Hughes Drilling Co. v. Crawford

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Hughes Drilling Co. v. Crawford
1985 OK 16
697 P.2d 525
Case Number: 61207
Decided: 02/26/1985
Supreme Court of Oklahoma

HUGHES DRILLING COMPANY, PETITIONER,
v.
THEODORE H. CRAWFORD AND SANDRA O. CRAWFORD, PARENTS OF THEODORE LAYTON CRAWFORD, DECEASED, RESPONDENTS.

Certiorari to Review a Certified Interlocutory Order; District Court of Logan County.

¶0 Petitioner seeks review of certified interlocutory order wherein trial court determined it had jurisdiction of wrongful death action by parents of minor son against his employer for death caused by injuries covered by the Workers' Compensation Act.

CERTIORARI GRANTED. ORDER OF TRIAL COURT OVERRULING OBJECTION TO JURISDICTION REVERSED. CAUSE REMANDED WITH INSTRUCTIONS TO DISMISS.

Fenton, Fenton, Smith, Reneau & Moon by Donald R. Wilson, Oklahoma City, for petitioner.

Shoemake & Shoemake by Shockley T. Shoemake, Pawhuska, and Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks by Gene Stipe and William Craig Dawkins, Oklahoma City, for respondents.

HODGES, Justice.

[697 P.2d 526]

¶1 The question to be answered in this appeal from a certified interlocutory order is whether the parents of a deceased minor, whose death accidentally occurred in the course of his employment, may bring an action against his employer in district court, or whether they are limited to the benefits provided under the Workers' Compensation Act.

¶2 As alleged in the petition filed by the respondents (hereafter plaintiffs), their minor son, Theodore Layton Crawford, died as a result of injuries accidentally incurred while on an oil and gas drilling rig owned by the petitioner (hereafter defendant). Alleging negligence and "reckless disregard" for their son's safety, the plaintiffs sought recovery for his wrongful death pursuant to 12 O.S. 1981 § 1055 . Defendant sought dismissal, arguing that plaintiffs' son was an employee of defendant, and any claim for his death was exclusively under the provisions of the Workers' Compensation Act. The trial court overruled that objection, but certified his ruling for interlocutory review, stating that a resolution of this issue at this state in the litigation would materially advance its ultimate conclusion. We grant certiorari pursuant to 12 O.S. 1981 § 952 (b)(3) to review that ruling.

¶3 The parties do not dispute that the decedent was an employee of defendant, or that his death resulted from accidental injuries arising out of and in the course of his employment. Despite this apparent basis for coverage by the Workers' Compensation Act, plaintiffs urge that their action is properly brought in district court. Plaintiffs contend that the death benefit provisions found in 85 O.S. 1981 § 22 under subsections 8 through 10, abrogate their right of action for the death of their son in violation of Art. 23, Sec. 7 of the Oklahoma Constitution.

[697 P.2d 527]

¶4 As adopted originally, Art. 23, Sec. 7 provided:

"The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation."

¶5 In F.W. Woolworth Co. v. Todd, 204 Okl. 532, 231 P.2d 681, 684 (1951) the Court considered the effect of this provision and stated:

"The constitution, Schedule Sec. 2, proposed to extend and continue in force all of the laws in force in the Territory of Oklahoma at the time of the admission of the state into the Union which were not repugnant to the constitution and not locally inapplicable. That, of course, included Section 4313, Oklahoma Statutes 1893. That was one legislative act which the framers of the constitution desired to keep intact, and to that end they included Section 7, Article 23 in the constitution. The intent and effect of that provision is that so long as the provisions of Sec. 7, Article 23, of the constitution remain as a part of the constitution, the legislature, or the people by initiative petition, may not withdraw, take away, annul, or repeal the provisions of said Section 4313, Oklahoma statutes of 1893. . . ."

¶6 Under this provision, all the incidents of the right of action for wrongful death, as that action was formerly defined in 12 O.S. 1971 § 1053 and 1954, became "crystallized" by the above cited constitutional provision. Roberts v. Merrill, 386 P.2d 780 (Okla. 1963). The legislature and the people, absent constitutional amendment, were powerless to effectively limit the amount of recovery or abrogate the right of action which arose out of the provisions of the law as it existed when the constitution was adopted.

¶7 By an amendment adopted in 1950, this section of the constitution was altered by adding a provision at the end of the existing language so that it now reads:

"The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided, however, that the Legislature may provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive."

¶8 After the adoption of the amendment the legislature adopted additional provisions for death benefits in cases involving death-causing injuries which were covered by the Workmen's Compensation Act. Initially, these provisions provided for a total benefit to be divided among the "dependents" of the employee as that term was defined in Section 3.1 of Title 85, as it read prior to amendments in 1977.

¶9 Section 22.8 now grants "income benefits for death" to survivors of the employee who are "actually dependent" upon the employee as that term is defined in Section 3.1, as revised by the same legislative enactment. In addition, Section 22.9 provides for recovery by the "heirs-at-law" of the deceased for their pecuniary loss if said heirs are not otherwise entitled to benefits, up to a maximum of $5,000 in the aggregate.

¶10 Plaintiffs contend that the new scheme of benefits adopted in the Workers' Compensation Act does not make provision for [697 P.2d 528] parties in their position, non-dependent parents of a deceased employee who was a minor, and that their right of action for his death is preserved by Article 23, Section 7, and may be enforced by action in the district court.

I.

¶11 Plaintiffs first argue that the benefit scheme provided by the Act is invalid because it changes their cause of action from one for damages for contributions which their son would likely have made to them during and after minority to a cause of action limited by their actual dependency on the deceased. This, they say, is contrary to the rule laid down by this Court in Capitol Steel & Iron Co. v. Fuller, 206 Okla. 638, 245 P.2d 1134 (1952), and more recently in Wallace v. State Industrial Court, 406 P.2d 488 (Okla. 1965). In both cases the Court determined that death benefits under workers' compensation were payable to "heirs-at-law" who sustained pecuniary loss.

¶12 The Wallace court specifically rejected a determination by the State Industrial Court, sitting en banc, that the parents of a minor could not recover benefits for his death unless they proved their dependency upon him. At the time Wallace was decided, the death benefits were in a lump sum to be distributed to all of the statutory beneficiaries.

¶13 Plaintiffs suggest the decision of the Wallace court is applicable here. The provisions of the current Act do not support this argument. In both Capitol Steel, supra, and Wallace, supra, the Court was interpreting a workers' compensation law which provided for a single lump sum benefit to the "dependents", which were defined as the decedent's "heirs-at-law." It made no provision for benefits to any who did not meet that test. We are asked to pass upon a benefit scheme which has not only specifically limited "income benefits" to "actual dependents,"

¶14 While plaintiffs may not be eligible for "income benefits," they may recover as "heirs-at-law" if they have sustained pecuniary loss under subsection 9. This is precisely the recovery to which they would have been entitled under the wrongful death law in effect at the time Art. 23, Sec. 7 was adopted along with the rest of our constitution. Parkhill Trucking Co. v. Hopper, 208 Okla. 429, 256 P.2d 810 (1953). As authorized by the 1950 amendment to Art. 23, Sec. 7, the legislature has not destroyed the right of action for death guaranteed to decedent's survivors under [697 P.2d 529] that provision, but has limited it in amount.

II.

¶15 Next, plaintiffs argue that Act abrogates their right of action because it does not provide a single amount of compensation for a fatal injury, but rather sets varying amounts of compensation based primarily upon relationship and dependency. As sole support for their argument they cited the language of the 1950 amendment which authorized the legislature to set "an amount of compensation." There is nothing in the constitutional limitation which requires the legislature set a single amount of compensation to be divided among the beneficiaries.

¶16 The proviso added in 1950 was for the purpose of allowing the legislature to set a limit on the pecuniary loss which could be recovered by those parties having a right of action under the wrongful death statutes for deaths covered by the Workmen's Compensation Law. As long as the legislature has not limited or abrogated the rights of those persons having a right of action for death for their pecuniary losses which was guaranteed by Article 23, Section 7, except with regard to amount, it has not violated the constitutional limitation. If the legislature, as a matter of policy, determines that other parties may recover benefits for death without necessarily suffering pecuniary loss, the legislature may do so. It is not required to do so.

III.

¶17 Plaintiffs point to the provisions of 12 O.S. 1981 § 1055 which provide special damages in the cases of deaths of minor children, and argue that since the Workers' Compensation Act does not provide for different benefits in these types of cases, there is a "hiatus" which allows them to seek recovery in district court. As noted previously, the "right of action death" which is preserved by the provisions of Article 23, Section 7, is the death action as embodied in Section 435 (4313), Oklahoma Statutes 1893, which later became 12 O.S. § 1053 (prior to its amendment in 1978 and 1979) and § 1054. Roberts v. Merrill, supra.

¶18 An action under the Workers' Compensation Law is the exclusive remedy against an employer for deaths covered by that Act. Rios v. Nicor Drilling Company, 665 P.2d 1183 (Okla. 1983). The fact that the Act does not differentiate between deaths of minor children and other deaths creates no special right to bring an action in district court or abrogate the death action preserved by Article 23, Section 7, of our constitution.

¶19 Without citation of authority, plaintiffs suggest that unless the Workers' Compensation Act provides a remedy comparable to the remedy provided in § 1055, their cause of action for death has been abrogated. In adopting Art. 23, Sec. 7, the framers of our constitution and the people were interested in preserving from legislative abridgment the cause of action for wrongful death as they knew and perceived it. There is nothing in that section which indicates that they intended every subsequent amendment to the wrongful death law which expanded the rights of the beneficiaries to be chiseled in concrete. Our [697 P.2d 530] interpretation allows the legislature to safely expand and contract the compensatory aspects of the death action as societal values and needs may change, but preserves that basic action which the constitution considers inviolate.

IV.

¶20 Finally, plaintiffs argue that the death benefits available to them under the Workers' Compensation are only token and, therefore, their action is effectively abrogated. The Act provides a maximum aggregate benefit of $5,000 for the "heirs-at-law" of the deceased employee to the extent they have suffered pecuniary loss. Plaintiffs have not offered any authority for their argument that this sum is so small as to constitute no recovery whatsoever except to contrast it with the elements of damage for which they might recover in district court under 12 O.S. 1981 § 1055 .

¶21 The restrictions and limitations contained in our constitution upon the legislative power must be construed strictly, and they may not be expanded to include matters not covered or implied by the language of the constitution. Wiseman v. Boren, 545 P.2d 753 (Okla. 1976). Thus, we are not free to imply a further limitation on the legislative power to see amounts of recovery in wrongful death cases covered by the Workers' Compensation Act to require that those amounts bear some relationship to the recovery which might be had in an action in district court. The amount of that recovery is in the province of the legislature under the specific directive of the constitution, and if it is too small the people have the power, either through their elected officials or by their right of initiative petition, to increase it.

CONCLUSION

¶22 Plaintiffs' contention that they were entitled to bring this action in district court is premised upon their belief that the death benefits' provision of the Workers' Compensation Act violates the constitutional command that the right of action for death remain inviolate. As we have seen, the legislative scheme of benefits does preserve to the plaintiffs their right to a remedy for the pecuniary loss which they may have suffered by the death of their son. The remedy provided limits their rights, as established by our wrongful death statutes as they existed when the constitution was adopted, only in the amount of recovery. Since such an amount limitation is explicitly recognized by the very provision relied upon by the plaintiffs, they cannot be said to have met their burden of showing that a legislative enactment is unconstitutional in the face of the presumption of validity accorded under our law. Wiseman v. Boren, supra.

¶23 The trial court lacked subject matter jurisdiction over this cause of action, and its order denying the objection to jurisdiction must be reversed.

¶24 ORDER OF TRIAL COURT OVERRULING OBJECTION TO JURISDICTION REVERSED. CAUSE REMANDED WITH DIRECTIONS TO DISMISS.

¶25 SIMMS, C.J., and LAVENDER, HARGRAVE and SUMMERS, JJ., concur.

¶26 DOOLIN, V.C.J., and OPALA, ALMA WILSON and KAUGER, JJ., concur in judgment.

Footnotes:

1 85 O.S. 1981 § 1 , et seq.

2 Laws 1951, Ch. 2; Laws 1965, Ch. 131; Laws 1970, Ch. 318.

3 Laws 1971, Ch. 336.

4 85 O.S. 1981 § 22.8-10 .

5 85 O.S. 1961 § 22 (7).

6 85 O.S. 1981 § 22.8 .

Under 85 O.S. 1981 § 3.1 , "`Actually dependent'" means:

"a. a surviving spouse as defined in this section;

"b. a child as defined in this section; or

"c. any other person dependent in fact upon the employee and refers only to a person who receives one-half (1/2) or more of his support from the employee;"

7 85 O.S. 1981 § 22.9 provides:

"Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00)."

8 Plaintiffs cite criticism in F. Elkouri, Workers' Compensation in Oklahoma, 1978, University of Oklahoma Continuing Legal Education, of the "actual dependency" test for income benefits. However, we note that Professor Elkouri ultimately suggested that subsection 9 had satisfied constitutional objections when he stated at page 155 of his treatise:

". . . No doubt the legislature can constitutionally provide for workers' compensation benefits to dependents as a matter of state policy. Certainly this comports with the fundamental purpose of workers' compensation legislation. Nevertheless, under the example given above the mother did have a constitutional right to damages for the death and even after the constitution was amended in 1950 to bring death cases under workers' compensation the legislature could alter her right of action only by specifying the amount of recovery . . . That is what the legislature has now done by § 22(9). Thus, the constitutional pitfall may have been circumvented and the basic policy of providing substantial benefits to persons who were actually dependent upon the deceased employee is carried out."

OPALA, Justice, concurring in judgment only.

¶1 Before us for review is a certified interlocutory order. It declares a death claim to lie within the district court's jurisdiction rather than within the exclusive cognizance of the Workers' Compensation Court. Under challenge here is the validity of those 1977 amendments

¶2 The court's pronouncement holds the parents may not sue for wrongful death because their second-class treatment in the compensation remedy is nonetheless free from any fundamental-law infirmity. My view is that while the § 22(9) recovery limit cannot pass constitutional muster, the parents nonetheless are barred from bringing a district court action. This is so because their exclusion from the class of parents who may qualify for income benefits under the Act is rested on legally impermissible criteria and they are hence entitled to be placed in a status absolutely coequal with that of those parent-beneficiaries who were "actually dependent" upon their deceased child.

¶3 I would hold that while the legislature does not lack power to prescribe a different benefit limit for each class of beneficiaries who are authorized by the provisions of 12 O.S. 1981 § 1053 to participate in the recovery for death, the difference in the amount of benefits prescribed for the various classes may not rest upon a legally unsanctioned gauge of "actual dependency". [697 P.2d 532] Rather, the differential in recovery limits must have a reasonable relation to the only permissible standard for measuring the size of a death award - the quantum of pecuniary loss reasonably expected from the death to be compensated.

¶4 By the mandated exclusivity of the compensation remedy the parents are barred from pursuing their wrongful death action,

¶5 By the common law the right of action for personal injury, whether it be the cause of one's death or not, is extinguished by the death of the injured party; the cause of action is said to die with the person entitled to sue.

¶6 "Actual dependency" and "pecuniary loss" are totally incompatible concepts. The former requires that a beneficiary's claim be founded solely on pre-death support actually provided by the deceased employee.

¶7 The legislature transgressed the bounds of its constitutional mandate, conferred upon it by the proviso added in 1950 to Art. 23 § 7, Okl.Const., when it replaced "pecuniary loss" with "actual dependency" as the test for income benefits under the substituted remedy in compensation.

¶8 For the reasons so stated, I concur only in the judgment that bars the parents from pursuing a wrongful death action.

¶9 DOOLIN, V.C.J., and ALMA WILSON and KAUGER, JJ., join with me in these views.

Footnotes:

1 85 O.S.Supp. 1977 §§ 1 et seq. (Okla. Sess. Laws 1977, c. 234, §§ 1 et seq.)

2 85 O.S. 1971 §§ 1 et seq.

3 85 O.S. 1981 § 22 (8).

4 85 O.S. 1981 § 22 (9).

5 85 O.S. 1981 §§ 1 et seq.

6 Actual dependency is defined in 85 O.S. 1981 § 3.1 . The provisions pertinent here are those in § 3.1A(1), 3.1A(6) and 3.1B. These are:

A(1) "`Actually dependent' means:

a. a surviving spouse as defined in this section;

b. a child as defined in this section; or

c. any other person dependent in fact upon the employee and refers only to a person who receives one-half (1/2) or more of his support from the employee;

* * * * * *

(6) `Parent' means a mother or father, . . . if actually dependent in each case except as provided in paragraph (1) of this section.

B. All questions of relationship and dependency shall be determined as of the time of injury for purposes of income benefits for injury, and as of the time of death for purposes of income benefits for death." [Emphasis added.]

7 85 O.S. 1981 § 22 (9) provides:

"Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00)."

8 The substituted remedy in compensation for death is constitutionally protected. To the extent that a remedy in compensation should prove ineffective to secure relief, the wrongful death action might survive under our constitution's shield against abrogation or limitation of recovery for death. Art. 23 § 7, Okl.Const.; Roberts v. Merrill, Okl., 386 P.2d 780, 783 [1963]. The power of the legislature to shape the substituted remedy is subject to the restraints of Art. 23 § 7, Okl.Const., as amended in 1950, and to the provisions of 12 O.S. 1981 §§ 1053 and 1054. In Roberts, supra, at 783-784, we described the narrow sweep of authority that resides in the legislature in this language:

"Any right of recovery for death, whether it be by an action at law for wrongful death or by a claim for death benefits under the Workmen's Compensation Act, exists by reason of the provisions of 12 O.S. 1961 § 1053. * * * `. . . any provision . . . which modifies the provisions of sections 1053 and 1054 of Title 12 O.S. 1941, except to "provide an amount of compensation . . . for death resulting from injuries suffered in employment" . . . is . . . void.'" [emphasis added]

9 Wallace v. State Industrial Court, Okl., 406 P.2d 488 [1965].

10 85 O.S. 1981 § 12 provides in pertinent part:

"The liability prescribed [by the Workers' Compensation Act] . . . shall be exclusive and in place of all other liability of the employer and any of his employees, at common law or otherwise, for . . . death, to the employee . . . parents, . . . or any other person except . . ."

11 Wallace v. State Industrial Court, supra note 9.

12 Boswell v. Nolan, Okl., 366 P.2d 767, 769 [1961]; Kennedy v. Byers, 107 Ohio St. 90, 140 N.E. 630 [1923].

13 12 O.S. 1981 §§ 1053 and 1054.

14 9 and 10 Vict. Ch. 93 [1846]; St. Louis & S.F.R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, 1187 [1914] and Brookshire v. Burkhart, 141 Okl. 1, 283 P. 571, 574, 67 A.L.R. 1059 [1930].

15 Okmulgee Gas Co. v. Kelly, 105 Okl. 189, 232 P. 428, 431 [1924].

16 Wallace v. State Industrial Court, supra note 9; Meadow Gold Dairies v. Oliver, Okl., 535 P.2d 290, 293 [1975].

17 Meadow Gold Dairies v. Oliver, supra note 16; Corvin v. State Industrial Court, Okl., 408 P.2d 322, 325 [1965]; Capitol Steel and Iron Co. v. Fuller, 206 Okl. 638, 245 P.2d 1134, 1139 [1952] and Roberts v. Merrill, supra note 8. See also, Garland v. Herrin, 724 F.2d 16, 20 [2nd Cir. 1983].

18 See statutory definitions, supra note 6.

19 Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606, 609 [1916]; City of Miami v. Finley, 112 Okl. 97, 240 P. 317, 319-320 [1925]; St. Louis-San Francisco R. Co. v. Floyd, 146 Okl. 42, 293 P. 250, 77 A.L.R. 1431 [1930]; Fike v. Peters, 175 Okl. 334, 52 P.2d 700, 704 [1935]; Parkhill Trucking Co. v. Hopper, 208 Okl. 429, 256 P.2d 810, 814 [1953]; Venable v. Burton, Okl., 363 P.2d 224, 228-229 [1961]; Finefrock v. Rice, Okl., 426 P.2d 675, 678 [1967]. See also Anno. Death of Infant - Measure of Damages, 14 A.L.R.2d 485, 506, 528 [1950].

20 Roberts v. Merrill, supra note 8; Wallace v. State Industrial Court, supra note 9; Meadow Gold Dairies v. Oliver, supra note 16.

21 The "actual dependency" requirement is readily severable from the rest of the death provisions, because it is not to be presumed that the legislature had intended the remainder of the death benefit provisions to suffer invalidation together with the offending dependency requirement. It is not likely that the legislature would have desired to subject covered employers to unlimited liability in wrongful death to claimants who, though heirs with pecuniary loss, were not actually dependent. This would doubtless result if the entire enactment dealing with death benefits were to be declared invalid because of the legislature's impermissible inclusion of the actual dependency requirement.

In Chicago, R.I. & P. Railway Co. v. Excise Board of Stephens County, 168 Okl. 519, 34 P.2d 274, 275 [1934], we held:

". . . If the unconstitutional portions of a statute are severable from the remainder of the act in such a way that it may be presumed the valid portions would have been enacted with the invalid portions eliminated, the failure of the latter will not render the entire statute void. On the contrary, the statute will be enforced as to the valid portions . . ."