PAMELA WOODWARD v. MANPOWER TEMPORARY SERVICES; AMBRAKE; CNA RISK MANAGEMENT; GINGY QUALLS; AND CNA INSURANCE COMPANY
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RENDERED: MARCH 10, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002834-MR
PAMELA WOODWARD
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
ACTION NO. 98-CI-00449
MANPOWER TEMPORARY SERVICES; AMBRAKE;
CNA RISK MANAGEMENT; GINGY QUALLS; AND
CNA INSURANCE COMPANY
AND
NO. 1998-CA-002837-MR
MICHAEL DEGUTIS
v.
APPELLEES
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
ACTION NO. 98-CI-01027
MANPOWER TEMPORARY SERVICES; SERVICE
FIRST WAREHOUSE & DISTRIBUTION; AND
CNA INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, McANULTY, and MILLER, Judges.
McANULTY, JUDGE.
Pamela Woodward appeals from the judgments of
the Hardin Circuit Court entered on October 20, 1998, and
November 16, 1998, which dismissed her personal injury claim.
In
appeal No. 1998-CA-002837, Michael Degutis appeals from the
judgments of the Hardin Circuit Court entered on October 20,
1998, and November 16, 1998, which also dismissed his personal
injury claim.
We begin with a brief summation of the facts in both
cases.
On April 21, 1998, Pamela Woodward (Woodward) suffered a
head injury when she slipped on the concrete floor at Ambrake
Corporation’s plant.
On March 19, 1998, Woodward filed a
complaint in Hardin Circuit Court seeking compensatory damages
for her injuries against Manpower Temporary Services (Manpower)
and Ambrake.
Woodward also sought compensatory and punitive
damages from Manpower, Ambrake, CNA Risk Management, Gingy Qualls
and CNA Insurance Company for intentionally conspiring to deny
her reasonable medical treatment.
All of the defendants answered
the complaint and subsequently filed motions to dismiss for
failure to state a claim upon which relief can be granted.
Kentucky Rule of Civil Procedure (CR) 12.02(f).
On October 20,
1998, the circuit court granted Manpower and Ambrake’s motions to
dismiss.
On November 16, 1998, the circuit court granted CNA
Risk Management, Gingy Qualls and CNA Insurance Company’s motion
to dismiss.
This appeal followed.
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At the time of his injury, Michael Degutis (Degutis)
was also employed by Manpower and assigned to work for Service
First Warehouse and Distribution as a laborer.
On July 21, 1997,
Degutis injured his back in a fall at Service First’s warehouse.
On June 29, 1998, Degutis filed a complaint in Hardin Circuit
Court against Manpower, Service First, CNA Insurance Company,
Governor Paul Patton in his individual capacity, and Commissioner
Walter Turner in his individual capacity.
The defendants
answered the complaint and filed motions to dismiss pursuant to
CR 12.02(f).
The circuit court granted Service First’s motion to
dismiss on October 20, 1998, followed by CNA and Manpower’s
motions to dismiss on November 16, 1998.
This appeal followed.
Because Woodward and Degutis’s (hereafter the
appellants) complaints were dismissed under CR 12.02(f), this
Court must presume that all the factual allegations in the
complaints are true and must draw any reasonable inference in
favor of the appellants.
Under CR 12.02(f) a claim should be
dismissed if "it appears to a certainty that the claimant is
entitled to no relief under any state of facts which could be
proved in support of the claim."
Kevin Tucker & Assoc. v. Scott
& Ritter, Inc., Ky. App., 842 S.W.2d 873 (1992), citing Spencer
v. Woods, Ky., 282 S.W.2d 851 (1955).
Thus, the sole issue on
appeal is whether the appellants are entitled to pursue a
negligence claim in circuit court against their respective
employers and insurance carriers or whether they are barred from
asserting such claims by the exclusive liability provisions of
Kentucky Revised Statute (KRS) 342.690.
-3-
On appeal, the appellants argue that the Workers’
Compensation Act (the Act), embodied in KRS chapter 342, is
unconstitutional.
Appellants’ first argument relates to the
jural rights doctrine.
As the appellants readily assert, the
jural rights doctrine is implicated whenever the General Assembly
enacts a statute that impairs our common law right to recover
damages for death and injuries to person or property. Louisville
& N. R. v. Kelly's Adm'x, 100 Ky. 421, 38 S.W. 852 (1897).
"The
right of every individual in society to access a system of
justice to redress wrongs is basic and fundamental to our common
law heritage, protected by Sections 14, 54 and 241 of our
Kentucky Constitution."
571, 578 (1995).
novel one.
O’Bryan v. Hedgespeth, Ky., 892 S.W.2d
The appellants’ argument in this case is not a
Taking away a worker’s constitutionally protected
right to seek redress in court for personal injuries without
their consent is what led to the demise of the first Workers’
Compensation Act in 1914.
As the court explained in Kentucky
State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562,
170 S.W. 1166 (1914), the General Assembly may adopt an effective
compensation law that would provide shelter to both employers and
employees without offending the constitution; however, it could
not use compulsory means to put the act into operation.
Under
the 1916 version of the Act, a worker was allowed to reject
coverage, thereby maintaining his/her common law rights, or
accept coverage and voluntarily relinquish those rights.
In this
form, the Act was held to be constitutional in Greene v.
Caldwell, 170 Ky. 571, 186 S.W. 648 (1916).
-4-
Accordingly, the
issue concerning the effect of a compensation system enacted by
the General Assembly on workers’ rights protected by Section 14,
54, and 241 of the Constitution has been previously decided and
we decline the appellants’ invitation to revisit the issue.
The appellants’ also argue that KRS 342.395, the "optout" provision, is an unconstitutional waiver of an employee’s
jural rights.
In both cases, appellants contend that they did
not know that they had a right to "opt-out" of the Act under KRS
342.395.
KRS 342.395(1) provides, in pertinent part:
Where an employer is subject to this chapter, then
every employee of that employer, as a part of his
contract of hiring . . . shall be deemed to have
accepted all the provisions of this chapter and shall
be bound thereby unless he shall have filed, prior to
the injury or incurrence of occupational disease,
written notice to the contrary with the employer; and
the acceptance shall include all of the provisions of
this chapter with respect to traumatic personal injury,
silicosis, and any other occupational disease.
The constitutionality of this provision, which was added by
amendment in 1952, was upheld in Wells v. Jefferson County, Ky.,
255 S.W.2d 462 (1953).
The court specifically stated that "KRS
342.395 adequately preserves the right of the employee to make a
voluntary election as to whether he will come under the
Compensation Act."
Id. at 463.
Contrary to appellants’
assertion, this Court is not in a position to overrule the Wells
decision.
Rules of the Supreme Court 1.030(8)(a).
Next, the appellants argue that the 1996 version of the
Act does not provide an adequate remedy to injured workers and is
unconstitutional because the formula used to determine
occupational disability is arbitrary, vague, and against public
policy.
Appellants’ argument fails for the following reasons.
-5-
First, in an attempt to bypass the entire administrative system
set up to handle injured workers’ claims, the appellants have
sought judicial relief without ever filing a workers’
compensation claim.
It is a well settled principle of law that
"where an administrative remedy is provided by the statute,
relief must be sought from the administrative body and this
remedy exhausted before the courts will take hold. . . .
Ordinarily the exhaustion of that remedy is a jurisdictional
prerequisite to resort to the courts."
Goodwin v. City of
Louisville, Ky., 309 Ky. 11, 215 S.W.2d 557 (1948) (citation
omitted).
Second, the real matter at issue in both cases is the
applicability of the exclusive liability provision, KRS
342.690(1), which was in effect prior to the 1996 amendments.
Appellants’ arguments concerning the 1996 version of the Act are
not relevant to deciding whether the employer’s liability is
exclusively under the act.
Finally, appellants argue that their respective
employers and insurance carriers have violated KRS 304.12-230,
the unfair claims settlement practices statute.
Appellants’
argument is without merit and is based on the ill-conceived
notion that they have demonstrated the unconstitutionality of the
Workers’ Compensation Act.
Appellants have produced no evidence
that their respective employers and insurance carriers have
exercised bad faith or unfair settlement practices.
Having determined that KRS 342.690(1) is applicable,
the Hardin Circuit Court’s orders dismissing appellants’
complaints under CR 12.02(f) are hereby affirmed.
-6-
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE AMBRAKE
CORPORATION:
John W. Bland, Jr.
Elizabethtown, Kentucky
C. Thomas Hectus
Louisville, Kentucky
BRIEF FOR APPELLEES MANPOWER
TEMPORARY SERVICES, CNA RISK
MANAGEMENT, GINGY QUALLS, AND
CNA INSURANCE COMPANY:
R. Mark Beal
Louisville, Kentucky
BRIEF FOR APPELLEE SERVICE
FIRST WAREHOUSE &
DISTRIBUTION:
Stephen W. Van Zant
Elizabethtown, Kentucky
-7-
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