-TLW Kennedy et al v. Norris Sucker Rods et al, No. 4:2010cv00321 - Document 60 (N.D. Okla. 2011)
Court Description: OPINION AND ORDER by Judge Gregory K Frizzell Amended (Re: 59 Opinion and Order, Ruling on Motion to Dismiss ) (hbo, Dpty Clk)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA JOHN RANDALL BERRY, Plaintiff, v. 1) NORRIS SUCKER RODS, 2) NORRIS RODS, 3) NORRIS, 4) NORRIS CORP., 5) THE NORRIS COMPANY, 6) NORRIS OIL CO., 7) NORRIS, A DIVISION OF DOVER FLUID MANAGEMENT, INC., 8) DOVER CORPORATION, AND 9) DOVER, INCORPORATED, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-CV-321-GKF-TLW AMENDED OPINION AND ORDER1 This matter comes before the court on the Motion to Dismiss Second Amended Complaint (Dkt. #38) of defendant Norris, a Division of D over Fluid Management, Inc. ( Norris ). Norris argues that the Second Amended Complaint (Dkt. #33) should be dismissed for three reasons: 1) a 2010 amendment to Oklahoma s Workers Compensation Act eliminated substantial certainty tort claims, 2) another 2010 am endment precludes plaintiff from maintaining claims in both Workers Compensation Court and district court, and 3) plaintiff failed to state a plausible claim upon which relief can be granted. 1 This document amends footnote 4 in the Opinion and Order dated August 18, 2011, as reflected in footnote 5, below. I. Statutory Elimination of Substantial Certainty Tort Claims Section 11 of the Oklahoma Workers Compensation Act (the OW CA ) prescribes employer liability for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault. 85 O.S. § 11. Section 12 of the OWCA makes that liability exclusive and in place of all other liability of the employer. 85 O.S. § 12. The Oklahoma Supreme Court has long recognized, however, that in some cases an employee who has been wilfully injured by his employer [may] ha[ve] a common law action for damages. Roberts v. Barclay, 369 P.2d 808, 809 (Okla. 1962). In 2005, the Oklahoma Supreme Court rejected the proposition that the specific intent to harm is required for an employer s conduct to be actionablein tort, and adopted the substantial certainty standard. Parret v. UNICCO Serv. Co., 127 P.3d 572, 578-579 (Okla. 2005). Under the substantial certainty standard, an employer s conduct amounts to an intentional tort if the employer acted with the knowledge that such inju was substantially certain to result from employer s conduct. ry the Id. at 579. On December 25, 2007, two years after the Oklahom a Supreme Court decided Parret, plaintiff John Randall Berry ( Berry ) was injured on the job. Berry timely filed this Parret tort action in state district court on September 1, 2009. In 2010, the Oklahom a Legislature elim inated Parret tort claim s with the f ollowing amendment to § 12 of the OWCA: [a]llegations or proof that the employer had knowledge that 2 such injury was substantially certain to result fr om its conduct shall not constitute an i ntentional tort. The amendment took effect on August 27, 2010.2 The initial issue posed by the m otion to dismiss is whether the 2010 am endment eliminating Parret tort claims applies retroactively to require the dism issal of Berry s Parret claim. The Legislature did not expressly make the amendment retroactive. Generally, the law in effect at the time of the employee s injury controls. Am. Airlines Inc., v. Crabb, 221 P.3d 1289, 1291 (Okla. 2009) (citations omitted). This is because the right of an employee to workers compensation arises from the contractual relation between the employee and employer on the date of injury, and [t]he statute in effect onthe date of injury forms a portion of the contract of employment and determines the substantive rights and obligations of the parties. Scruggs v. Edwards, 154 P.3d 1257, 1261 (Okla. 2007) (citing Cole v. Silverado Foods, Inc., 78 3 P.3d 542, 546 (Okla. 2003). Thus, the general rule is that subsequent statutory amendment can no operate retrospectively to affect in any way the substantive rights and obligations which are fixed on the date of injury. Id. (citing King Mfg. v. Meadows, 127 P.3d 584, 589 (Okla. 2005));CNA Ins. Co. v. Ellis, 148 P.3d 874, 877 (Okla. 2006). An exception to the general rule is that am endments relating solely to rem edies and affecting only modes of procedure are generally held to operate retroactively and appl y to pending proceedings. Id. (citing King Mfg. v. Meadows, 127 P.3d at 589). Statutes that relate solely to remedies and hence affect only m odes of procedure i.e., enactments which do not create, enlarge, 2 After the parties submitted their briefs, Oklahoma passed a comprehensive workers compensation reform measure. The language contained in the 2010 amendment to 85 O.S. § 12 is found in the new statute recodified at 85 O.S. § 302 (B). See 2011 Okla. Sess. Law Serv. Ch. 318 (S.B. 878): http://www.oklegislature.gov/BillInfo.aspx?Bill=SB%20878 3 Berry s right to bring a Parret tort claim in 2007 arose from caselaw, not statutory law. 3 diminish, or destroy accrued or contractual rights are generally held to operate retroactively and apply to pending proceedings (unless their ope ration would affect substantive rights). Cole v. Silverado Foods, Inc., 78 P.3d 542, 546 (Okla. 2003) (emphasis in original). The 2010 amendment eliminating Parret tort claims explicitly eliminates an employee s right to bring an intentional tort claim premised on the substantial certainty standard. C hief Judge Eagan of this Court recently reached the sam e conclusion: i t is clear that the am endment substantively alters a party s right to bring an intentional tort claim outside of the scope of the OWCA. Shue v. High Pressure Transports, LLC, 2010 WL 4824560 at *5 (N.D. Okla. 2010) (emphasis added). [T]he substantial cert ainty test had not been legislatively overruled when plaintiff filed this case, and plaintiff m ay proceed with an intentional tort based on a substantial certainty theory. Id.4 Because the statutory elimination of Parret tort claims affected substantive rights, it may not be applied retroactively. T he court therefore rejects Norris s first ground for dismissal. 4 Norris argues the Court should follow the Michigan Court of Appeals and hold that Oklahoma s 2010 amendments were merely procedural in nature and should be applied retroactively. Schefsky v. Evening News Assoc., 425 N.W. 2d 768 (Mich. Ct. App. 1988). Schefsky is easily distinguished from the case at bar. There, Schefsky filed suit on April 1, 1986, a time when controversy and uncertainty existed regarding whether Michigan s original Workers Disability Compensation Act ( WDCA ) permitted substantial certainty tort claims. The Michigan Supreme Court adopted the substantial certainty standard on December 23, 1986. Beauchamp v. Dow Chemical Co., 398 N.W.2d 882 (1986). Less than five months thereafter, the Michigan legislature amended the exclusive remedy provision of the WDCA. The amended provision specifically includes an exception for the intentional torts of employers The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. Schefsky, 425 N.W.2d at 770 (quoting 1987 P.A. 28). The Michigan Court of Appeals held that the amendment was remedial or procedural in nature as it was prompted by the desire to correct or clarify the existing uncertainty regarding the original act. Id. Moreover, the amended statute explicitly stated that it shall not enlarge or reduce rights under law. Id. Here, in contrast, the right to bring a Parret tort existed for five years, and was a well-established substantive right at the time of Berry s injury. 4 II. Maintenance of Two Actions The 2010 amendments also added the following new provision to § 12 of the OWCA: in the case of an intentional tort, the injured em ployee or his legal representative m ay maintain an action either in the Workers Compensation Court or in the courts, but not both. 85 O.S. § 12(v). Norris contends the amendment applies to existing Parret tort claims and requires dismissal of this action. Like the amendment addressed in Section I, above, the am endment prohibiting an employee from maintaining both a Parret action and an OW action substantively alters an employee s right CA to maintain a Parret claim outside the scope of the OWCA. If, as Norris contends, the amendment is applicable to pre-existing claims, injured workers like Berry who brought both claim s prior to 2010 may maintain only one of the rights of ac tion. Thus, the new amendment alters Berry s previously-accrued, substantive right to pursue both rights of action.5 Norris argues that when the Legislature amended the statute to permit an injured employee to maintain an action either in the Workers Compensation Court or in the courts, but not both, it necessarily implied that the amendment has retroactive effect on pending actions. In Oklahom a, statutes are considered to have prospective operation only unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used. Rea v. Wichita Mortg. Corp., 747 F.2d 567, 571 (10th Cir. 1984) (citing State Bd. of Registration for Prof l Engineers & Land Surveyors v. Engineered Coatings, Inc., 542 P.2d 508, 509 (Okla. 1975)). 5 Norris argues that the law previously prohibited a double recovery, and therefore this is merely a procedural change. The actions in Workers Compensation Court and in district court are separate and distinct, however, and constitute separate actions in which to seek compensation for partially overlapping elements of damage. 5 Article V, Section 52 ofthe Oklahoma Constitution prohibits the result Norris seeks. Af ter suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit. 6 Once plaintiff Berry commenced his Parret tort action and his Workers Compensation action, the Legislature had no power to take one of the actions away by forcing Be to elect between them Moreover, this Court rry . is unconvinced that the word m aintain necessarily im plies legislative intent to apply the amendment to pre-existing actions. III. Plaintiff Berry s Parret Tort Claim To satisfy the substantial certainty standard, m than knowledge and appreciation of the ore risk is necessary: The employer must have knowledge of more than foreseeable risk, m ore than high probability, and m ore than substantial likelihood. Nothing short of the employer s knowledge of the substantial certanty of injury willremove the injured i worker s claim from the exclusive remedy provision of the Workers Compensation Act, thus allowing the worker to proceed in district court. Parret, 127 P.3d at 579. Berry has alleged that the turret lathe m achine that injured him was so designed that it was substantially certain to malfunction, that two other employees had previously been injured when the turret lathe machine malfunctioned in the same or similar manner, that one of the prior injuries had occurred shortly before Berry s, and that Norris had removed the emergency stop(s) on the turret lathe machine which would have prevented Berry s injury. 6 Neither party cites or discusses Article V, Section 52 in their briefs. The Constitutional provision is also dispositive with respect to Norris s arguments discussed in Section I, above. 6 In evaluating a m otion to dismiss for failure to state a claim upon whi ch relief may be granted, a court must take the allegations in the com plaint as true. In doing so, this Court concludes that Berry has stated a Parret claim upon which relief can be granted. IV. Conclusion For the reasons stated above, the court concludes that the am endments to the W orkers Compensation Act cannot be retroactively applied tothis action. Berry has pleaded facts sufficient to state a claim for a Parret tort. Therefore, the Motion to Dism iss Second Amended Complaint (Dkt. #38) of defendant Norris, a Division of Dover Fluid Management, Inc., is denied. IT IS SO ORDERED this 24th day of August, 2011. 7
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