Webb v. Dayton Tire and Rubber Co. a Div. of Firestone Tire Co.

• Decision Date: 22 January 1985
• Docket Number: No. 56532,56532
• Citation: 1985 OK 7,697 P.2d 519
• Parties: Juanita E. WEBB, Appellant, v. DAYTON TIRE AND RUBBER COMPANY, A DIVISION OF FIRESTONE TIRE COMPANY, Appellee.
• Court: Oklahoma Supreme Court

Page 519

697 P.2d 519

1985 OK 7

Juanita E. WEBB, Appellant, v. DAYTON TIRE AND RUBBER COMPANY, A DIVISION OF FIRESTONE TIRE COMPANY, Appellee.

No. 56532.

Supreme Court of Oklahoma.

Jan. 22, 1985.

As Corrected March 4, 1985.

Certiorari to Court of Appeals, Temporary Division No. 177.

Employee filed a retaliatory discharge suit pursuant to 85 O.S.1981 §§ 5, 6 and 7 of the Workers' Compensation Act. The District Court of Oklahoma County struck the employee's prayer for exemplary damages and attorney fees and granted summary judgment in favor of the employer. The Court of Appeals, Temporary Division No. 177, affirmed in part and reversed in part the judgment of the District Court. On certiorari, opinion of the Court of Appeals vacated. Judgment of the District Court affirmed in part and reversed in part and remanded with directions.

Ben A. Goff, Oklahoma City, for appellant.

James C. Chandler, Lytle, Soule, Curlee, Harrington, Chandler & Van Dyke, Oklahoma City, for appellee.

ALMA WILSON, Justice.

The controversy in this case focuses upon the availability of punitive damages and attorney fees under Oklahoma's retaliatory discharge statutes, 85 O.S.1981 §§ 5, 6 and 7 of the Workers' Compensation Act, which state:

§ 5. Claim--Discharge of employee

No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties.

§ 6. Penalty

A person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages suffered by an employee as a result of the violation. An employee discharged in violation of the Workers' Compensation Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.

§ 7. Jurisdiction

The district courts of the state shall have jurisdiction, for cause shown, to restrain violations of this act.

On May 30, 1979, Juanita E. Webb was injured during the course and scope of her employment with Dayton Tire and Rubber Company. Mrs. Webb reported the injury to her employer and was sent home from work by the company doctor. During the next four weeks Mrs. Webb saw a company doctor on at least three occasions and twice attempted unsuccessfully to return to light duty. Mrs. Webb alleged that on numerous occasions she called her employer and employer's insurance office, but no one would talk to her and her calls were not returned. On June 27, 1979, Mrs. Webb received a letter from her employer informing her that she had been terminated from employment, effective June 22, 1979, for alleged failure to "report off work" for three consecutive work days as required by company policy.

On June 29, 1979, Mrs. Webb filed a claim in the Workers' Compensation Court for work related disability benefits. Mrs. Webb subsequently filed this retaliatory discharge suit against her former employer in District Court. In addition to reinstatement and lost wages, Mrs. Webb sought exemplary damages and attorney fees. Upon Dayton's motion, the District Court struck Mrs. Webb's prayer for exemplary damages and attorney fees. The District Court further granted summary judgment in favor of Dayton based upon the undisputed fact that Mrs. Webb did not file her formal claim for workers' compensation benefits in the Workers' Compensation Court prior to her discharge from employment.

The Court of Appeals, Temporary Division No. 177, reversed the summary judgment and the order striking punitive damages, and affirmed the denial of attorney fees. On certiorari, we affirm the decision of the Temporary Court of Appeals for the reasons stated herein.

It is well settled in Oklahoma, with narrow exception, that attorney fees are not recoverable by a prevailing party in absence of statute or enforceable contract expressly authorizing same. Keel v. Covey, 206 Okl. 128, 241 P.2d 954 (Okl.1952). The present suit was brought to recover damages for retaliatory dismissal pursuant to 85 O.S.1981 §§ 5--7. A retaliatory dismissal suit is not an action to recover for labor or services within the meaning of 12 O.S.1981 § 936, ¹ as urged by Webb. The statutory penalty provided for tortious discharge under 85 O.S.1981 § 6 is reasonable damages; and, there is nothing in the record to bring the question within the exception established in City Nat'l Bank and Trust Co. v. Owens, 565 P.2d 4 (Okl.1977), where defendant was awarded attorney fees by reason of the plaintiff's misconduct of trial proceedings at defendant's expense. ²

The issue of punitive damages in retaliatory dismissal suits presents a closer question. We conclude, however, that the trial court erred in striking Webb's prayer for exemplary damages. In WRG Construction Company v. Hoebel, 600 P.2d 334 (Okl.1979), this Court recognized that the common law definition of damages governing actions in tort, now codified at 23 O.S.1981 § 3, is applicable to the penalty clause of 85 O.S.1981 § 6, supra, providing for damages for violation of § 5 of the Workers' Compensation Act. Title 23 O.S.1981 § 3 provides:

Any person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.

We thus held that the District Court's jurisdiction conferred by 85 O.S.1981 § 7 to restrain violations of the Workers' Compensation Act is sufficiently broad to include "to redress", thereby giving effect to the measure of damages in tort actions as set forth in § 3 of the general damage provisions of Title 23. We today likewise adopt the view that the jurisdiction of the District Court to restrain retaliatory dismissal of employees in violation of the Workers' Compensation Act is sufficiently broad to include the assessment of damages for the sake of example and by way of punishing the defendant under appropriate circumstances, as provided in other tort actions governed by § 9 of the general damage provisions of Title 23. Title 23 O.S.1981 § 9 provides:

Any action for breach of an obligation not arising on contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury in addition to actual damages, may give damages for the sake of example and by way of punishing the defendant.

In adopting as a matter of law the doctrine of a civil tort cause of action as against an employer for wrongful discharge of an employee in wilful violation of the provisions of the Workers' Compensation Act, we take cognizance of the legislative intent that the trier of fact be vested with broad discretion in determining the amount of recovery, as manifested by the terms "reasonable damages" and "to restrain violations". What is reasonable and appropriate under the circumstances is necessarily a question of fact. We deem it proper and necessary that exemplary damages be assessed against an employer under appropriate circumstances in strict conformity with the purpose therefor, to prevent the practice. In the absence of the deterent effect of punitive damages, there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workman's compensation claim.

We next consider whether or not the District Court erred in granting summary judgment. The employer challenges the Temporary Court of Appeals' conclusion that because an employer is required to file a report with the Administrator of the Workers' Compensation Court within ten days or a reasonable time after the occurrence of an accidental injury, ³ and the filing of such report is sufficient to invoke the jurisdiction of the Workers' Compensation Court and constitute a claim for compensation, ⁴ the filing of the report must be here assumed so as to bring Dayton within the terms of the retaliatory discharge provisions, supra, notwithstanding that Mrs. Webb filed her formal claim with the Workers' Compensation Court after she was fired. We would agree that evidence which establishes the filing of such report constitutes proof of a claim for compensation within the meaning of 85 O.S.1981 § 5, supra, however the record on review is completely void of any evidence to support the inference that a report was filed with the Administrator of the Workers' Compensation Court in this case. The filing of the report may not be assumed. A ruling on a motion for summary judgment must be made on the record which the parties have actually presented and not on a record which is potentially possible or which may be amended. RST Service Mfg., Inc. v. Taylor Musselwhite, 628 P.2d 366 (Okl.1981).

Although there is no evidence that Dayton filed a report of accidental injury with the Administrator of the Workers' Compensation Court, the record presented by the parties on summary judgment does establish that Mrs. Webb was temporarily totally disabled as the result of her job-related injury, from May 31, 1979 to July 20, 1979, and received temporary disability benefits from June 15, 1979 to July 20, 1979. In accordance with the plain meaning of 85 O.S.1981 § 5, that an employee may not be discharged because the employee has in good faith filed a...