Lead Opinion
¶ 1 The issue presented on certiorari review is whether an employee in district court pled sufficient facts to plausibly demonstrate that employer's conduct was intentional under the substantial certainty standard, removing the claim from the exclusive remedy of the Workers' Compensation Act. We hold that the employee's petition was sufficient to withstand the employer's dismissal motion. Accordingly, we reverse the trial court's dismissal of the employee's action, and remand the case for further proceedings in the district court.
¶ 2 David Jordan brought suit in district court against his employer, Western Farmers Electric Cooperative. Jordan claimed that Western disposed of highly toxic fly ash, a by-product оf the company's operations, in ponds created for that purpose until 2002. Then, Western began spreading the ash on the plant's roads and parking lots. Jordan states that his on-the-job exposure to the highly toxic fly ash caused him injury, and that he suffered pain, impairment, and lost income as a result. Jordan asserted that Western's conduct amounted tо an intentional tort.
¶ 3 Western argued that Jordan's claim did not meet the standard an intentional tort under the substantial certainty test set out in Parret v. UNICCO Service Co.,
¶ 4 Jordan filed a petition for certiorari. His chief complaint was that the trial court and Court of Civil Appeals erred in conelud-ing "[the petition] failed to allege facts which plausibly demonstrate that Defendant's conduct was intentional under the substantial
¶ 5 Review of the trial court's dismissal for failure to state a claim upon which relief may be granted presents a question of law as to whether the petition is legally sufficient. Hayes v. Eateries, Inc.,
¶ 6 Upon review, this Court finds that the Court of Civil Appeals erred in affirming the trial court's dismissal, because Jordan alleged sufficient facts under the substantial certainty standard set forth in Parrett,
¶ 7 In Parret, this Court recognized an exception to the exclusive remedy of Workers' Compensation in cases where the employee's injury is not accidental, but results from an intentional tort. Parret,
¶ 8 Jordan's pleading sufficiently alleged facts under the substantial certainty standard because a trier of facts could reasonably infer from the allegations that Western acted with substantial cеrtainty. A pleading must not be dismissed "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." Hayes,
¶ 9 As noted, in Parret this Court specifically addressed the requirements of allegations in order to remove a claim from the exclusive remedy of Workers' Compensation. Parret,
¶ 10 The substantial certainty requirement was further refined in Price v. Howard, where the court stated that, "nothing short of a demоnstration of the employer's knowledge of the substantial certainty of injury will suffice" to remove a claim from the exclusive remedy of Workers' Compensation.
¶ 11 To determine whether Jordan's complaint sufficiently alleged facts, this Court must determine whether the allegations, when taken as true and all reasonable inferences drawn from them, "plausibly demonstrate" that Western aсted with knowledge that Jordan's injury was substantially certain to follow.
¶ 12 In analyzing Jordan's petition, we are cognizant that "the use of the word 'intent' in allegations 'is not a talisman that can change the allegations into colorable claims.'"
¶ 13 In conclusion, we hold that if all allegations in Jordan's petition are taken as true, and all reasonable inferences drаwn from them, the petition plausibly demonstrates that Western's actions constituted an intentional tort under the substantial certainty standard, which was the law in effect at the time of his injury in August of 2009. The trial court's dismissal of Jordan's claim for failure to state a claim upon which relief may be granted is reversed and the matter is remanded to district court for further proceedings.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS.
Notes
. Jordan's petition for certiorari also contended the dismissal with prejudice was error. Our decision on the substance of the claim makes it unnecessary to address this issue. See Brown v. Founders Bank and Trust Co.,
. Title 85 O.S.2001 § 11 provides:
A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, ... (emphasis added)
with еxceptions for certain conduct by employees. The exclusivity provision is set out in section 12, as follows:
The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and of his employees, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, ....
85 O.S 2001 § 11 and 85 O.S. Supp.2005 § 12 were amended in 2010 and repealed in 2011. In their place, 85 O.S.2011 § 302 was enacted, providing in part:
A. The liability prescribed in this act shall be exclusive and in place of all other liability of thе employer and any of his or her employees, at common or otherwise, for such injury, loss of services, or death, to the employee, ... except in the case of an intentional tort....
B. 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. Allegatiоns or proof that the employer had knowledge that such injury was substantially certain to result from the employer's 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.
Because liability for on the job injuries is governed by the law in effect at the time of the injury, Jordan's claim is govеrned by sections 11 and 12, including the exception from exclusivity for an employer's intentional torts, as set forth in. Parret,
. Parret,
. Parret,
Concurrence Opinion
with whom Watt, Combs, JJ., join, concurring specially.
¶ 1 I concur with remanding the case and that this proceeding is governed by the holding of Parret v. UNICCO Service Co.,
¶ 2 Unless the Legislature clearly expresses a contrary intent, the general rule is that new statutes or statutory changes operate prospectively.
¶ 3 What does all of this mean? It means that when a case like Parret, supra, is decided, its holding will apply to those cases which occur аfter it. It was decided on June 28, 2005. Nearly two years later, a lawsuit was filed in the case of Price v. Howard,
¶ 4 On August 27, 2010, the Legislative amendment to the Oklahoma Workers' Compensation Act explicitly overruled Parret, by repealing an employee's ability to bring an intentional tort claim under the substantial certainty standard.
¶ 5 Because the Okla. Const., art. 5 § 54 expressly prohibits the Legislature from applying a change in the law after court proceedings have begun, those cases which were filed after Parret, but in which the injury had occurred before the Legislative change, were governed by Parret's holding, rather than the new Legislative amendment.
¶ 6 Here, Jordan's claim arose when his injury was discovered in August of 2009, and he brought suit on April 20, 2010. At that time, Parret had already been decided and was the current law. Consequently, even though the Legislature changed the law in August of 2010, and Jordan's appeal is not decided until today, Parret applies to his case and not the 2010 statutory change. Otherwise, the Court would expressly violate the Oklahoma Constitution-the same Constitution we have sworn to uphold.
¶ 7 Soon, the few cases in the pipeline, if any, will be decided and any backlog of lawsuits begun before the August 2010 Legislative change will be exhausted. At that point,
. Forest Oil Corp. v. Corp. Comm'n of Oklahoma,
. King Mfg. v. Meadows,
. King Mfg. v. Meadows, see note 2, supra. See, Knott v. Halliburton Services,
. King Mfg. v. Meadows, see note 3, supra; Knott v. Halliburton Services, see note 3, supra; Lee Way Motor Freight, Inc., v. Wilson, see note 3, supra at ¶ 8; Magnolia Petroleum v. Watkins,
. King Mfg. v. Meadows, see note 2, supra; Batt v. Special Indemnity Fund, see note 3, supra; Knott v. Halliburton Services, see note 3, supra; Lee Way Motor Freight, Inc. v. Wilson, see note 3, supra.
. The language of 85 O.S. Supp.2010 ¶ 12 was amended effective August 27, 2010, and later repealed, but recodified in 2011 as 85 O.S.2011 § 302. It provides in pertinent part:
A. The liability prescribed in this act shall be exclusive and in place of all other liability of the employer and any of his or her employees, at commоn law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person, except in the case of an intentional tort, or where the employer has failed to secure the payment of compensation for the injured employee.
B. 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 the employer's 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....
. The Okla. Const. Art. 5 § 54 provides:
The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.
. We explained in King Mfg. v. Meadows, see note 2, supra at ¶ 19 that:
The terms of the Okla. Const., art. 5, § 54 protect matured rights from the effects of after-enacted legislative change. After-enacted legislation that increases or diminishes the amount of recoverable compensation or alters the elements of the claim or defense by imposition of new conditions affects the parties' substantive rights and liabilities. The statute in effect at the time of the initial injury governs a claimant's award of permanent disability for a change in condition. (Citations omitted.)
Dissenting Opinion
dissenting.
The trial judge and the unanimous Court of Civil Appeals were absolutely correct in their disposition of this meritless lawsuit. This Court spoke clearly in Parret and Price that the Workers' Compensation Court has exclusive jurisdiction except in the case of an intentional tort in which the employer had willful, deliberate and specific intent ("a desire") to cause injury to an employee or the employer acted with knowledge that injury to the employee was substantially certain. In Price, this Court referred to this standard аs a "formidable barrier" and held that "nothing short" of that standard will suffice. The record in this case shows that the employer in this case did not intend, plan, desire or have a substantially certain knowledge and plan to injure this employee. The employer did not intend or plan to injure this employee. This is a frivolous claim in district court and the trial court's dismissal should be affirmed.