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Hammock v. United States9/30/2003
__ P.3d __
Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601-1611, and 10th Cir. R. 27.1, the United States Court of Appeals for the Tenth Circuit on its own motion certified the following questions of unsettled Oklahoma law:
1. Does a vendor of merchandise qualify as an "independent contractor" for the retailers it supplies, within the meaning of Okla. Stat. tit. 85, §11, such that a retailer may potentially assume workers' compensation liability (and quid pro quo tort immunity) as a "principal employer" of the vendor's employees? If the answer depends on the extent to which the vendor contracts to perform substantial services in conjunction with the goods it provides, do the actions of the vendor in this case - delivering, stocking, rotating, inventorying, and promoting the brand of beer it vends - suffice, as a matter of law, to make it the defendant retailer's independent contractor under § 11?
2. If the vendor here qualifies as the defendant retailer's independent contractor (or if that is not a threshold predicate for assessment of the latter's status as a principal employer under § 11), does the vendor satisfy, as a matter of law, the "necessary and integral part of business test for workers' compensation coverage set out in Murphy v. Chickasha Mobile Homes, Inc., 611 P.2d 243, 248 (Okla. 1980), and later sharpened by the three-tiered inquiry adopted in Bradley v. Clark, 804 P.2d 425, 428 (Okla. 1990)?
These questions require us to apply §§ 11-12 of the Oklahoma Workers' Compensation Act, 85 O.S. §§ 1 et seq. (the Act), to the facts provided to us by the certifying court.
I. FACTS
To place the certified questions in perspective, we briefly recite the facts as provided to us by the certifying court. Plaintiff, John A. Hammock (Hammock), was employed by Clyde Fisher Inc., d/b/a Southern Sales (Southern Sales), to deliver, stock, rotate, take inventory and promote the sale of Miller beer at a variety of retail stores. Among the stores Southern Sales serviced was the PX at Fort Sill, Oklahoma. The PX is run by the Army and Air Force Exchange Service (AAFES), an agency of the United States Department of Defense. On May 1, 1997, while servicing the PX at Fort Sill, Hammock received a shock from an exposed electrical transformer, was knocked from a ladder, and suffered a serious on-the-job injury. After administrative redress was denied, Hammock sued the United States of America under the Federal Tort Claims Act, claiming the exposed transformer was a dangerous condition and that AAFES breached its duty of care to him as a business invitee to correct or warn of the condition.
AAFES moved for summary judgment claiming it is immune from tort liability to Hammock by virtue of its status under § 12(i) as the "statutory employer" of Southern Sales (which is Hammock's immediate employer). In response to AAFES' contention, Hammock responded advancing two distinct arguments. First, he argued that § 12(i)'s extension of immunity to statutory employers is inapposite in the context of this case, which is a vendor/vendee relationship involving the provision of goods rather than an independent contractor/hirer relationship involving the performance of services. Second, he argued that even if § 12(i)'s extension of immunity is applicable in the context of a vendor/vendee relationship, the facts of this case demonstrate that AAFES does not satisfy the requirements necessary to be deemed the statutory employer of Southern Sales.
II. ANSWERS TO THE CERTIFIED QUESTIONS
We answer the first certified question as follows. A vendor of merchandise does not qualify as an inde
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