Burk v. K-Mart Corp.

Justice, WILSON, concurring making preceded ALMA that its resolve to issue specially: the bonds. pronouncements concur the Court’s Because the I am upon task called date, because, Legisla- herein to this perform range no judicial leaves me promulgate spe- ture has failed either a appears alternatives and hence as but an imple- of review to be cific standard empty supererogation, act of I abstain concerning Turnpike

mented matters sitting consideration this cause. Authority; general specify or to Act apply. Administrative Procedures shall statutory directive,

Without definitive decisis, See, stare by

this Court reason of Turnpike

e.g., Ray v. Authori- Oklahoma (Okla.1966),

ty, P.2d 957 constrained approve authority the extended which body Legislature] previously del- [the Authоrity. egated Turnpike to the How- BURK, Plaintiff, Helen Jenean ever, provided Legislature does that the act provide standard procedural such and/or CORPORATION, guidelines, application thereof be K-MART Defendant. retrospective effect in the deemed event No. 67785. controversy involving an actual case or Authority’s Agree- Supreme Trust breach Court of Oklahoma. ment. 7, 1989. Feb. I have been authorized to state that KAU- GER, expressed joins J. in the views here-

in. ALA, Y.C.J.,

OP participating. essence, today the court upon called decision, purely

to reexamine a executive

made within the parameters legis- broad

latively-conferred power, whose exercise is

validly agen- effected resort to adjudicative

cy’s process to be conducted proceeding according

in an individual prescribed

course Oklahoma Admin-

istrative Procedures Act.1 The constitu- public-policy

tional as well as propriety of

affording judicial review the state’s resort,

court of last can do no more litigants people

for the large and for at opinion,

than a bond attorney’s is at best

questionable. practical purposes, For all today

the court’s is statutorily function

confined a four corners’ examination of compiled agency

documentation act-

ing nonadjudicative capacity. By force applicable protests law the are thus re-

stricted to the facial correctness of the

agency’s paperwork. opportu- There is no

nity for any meaningful forensic inquiry quality agency’s

into the decision- O.S.Supp.1988 seq.

1. 75 et §§

HODGES, Justice. brought A terminable-at-will against in contract and tort her еm- action implied ployer for breach of the good and fair in her of action ployment contract. Both causes brought in reliance on this Court’s were recent decision Hall v. Farmers Insur (Okla.1985). Exchange, 713 P.2d 1027 ance employee argued employer’s The her, prevented her from agents harassed doing performing by her duties and so con discharged job. her from her structively She further asserts her agent told her he would not recommend promotion of her sex. She for because alleged inju wages, damages for seeks lost punitive damages ry reputation to her implied covenant. for breach of purported exist- The denied claim in tort for a breach ence of a faith, and also implied covenant of did not exist the contract action asserted employee’s termination result- because of the consti- ed in no violation Wolfe, Tulsa, rights. plaintiff. for tutional Earl W. Stuart, Saunders, Doemer, Daniel & District Court for the The United States Mattson, Paul Charles by Lynn

Anderson of Oklahoma certified Northern District Neal, Tulsa, for Kathy R. S. Plumb pursuant to the Uni- Court’s answer defendant. Act, Questions of Law form Certification through six 20 O.S.1981 §§ ‍​‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌‍Kap- Kappel by Henry W. Redwine and questions of law: Norman, George amicus curiae pel, Driscoll. Oklahoma, implied is there an obli- 1. In dealing in gation good faith and fair Johnson, Grove, Moore & Hu- Homing, every employ- termination reference to C. Moore and William by lett James R. contract? ment-at-will Isbell, curiae City, for amicus Oklahoma Lodge Fraternal Order of State obligation Oklahoma implied 2. Is the Fighters Fire of Okla- Police Professional employer and faith mutual between homa. employee?

Boone, Smith, by implied Hurst Frederic Davis & such obli- the breach of 3. Does Schneider, III, Page one, P. and Carol David assuming N. there is sound gation, Tulsa, Grissom, Amer- for amicus curiae A. tort? contract and/or Airlines, Inc. ican question No. 3 is If the answer Gable, “contract”, recoverable Estill, Hardwick, & are the Golden what Cremin, Tulsa, of the cove- damages for breach Nelson J. Patrick Council amicus curiae Oklahoma nant? Personnel Admin.

American Soc. for No. 3 question If the answer of defen- “tort”, is the character what Goff, by Bеn A. Goff A. P.C. Ben permit recov- that would dant's conduct City, ami- Barringer, Oklahoma Marilyn D. damages? ery punitive plaintiff. cus curiae for question Legislature, 6. Whether the answer to No. Congress Oklahoma not unlike contract, both, legislatures, is tort or what is the and other state has enacted duty, any, party extent if either statutory exceptions various to the doc- mitigate damages? Similarly trine.4 the courts have created exceptions employment-at-will rule. reject implication We of an obli gation doctrine has been every employment-at-will contract. Be judicially jurisdictions limited in a few question cause we answer the first in the imposition implied the of an covenant of negative unnecessаry it is for us to address good into the employ- remaining questions. the implied ment contract. The covenant restricting which has been viewed as the long recognized This Court has the basic employer’s ability discharge purportedly principle employment that an contract of protects right parties of the to receive may indefinite duration be terminated with- employment agreement the benefits of the any out incurring cause at time without they willingly which wrong- entered. The liability for breach of contract.1 Such in- ful party’s right denial of the to those employment definite contracts are deemed duty benefits will good breach the faith terminable-at-will. The classic statement implicit in employment оf the contract. This employer at-will rule was that an Court has may discharge cause, been asked to consider employee good for whether implied such covenant morally for no cause or for cause exists Oklahoma. even wrong, being We find that it does thereby guilty without of le- not. gal wrong.2 Principles of freedom of con- Hall, In supra, this Court held a termin- importance

tract and the of economic able-at-will contract between an insurance growth are development attributed to the agent and company insurance does include of the doctrine.3 terminable-at-will covenant of faith refer-

This Court has observed the terminable- ence to the termination agenсy of an rela- however, at-will doctrine is “not tionship. holding absolute In quoted so we with people and the interests of the approval of Okla- Wright Fidelity v. and De- homa are not marketplace posit 274, best served Maryland, Co. 176 Okla. 54 “ dealings 1084, (1936): cut-throat business where the P.2d 1087 ‘A contract con- jungle thinly law of the clad in agreements contractu- sists not which al lace.” parties words, 713 P.2d at 1029. The expressed but also Cameron, 6; sex, religion, origin, age, Hinson v. 742 P.2d at n. handicap 552 national or Co., 921, Pierce v. Franklin Elect. 737 P.2d 923 n. Rights and the Oklahoma Human Commission (Okla.1987); Co., Singh 4 v. Cities Service Oil authority has to order reinstatement with or 1367, (Okla.1976); 554 P.2d 1369 Foster v. Atlas pay, without back less amount earned or earna- Co., 30, 805, Ins. 154 Okla. 6 P.2d 808 Life diligence by employ- blе with reasonable such (1932). ees); (employer 38 §§ O.S.1981 34 and 35 who discharges employee because of ab- Ass’n, 2. Hillesland v. Federal Land Bank 407 employment serving sence from due to on a 206, (N.D.1987) (quoting Payne N.W.2d 211 v. grand jury civilly liable for both actual and 507, Western & Atlantic Railroad 81 Tenn. exemplary damages guilty as well as of criminal (1884), grounds, 519-520 on overruled Hut- misdemeanor); Watters, 527, (employer 134, 44 O.S.1981 208 § ton v. 132 Tenn. 179 S.W. (1915)). Williston, subject imprisonment discharge 137-138 to fine or See also 9 S. for Con (3d 1967). forces); tracts serving military § 1-17 ed. because of (misdemeanor employer 40 O.S.1981 § 199 for Hotels, Inc., Parnar Americana 65 Haw. discharge employee because filed a Feinman, (1982). See 628 also complaint employer or the Commissioner Development Employment at Will regard safety of Labor with to hour or viola- Rule, (1976); Blades, Amer.J.Leg.Hist. tions); (employee §§ 85 O.S.1981 5 and 6 who Employment at Will vs. Individual Freedom: On compensation may has filed a workers’ claim Limiting Employer the Abusive Exercise Pow discharged exercising statutory right not be er, 67 Colum.L.Rev. 1404 and is entitled to recover from the 1302, 1505(c)(1) (dis- O.S.Supp. 4. 25 employer). §§ criminatory practice to dis- charge ‍​‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌‍race, color, an individual because of expansive subjects reasonably im- most view are obligations liability is dis- implied to whenever contains Every contract plied. ... charged just cause in all any- party shall do neither covenants Hinson, we not- contracts.5 destroy injure another ment-at-will thing that will assuming there approаch ed this the fruits of right to receive party’s ” every covenant of in Hall concluded We contract.’ contract and concluded the employment of contract action agent had a breach operate to forbid em- “does wrongfully terminated principal where except purpose ployment severance the unconscionable agency for Wagenseller v. pay- (citing cause.” Id. at 554 agent the future depriving the Hospital, 147 Ariz. penalty Memorial premiums as Scottsdale of renewal ments (1985)). As this to con- having objections his voiced for his observed, correctly if were to concerning has the Court company actions troversial “ contrary 'subject adоpt a view we would agent. of a fellow termination incursions into each pronouncement Subsequent to the Hall ” amorphous concept of bad faith.’ opinion in Hinson v. Cam rendered our we Hinson, (citing P.2d 554 Parnar v. 742 at (Okla.1987). eron, In Hinson 742 P.2d 549 Hotels, 370, 652 P.2d American 65 Hawaii holding has that the Hall we observed 625, (1982); Brockmeyer 629 v. Dun & creating a new perceived as come to be Bradstreet, 561, 113 335 N.W.2d Wis.2d in of an at-will em of action favor cause 834, (1983)). 838 This Court discharged in faith. ployee bad Hinson, explicitly declined standing In this Court decision as the Hall construed employer legal duty impose upon the agent may recover to rule that an “for the in has, employee an at-will bad in not to terminate the latter principal frоm the when there is no Today we hold Taith, him of the fruits of his faith. deprived bad dealing that good faith and fair Hinson, The 742 P.2d at 552. labor.” own to termi- employer’s decision wrongful governs the dis plaintiff’s tort claim contract. in an plain nate charge in Hinson failed because suing her tiff was that of the is consistent with Our view legal and the than earned income other In Morriss v. of Kansas. Supreme Court of master and relationship dealt with that 501, Co., P.2d 841 241 Kan. 738 Coleman servant, agent as in Hall. principal and juris- (1987), surveyed the various the court factually distinguishable As the case was question con- concerning this and dictions Hall, plaintiff was denied cause in Re- of law stated principle cluded “the wrongful from em of action for 205, (Second) of Contracts statement § ployment. party a imposes upon each every contract its good fair in duty of faith and expressly recognized In this Court enforcement, overly performance and its in the context of an implied covenant applicable to em- in and should not be In dictum contained broad agency contract. contracts.”6 appli- ployment-at-will opinion addressed the the Hinson regard em- cability of the covenant Mexico courts have Similarly, the New left for an- contracts and ployment-at-will or con- recognize either a tort declined to day decision. of the covenant tract action breach dealing, in the context developed in approaches Variant In employee.7 discharging an at-will adopted the jurisdictions which have those 682, Arzola, 699 P.2d 613 102 N.M. Vigil and v. implication of a covenant (Ct.App.1983), part on other rev’d employment contracts. fair Co., Airlines, Inc., Distributing Cal.App. also Pittman v. Larson 111 6. See 5. Cleary v. American 1986). (Colo.App. (1980); 443, 724 P.2d 1379 Cal.Rptr. Khanna v. 168 722 3d 250, 262, Corp., Cal.App.3d 215 170 Microdata Inc., Furr’s, F.Supp. 1409- cases cited 629 Cal.Rptr. See also 867 Salazar (D.N.M.1986). Hinson, 10 P.2d at 554 n. 17. 742 Ill.2d 124, 129, grounds, 101 N.M. P.2d 1038 Harvester 52 Ill.Dec. 13, 15, (1984), (1981): recognized court however N.E.2d wrongful discharge by action for large corporations “With the rise of con- ployer ducting specialized operations of an at-will on the basis and em- ploying focusing employer’s duty relatively of tort on the immobile workers who place often have no other public policy. market their act accordance with It skills, recognition that the duty reasoned such is more ame- breach equal footing do not stand on analysis nable to tort rather than a con- addition, is realistic. unchecked em- observed, analysis. tract It based how- ployer power, like unchecked ever, adoption its of the new cause of ac- power, present has seen been a dis- abrogate long-standing tion did not ter- tinct threat to the carefully ap- rule but limited its minable-at-will adopted by society considered and a plication to those situations in result, recognized whole. As a it is now employee’s discharge results from the em- proper that a balance must be maintained ployer’s policy. of a clear violation among operat- interest observing specific categories While several ing efficiently profitably, a business public policy exception, it under the stated earning interest a live- attempt fully it would not define it but lihood, society’s seeing interest in its rather would leave such determination on a public policies (citations carried out.” case-by-case basis. omitted). The Minnesota courts likewise have re- We thus follow the modern trend jected implication of a covenant of adopt today and public policy exception the dealing every employ- into the at-will termination rule in a narrow However, they ment contract.8 have also dischargé in class of cases which the is majority jurisdictions the of followed and contrary public a policy to clear mandate of adopted judicially public the created constitutional, by as statutory articulated policy exception to the recognize or decisional law. We this new Phipps doctrine.9 The court stated it of in cause action tort.10 It is well settled public policy exception signif- viewed the may Oklahoma tort arise the course icantly different from a performance of a contract and that (1) faith fair and inasmuch as: may recovery tort then be the basis for рublic policy exception can reasonably though even it is the contract that creates by defined reference to clear mandates of relationship parties.11 An between the legislative judicially recognized public or employer’s termination of an at-will em (2) policy, and traditionally courts have ployee in contravention a clear mandate interpreted illegality the effect of on con- public policy is a tortious breach of tracts. obligations.12 contractual jurisdictions Those adopted which have Hinson, In this Court identified various public policy exception have done so to public policy grounds recognized actionable competing accommodate the interests of by jurisdictions under our discussion society, employer. concerning nationally recognized public aptly by As stated the Illinois policy exception. light vague Court In Appeals in meaning public policy Palmateer v. of the term International we be- Claro, Employees Corporation 8. Hunt v. IBM Mid America Federal 11. Hall Jones Oil Union, (Minn.1986). (Okla.1969); Credit 384 N.W.2d 853 WoodsPetroleum v. Delhi Pipeline, (Okla.App. Gas Refining Phipps Corp., v. Clark Oil & 1983). (Minn.App.1986). N.W.2d 588 damages including punitive 10. Recoverable 12.We note that other actions for breach of governed by in such actions are our opinion. contract are not disturbed statutory principles law of tort and common liability. public policy exception flexibility lfeve must be personnel make needed deci- tightly Supreme circumscribed. Court adapt sions in order changing ‍​‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌‍eco- Hotels, Parnar v. Americana Hawaii Society nomic conditions. also benefits Inc., holding P.2d at that an holding from our ways. a number of employer may be held liable his dis where job A more stable market is achieved. charge of an violates clear man public policies Well-established are ad- public policy, date of stated: Finally, protected vanced. is against determining

“In frivolous since whether a clear mandate lawsuits courts violated, public policy is will be able to screen cases on courts should motions to inquire emрloyer’s whether conduct dismiss for failure to state a claim or for purpose contravenes the letter or of a summary judgment discharged if the constitutional, statutory, regulatory or ployee allege cannot expression a clear provision or scheme. Prior deci- Id. 335 N.W.2d at 841. public policy.” sions also establish the relevant sum, we hold there is no obli- However, public policy. courts should gation and fair proceed cautiously upon if called to de- any reference to termination in prior leg- clare absent some recognize ment-at-will contract. We do to- judicial expression islative on the sub- day public policy exception a limited ject.” terminable-at-will rule as an actionable tort Accordingly, we believe the circumstanc- claim in cases in which the is present es actionable tort claim contrary public poli- to a clear mandate of under Oklahoma law is where cy- discharged refusing to act in viola- QUESTIONS CERTIFIED ANSWERED. pub- tion of an established and well-defined policy performing lic or for an act consist- compelling public poli-

ent with a clear and HARGRAVE, C.J., HODGES, cy- DOOLIN, ALMA WILSON SUMMERS, JJ., concur. note We that where the dis- charge motivated de- KAUGER, J., in concurs result. payment sire to avoid already of benefits employee, earned such as future OPALA, V.C.J., LAVENDER, J., and past commissions based on service in the part, part. in in concur dissent Hall case, discharge has beеn charac- contrary public pur- terized “as a reason to SIMMS, J., dissents. 13 pose.” OPALA, Justice, Vice Chief public policy exception We think the to LAVENDER, Justice, joins, whom employment adopted the at-will doctrine to- concurring part dissenting in in' and day equity “serves the cause of as well as part. marketplace.” the interests of the In Brockmeyer, supra, 713 P.2d at today’s opinion the court declares practical the court effect of described the implied obligation there is no of public narrowly policy circumscribed dealing any employment-at-will and fair in exception: additionally pronounc- contract. The court an may es that have an

“Employee job security interests are discharge tort if safeguarded against employer actionable claim his actions policy pref- “contrary public poli- that undermine to a clear mandate of fundamental constitutional, Employers cy erences. retain sufficient as articulated statu- 300, Bristol-Myers Adoption ployees: 13. Cort v. 431 A 385 Mass. Call Oklahoma’s for Magnan N.E.2d 908 See also Anacon Exception Employment-at- v. Whistle-Blower Industries, Inc., da Conn. A.2d Doctrine, (1987); 479 Will Okla.L.Rev. Notes, (1984); Employers n. 20 787-88 Em- currently espoused by law.”1 This view tory decisional or Court, Supreme opinion in Wisconsin whose insofar as the court Although I concur Brockmeyer v. Dun Bradstreet3 states: & no contract or should be holds that there significant fair “The most distinctiоn our faith or tort action for breach arising from dismissals of at-will between the two causes of action view wrongful discharge that employees, I cannot accede to the view tort] [contract public policy may all terminations breach in the that be suits is recovered_ in tort. I would hold should be actionable that reinstate- We believe in breach of that an action for termination backpay appropri- ment and are the most not tort. public policy lies contract2 public policy exception ate remedies for Yet, recognize a tort action for I would wrongful discharges since the primary contrary is both dismissal in these actions is to make the concеrn accompanied by policy Therefore, wronged employee ‘whole.’ malice, gross negligence or reckless indif- conclude that a contract action is employee’s rights. ference to the wrongful appropriate most dis- charges. The contract action is essen- tially predicated on the breach anof implied provision that an OF IMPLIED CONTRACTUAL BREACH discharge an re- will not NOT TO DISCHARGE COVENANT fusing perform an act that violates FOR REASONS CONTRAVENING public policy. clear mandate Tort PUBLIC POLICY ”4 cannot be maintained. actions [Em- I recede from the notion that at-will phasis added.] of a constitu- ployees, dismissed violation Although implied are law, convenants5 tional, enti- statutory or decisional are law,6 generally in the remedies, favored which would include tled to tort supply the for their Rather, may concerns basis punitive damages. contractual regard recognition to the contract- appear appropri- far more remedies would Today’s ing parties’ intentions.7 decision ate. Broadcasting Company Grotkop, action in contract or tort both. An action Sooner cf. 280 P.2d (Okla.1955). may predicate on the breach an contract implied provision that an will not dis- According majority, plaintiff asserts refusing charge perform an imposing liability on the defen- two theories for public poli- a clear mandate act that violates contract, tort. Both dant —one in the оther in cy.... in tort be based on the An action plaintiffs are based on the belief that theories duty employer not to anof implies faith and Oklahoma a covenant perform act is a ee who refused employment fair in at-will contracts. public policy.’) violation a clear mandate of implies the court holds that Oklahoma Because [Emphasis supplied.] covenant, any discussion of a tort based no such necessary policy is neither nor essen- on implied-in-law i.e., a constructive 5. A covenant — disposition questions certified tial to the presumed from the relation of the covenant —is consideration; the discussion is at best for our object by parties and the to be аchieved the obiter dictum. agreement. Mercury Inv. Co. v. F.W. Woolworth Co., 529, Okl., 523, [1985]. 14 note 706 P.2d implied for breach of an 2. Such an action is one discharge not to for rea- contractual covenant Co., supra Mercury F.W. Woolworth 6. Inv. Co. v. contravening public policy. sons note 5 at 530. 4. 3. 113 refined its view in Bushko v. New wrongfully tical (where not 134 identical, Wis.2d Corp., Jersey also Wis.2d Wisconsin the court states: discharged 84 N.J. 136, view. Pierce v. 561, 396 N.W.2d Supreme recognizes 335 N.W.2d 58, may 417 A.2d “An maintain Court Miller a Ortho Pharmaceu 167, 834, similar, 505, subsequently Brewing 171 841 512 [1980] a cause though who is [1986]. [1983]. Co., 7. gations, where this es contain an note 5 at P.2d lessee in actual ity Deposit 163, Mercury & 254 P.2d 1084, see Inv. 1087 530, Dieffenbach court Co. 346, Co. v. F.W. Woolworth possession); ^[1936] note 14. For other 348 Maryland, implied (finding ^[1953] obligation v. McIntyre, (holding that leas- contrаctual obli- an 176 Okl. Wright ‍​‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌‍implied cove- Co., place examples 208 Okl. v. Fidel- 274, supra 54

31 II outlines several considerations alia, inter including, potentially unequal EMPLOYEE ACTIONS FOR TORTIOUS bargaining positions and unchecked em- OF BREACH CONTRACT concerns, ployer power. These considered employer would not hold that an finding together, supply ample a basis tort for all terminations liable in breach restricts constructive Rather, view, public policy. in my a ability masters’ their at-will in tort only may claim be actionable when for reasons which violate a clear servants aggrieved employee an is able to far show public policy. mandate of more than mere dismissal breach This court has declared that action “[a]n рublic policy. some is one ex contractu ex delicto when [not ] gross A commercial lender’s recklessness promise implied it arises from a breach of a may constitute a tortious breach of con- Employers im- in law.”8 who breach an today tract.10 I would extend this settled plied covenant should hence be liable for govern jurisprudence norm to our damages Ex- prescribed by contract law. employment breaches. A dismissed em- ex ployee emplary damages, improper in which are proves who that his acted contractu suits, malice,11 should be recoverable gross negligence or reckless should recover ex delicto.12 indifference absent actiоnable tort claim.9 Nat. party’s right P.2d which the plied.' tract.”’). they also of the phasis added.] tracts, posed plied thing damages Supp.1986 year Additionally, actions based on a breach of a or more P.2d at assent of the obligation nant in a construction “ 331-332 684 contract must S Inv. contractu actions § 199 [1979]. 1007, ‘Acontract consists not In Oklahoma Uptegraft 9(B). Rodgers enforced Okl. are dictated [1983]; Bank v. statute of limitations 1006, 1007 [1963]; Piggee Mercy Hospital, covenant that neither which will 1226 [1988]. or created are a class of Co. ... 411, [1924]. implied in law are only strictly court, properly quasi parties not v. Home Ins. obligations § v. Tecumseh 'Every states: "'Contracts to receive Anderson v. parties 186 P.2d Matlock, 9(A). arising from a contract. 23 O.S. in аctions for the Coury, an action ex contractu.' quoting construed. 23 by 12 O.S.1981 95. See T & by destroy jury may Anderson, supra contract contains reason and Actions for tortious breach bound, law obligations This 817, contract, Okl., 99 [the] expressed that are only imposed Bank, Okl., Okl. or or constructive con- 818 Copeland, statutory provision subject party on fruits of Okl., injure v. Piggee, allow [1947]; justice, 150, the court states: implied by reasonably § which are im- O.S.Supp.1986 regard breach of an shall do 662 P.2d on certain ex to the three- ground agreements 226 P. 378 P.2d [the] words, exemplary supra Okl., [his] 756 P.2d and First [an] ” [Em- any- law, may con- 328, 681, 378 but im- im- 186 at 11. In Oklahoma "malice" means 12. Punitive employment relationships, formance relationship,’ to constitute a 'tort relationships рure Mitchell v. Ford Motor Credit of contract —i.e. torts damages ness.” Wootan v. 442, of added.] common law actual malice to supra note direct nexus between duct” or a "conscious indifference ^[1977] Corp. consequences” recognizes defendant is malice, damages, gence, 42, 45, supra quences.” Mitchell v. Ford Motor Credit Shaw, Corp. 1155, 1161, punitive alleged wrong be inferred from torts from contract cases. With § v. parties’ v. American Mut. Lia. (there, supra 9(A). sufficient for actual or note Piskor, [1951]. are or breach may is the P.2d at that malicious damages, —lie culpable note appropriate. note underlying Caselaw thereby necessitating proof of be so 281 Md. 237 P.2d at 444. Gross [1984]; or even equivalеnt Maryland presumed_" Shaw, [on in the 24 11, arising are allowable disgraceful arising "complete 237 P.2d at 444. construing the terms and conditions [1980]; note recovery 627, and Wootan v. require contract.”) 205 Okl. "oppression, gray part tortious out of a contractual “gross negligence.” See General Motors court states: “[F]or Ins., 9; Dayton 381 A.2d Co., Okl., out of contractual oppressive "positive miscon of an permit recovery area and Wootan v. "gross conduct that there indifference to Okl., act and exemplary separating [Emphasis exemplary employer] respect O.S.Supp. to conse 16, fraud, language 237 P.2d reckless- 621 P.2d where Hudson Shaw, 22-23 intent negli be per- or showing, employees adopts. Today's pro- should of action it now such a Absent only. remedies contract appears be limited to nouncement to overrule Hinson stating as much. Justice, dissenting: SIMMS, case, Like this Hinson came to us with majority’s initial statement embrace very facts that could be used to fash- few reject implication that “we of an obli- meaningful ion and narrow rule of law. gation faith and fair case, however, this Unlike because Hinson contract”, every employment-at-will appeal grant summary an from a was unnecessary that “it is therefore for us to judgment, presump- did certain we remaining address the issues this mat- upon of fact tions which to base our hold- However, I am at a loss to under- ter”. case, ing. In that first Court con- majority circuitously adopts why the stand “publiс policy” sidered the various under- action in tort for that a new cause of pinnings alleged for the tort of bad faith rejects. initially it There, discharge employment. from as on plaintiff’s The reliance Hall v. Farm here, (a) suggesting: there no facts were Okl., Exchange, ers insurance plaintiff that the had been ordered to do an (1985), for her cause of as a basis act; (b) illegal op- that she denied an was misplaced. Crucial to our resolu action is (c) portunity any legal right; to exercise Hall, tion in was the fact that there was a prevented performing that she was from formed the written contract which basis (d), important public obligation; an recovery. Hall’s expressing she was terminated for cоn- right exercised his The defendant Hall employer’s legal her cerns about or ethical employee. The to terminate Finding none misconduct. right facts showed that the termination case, policy exceptions in the facts of that deprive was exercised as an effort to Hall “compelled to we were conclude that [Hin- policies of future income from insurance wrong- has no actionable tort claim for son] agent as an Hall had sold his discharge.” 742 P.2d at ful er/principal, the defendant. The defendant Similarly, accept refused to we Hinson’s liable to Hall for contract was suggestion recognize that we arising wrongful from its denial of a vested dealing in covenant of right. contract contracts. To the termination, wrongful standing The that, contrary, we determined even assum- alone, give employee, did existed, ing such a covenant that covenant right damages. The amount of recover operate employment would “not to forbid right damages in Hall was deter- cause”, except severance and that mined the terms of the written contract adoption contrary of a rule subject “would agent principal. between the and the Hall each incursions into rights had vested contractual to future amorphous concept faith.” bad Hin earned, already commissions which he had Cameron, supra., (citation son v. at 554. agreement. per agency as the terms of the omitted). quite specifically We “decline[d] upon Had there been no contract which to impose upon legal duty damages, measure there could have been not to terminate an at-will in bad recovery, if no even the termination was faith.” Id. wrongful. There is no written contract present dispute. questions certified broadly are stat- presumably ed. This is so because recently, More stated that Hall allegations fact, Federal Court had agent may for the “stands rule that yet unproven, upon frame which to principal recover when the latter is, questions. Today’s pronouncement un- has, faith, deprived him bad of the fruit still, fortunately, no broader facts of his See: Hinson v. own labor.” Camеr on, Okl., form the foundation for the rule of In that new case, rejected being precise this Court cause law created. reject recognize recovery the form of termi- majority states that a for a “[w]e employee, obligation adopt of nated at-will we should the

implication of an approach employment-at- in more used Su- every reasonable the and fair contract”, preme of “[a]n but that Court Arizona: will in employee an con- of at-will however, termination do, recognize “We an public of of a clear mandate travention of contractual

policy is a tortious breach contract, the al- obligations.” holding, majority In so the though that covenant does not create a (3) question par- three has answered duty the to terminate the question Curious- tially five answered employee cause. The cove- “[bjecause ly, majority first states that the protect employee nant not does the nega- question the in the first answer cause” from a “no termination because unnecessary is for us to address the tive it never a tenure was benefit inherent failing remaining questions.” By to an- agreement.” the at-will regarding remaining questions swer the Wagenseller v. Scottsdale Hos- Memorial (6), mutuality, (question 2), mitigation pital, Ariz. today’s pronouncement opens floodgate the (1985). (emphasis added). litigation “subject[s] prospective to recog- If it is inevitable that Oklahoma into each to incursions policy” “public exception nize a to the at- amorphous concept the of bad faith.” Hin will rules previously applied, termination Cameron, supra, This nei son v. at 554. exception grounded should the at least be equity the cause of nor the ther serves Similarly, law. contract remedies marketplace. interests of the the breach of not available for the covenant majority appears to intracti- Since be to an employee terminate at-will in viola- bly committed to “this new cause action tion of should be contract tort”, guidelines application some for its remedies. plainly majority should be stated. The any The majоrity avoids mention of mu- light vague that: states mean- “[i]n tuality. obli- What ing public term policy we believe the gations employer? If majority to the public policy exception tightly cir- must be willing allowing to fashion a broad rule wholly This is cumscribed”. insufficient damages punitive termi- “bad faith to guide majority a trial courts. The cites public policy”, nation in violation of anwill Hotels, Inc., Parnar Americana 65 employer permitted punitive to recover (1982), Haw. but employee an if from explicitly adopt limiting does lan quits Certainly ee faith? bad no rule guage guidelines therein as the be used only provides rem- law which a “bad faith” in Oklahoma. edy against party one to a with- transaction perceive remedy I the creation of new tort of out a similar afforded the transparent attempt equi- faith” as a party “bad could ever “serve” the cause of necessity overruling policy ty. public provides remedy avoid the Hinson If now achieving contrary against In so while result. who terminates faith, majority distinguish doing, employee fails to be- bad de- i.e.: for adopt manding Hinson’s against tween refusal “bad act too, public from then theory, policy, employer, faith breach contract” faith, by any remedy against “tort” bad means other should same pub- quits than the available remedies. I see no when the who prevented policy being violating em- subjecting lic served the same ployers spectre punitive damages pоlicy. employee.

for termination of an at-will The majority overrules Hinson without prefer stating Further, today’s specifically to see remain such. would this Court loyal ‍​‌‌​​‌‌‌‌‌​‌‌‌​​​​​‌​​‌​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌‍existing pronouncement our em- creates cause rules for at-will a broad new However, ployment destroys we are relations. if of action which Oklahoma’s and, Wilson, J., specially ployment-at-will doctrine at same Alma concurred time, could foster opinion. creates a climate that and filed litigation. oppressive frivolous This C.J., Hargrave, Hodges and Lav- unnecessary; statutory “new” tort is also ender, JJ., dissented. wrong for the al- presently remedies exist (See major- legedly committed in this case. 4). Here,

ity opinion, as in other footnote

situations, public policy considerations are legislature. For

best determined reasons, respectfully

these DISSENT. SCHEPP,

Mildred L. as conservator of Stoss, Vaney

the Estate of Bell

Plaintiff-Appellant, HESS,

DeFrances William Edward Stoss

Hess, Ray Charlene Hess Cowe and Hess, Defendants-Appel

mond Edward

lees.

No. 67607.

Supreme Court of Oklahoma.

Feb.

As Corrected March

Case Details

Case Name: Burk v. K-Mart Corp.

Court Name: Supreme Court of Oklahoma

Date Published: Feb 7, 1989

Citation: 770 P.2d 24

Docket Number: 67785

Court Abbreviation: Okla.