, Paul Schreder, and as Trustee for the Workmen's Compensation Bureau, Plaintiff and Appellant, v. CITIES SERVICE COMPANY, Defendant, and Bomac Drilling, TRG Drilling Corp., a/k/a TRG Drilling

Corporation (Bomac Drilling Division); and Alfred Hastings,

individually and as agent, employee, and servant of TRG

Drilling Corp.; Defendants and Appellees.

Civ. No. 10360.

Supreme Court of North Dakota.

July 21, 1983.

Claudette M. Abel, of Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellant.

W. Todd Haggart, of Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellees.

VANDE WALLE, Justice.

Phyllis Schreder appealed from a summary judgment dismissing her complaint against Bomac Drilling, TRG Drilling Corporation, and Alfred Hastings ("the defendants") ¹ to recover damages for the wrongful death of her husband, Paul. We affirm.

I

At the time of his death, Paul Schreder was an employee of TRG Drilling Corporation and was working as a "driller" on an oil rig located in Billings County, North Dakota. One of Schreder's primary duties as a driller was to operate the controls which regulated the upward and downward movements of the traveling blocks suspended by cable from the top of the derrick. The function of the traveling blocks is to either lower the drilling pipe into or raise the drilling pipe from the hole being drilled.

Paul was killed while lowering drilling pipe into the hole when the traveling blocks landed on the floor, tipped over, and crushed him.

Phyllis alleged in her complaint that the traveling blocks hit the floor of the drilling platform because the hydromatic brake was not working properly. A hydromatic brake can be engaged or disengaged. It is generally engaged when the weight of the drilling pipe suspended from the traveling blocks exceeds the weight the brake on the draw works can stop. Phyllis further alleged that either the hydromatic brake failed to engage or that once engaged it disengaged and as a consequence Paul could not stop the blocks from falling to the floor.

The gravamen of Phyllis's complaint was that the defendants either knew or should have known the hydromatic brake was not functioning properly, as evidenced by the fact that Hastings, who supervised the drilling operations of the oil rig Schreder worked on, instructed the drillers to use a wooden hammer handle as a wedge to attempt to keep the brake engaged. Phyllis concluded that requiring Paul to operate the drilling rig when the hydromatic brake was inoperative was such gross negligence as to constitute an actual intent to injure him.

The defendants responded to Phyllis's complaint by filing a motion for summary judgment on the ground that Phyllis's action was barred as a matter of law by the North Dakota Workmen's Compensation Act, Title 65, N.D.C.C.

Under the Act, if an employer contributes premiums to the Workmen's Compensation Fund to secure the payment of compensation to his employees, a workman injured in the course of his employment has no right of action against the contributing employer or any agent, servant, or other employee of such employer for damages for personal injuries. Sec. 65-01-08, N.D.C.C. See also Schlenk v. Aerial Contractors, Inc., 268 N.W.2d 466 (N.D.1978).

It is undisputed that at the time Paul was killed (1) he was acting in the course and scope of his employment, (2) TRG Drilling Corporation, Paul's employer, was contributing premiums to the Workmen's Compensation Fund, and (3) Alfred Hastings was an employee of TRG Drilling Corporation. Furthermore, as of July 19, 1982, Phyllis received compensation benefits from the North Dakota Workmen's Compensation Bureau in the amount of $18,486.42.

The application of Section 65-01-08 to the undisputed facts apparently leads to the inescapable conclusion that the defendants are immune from an action seeking damages for the wrongful death of Paul Schreder. See also Section 65-04-28, N.D.C.C.

Phyllis argues, however, that the Workmen's Compensation Act is not intended to apply in cases where an employee is injured by the intentional tort of an employer or co-employee, and, alternatively, that if the plain language of the Act prohibits all suits brought against employers covered by the Act, then public policy should require the finding of an exception to the Act when the employer actually intends to injure the employee or when the employer's negligence is so gross as to be equivalent to an actual intent to injure.

This court in Schlenk, supra, held (1) the Workmen's Compensation Act does not allow an exception to the immunity granted to contributing employers (and their employees, servants, etc.) against suit by an injured employee even when the employee's injuries are intentionally inflicted, and (2) under the particular facts of the case, public policy did not require recognition of an exception.

Phyllis maintains that the issue of whether or not the Workmen's Compensation Act prohibits an employee from suing his employer or co-employee for damages for intentionally caused injuries is not foreclosed by our decision in Schlenk because: (1) the Act has been amended since the Schlenk case was decided; and, should we decide the Act as amended still does not permit an employee to sue his employer for intentional torts, (2) the individual facts of this case require recognition of a public-policy exception.

We do not today decide if the Workmen's Compensation Act itself or a public-policy exception to the prohibitions of the Act permits an action by an employee against his employer or co-employee for intentional injury. We do not believe it is necessary to construe the Workmen's Compensation Act as amended or decide whether a public-policy exception exists because it is clear from the undisputed facts of this case that Paul Schreder's death was the result of an accident and not an actual intent to injure him.

Phyllis relies upon the decision in Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), in support of her position that the Workmen's Compensation Act does not preclude any employee from enforcing his common-law remedies against his employer for an intentional tort. In Blankenship, a majority of the Ohio Supreme Court concluded that the Ohio Constitution and statutes do not bestow upon employers immunity from civil liability for their intentional torts and an employee may therefore resort to a civil suit for damages. We believe, for the purposes of our Act, that there is a distinction between an intentional injury and an intentional tort, i.e., not all intentional torts are intentional injuries. The difference is well set forth in Hulne v. International Harvester Co., 496 F.Supp. 849, 852-853 (D.N.D.1980), wherein Chief Judge Paul Benson, in analyzing our decision in Schlenk, wrote:

"In the instant case, plaintiff does not seriously allege that defendant Larson manifested an actual intent to kill or injure the decedent. Rather he claims that Larson ordered the truck frame modified, knowingly creating a danger for the decedent, and that these actions were so gross as to be equivalent to an actual intent to injure. These allegations, short of a claim of...