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Parret v. UNICCO Service Co.6/28/2005
ster, V.C.J. and Lavender, J., concur in part, dissent in part.
Opala, J., dissents.
WINCHESTER, V.C.J., with whom LAVENDER, J. and OPALA, J. join, concurring in part, dissenting in part
While I concur with the majority's analysis of the principal employer status issue, I respectfully dissent to their adoption of the "substantial certainty" standard of intent for an employee's tort claim against an employer. I would adopt the "true intentional tort" test, requiring an intentional or deliberate act by the employer with a desire to bring about the consequences of the act.
The Legislature enacted the workers' compensation system knowing that workers would be injured while on the job . The issue is how to define an intentional tort, for purposes of workplace injuries. I am guided by three fundamentals. First, the Legislature created an elaborate system with a special court, to address workers' compensation for workplace injuries. Second, Oklahoma's Workers' Compensation Act represents a mutual compromise. Third, the express words of the Legislature provide balance to competing interests. These lead me to conclude that the Legislature intended all but the most egregious circumstances to be covered by this statutory remedy.
This Court has held that when an injured employee received workers' compensation benefits, those benefits constituted an exclusive remedy that precluded a concurrent tort claim for potential compensatory and punitive damages. Pryse Monument Company v. District Court of Kay County, 1979 OK 71, , 595 P.2d 435, 436-37. The instant case involves a deceased employee whose widow received workers' compensation benefits. The majority's opinion allows a concurrent tort claim for potential compensatory and punitive damages. Thus, it conflicts with the teaching of Pryse. The Legislature did not intend this outcome when it adopted the Workers' Compensation Act.
The words chosen by the Legislature, "intentional acts," indicate a legislative intent to allow tort claims only for "true intentional torts." The standard set for such cases must be clear, concise and easily ascertainable. Only the "true intentional tort" test provides such an objective standard. The elusive "substantial certainty" test falls far short. A majority of jurisdictions, as cited in the majority opinion, do not utilize "substantial certainty". Indeed, only a small minority of a dozen states uses that test. The "true intentional tort" test provides the assurance that in those circumstances of egregious conduct, the standard of a true intentional tort under the common law will be met, thereby alerting an employer to anticipate liability in tort and an employee to file such a claim.
Accordingly, I respectfully dissent from this portion of the Court's holding today. I would hold that the "true intentional tort" test is the appropriate standard for determining whether an employer's conduct falls outside the exclusivity provisions of Oklahoma's Workers' Compensation Act.
OPALA, J., with whom WINCHESTER, V.C.J., joins, dissenting in part.
I would not answer today the first question posed by the certifying court in advance of receiving its order assuring us that the plaintiff's common-law tort claim is not barred against the two defendants herein either (a) by plaintiff's earlier selection of the compensation remedy which she prosecuted to a successful conclusion or (b) by issue preclusion resulting from the compensation award's final order that finds the decedent's on-the-job injury was "accidental" (as opposed to inflicted willfully or in any other manner sufficient to pierce the employer's statutory ยง12 immunity from ext
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