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Parret v. UNICCO Service Co.6/28/2005
The electrocution death of a worker resulted in an action in the District Court for the Western District of Oklahoma. That court has certified two questions pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat. tit. 20, ยงยง 1601-1611 (2001):
1. What is the standard of intent necessary for an employee's tort claim against an employer to fall outside the protection of the Oklahoma Workers' Compensation Act? Is the standard the "true intentional tort" test, requiring deliberate specific intent to cause injury, or is the standard the "substantial certainty" test [?] Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, 23 P.3d 288.
2. Whether the scope of the test for determining principal or statutory employer status under the third tier of the three-tiered test adopted in Bradley v. Clark, 1990 OK 73, at n.10, 804 P.2d 425, 428, n.10, is based upon all of the facilities owned by a hirer, including those owned in other states and/or countries, or whether it is improper to consider a private hirer's plants outside of the state of Oklahoma in determining whether the hirer was actually engaged in the contract work at the time of the accident?
In response, this Court adopts the "substantial certainty" standard and holds that in determining statutory employer status, an Oklahoma court should consider only those facilities located within the State of Oklahoma.
FACTS
Pursuant to section 1604(A)(2) of title 20, the federal court has submitted " he facts relevant to the question , showing fully the nature of the controversy out of which the question arose." Those facts are repeated here verbatim.
On July 20, 1999, Glenn Parret, an employee of UNICCO Service Company (UNICCO), was electrocuted while replacing emergency lights at the Dayton Tire Plant owned by defendant Bridgestone/Firestone, Inc. (Bridgestone) in Oklahoma City, Oklahoma. He died as a result of his injuries two days later and his widow, plaintiff Gwendolyn Kay Parret, received workers' compensation death benefits. Bridgestone is a tire manufacturer and distributor with plants in the United States, Canada, Mexico, and Costa Rica and hired UNICCO, an independent contractor, to provide a wide range of maintenance services at its Oklahoma tire plant.
While the decedent was working on the emergency lights, he was approached by another UNICCO employee, who warned him not to work on the lights while they were "hot" or energized and advised him that other UNICCO employees had refused to do the work because they felt it was unsafe. The decedent responded that he would do the work he was asked to perform and would be careful when working on "hot" lights.
Fact disputes exist as to the level of the decedent's understanding of electricity and his experience in working on electrical circuits, controls, and lights. Although both UNICCO and Bridgestone had written policies prohibiting employees from working on energized equipment, the evidence is contested regarding whether the decedent and other UNICCO employees were required to work on the emergency light system while it was "hot," or without turning the electricity off, knowing the employees were unable to de-energize the 227 volt electrical system and that death was substantially certain to occur. The parties disagree whether UNICCO and Bridgestone's conduct rose to the level of intentional conduct sufficient to maintain an action in tort, notwithstanding the exclusive remedy provision of Oklahoma's Workers' Compensation Act.
Also disputed are fact issues pertinent to a determination of whether Bridgestone was a statutory or principal employer of UNICCO worker
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