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Parret v. UNICCO Service Co.6/28/2005
ra-compensation liability for the same harm). While my dissent targets mainly the possibility that the first federal-court question is mooted by a two-fold bar, I write to explain where I would place the line of demarcation that separates an employer's §12 immunity from its tort liability.
I. THE FIRST QUESTION CERTIFIED BY THE FEDERAL COURT MAY BE MOOTED BY A TWO-FOLD BAR - AN ELECTION OF REMEDIES OR ISSUE PRECLUSION
The first legal question posed to us - whether the employer is protected by the §12 immunity from liability in tort - presents for our resolution a proposition of public law. When confronting a matter of public law, this court is utterly free to choose sua sponte its own framework of dispositive legal problem-solving techniques (theories and remedial avenues) to arrive at the most appropriate answer. If either of the two bars described by this dissent is invocable against either defendant, that defendant's §12 immunity becomes an academic issue. Once it is clear that the claim is not actionable against a party, the §12 immunity interposed by that party is beyond the court's need to notice. No party is ever called upon to raise its immunity from liability against a claim of another which is non-actionable.
The barrier of (1) plaintiff's earlier remedy selection of compensation law and her successful prosecution of benefits' recovery and/or (2) of issue preclusion by a Workers' Compensation Court's finding that decedent's on-the-job injury was "accidental" must be judicially removed as unavailable before this court can be called upon to consider the immediate employer's and the potential "principal employer's" §12 immunity from tort liability. The latter employer, once found to stand in the status of principal employer, would fully enjoy the benefits of both legal barriers, if otherwise applicable.
II. THE EMPLOYER'S WORKERS' COMPENSATION IMMUNITY FROM LIABILITY SHOULD BE PLACED AT AND ALONG THE WILLFUL TORT LINE
An employer's §12 immunity from tort liability should continue to stand where it has stood for nearly a century - at the willful tort line. The court today reduces the outer limit of immunity to coincide with the reach of the so-called foreign doctrine of "substantial certainty." The latter shrinks an employer's immunity by adding liability for the torts of gross negligence and reckless indifference. This doctrine is neither in harmony with Oklahoma's historical antecedents nor with its constitutional jurisprudence which gave birth to workers' compensation liability.
The 1915 workers' compensation law abolished the employee's common-law negligence action against the employer and the latter's corollary defenses of contributory negligence and assumption of the risk. In conformity with this tradeoff, workers obtained the benefit of employers' fault-free liability for on-the-job-injuries and employers received protection from answerability in tort. In an early attack on the Act's constitutional validity, the court in Adams v. Iten Biscuit Co. upheld the compensation law's exclusive remedy for work-related accidental injuries. Iten teaches that willful and intentional injuries, whether inflicted by the employer or employee, are not to be considered accidental and hence must be excluded from coverage. As a result of this early twentieth-century tradeoff, the obligations that the workers' compensation regime imposes on employers are absolutely inseparable from the perimeter of immunity that compensation law confers.
Torts of gross negligence that are based on reckless indifference to the safety of an individual authorize the defense of contributory negligence, but fall short of an intentional wrong's equ
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