Shamrock Coal Co., Inc. v. Maricle

• Decision Date: 18 November 1999
• Docket Number: 98-SC-0664-MR.
• Citation: 5 S.W.3d 130
• Parties: SHAMROCK COAL COMPANY, INC., Appellant, v. R. Cletus MARICLE, Judge, Leslie Circuit Court, Appellee, and Sonny Grubb, Verlon Bush, Norman R. Hoskins, Elmer Couch, Gary D. Morgan, Leonard Morgan, Buhal Bush, James Trosper, Tim Witt, Terry Couch, Don Jackson, Ray Dean Grubb, Larry Jeffers, David Hooker, Ray Couch, Jr., Oral Roberts, Rod Feltner, Richard Napier, and Wayne Campbell, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

5 S.W.3d 130

SHAMROCK COAL COMPANY, INC., Appellant, v. R. Cletus MARICLE, Judge, Leslie Circuit Court, Appellee, and Sonny Grubb, Verlon Bush, Norman R. Hoskins, Elmer Couch, Gary D. Morgan, Leonard Morgan, Buhal Bush, James Trosper, Tim Witt, Terry Couch, Don Jackson, Ray Dean Grubb, Larry Jeffers, David Hooker, Ray Couch, Jr., Oral Roberts, Rod Feltner, Richard Napier, and Wayne Campbell, Real Parties in Interest.

98-SC-0664-MR.

Supreme Court of Kentucky.

November 18, 1999.

Neville Smith, Manchester, Jeff A. Woods, Lizbeth L. Baker, Wyatt, Tarrant & Combs, Lexington, for Appellant.

R. Cletus Maricle, Judge, Leslie Circuit Court, Manchester, for Appellee.

Rickey D. Bailey, Manchester, McKinley Morgan, Hyden, Phyllis L. Robinson, London, for Real Parties in Interest.

JOHNSTONE, Justice.

Appellant, Shamrock Coal Company, Inc. (Shamrock), appeals from a Court of Appeals' decision denying Shamrock's petition for a writ prohibiting the Leslie Circuit Court from proceeding in a group of consolidated civil actions brought by a number of its former employees who allege that they have contracted the disease of coal workers' pneumoconiosis as a consequence of their employment. We granted discretionary review and reverse.

Prior to the 1996 revision of the Workers' Compensation Act ("House Bill 1"), KRS 342.732 provided that a worker with a radiographic classification of 1/0, 1/1, or ½, but with a respiratory impairment of less than twenty percent, was entitled to a retraining incentive benefit (RIB) award. If a worker with the same radiographic classification had a respiratory impairment between twenty and forty percent, the employee was irrebuttably presumed to be seventy-five percent occupationally disabled; and if the employee had a respiratory impairment more than forty-five percent, the employee was irrebuttably presumed to be totally disabled. If a worker's radiographic classification was 2/1, 2/2, 2/3, 3/2, 3/3, or progressive massive fibrosis, the employee was irrebuttably presumed to be totally disabled regardless of the employee's respiratory impairment.

House Bill 1 amended the statute so that a worker is entitled to a RIB benefit only if the employee has a radiographic classification of 1/1 or 1/2 (but not 1/0) and a respiratory impairment between twenty and forty-five percent. If a worker with the same radiographic classification has a respiratory impairment more than forty-five percent, the employee is irrebuttably presumed to be fifty percent disabled (as opposed to totally disabled under previous versions); and if the employee has a radiographic classification of 2/1, 2/2, or 2/3 and respiratory impairment more than forty-five percent, the employee is irrebuttably presumed to be seventy-five percent disabled (as opposed to totally disabled under previous versions). The employee is irrebuttably presumed totally disabled only if the employee has a radiographic classification of 3/2 or 3/3 and respiratory impairment more than forty-five percent, or progressive massive fibrosis.

Although medical proof has yet to be presented in this case, the nineteen plaintiffs assert that they suffer from category 1 pneumoconiosis, but have a respiratory impairment of less than twenty percent. Thus, all nineteen would have been entitled to a RIB benefit under the pre-1996 statute, but none are entitled to any benefits under the 1996 revision. All of the plaintiffs were laid off by Shamrock within thirty days of the passage of House Bill 1. None had "opted out," i.e., elected not to be covered under the Workers' Compensation Act, KRS 342.395.

The former employees sued Shamrock in the Leslie Circuit Court seeking damages for their respective occupational diseases. In their pleadings, they alleged that Shamrock was "negligent, careless and reckless" in its mining operations and conducted those operations in "gross disregard" of their health, safety, and welfare. They also alleged that Shamrock "intentionally violated" safety procedures established by statutes and regulations, and that Shamrock engaged in outrageous conduct, thereby "intentionally or recklessly" causing the plaintiffs to suffer extreme emotional distress. Finally, they asserted that the Kentucky Workers' Compensation Act violates Sections 2, 14, and 54 of the Kentucky Constitution.

KRS 342.690(1), the exclusive liability provision of the Act, provides in pertinent part as follows:

(1) If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee. ... The exemption from liability given an employer by this section shall also extend to such employer's carrier and to all employees, officers or directors of such employer or carrier, provided the exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer or director.

Shamrock filed a motion to dismiss asserting lack of subject matter jurisdiction, CR 12.01(a), and failure to state a claim upon which relief can be granted, CR 12.01(f). In denying the motion, Judge Maricle held that the exclusive liability provision of KRS 342 .732 was unconstitutional because it denied plaintiffs their "jural right" to a remedy in violation of Sections 14, 54, and 241 of the Kentucky Constitution. Additionally, Judge Maricle held that the "opt out" or "presumptive acceptance" provision of KRS 342.395 was unconstitutional, because it amounts to a waiver by mere inaction of the right to bring a tort action.

Shamrock sought a writ of prohibition against Judge Mariele in the Court of Appeals, which was denied. In denying the writ, the Court of Appeals held that, because the pleadings alleged intentional acts, Judge Maricle had jurisdiction over "this kind of case," Duncan v. O'Nan, Ky., 451 S.W.2d 626, 631 (1970). Further, the Court of Appeals held that the exclusive liability provision in KRS 342.690 does not confer exclusive jurisdiction on the Workers' Compensation Board to decide matters within the purview of the Act; rather, it is merely an affirmative defense to be pled and proven in circuit court, citing Gordon v. NKC Hospitals, Inc., Ky., 887 S.W.2d 360 (1994).

JURISDICTION

We believe that the Court of Appeals relied erroneously on Gordon, supra, for the proposition that the exclusive liability provision in KRS 342.690 does not confer exclusive jurisdiction on the Workers' Compensation Board to decide matters within the purview of the Workers' Compensation Act. Gordon does not purport to overrule the long line of cases holding that exclusive liability cases are jurisdictional. See, e.g., Zurich Insurance Company v. Mitchell, Ky., 712 S.W.2d 340 (1986); Brown Badgett, Inc v. Calloway, Ky., 675 S.W.2d 389 (1984); Simmons v. Clark Construction Company, Ky., 426 S.W.2d 930 (1968); Davis v. Solomon, Ky., 276 S.W.2d 674 (1955); Mary Helen Coal Corporation v. Hensley, 237 Ky. 348, 35 S.W.2d 533 (1931); Moore v. Louisville Hydro-Electric Company, 226 Ky. 20, 10 S.W.2d 466 (1928); Black Mountain Corporation v. Murphy, 218 Ky. 40, 290 S.W. 1036 (1927); Ashland Iron and Mining Company v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943 (1924); General Accident Insurance Company v. Blank, Ky. App., 873 S.W.2d 580 (1993). Rather, Gordon holds that "subject matter jurisdiction cannot be created by waiver or conferred by agreement; and that in general, `subject matter' does not mean `this case,' but `this kind of case.'" Gordon, 887 S.W.2d at 362. Gordon further holds that "so long as the `kind of case' identified in the pleadings is within the court's jurisdiction, one claiming a legal bar must plead it affirmatively." Id.

Gordon is distinguishable from the instant case because the claim in Gordon was not pled as a workers' compensation claim. Rather, it was pled as a premises liability claim, which was not patently within the purview of the Workers' Compensation Act. Thus, absent the issue being raised by the defendant, the trial court had no way of knowing that the defendant was exempt from liability as an up-the-ladder employer of Gordon. "Neither the complaint nor the answer could be construed as providing even a clue that the Workers' Compensation Act had anything to do with the case." Id at 361-62. Because the cause of action was not against Gordon's employer, but against the hospital where the injury occurred, the hospital, on the face of the complaint, was not entitled to the protection of the exclusive liability provision of KRS 342.690(1). Thus, the trial court in Gordon had subject matter jurisdiction over "this kind of non-workers' compensation case.

In the case at bar, the plaintiffs brought suit under the Workers' Compensation Act. Therefore, Shamrock, on the face of the complaint, was entitled to the protection of the exclusive liability provision. Consequently, the Leslie Circuit Court has no subject matter jurisdiction over this case and the writ is appropriate. See Corns v. Transportation Cabinet, Ky., 814 S.W.2d 574, 578 (1991).

CONSTITUTIONALITY OF THE "PRESUMPTIVE ACCEPTANCE" PROVISION

This Court specifically upheld the constitutionality of the presumptive acceptance provision of the Workers' Compensation Act in Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953). See also, Mullins v. Manning Coal Corporation, Ky., 938 S.W.2d 260 (1997), cert. denied, 521 U.S. 1119, 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997). We find nothing raised herein which compels us to revisit the issue and, therefore, we reaffirm our decision in Wells upholding the constitutionality of the Workers' Compensation Act and the presumptive acceptance provision contained therein.

THE THRESHOLD PROVISION AND JURAL RIGHTS

The plaintiffs allege that they suffer from category 1 pneumoconiosis, but have a...