Carolyn Gourley v. Crossett Public Schools et al.

Annotate this Case
Carolyn GOURLEY v. CROSSETT PUBLIC SCHOOLS,
Max Pope, Barbara Gates, Barbara Cantley,
David Barnes, Ben Walsh, Robert Cornelius,
Bill Rogers, and Michael Simms; Individually
and in Their Official Capacities as Former
and Present Members of the Board of Directors
of the Crossett Public Schools 

97-974                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 7, 1998


1.   Workers' compensation -- when exclusivity doctrine applies. --
     Generally, an employer who carries workers' compensation
     insurance is immune from liability for damages in a tort
     action brought by an injured employee; this rule, known as the
     exclusivity doctrine, arises from Ark. Code Ann.  11-9-105
     (Supp. 1996). 

2.   Workers' compensation -- willful and intentional injury of
     employee -- employer not immune from suit. --  An employer who
     willfully and intentionally injures an employee is not immune
     from a common-law tort action.   

3.   Workers' compensation -- injured employee's right to recover
     for job-related injuries is exclusively under Workers'
     Compensation Act -- exception to general 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 a claim for damages either in tort or under
     the Workers' Compensation Act; however, once the employee
     makes the election, the employee may no longer pursue the
     remedy not chosen.    

4.   Workers' compensation -- appellant recovered for injury under
     Workers' Compensation Act -- appellant precluded from
     recovering again under intentional-tort theory. -- Where the
     undisputed facts showed that appellant filed and recovered
     under a workers' compensation claim based on the same injuries
     that she now uses as a basis for her tort claim, as a matter
     of law appellant was precluded from recovering again under an
     intentional-tort theory; the exception to the exclusive-remedy
     doctrine does not open the door to an additional recovery for
     the same injuries. 

5.   Judgment -- purpose of summary judgment -- trial court's grant
     of summary judgment proper. -- The purpose of summary judgment
     is not to try issues, but to determine if there are issues to
     be tried, and if doubt exists, summary judgment should not be
     granted; here, the trial court was correct in determining that
     there were no issues to be tried; summary judgment was
     properly granted.


     Appeal from Ashley Circuit Court; Samuel Pope, Judge;
affirmed.
     Roachell Law Firm, by:  Richard W. Roachell, for appellant.
     Laser, Wilson, Bufford & Watts, P.A., by: Dan F. Bufford and
Brian Allen Brown and Arnold, Hamilton & Streetman, by:  Thomas S.
Streetman, for appellees.

     Ray Thornton, Justice.   
     Appellant Carolyn Gourley appeals the grant of summary
judgment in favor of appellees, who are the Crossett Public Schools
and former and current members of the District's Board of Directors
(the District).  The trial court ruled that Ms. Gourley's claim for
the intentional tort of outrage is barred by the doctrine of
election of remedies because she had previously accepted benefits
from the Workers' Compensation Commission.  We agree and affirm.
     At the time of her complaint for workers' compensation
benefits, Ms. Gourley was a seventh grade mathematics teacher at
Daniel Middle School in the Crossett Public School District.  In
1989, the school installed a new heating and air conditioning
system, damaging the roof in the process.  As a result of the
installation, leaks developed causing mold to grow in the school's
classrooms.  The mold aggravated Ms. Gourley's pre-existing
allergies, which in turn, led to persistent sinus infections.  In
the ensuing years, she made numerous visits to her doctors and
underwent several surgical procedures as a result of her allergy to
mold and sinus complications.      
     Ms. Gourley filed a claim with the workers' compensation
commission in January, 1993.  After the administrative law judge
ruled in her favor, the District appealed to the full Commission,
which affirmed the decision in favor of Ms. Gourley in 1995.  The
District then appealed to the court of appeals, which concluded
that Ms. Gourley's exposure to mold with resulting sinus
difficulties was a compensable-compensation claim.  See Crossett
Sch. Dist. v. Gourley, 50 Ark. App. 1, 889 S.W.2d 482 (1995).  Ms.
Gourley subsequently collected workers' compensation benefits. 
     Ms. Gourley filed the current suit against the District,
arguing that the District acted with deliberate intent to cause her
job-related injuries.  In her November, 1995 amended complaint, 
Ms. Gourley asserted that this action falls within the intentional-
tort exception to the exclusive-remedy provision of the Workers'
Compensation Act.  She claimed that the District's acts amounted to
the tort of outrage when (1) Superintendent Barbara Gates, knowing
of Ms. Gourley's delicate physical and emotional health, failed to
correct the mold problem at Daniel Middle School;
(2) Superintendent Gates transferred Ms. Gourley to Hastings
Elementary School in retaliation for filing a workers' compensation
claim; (3) Principal Daniel Barnes committed various acts of
harassment, including telling Ms. Gourley that she could not use
mold trays to support her workers' compensation claim and warned
her not to talk to anyone about the mold problem at Daniel Middle
School.  
     The District moved for summary judgment, contending that Ms.
Gourley's claim was barred by the exclusive-remedy doctrine of the
Workers' Compensation Act, and was further barred by the common-law
election of remedies doctrine.  Without reaching the issue of the
tort of outrage, the trial court granted the District's motion as
a matter of law, concluding that the doctrine of election of
remedies precludes a subsequent tort claim arising from the same
set of facts. 
     We first mention Ms. Gourley's argument that the Worker's
Compensation Act does not bar her tort of outrage claim against the
District.  Ms. Gourley contends that the District's acts and
omissions were done intentionally to cause her personal injury,
thereby coming within the exception to the workers' compensation
exclusivity provision.    
     Generally, an employer who carries workers' compensation
insurance is immune from liability for damages in a tort action
brought by an injured employee.  Lively v. Libbey Memorial Physical
Med. Ctr., 317 Ark. 5, 8, 875 S.W.2d 507, 509 (1994); Thomas v.
Valmac Indus., Inc., 306 Ark. 228, 230, 812 S.W.2d 673, 674 (1991). 
This rule, known as the exclusivity doctrine, arises from Ark. Code
Ann.  11-9-105 (Supp. 1996), which provides that "[t]he rights and
remedies granted to an employee subject to the provisions of this
chapter, on account of injury or death, shall be exclusive of all
other rights and remedies of the employee . . .."  
     Ms. Gourley relies on certain court-defined narrow exceptions
to this general rule.  We have noted several times that an employer
who willfully and intentionally injures an employee is not immune
from a common-law tort action.  See Hill v. Patterson, 313 Ark.
322, 855 S.W.2d 297 (1993); Thomas v. Valmac Indus., Inc., 306 Ark.
228, 812 S.W.2d 673 (1991) (citing Heskett v. Fisher Laundry &
Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950)).  
     We do not, however, need to reach the merits of Ms. Gourley's
argument.  The trial court was correct in ruling as a matter of
law.  Ms. Gourley's claim for the intentional tort of outrage is
barred by the doctrine of election of remedies because she has
previously pursued workers' compensation benefits to recovery for
the same injuries.  
     In a similar case, we held that because the appellant
recovered workers' compensation benefits, she was precluded from
pursuing any tort action for the same claim.  Western Waste Indus.
v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).  In Western Waste,
the appellant alleged that, during her employment, she sustained
injuries caused by exposure to chemicals.  Id.  She received
workers' compensation benefits and, nine months later, filed a
personal-injury suit against her employer.  As in this case, the
appellant alleged the intentional infliction of emotional distress,
contending that her action was based on the intentional-tort
exception to the exclusive-remedy doctrine.  Id. at 258, 930 S.W.2d 
at 349.  
     In that case, we stated the general rule 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.  Western Waste, 326 Ark. at
258-59, 930 S.W.2d  at 350.  We further stated that the employee has
the option to pursue a claim for damages either in tort or under
the Workers' Compensation Act.  Id. at 259, 930 S.W.2d  at 350.  We
noted that once the employee makes the election, the employee may
no longer pursue the remedy not chosen.  Id.  
     In the present case, the undisputed facts show that Ms.
Gourley filed a workers' compensation claim based on the same
injuries that she now contends the District caused with the
specific intent to injure her.  The court of appeals affirmed the
finding by the Workers' Compensation Commission that there was a
causal connection between Ms. Gourley's employment, the allergy,
and her sinus difficulties.  Because Ms. Gourley has recovered
under her employer's workers' compensation plan, as a matter of law
she is precluded from recovering again under an intentional-tort
theory.  Thus, the exception to the exclusive-remedy doctrine does
not open the door to an additional recovery for the same injuries. 
     As a final matter, we summarily dispose of Ms. Gourley's
argument that summary judgment was improper because an issue of
fact exists regarding the element of intent in the tort of outrage. 
We have said that the purpose of summary judgment is not to try
issues, but to determine if there are issues to be tried, and if
doubt exists, summary judgment should not be granted.  Culpepper v.
Smith, 302 Ark. 558, 561, 792 S.W.2d 293, 294 (1990).  Here, the
trial court was correct in determining that there were no issues to
be tried.  In reaching its decision, the trial court could assume
that Ms. Gourley's allegations were true to reach the same result. 
If true, Ms. Gourley's course of action would still be subject to
the election of remedies doctrine.  Because she chose to pursue
workers' compensation benefits, she is precluded from coming to
court now to recover again under tort theory.
     Affirmed.
     Glaze, J., not participating.