Robert Phillips, Special Administrator of the Estate of Clinton Wayne Newkirk, Deceased v. Alpharma, Inc. et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ROBERT PHILLIPS, SPECIAL ADMINISTRATOR OF THE ESTATE OF CLINTON WAYNE NEWKIRK, DECEASED

APPELLANT

V.

ALPHARMA, INC., ET AL.

APPELLEES

CA04-492

April 27, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CIVIL 03-1205-5]

HON. MICHAEL H. MASHBURN,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant is the estate of an employee who was killed in an explosion while employed by appellee Alpharma Animal Health Co., Inc. (Alpharma Animal). Alpharma Animal is an Arkansas corporation. Its parent company, Alpharma, Inc. (Alpharma NJ), is a New Jersey corporation. Appellant brought an action in tort against Alpharma Animal, Alpharma NJ, and several John Doe defendants for damages arising from the accident that killed appellant's decedent. The circuit court dismissed the complaint without prejudice.

On appeal, appellant argues that the trial court erred in ruling that it failed to allege facts stating an intentional tort so as to avoid the exclusive remedy provision of the workers' compensation law; in ruling that the application of the exclusive remedy provision to Alpharma NJ was a question for the Arkansas Workers' Compensation Commission; and in ruling that appellant failed to make allegations of wrongdoing against these defendants that were sufficiently specific to withstand a motion to dismiss. We hold that the trial court's rulings were correct, and we affirm.

We first address appellant's argument that the trial court erred in ruling that it failed to allege facts stating an intentional tort so as to avoid the exclusive remedy provision of the workers' compensation law. The Workers' Compensation Act provides the exclusive remedy for injuries arising out of and in the course of the employment unless the injuries resulted from an intentional tort by the employer. To avoid the exclusive remedy provision, the complaint must be based upon allegations of an intentional or deliberate act by the employer with a desire to bring about the consequences of the act. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985).

The record indicates that appellant's decedent was killed when a spark from malfunctioning equipment caused an organic chemical contained in the product manufactured by Alpharma Animal to explode. Appellant argues that, because it alleged that Alpharma Animal was cited and penalized for environmental violations posing a danger to human health shortly before the decedent's death, and that Alpharma Animal nevertheless "intentionally exposed" decedent to the danger, the complaint alleged an intentional tort sufficient to avoid the exclusive remedy provision. We disagree. In Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997), the Arkansas Supreme Court said:

This court in Miller held that these activities alleged by the employer, even when alleged to be flagrant, concealed, and deliberate, do not constitute an intentional tort for purposes of escaping the exclusivity provision of the Workers' Compensation Act. 286 Ark. at 461-62; see also Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979), and Heskett v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950). The Miller court held that, before an employee is free to bring a tort action for damages against an employer, the facts must show the employer had a "desire" to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the employee. 286 Ark. at 461. The court further observed that intentional torts involve consequences which the actor believes are substantially certain to follow his actions. See also Prosser, Torts, (4th ed.) §8. An example of the type of activity that would fall outside the exclusivity provision would be in the nature of an intentional act by an employer who assaults his employee. See Heskett, 217 Ark. 350, 230 S.W.2d 28. To further illustrate the type of conduct that has been determined to fall within the Workers' Compensation Act, the Miller court, citing Griffin v. George's, Inc., quoted Larson's Workmen's Compensation Law, Vol. 2A, p. 13-18, § 68.13, as follows:

Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering a claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injury that robs the injury of accidental character.

Angle v. Alexander, 328 Ark. at 719-20, 945 S.W.2d at 935-36. Despite appellant's argument to the contrary, the complaint in this case did not, under this standard, state an intentional tort.

Under its next point, appellant argues that it alleged sufficient facts to state an independent cause of action in tort against Alpharma NJ so as to render the exclusive remedy provision inapplicable to it. We disagree. Arkansas Code Annotated § 11-9-105(a) (Repl. 2002) provides, in pertinent part, that:

No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.

Appellant argues that it alleged that decedent's death resulted from a defect in the product itself that was independently attributable to Alpharma NJ, and that this distinguishes the present case from the circumstances of Estate of Donley v. Pace Industries, 336 Ark. 101, 984 S.W.2d 421 (1999). However, it nevertheless remains that, at the time of the explosion, the decedent was not a consumer using the product, but an employee engaged in manufacturing it. In the absence of any allegation that Alpharma NJ knew or should have known that the product could not be safely manufactured by any method, the role of Alpharma NJ was, at most, simply that of an employer to which tort immunity applies.

Finally, appellant argues that the trial court erred in ruling that appellant failed to make allegations of wrongdoing against these defendants that were sufficiently specific to withstand a motion to dismiss. The trial court did not err. Although Arkansas Code Annotated § 16-56-125 (1987) permits the filing of a complaint with the pseudonym of "John Doe" when the identity of the tortfeasor is unknown, the complaint must nevertheless comply with Ark. R. Civ. P. 8(a), which requires a statement of facts showing the pleader is entitled to relief. See Harvill v. Community Methodist Hospital Ass'n, 302 Ark. 39, 786 S.W.2d 577 (1990); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986). No such statement of facts appears in the pleadings filed by appellant, and we hold that the trial court therefore did not err in dismissing these claims.

Affirmed.

Robbins and Neal, JJ., agree.