Wilsey, Bennett Co. v. Grant

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Wilsey, Bennett Co. v. Grant
1981 OK 68
632 P.2d 382
Case Number: 53808, 55115
Decided: 06/09/1981
Supreme Court of Oklahoma


Appeal from the Workers' Compensation Court, James M. Fullerton, J.

Certiorari to the Court of Appeals, Division 2.

¶0 In two separate compensation proceedings against the same uninsured immediate employer - one by an injured worker and the other in behalf of the estate of a deceased worker - the principal (statutory) employer was not correctly designated as a party-respondent in the case until after the limitations period had run. The Workers' Compensation Court, Hon. James M. Fullerton, Judge, held the claims against the statutory employer were barred. His decision was reversed by an en banc panel of the trial tribunal. On principal employer's appeal, the Court of Appeals affirmed the decision of the en banc panel. Principal employer seeks certiorari. Causes consolidated for disposition and


Pierce, Couch, Hendrickson, Johnston & Baysinger by Barbara M. Tracy and James B. Durant, Oklahoma City, for petitioners.

Harley E. Venters, Horning, Johnson & Grove by Kent S. Johnson, Oklahoma City, for respondents.

OPALA, Justice:

[632 P.2d 384]

¶1 The dispositive issue before us is whether the one-year statute of limitations prescribed by 85 O.S. 1971 § 43

¶2 A truck driver was killed and her co-driver injured in a highway accident. Two separate claim forms were timely filed

¶3 The Court of Appeals' decision under review here is clearly predicated on the authority of Lane Construction & Plumbing Co. v. Green.

¶4 The clear language of § 43 prescribes but a single one-year time limit for filing a claim against any person liable for compensation. The statute makes no distinction between those who bear primary liability [632 P.2d 385] and those who may he held secondarily liable. Lane alters that legislative norm by postponing the point at which a claim against the principal employer accrues to the "discovery" of the immediate employer's uninsured status. The result of this rule is that the § 43 limitations period may be tolled vis-a-vis the principal employer over a span that is clearly open-ended. This is so because Lane sets no outer limit for a claimant's freedom to make the discovery that triggers the § 43 one-year period.

¶5 The fundamental purpose of the applicable time limits in § 43 is the same as in any other limitations statute. It is to protect a litigant from the unexpected enforcement of stale claims too old to be successfully investigated and defended.

¶6 Since there is nothing in the compensation laws which alters the incidence of statutory limitations vis-a-vis the liability imposable on a principal employer, the § 43 time bar must be viewed as being co-extensive with that which runs against the immediate employer. Courts are powerless to prescribe exceptions to limitations for which a clear or explicit provision is made by the legislature.

¶7 In some compensation proceedings more than one employer may be held liable for the same injuries sustained by a worker. This is true in cases in which there is both a general and special "master" and in those, like this one, where the law recognizes two employers, immediate and principal. The immediate employer bears primary responsibility, and the principal employer's liability is secondary.

¶8 As we can no longer follow Lane, we now pronounce that a timely-filed compensation claim will operate to commence a proceeding against any party-respondent shown on the claim form by a name or designation that sufficiently identifies that entity for delivery of notice either to it or to its insurance carrier.

¶9 Applying this test to the case at bar, we conclude that the principal employer's designation on the tribunal-prescribed form failed to identify that employer sufficiently to effect delivery of notice to the right party or to its insurance carrier.

¶10 The claimants in these cases rely on the open-ended rule of Lane. That rule was effective at the time of the accident when the rights of the parties attached. It must be allowed to govern these proceedings. We therefore sustain the awards made by the en banc panel. Our departure from the rule in Lane - pronounced in this opinion - shall operate prospectively

¶11 Certiorari is granted, the trial tribunal's awards are sustained and the Court of Appeals' opinion is withdrawn from publication.

¶12 IRWIN, C.J., BARNES, V.C.J., and HODGES and LAVENDER, JJ., concur.



1 Unless indicated otherwise, all citations are to sections which were in effect at the time of the accident and all section references are to Title 85.

2 The accident occurred August 14, 1973. The claim forms were filed August 12, 1974.

3 The Oklahoma and California entities had similar names and were at one time wholly owned subsidiaries of another corporation. That legal relationship was not in existence at the time of the accident in suit.

4 Both claimants stipulated that the misnamed Oklahoma corporation was not the principal employer.

5 Okl., 451 P.2d 947 [1969].

6 In Lane we held that the § 43 limitation period does not begin to run against the principal employer - the statutory employer under 85 O.S. 1971 § 11 - until the claimant has discovered that the immediate employer is uninsured. The principal employer's liability was said not to be established until that discovery is made.

7 Special Indemnity Fund v. Barnes, Okl., 434 P.2d 218, 220-221 [1967].

8 Seitz v. Jones, Okl., 370 P.2d 300, 302 [1962]; Lake v. Lietch, Okl., 550 P.2d 935, 937 [1976]; Cummings v. Board of Education of Oklahoma City, 190 Okl. 533, 125 P.2d 989, 993 [1942].

9 Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 160-161, 52 S. Ct. 571, 576, 76 L. Ed. 1026, 1035-1036 [1931]; McLean v. Mundy, 81 So. 2d 501, 503 [Fla. 1955]; Martensen v. Schutte Lumber Co., 236 Mo. App. 1084, 162 S.W.2d 312, 316-317 [1942].

10 Cummings v. Board of Education of Oklahoma City, supra note 8.

11 85 O.S. 1971 § 11 .

12 Ellis & Lewis v. Hohimer, 151 Okl. 114, 2 P.2d 943, 944 [1931].

13 Similarly, under the loaned-servant doctrine, either the general (lending) master or the special (borrowing) master, or both, could be looked to by the worker for payment of compensation. O'Baugh v. Drilling Well Control, Inc., Okl., 609 P.2d 355, 359 [1980]; Ishmael v. Henderson, Okl., 286 P.2d 265, 267-268 [1955]. The choice, again, is that of the injured worker.

14 Implicit in recent case law, Pryse Monument Co. v. District Court of Kay County, Okl., 595 P.2d 435 [1979], is the principle that vis-a-vis an uninsured employer the same limitations govern, both under the Workers' Compensation Law and in common law negligence, as they do with respect to an insured employer. Lane, supra note 5, is hence no longer in harmony with later decisional law. This is so because under Lane the immediate employer's uninsured status alone affords a basis for extending the time bar.

15 We are not dealing here with a pure form of joint liability. There, service on a co-obligor will arrest the limitations period as against defendants who have not been served. See 12 O.S. 1971 § 97 ; Kerns v. Renshaw, 162 Okl. 272, 20 P.2d 177, 178 [1933].

16 Had this been a case where the wrong defendant was named but the right one was given notice, the situation would be similar to that in Cartwright v. Atlas Chemical Industries, Inc., Okl., 623 P.2d 606 [1981]. That situation is not before us and we need not reach it here.

17 85 O.S.Supp. 1978 §§ 3.4 and 43; Rule 13, Workers' Compensation Court, State of Oklahoma, 85 O.S.Supp. 1978, Ch. 4 App.

18 Bomford v. Socony Mobil Oil Co., Okl., 440 P.2d 713, 720-721 [1968]; American First Title & Trust Company v. Ewing, Okl., 403 P.2d 488, 496 [1965]; Poafpybitty v. Skelly Oil Company, Okl., 394 P.2d 515, 520 [1964].

19 The effective date of this opinion is the date of its promulgation but if rehearing should be sought, then the date rehearing is denied.

SIMMS, Justice, dissenting:

¶1 I concur in the result of this opinion as to these claimants, but must dissent to the majority's "withdrawing" Lane


¶2 The limitation provision of 85 O.S. 1971 § 43 , in question, reads as follows:

"The right to claim compensation under this Act shall be forever barred unless within one (1) year after the injury or death, a claim for compensation thereunder shall be filed with the Commission."

¶3 Unlike the majority, I find no language there which supports the notion that a claim filed with the Commission must name everyone who is, or may be, liable for compensation and that the statute will bar a claim against one not so named.

¶4 To the contrary, I believe the Court of Appeals correctly analyzed the statute and its proper application as follows:

"In plain language, the statute specifies that it is the filing of a claim - not the naming of respondents - that tolls the [632 P.2d 387] limitation period. A more restrictive construction would run counter to the presumed intent of the legislature - that the provisions of the Act are meant to be beneficial, not detrimental, to workers who are injured or killed. AMF Tubescope Co. v. Hatchel, Okl., 547 P.2d 374 (1976). An employee should not be required at his peril to devine secret or esoteric deals made by his immediate employer with others or to determine whether all those for whom he works have fulfilled their legal obligations to him under the Act. It was the duty of Wilsey to compel Hughes' compliance with the Act. It did not do so and it cannot now avoid the statutory penalty for its dereliction by means of a strained construction of the limitation statute." 51 OBJ 2426, 2428 (Oct. 1980).

¶5 We have consistently held that no particular form of pleading is required before the Commission to give it jurisdiction to hear and determine a "claim for compensation", and that anything filed in the Commission which challenges its attention and causes it to act is sufficient to put in motion the process of the Commission to see that compensation is paid to injured employees. See, e.g., Higgenbotham v. Oklahoma Portland Cement Co., 155 Okl. 264, 9 P.2d 15 (1932); Apple v. State Insurance Fund, Okl., 540 P.2d 545 (1975).

¶6 The forms (3 and 3A) furnished workers and their representatives for stating their claims for compensation for injury or death contain no inquiry about a statutory employer and no space is provided for including such information.

¶7 Here, the claimants filed "claims for compensation" under the Act within one year, naming and giving notice to their employer.

¶8 The provisions of 85 O.S. 1971 § 11 , are designed to protect these claimants and others in similar situations. There is no requirement that statutory employers be named at the outset. In fact, the prescribed procedure contemplates that the immediate employer's noncompliance with the Act may not be discovered until after the proceeding has begun.

¶9 Section 11 provides:

"2. The person entitled to such compensation shall have the right to recover the same directly from his immediate employer, the independent contractor or intermediate contractor, and such claims may be presented against all such persons in one proceeding. If it appears in such proceeding that the principal employer has failed to require a compliance with the Workmen's Compensation Law of this State, by his or their independent contractor, then such employee may proceed against such principal employer without regard to liability of any independent, intermediate or other contractor. . ." (emphasis added)

¶10 Our decision in Lane is consistent with the purpose of the Act and faithful to the explicit provisions of § 11. The syllabus by the Court in Lane provides:

"Where an independent, intermediate or subcontractor under the provisions of the Oklahoma Workmen's Compensation Act fails to provide workmen's compensation insurance coverage for his employees as required by the Oklahoma Workmen's Compensation Act, thereby casting a direct liability upon the principal contractor or party having the work done for the payment of compensation benefits arising out of injury or death of employees of such independent, intermediate or subcontractors the provisions of the one year statute of limitations, 85 O.S. 1961 § 43 , are tolled until the discovery of such lack of insurance by the injured employee."

¶11 I would not overrule or "withdraw" Lane.

¶12 The Court of Appeals decision is correct and I would deny Certiorari.

¶13 I am authorized to state that Justice DOOLIN and Justice HARGRAVE join with me in the views expressed in the above opinion.


1 Okl., 451 P.2d 947 (1969).