Western Waste Indus. v. Purifoy

WESTERN WASTE INDUSTRIES v. Honorable John
PURIFOY, Judge

96-416                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 14, 1996


1.   Prohibition, writ of -- issuance of in workers' compensation
     cases -- when prohibition proper. -- Where the encroachment on
     workers' compensation jurisdiction is clear, the court has not
     hesitated to hold that writs of prohibition are clearly
     warranted; when considering a petition for a writ of
     prohibition, jurisdiction is tested on the pleadings, not the
     proof; prohibition is only proper when the jurisdiction of the
     trial court depends on a legal rather than a factual question. 
     

2.   Prohibition, writ of -- general rule as to exclusivity of
     recovery under Workers' Compensation Act -- exception to rule.
     --  The general rule is that an injured employee's right to
     recover for job-related injuries is exclusively under the
     Workers' Compensation Act, but when the employee is able to
     show actual, specific, and deliberate intent by the employer
     to injure him, he may avoid the exclusive remedy under the Act
     and proceed in a common-law tort action; the employee has the
     option to pursue his or her claim for damages either in tort
     or under the Workers' Compensation Act; however, once the
     employee makes that election, the employee may not later avail
     himself or herself of the remedy not chosen; because the issue
     here was one of law with no facts in dispute, appellant's
     resort to writ of prohibition was appropriate. 

3.   Workers' compensation -- appellee sought remedy under Workers'
     Compensation Act -- tort action for same claim precluded. --
     Where appellee sought remedy under the Workers' Compensation
     Act, claiming that her injuries resulted from exposure to
     toxic chemicals during the time of her employment with
     appellant, and where she agreed to a settlement that was a
     full, complete, and final payment and discharge of appellant's
     liability to appellee for any past or future injuries or
     medical expenses, as a matter of law, appellee was precluded
     from pursuing any tort action for the same claim.

4.   Prohibition, writ of -- appellee made election of remedies --
     subsequent common-law remedy barred -- writ of prohibition
     granted. -- Where appellee's prior filing of her claim under
     the Workers' Compensation Act was an election of remedies
     barring any subsequent common-law remedy; the supreme court
     granted appellant's request for writ of prohibition.


     Petition for Writ of Prohibition from Miller Circuit Court;
Philip Purifoy, Judge; petition granted.
     Mitchell, Williams, Selig, Gates & Woodyard, by:  Marcella J.
Taylor and Sherry P. Bartley, for appellant.
     Barry A. Bryant, for appellee.

     Tom Glaze, Justice.
     Western Waste Industries filed this petition for writ of
prohibition to prevent the Circuit Court of Miller County from
asserting jurisdiction over claims Western Waste contends belong to
the Arkansas Workers' Compensation Commission.  Western Waste owned
and operated a municipal solid waste landfill in Texarkana, and
Toronza Wilson was its employee until Western Waste closed the
landfill in 1993.  Subsequently, Wilson filed claims against
Western Waste with the Commission, alleging that, during her
employment, she had sustained injuries due to exposure to
chemicals.  She also alleged that, because of her work, she had
acquired carpal tunnel syndrome.  On May 17, 1994, Western Waste
and Wilson executed a joint petition before the Commission,
settling Wilson's claims whereby Western Waste agreed to pay Wilson
$12,500.00, plus attorney's fees, as a full, complete and final
payment and discharge of its liability to Wilson for any past or
future injuries or medical expenses relating to her employment with
Western Waste.
     On February 22, 1995, or nine months after the settlement of
her Workers' Compensation claim, Wilson filed a personal injury
suit against Western Waste and twelve other entities whom she
alleged either generated or transported solid waste which was
disposed of at the landfill.  Wilson alleged that she sustained
injury by virtue of exposure to toxic chemicals during the course
of her employment at Western Waste.  Wilson's complaint asserted
gross negligence, strict liability, and intentional infliction of
emotional distress.  Western Waste filed a motion to dismiss
pursuant to Ark. R. Civ. P. 12(b) and 12(b)(6), arguing that the
Commission had exclusive jurisdiction over Wilson's claims against
Western Waste and that Wilson had failed to state facts upon which
relief could be granted.  
     In her response to the motion to dismiss, Wilson contended
that her action was based upon the "intentional tort" exception to
the exclusive-remedy doctrine of the Arkansas Workers' Compensation
Act, more particularly, Ark. Code Ann.  11-9-105(a) (Repl. 1996). 
Wilson also filed a first amended complaint which added a claim of
assault to the previous claims.  Western Waste renewed its motion
to dismiss, and reasserted that exclusive jurisdiction was with the
Commission.  The circuit court denied Western Waste's motions to
dismiss, and Western Waste filed its petition for writ of
prohibition in this court, stating the trial court has no
jurisdiction to proceed on Wilson's tort claims since those claims
were properly concluded before the Commission.  We agree.
     We first point out that, where the encroachment on Workers'
Compensation jurisdiction is clear, we have not hesitated to hold
writs of prohibition are clearly warranted.  Hill v. Patterson, 313
Ark. 322, 855 S.W.2d 297 (1993).  When considering a petition for
a writ of prohibition, jurisdiction is tested on the pleadings, not
the proof.  Nuco-Yamato Steel Co. v. Circuit Court, 317 Ark. 493,
878 S.W.2d 745 (1994).  In addition, this court has held that
prohibition is only proper when the jurisdiction of the trial court
depends on a legal rather than a factual question.  Id.
     We conclude that, because the issue in this case is one of law
with no facts in dispute, Western Waste's resort to writ of
prohibition is appropriate.  This court has held that the general
rule is that an injured employee's right to recover for job-related
injuries is exclusively under the Workers' Compensation Act, but
when the employee is able to show actual, specific and deliberate
intent by the employer to injure him, he may avoid the exclusive
remedy under the Act and proceed in a common-law tort action. 
Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).  In
other words, the employee has the option to pursue his or her claim
for damages either in tort or under the Workers' Compensation Act. 
However, once the employee makes that election, the employee may
not later avail himself or herself of the remedy not chosen.  Id.;
see also Heskitt v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350,
230 S.W.2d 28 (1950).
     In the present case, Wilson sought remedy under the Workers'
Compensation Act, claiming her injuries resulted from exposure to
toxic chemicals during the time of her employment with Western
Waste.  As mentioned earlier, she recovered $12,500.00, plus
attorney's fees, and by agreement, the parties concluded that their
settlement was a full, complete and final payment and discharge of
Western Waste's liability to Wilson for any past or future injuries
or medical expenses.  Because of Wilson's decision to pursue her
Workers' Compensation remedy, we hold that as a matter of law, she
is precluded from pursuing any tort action for the same claim.
     We note Wilson's argument that her Workers' Compensation claim
was limited only to an injury she sustained as a result of a
chemical exposure which occurred on April 17, 1993.  She suggests
that other exposures prior or subsequent to the April 17 claim were
the bases for her tort action and, therefore, she should not be
precluded from electing to pursue these "other injuries" in tort. 
We dismiss Wilson's argument because, as we pointed out earlier, in
determining whether a trial court has jurisdiction in prohibition
matters, this court is limited to the parties' pleadings.  Here, in
its motion to dismiss below, Western Waste asserted that Wilson's
injuries from chemical exposure had been settled before the
Commission, but Wilson never alleged in her complaint or in her
response to Western Waste's motion that her so-called new claims
were different from the one(s) resulting from the April 17, 1993
occurrence which was (were) settled by the parties on May 17, 1994. 
However, even if we were permitted to consider the parties' joint
settlement agreement, which was not made a part of the pleadings,
that agreement bears broad language, reflecting complete and total
payment of all benefits due in the present or future for any
injuries to Wilson, and it provided Wilson could pursue no further
claims in any subsequent proceedings.
     Because we hold Wilson's prior filing of her claim under the
Workers' Compensation Act was an election of remedies barring any
subsequent common law remedy, we grant Western Waste's request for
writ of prohibition.