Oklahoma High Court Strikes Down Exclusive Remedy Rule for Non-Dependent Parents

The Supreme Court of Oklahoma, reversing a trial court's decision that had, pursuant to 12 O.S. 2011 §§1053A, granted summary judgment, in relevant part, to an employer sued in a wrongful death action by a parent of an adult, unmarried, and childless employee killed in a work-related incident, held the statute was unconstitutional because it abrogated the plaintiff's right to maintain an action that had existed at the time the state's Constitution was adopted [Whipple v. Phillips & Sons Trucking, 2020 OK 75, 2020 Okla. LEXIS 81 (Sept. 21, 2020)].

Acknowledging that a wrongful death action was a statutory creation and that it was derivative of the rights that the deceased might have had had he survived, the Court nevertheless stressed that before the 2014 overhaul of the state's Workers' Compensation Law, the plaintiff here would have been able to maintain the civil action. It was constitutionally impermissible, therefore, for her right to be abrogated.

Background

Whipple (mother), lost her adult, 23-year-old, unmarried, childless son, Taylor Ray Borth (Borth) in a work-related accident on October 6, 2016. At the time of Borth's death, the state's Workers' Compensation Act, 85A O.S. Supp. 2014 §47 ("the Act") allowed wrongful death benefits only to a spouse, child, or legal guardian, if the guardian was dependent on the employee. Accordingly, Borth's mother filed a civil action in the state's District Court, alleging the wrongful death of her son, and that the defendant-employer knew or should have known that the injury to her son and "the resulting death was substantially certain to occur."

The trial court granted the employer's motion for summary judgment, in part, based on the court's ruling that the civil action was barred by the exclusive remedy rules of the Act. The trial court certified its ruling as a certified interlocutory appeal and stayed the proceedings until the appeal was resolved. The mother filed her appeal with the state Supreme Court, which subsequently granted certiorari.

Parties' Contentions

The employer argued that the Legislature had not abrogated the right of the mother to recover under the workers compensation provisions, but rather had merely limited any recoverable amount, which was within its constitutional authority. The mother, on the other hand, contended that by limiting the amount of recovery to nothing, the Legislative had, in effect, abrogated her right to bring an action for recovery.

Oklahoma Constitution

The Supreme Court noted that the Oklahoma Constitution, art. 23, § 7 provided:

The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions. (Emphasis by the Court).

Wrongful Death at Time Constitution Was Adopted

The Court noted that in Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, the Court had said that "Section 7 had the effect of freezing into our law the right of action for wrongful death as it existed when the Constitution was adopted."

The Court added that statutorily, the rights regarding wrongful death actions are found at 12 O.S. 2011 §§1051-1055. Specifically, Section 1053(A) currently provides:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his or her personal representative if he or she is also deceased, if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission. The action must be commenced within two (2) years.

Common Law: Action for Personal Injuries Abated By Death

The Court continued that at early common law and before Lord Campbell's Act, an action for personal injuries abated with the death of the injured person; no action for wrongful death existed. Thus, an action for wrongful death is not a separate and distinct tort, but is an action that derives from the rights of the decedent. Whatever rights the decedent might have had in his or her life accrue to the personal representative at death, thus overcoming the common law barrier of death.

The Court then stressed that it was this right–the right of action provided by Section 1053–that the Oklahoma Constitution protected. The constitutional provision did not create a right of action; rather it buttressed the statute which did so. In other words, said the Court, the constitutional provision protected the right of action for wrongful death as provided by the legislature in Section 1053.

Law Before 2014 Overhaul of Workers' Compensation Law

The Court turned to prior law and observed that the former Workers' Compensation Act was compatible with the wrongful death statutes. Prior to the 2014 overhaul of workers compensation, if there were no surviving spouse or children, each parent, brothers, sisters, grandparents and grandchildren, if dependent, could receive death benefits. Moreover, where some pecuniary loss was shown by heirs at law, benefits were also recoverable.

According to the Court, now, following the 2014 overhaul, parents, brothers, sisters, grandparents and grandchildren had been stricken and, if there was no surviving spouse or children, only financially dependent legal guardians, are allowed any benefits. The Court cited numerous pre-2014 examples of recovery by a parent of an adult, unmarried, childless decedent, just like the mother in this cause.

Damages May Be Limited, But Not Abrogated

The Court stressed that, for plaintiffs like the mother, the amount of damages could be limited, but damages could not be eliminated. The Court concluded that under the facts of the case, the mother was left without any remedy in the District Court, unless she met the very high burden of showing that she was also left without a remedy in the Workers' Compensation system because of the 2014 statutory changes. Constitutionally, said the Court she could not be cut off from a remedy altogether. The Court concluded that its "only choice" was to allow the mother to pursue her action for the wrongful death of her son in the District Court [Opinion, p. 16].

Easy Fix

The Court added there an easy fix for the Legislature. It could render 85A O.S. 2014 § 47 enforceable and constitutional by amending it to include the statutory heirs just as it had done before the 2014 amendments.