Griffin v. Baker Petrolite Corp.9/17/2004
provision of §12 ordinarily precludes assertion of a common law action against an employer to recover damages for an accidental workplace injury. See, e.g., Maryland Casualty Co. v. Hankins, 1975 OK 25, , 532 P.2d 426, 429; Roberts v. Barclay, 1962 OK 38, , 369 P.2d 808, 811. In some cases, however, "an employee who has been wilfully injured by his employer ha a common law action for damages." Roberts, 1962 OK 38, , 369 P.2d at 809; Adams v. Iten Biscuit Co., 1917 OK 47, , 162 P. 938, 945.
Nevertheless, "an employee who has two remedies for the same injury and has prosecuted one of them to conclusion (securing an award or judgment), is barred from resort to the other remedy." Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, , 861 P.2d 295, 302; Pryse Monument Co. v. District Court of Kay County, 1979 OK 71, , 595 P.2d 435, 436-437. "This rule, which in essence erects a res judicata bar, is applicable to compensation claimants who may also press a tort remedy." Dyke, 1993 OK 114, , 861 P.2d at 302. "The law provides but one method to avoid the [election of remedy] bar" -- by action "in a district court suit to set aside the workers' compensation] award for extrinsic fraud" -- and " arring this relief, which is the sine qua non of a later tort redress, the award must be given its full res judicata effect." Dyke, 1993 OK 114, , 861 P.2d at 302.
Plaintiff asserts the holdings of Pryse Monument, followed in Dyke, do not apply in the present case. Particularly, Plaintiff argues that in Pryse Monument, plaintiff alleged injury as a result of the uninsured employer's negligence, an action expressly permitted by 85 O.S. 1971 §12,, but properly barred by the plaintiff's election to pursue and accept workers' compensation benefits for the same injury. Plaintiff asserts the present case, based on allegations of the insured Defendant/employer's intentional acts, concerns an injury wholly outside workers' compensation coverage, and "is not an action based on a prior election of an inconsistent remedy."
Plaintiff's argument to distinguish Pryse Monument and Dyke does not depend on whether the employer is insured or uninsured. Plaintiff's argument centers on whether his injury results from Defendant's mere negligence, a matter within the exclusive remedy provision of §12, or results for Defendant's intentional conduct, a matter clearly outside workers' compensation remedies.
In this respect, although without deciding "whether an employer may act with such reckless disregard of the known facts as to be subject to tort liability independent of the [Oklahoma] Workers' Compensation Act," the Oklahoma Supreme Court has recognized that " ome courts limit recovery to the so called 'true intentional torts' - situations where the employer intended the act and intended the injury [,] [while] ther jurisdictions rely on a 'substantial certainty test' and determine that if the employer intended the act that caused the injury or knew the injury was substantially certain to occur from the act, the employer has committed an intentional tort." Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, -14, 15, 23 P.3d 288, 292-295. The Court of Civil Appeals has held that "the clear weight of authority" required a showing of the employer's "'deliberate intention' to cause an employee's injury." Harrington v. Certified Systems, Inc., 2001 OK CIV APP 53, -33, 45 P.3d 430, 435-436. However, both the Supreme Court and the Court of Civil Appeals agree that neither ordinary negligence, nor gross negligence, fulfills either the actual intent test or the substantially certain test. Davis, 2001 OK 33, , 23 P.3d at 295; Harrington, 2001 OK CIV APP 53, , 45 P.3d at 436.
In the
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