Deeply Divided Oklahoma Supreme Court “Opts Out” of Legislature’s Definition of “intentional” Injury

“Substantially Certain” Doctrine Stays, in Spite of Specific Language to the Contrary

In a deeply divided decision, with three justices concurring specially with the majority’s opinion, and four justices dissenting, the Supreme Court of Oklahoma held that a workers' compensation claimant may maintain an intentional tort action against an employer in the state's trial courts under the so-called “substantially certain” theory of liability [see Larson's Workers' Compensation Law, § 103.04], notwithstanding clear wording in the state's Workers’ Compensation Act [Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010) “the Act”] to the contrary [Wells v. Oklahoma Roofing & Sheet Metal, 2019 OK 45, 2019 Okla. LEXIS 43 (June 18, 2019)].

The majority’s decision was not, however, made on constitutional grounds (the state's Court of Civil Appeals (COCA) earlier had declared § 12 unconstitutional to the extent that it barred recovery for torts in which the employer had knowledge that injury was substantially certain to result from its conduct). Instead, the majority indicated that the entire issue of intentional torts was outside the boundaries of the Act. The majority appears to be saying that the Legislature is powerless to define “intentional tort" within the context of the workers' compensation laws.

Background

On June 27, 2011, Robert Young, a roofer employed by an Oklahoma roofing company (“the employer”), sustained fatal injuries in a fall from the roof of a three-story building. The administrator of Young’s estate (“Wells”) commenced an action in district court against the employer seeking damages for Young’s wrongful death. In relevant part, Wells alleged that Young’s death was the result of the employer's intentional tort, that the employer knew that a single-line restraining system utilized at the work site would lead to Young’s death, and that the employer’s actions were willful, wanton, and intentional. Wells also sought a ruling that the exclusive remedy provision in Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010) (hereinafter referred to as “§ 12”) was unconstitutional as a special law and, therefore, inapplicable to her action.

Intentional Torts Defined in § 12

As pertinent to the case, § 12—Oklahoma’s exclusive remedy provision—provides that the employer's liability outlined in the Act is exclusive, except in the case of an intentional tort” [emphasis added], defined in § 12 as follows:

An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court … [emphasis added].

Did the Legislature Intend Language of § 12 to Overturn Parret v. UNICCO Serv. Co.?

The employer (and quite a few practitioners within the Sooner State) see the second sentence of the above-noted definition—the sentence referring to “substantially certain”—as being crafted by the Oklahoma legislature in an effort to overturn the Court’s decision in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572. In that case, the Court first held that the term “intentional” referred not only to those instances in which the actor has the desire to cause the consequences of the act, but also those instances in which the actor knows the consequences are “substantially certain” to result from the act [see Larson, § 103.04].

In Parret, a worker died when he was electrocuted while replacing emergency lights at a job site as ordered to do by his employer even though the employee knew that the lights were “hot or energized.” Under the holding in Parret, an intentional tort action will lie when an employer “(1) desire[s] to bring about the worker’s injury or (2) act[s] with the knowledge that such injury was substantially certain to result from the employer’s conduct” [127 P.3d at 579].

Trial Court: § 12 is Constitutional

The district court declared § 12 constitutional and granted the employer's motion to dismiss, finding that while Wells’s allegations met the “substantial certainty” element set forth in Parret, they did not satisfy the specific intent definition prescribed in § 12.

Court of Civil Appeals: § 12 is Unconstitutional

On appeal, a division of the the COCA held that in the context of the workers’ compensation law, § 12 defined an “intentional tort” much narrower than the definition utilized “in a garden-variety intentional tort action” [Majority opinion, ¶ 5]. The COCA said that, as applied, § 12 created a subset of litigants and treated those litigants differently than other similarly-situated litigants. Accordingly, the COCA reversed the trial court’s determination and held § 12 unconstitutional as a special law. The employer sought review.

“Majority” Opinion

Justice Colbert wrote for the majority. The justice said that based on the Court’s review of the undisputed facts, the Oklahoma Constitution, and applicable laws, the majority found that the portion of § 12 that includes intentional torts is “not within the walls of the workers’ compensation scheme or jurisdiction” [Majority opinion, ¶ 1]. The justice noted that the analysis applied equally to subsequent iterations found in Okla. Stat. tit. 85A, § 5(B)(2)(2013), 209(B), and Okla. Stat. tit. 85, § 302(B)(2011) (now repealed). Accordingly, the district court’s order was reversed and the matter was remanded to the district court for further proceedings.

Specific Intent and Substantial Certainty: Two Sides of the Same Coin

Justice Colbert observed that the employer had contended that § 12, like its successors, was a legislative response to address a “perceived unwarranted expansion of the intentional tort exception to the workers’ compensation laws” resulting, presumably, from [the Court’s] decision in Parret [Majority opinion, ¶ 12]. Whether the statutory language was reactive to Parret or not, the justice indicated there was a "fallacy" at the heart of the employer's argument. That fallacy was “premised on the specific intent and substantial certainty nomenclatures, commonly misunderstood as one being different than the other. They are not” [Majority opinion, ¶ 12, emphasis by Justice Colbert].

According to the justice, what appears at first glance as two distinct bases for liability is revealed on closer examination to be one and the same.

Operative Word is “Intentional”

Justice Colbert continued by indicating the operative word was “intentional” and that the “category of intentional torts had remained unchanged before the inception of Oklahoma’s workers’ compensation laws in 1915” [Majority opinion, ¶ 13]. The difficult question, allowed the justice, is "how does an injured employee demonstrate the employer's requisite statutory intent when that intent is subjective” [Majority opinion, ¶ 16].

Legislature Did Not Intend to Bifurcate Sphere of Intentional Torts

Justice Colbert said the majority of the Court did not believe, as the employer contended, that the Legislature intended to bifurcate the sphere of intentional torts constitutionally reserved as common law rights of actions that predate the inception of Oklahoma’s workers’ compensation scheme [Author's comment: In the face of Parret, isn't that exactly what the Legislature actually intended?]

Intentional injuries had never been inside the walls of the workers’ compensation scheme in Oklahoma, said Justice Colbert. The justice ended the majority opinion by noting:

We hold that the willful, deliberate, specific intent of the employer to cause injury, and those injuries that an employer knows are substantially certain to occur, are both intentional torts that are not within the scheme of the workers' compensation system or its jurisdiction. Plaintiff's additional constitutional arguments are thus not necessary to adjudicate this appeal. For the reasons expressed herein, the district court's order is reversed and the matter is remanded to the district court for further proceedings consistent with today's pronouncement.

Concurring Opinion by Justice Edmondson, joined by Chief Justice Gurich and Justice Rapp

Justice Edmondson wrote separately to explain further the analysis the controversy required. Reviewing the purpose of workers’ compensation statutes, the justice indicated that a compensable workers’ compensation injury must be an “accident” and “unintended.” The remedies supplied by workers’ compensation do not apply in the case of an intentional tort. The justice noted that a number of states had specifically refused to follow the “substantially certain” standard for judging an employer’s intentional conduct. In those states, argued the justice, an employee injured from an employer’s conduct satisfying a substantially certain test may obtain compensation using a statutory workers’ compensation remedy because the injury is considered as accidental.

The justice stressed, however, that there had been no statute cited to the Court showing a substantially certain intentional tort may serve as the basis for a workers' compensation claim in Oklahoma. Justice Edmondson concluded:

The effect of one of the arguments before us is that an employee's injury is compensable in a workers' compensation no-fault scheme even if the injury was the result of merely a slight degree of negligence, but an employer's substantially certain intentional tort receives no remedy in workers' compensation or in the District Court [footnote omitted]. No public interest is articulated to support any public policy for denying a cause of action in District Court based upon an employer’s intentional tort injuring an employee while also denying a workers’ compensation remedy other than the party’s reference to the power of the Legislature. This interpretation of the statutes presents an underinclusive-overinclusive constitutional invalidity issue similar to the one addressed by the Court in Torres v. Seaboard Foods, LLC [2016 OK 20, 373 P.3d 1057][Edmondson, ¶ ¶ 6].

[Author's comment: With all due respect, this is a bit of a straw-man argument.

In my reading of the case, I find no contention, on the part of the employer, that an employee meeting the substantially certain test should or would be precluded from both a tort recovery and a recovery under the workers' compensation law. That isn’t the employer’s argument at all. As pointed out by dissenting Justice Kauger, the employer argued that the claimant’s exclusive remedy was within the workers' compensation setting. Full death benefits would be due and, for all we know, have already been paid in the claim adjudicated before the state’s Workers’ Compensation Commission.]

Dissenting Opinions

A complete summary of the dissenting opinions is beyond the scope of this current blog post (I’m going to try to comment separately in a few days). Suffice it to say, however, that the dissenting justices argued that the claimant had the option of pursuing the matter before the Workers’ Compensation Commission following the standards set forth by the Act, or the traditional negligence standards applied in district court, but not both.

What Now?

According to Justice Colbert, “the Legislature’s definition of intentional tort codifies and galvanizes the common law right of an intentional tort action” [Majority opinion, ¶ 23]. With all due respect, I don't think that is what the Legislature thought it was doing with § 12. Four dissenting justices agree with me. Legislators, you may have thought you could rid the state of the substantially certain doctrine. You were wrong. The majority of the Court has “opted out” of your definition of intentional tort.