Price v. Howard

¶ WATT, J., give concurring part; him a third chance. and this Court by stating “yes, dissenting in Respondent responded part. be- life If make a cause that’s what is sir. imposition I concur in While of disci- today, you’ll learn from it. You mistake pline, I respondent. would disbar this tomorrow, you’ll make a different mistake that one. Life is about mistakes learn from ¶ TAYLOR, V.C.J., dissenting. getting a second chance not make it.” I would disbar this felon. by Respondent’s 12 This finds Court own testimony recognize not he does his

problems and that he does not seek and/or except

cooperate treatment on the occa-

sions where he thinks “he needs it.” While

not bound recommendations

PRT, agrees Respondent’s this Court woefully being have actions fallen short of 2010 OK 26 rehabilitated. We find that he has failed to any meaningful steps take PRICE, Individually, address and Darla K. and as the Surviving Spouse Perry resolve his addictions and their adverse im- Price, Keith pact practice on his fitness to Deceased, Plaintiff/Appellant, law. ¶ 13 haveWe reviewed the record before Respondent’s us and find that criminal con- Cathryn HOWARD, Cynthia Lynn L. Hen and other victions evidence constitute clear ning Howard, Jr., and Charles J. Inde convincing Respondent’s evidence of un- pendent Co-Executors of the Estate of practice adopt fitness to law. We the recom- Howard, M.D., Deceased; Charles James mendation of the PRT a suspension of a The Estate of Charles James period years day of two and one from the M.D., Deceased; Cathy Olsen, Ann Inde opinion date Respondent becomes final. pendent Administratrix of the Estate of pay is further ordered to the costs of this Olsen, Deceased; Peter Jon The Estate $711.09, proceeding the amount of within Olsen, Deceased; of Jon Peter David thirty days of opinion the date this becomes Hobza, Inc., Defen final. dants/Appellees. ¶ 14 In Respondent the event seeks rein- 105,943. No. statement, it upon will be conditioned his sobriety, continued as it is essential to his Supreme Court of Oklahoma. rehabilitation. See State ex rel. Oklahoma Briery, Bar Ass’n v. 1996 OK 16, March 1046, 1050; P.2d see also State ex rel. Okla- As Corrected 1 and June ¶ 21, Rogers, homa Bar Ass’n v. 436. The Respon- burden is on Rehearing Denied June participate programs dent to in such as Alco- Anonymous Lawyers

holics Helping Law-

yers regain membership should he choose to

to the Bar. Id.

RESPONDENT SUSPENDED FROM

THE PRACTICE OF LAW FOR TWO DAY;

YEARS AND ONE RESPON-

DENT ORDERED TO PAY COSTS.

¶ EDMONDSON, C.J., HARGRAVE,

OPALA, KAUGER, WINCHESTER,

COLBERT, JJ., REIF, concur. Burch, Scimeca,

Derek K. James A. Burch P.C., OK, George, City, & Oklahoma for Plaintiff/Appellant, Darla K. Price. Elder, Jr., Johnston, A. Thomas David C. Elder, P.L.L.C., Smith Rhodes Stewart & OK, protection opinion under City, Defendants/Appel- this Court’s Oklahoma Cynthia Lynn lees, Cathryn L. Parret v. Service UNICCO Howard, Jr., The Henning, and Charles J. 127 P.3d 572. Howard, Cathy Ann of Charles James Estate employee, 2 The ServiCenter’s Olsen, The Estate of Jon Peter Olsen. President, majority and a stockholder McPhail, Kennedy Spradling, R. Mark airplane company were killed when the L.L.P., OK, McPhail, City, Oklahoma Galen pilot crashed. There is no evidence that the Wakeman, At- Brittingham, G. Lee Andrew any passengers of the other on the kinson, Haskins, Nellis, Brittingham, Gladd harming intention of themselves or Tulsa, OK, Carwile, Defendants/Ap- assuming these facts and others. Under Howard, Cynthia Lynn pellees, Cathryn L. that the ServiCenter was aware Jr., Howard, The Henning and Charles J. carrying passengers tempo in violation of its Howard. Estate of Charles James restrictions,2 rary flight that it was over Dunlevy, Rupert, Crowe & Okla- Anton weather, weight, and that it took off foul OK, Staton, City, A. Jackson homa Katherine not the record does demonstrate Dallas, TX,

Walker, L.L.P., for Defen- employer understood there was a substantial dant/Appellee, David Hobza. Therefore, injury. certainty of we determine Donnell, Bradley Rodney Hunsinger, K. ¡evidence K. that the is insufficient under Parret OK, Taft, City, Co., for De- 54, McAfee & Oklahoma v. Service 2005 127 UNICCO OK ServiCenter, Inc. fendant/Appellee, subject employer liability P.3d 572 to provided outside that the Workers’ Com WATT, J.: pensation ques Act. material employer tions of fact exist as to whether the 1 retained this cause to answer two We 1) engaged was in a venture sufficient to the various defen- questions: whether protections extend the of Oklahoma’s work dants/appellees protection are entitled to the compensation ers’ law to other members of remedy provision1 of the of the exclusive Act; alleged agreement party and to a third and OMahoma Workers’ 2) so, respective claiming co-employee if the actions status as a under whether of the parties were sufficient to take them outside Act. Supp.2005 per- safety, may § 12 1. Title 85 O.S. lation does relate aviation it not part: necessarily preempted by tinent be the Act. Center for Reform, City County Bio-Ethical Honolulu, v. Inc. of liability prescribed "The in Section 11 of this title (9th Cir.2006); 455 F.3d 910 Sakar v. place and in of all other liabili- shall exclusive Sens., Inc., Hageland F.Supp.2d 609 Aviation ty employer any employees and of his ... (D.Alaska 2008). Finally, 889 the Fifth Circuit otherwise, injury, at common law or for such Deregulation has determined that the Airline Act death, services, employee, loss of or to the or the prohibiting preempt does not a claim for retalia spouse, representative, parents, personal or de- bringing compensation tion for the of a workers’ pendents employee, any per- or other Airlines, Inc., v. 2 claim. Anderson American son. ...” also, (5th Cir.1993). F.3d 590 See v. Gustafson (6th Cir.1996), City Angelus, Lake 76 F.3d 778 aviation Mrs. Price’s contention federal (1996), rehearing rehearing en banc denied regulations preempt Oklahoma's workers’ com cert, denied, 823, 81, 519 U.S. 117 S.Ct. 136 unconvincing. pensation law is In Grae Craft (1996) L.Ed.2d 39 Federal Aviation Act [The does Movers, Inc., 79, 178 bel-Oklahoma prohibit local not certain ordinances even where Safety we P.3d held that the Motor Vehicle directly operation landing relate to the preempt remedy provi did not the exclusive Act aircraft.]; Monroe v. Cessna 417 Aircraft compensation law. sions of Oklahoma's workers’ (E.D.Tex.2006) F.Supp.2d [Relatives’ 824 claims doing, neither so we determined there was In negligence against a manufacturer for and strict express preemption. implied nor Title U.S.C. product liability impliedly prohibited by are not states, (1997) prohibits political § 41713 subdivi regu the Federal Act federal Aviation or aviation sions, political two or authorities of or more lations.]; Evergreen Anderson v. International Air law, enacting enforcing regula states from or lines, (1994), Or.App. tion, provision "having the force and other denied, (1995) route, review 320 Or. 891 P.2d 659 price, effect of law related to a or service [Congress occupy opera did not field of aircraft air Oklahoma’s workers’ com of an carrier." safety, preclude pensation provisions tions and so as to state common- do not relate to of these Furthermore, regu wrongful discharge against airline]. law action three factors. even where attempt Center in an to attract additional AND PROCEDURAL

FACTUAL business.4 HISTORY ¶ 4 Price filed suit in district Mrs. crash 3 On October May naming court on as defendants Perry (Price/employee). Price took the life estates, and an indi the Howard and Olsen 1) an em- undisputed It that: Price was vidual, alleged that David Hobza. Price 2) ServiCenter; day ployee on the individually negligence named defendants’ crash, going the conven- he was proximate of her husband’s was the cause employment at the tion as a of that petition death. The first amended was filed Radco, Wayne Pres- request of ServiCenter’s 21, 2007. Price added on June Mrs. Servi- Radko, Charles Along ident.3 with Price defendant, claiming as a Center (Howard), major stockholder M.D. negligent performing maintenance (Olsen), and John Olsen making repairs and in and modifications to registered Howard’s son-in-law and the own- that, plane. Price Mrs. also contended in the crash. It is plane, er of the also died maintenance, repairs, when the and modifica undisputed that had done also ServiCenter made, tions were ServiCenter had assumed a plane. significant modifications to the It is persona independent employer/employ of its relationship that the modifications and refur- contended ee with her husband.5 bishments, including improved an the use of ¶ 1, 2008, February 5 On Hobza filed a experimental propeller and the five-bladed summary judgment. motion for Hobza al- tanks, slipper an addition of fuel arose from that, crashed, leged plane when the he was Radco, agreement among on the behalf of employee an of the ServiCenter entitled to ServiCenter, Howard, and Olsen utilize protections the same under the Workers’ marketing a tool to Compensation employer. the modified aircraft as Act as his Three later, days prospective current and customers of Servi- ServiCenter filed a similar motion Price, Kay jointly by Videotaped Deposition 3. of Darla Jan- A. Made Jon Olsen and Dr. Howard 4, 2008, uary Exhibit C to Defendant David Hob- Wayne and Radco....” Summary Judgment, Motion and Brief for za's 1, 2008, February providing pertinent filed on in argument capacity 5.Price's dual is unconvinc- part 21-24: doctrine, ing. persona Under the dual an em- right. job Q. All did at The And his ployer liability by shielded from the workers' require to travel? ServiCenter him compensation exclusivity provision may law still going Like A. to these conventions? if, inflicting become liable to the harm, when Q. Yes. employer acting was in some different A. Yes.... capacity employer based on whether the assumes Q. Right. going All And was he to the con- persona completely a second which is and dis- employment vention as of his with Servi- tinctly independent employ- from its status as an Center? Inc., Dyke Hosp., er. v. Saint Francis OK 1993 A. Yes.... 114, 7,¶ Armco, Inc., P.2d 861 295. Weber v. you Perry go Q. asked Do recall who on 663 P.2d 1221 is instructive. The this October 2006— ” employer Court held that an did not act in Weber Wayne A. Radko.... capacity simply occupied a dual because it Hobza, Jr., Videotaped Deposition of David E. position employer two-fold and manufacturer. Exhibit to Howard Defen- Here, selling ServiCenter was in the business of dants' and Olsen Defendants’ Joint Motion for Summary Judgment airplane parts making and modifications to air- Brief, Supporting filed planes. persuaded We are that it a not assumed February pertinent on 2008 and persona independent employer as that of an part atpp. 92-93: aircraft, making modifications to the Olsen "Q. point, At what or when was the first activity regularly engaged. business in which it any anybody time with discussion this, By foreclosing application we are not regard plane obtaining experimental to this persona dual doctrine to Howard and Olsen in certificate? if, remand, piloting the on it is determined early pro- A. on That have been they employer. perso- were Price’s The dual gram when the decision was made to do all the multiple recovery na doctrine does not sanction it a modifications to make Dyke through two remedies for the same harm. advertising showpiece airplane and use for Inc., Francis, Hosp., supra. this note v. Saint ServiCenter, that would have been two or three months before. Q. Olsen? And was that decision made Jon immunity granted summary from in district court elusions.7 The trial court claiming suit judgment legal on a based determination that exclusivity provision of the pursuant to the defendants/appellees all the were entitled to Thereafter, Compensation Act. Workers’ protection remedy provi- of the exclusive sought and Olsen estates also sum- Howard Compensation sion of the Workers’ Act. The that, claiming at the time of mary judgment jurisdiction district court concluded it had no ServiCenter, Howard, accident, and Ol- proceed. present Jurisdictional issues joint engaged venture to devel- sen were questions of law8 which this Court reviews op and market the modification/refurbish- de novo.9 plane. package implemented on the ment that, contended as Howard Olsen exception provided The limited under Par- im- venturers ref v. UNICCO Service Co. to the ex- remedy the exclusive mune from suit under remedy protections clusive afforded to Compensation provisions of the Workers’ employers under the Workers’ Com- Act. pensation Act. hearing conducting 6 After an extensive fault, Regardless Supp. 85 O.S. on the trial court entered § 2006 11 of the Workers’ Act judgment in favor of each of the defen- places duty upon employers to bear the dants/appellees May on 9th. which was filed responsibility compensating employees timely appeal requested Price filed personal injuries for accidental arising out of request that the cause be retained. The was and in employment.10 the course of Section granted August Although on provides pertinent part: ready assignment cause on that stood liability prescribed “The Section date, it not received in these chambers this title shall be in place exclusive and until October liability all other employees of his ... at common law or Summary Review on Standard of otherwise, services, injury, for such loss of Judgment death, employee, or to the spouse, or the ¶ personal representative, parents, summary judgment depen- or 7 On all infer employee, dents of the or per- other from ences conclusions be drawn the ” son .... underlying in the record facts contained are light in the be considered most favorable statutory language The makes it clear that party opposing to the the motion.6 Even Legislature inju- intended that accidental undisputed, when the basic facts are motions ries will fall the confines of the within Work- denied, if, summary judgment be Compensation should employ- ers’ Act and that an materials, evidentiary liability injuries under the reasonable er’s these is exclusive defendants/ap- individuals could reach different factual eon- under the Act.11Each of the ¶ Co., 11, 959; Corp. Metropolitan 6. MLC v. Sun America Mort. 160 P.3d v. Mort. Pickens Tulsa 37, 14, 1199; 152, 7,¶ Ministry, 2009 OK fn. 212 P.3d Gaines v. OK 951 P.2d 1079. 1997 39, County Hosp., Comanche Medical 2006 OK 931; 4, 203, 24 Mitchell v. V 143 P.3d Cox, A.L.R.6th 11(A) Supp.2006 § 10. Title O.S. 85 7,¶ 139, 1997 948 P.2d 317. OK pertinent part: "Every employer subject provisions to the County Hosp., v. 7. Gaines Comanche Medical see Compensation pay, the Workers’ shall or Act 6, Edmond, supra; City note v. Bamthouse provide required by Compen- as Workers' cert, 42, 36, 840, denied, ¶ 2003 OK 73 P.3d 540 Act, compensation according sation to the (2003); L.Ed.2d U.S. 124 S.Ct. Compensation schedules of Workers' Act Associates, Carris v. John R. Thomas & 1995 OK disability employee for the or death of an re- ¶33, 16, 896 P.2d 522. sulting personal injury from an accidental sus- by employee arising tained out of and in Co., Corp. 8. MLC v. America Mort. see Mort. Sun employment, regard the course of without Walker, 43, 11, supra; V note Reeds 2006 OK injury, fault as a cause of such and in the event 157 P.3d 100. disability only ...” 599; Gas, Inc., ¶ Crow, 2009 OK 206 P.3d 11. Davis v. CMS Continental Natural 9. Welch v. ¶ Lowery Corp., v. Echostar Satellite 2007 OK 2001 OK a) ¶ THE RECORD IS DEVOID OF protection from suit district pellees seeks ANY THAT THE EVIDENCE SERVI- remedy provi- § under 12’s exclusive court BELIEVED CENTER/EMPLOYER sion. THAT THE PLANE THE ON WHICH ¶ the intentional tort ex- 9 Price invokes EMPLOYEE WAS TRANSPORTED liability compensation as ception to workers’ WAS SUBSTANTIALLY CERTAIN Parret v. UNICCO TO CRASH. outlined this Court 54, 127 P.3d 572. The Service ¶ 12 Mrs. Price that it contends was inju- employee in Parret died as result summary grant judgment error to to Servi- multiple grounds. occurring he was electrocuted Center on She does not ries when employer bring that desired to assert replacing emergency lights. We deter- while injury. her husband’s about liability imposed that tort could be mined argue she does that ServiCenter had infor injuries were upon employer if the mation fall within sufficient to the second employer actions the knew were result of exception remedy provision to the exclusive substantially injury. certain to cause of the Workers’ Act outlined ques under Parret. The wife asserts that a ¶ liability may 10 Before tort of fact tion exists as to whether ServiCenter certainty imposed under Parret’s substantial substantially was certain her husband test, employer’s conduct must amount to injured flight. would be while in tort; and, employer an intentional must employer, as Price’s 1) bring have: desired to about the worker’s protection claims the of the Act’s exclusive 2) injury; knowledge that acted with the remedy provision, § Supp.2005 85 O.S. 12.12 injury substantially such was certain to re The contends that no one could employer’s reasonably conduct. To re sult from determine that it wanted to see President, stockholder, major its or Price injured move the worker’s claim from the substantially in a die crash or that it was remedy provision exclusive of the Workers’ likely. agree certain the crash was We Compensation Act and allow the worker to with ServiCenter’s contentions. court, nothing proceed in district short of given assign- 14 The employer’s demonstration knowl company ment to travel on the on certainty injury edge of the substantial accompanied trip by business and was on the employer’s cognizance will suffice. The aof (Rad- President, Wayne ServiCenter’s Radco risk, high probability, foreseeable or substan co).13 fly Radco both directed Price to to injury tial likelihood of are insufficient to plane Florida on the and also died in the liability. impose tort Earlier, same crash. aircraft fitted with the experimental propellers five-bladed had trav- successfully eled to remote convention loca- airplane twenty tions.14 The had flown some Defendants, Supp.2005 § 12. Title 85 O.S. see note and the Olsen Defendants filed 3, 2008, supra. providing pertinent part p. in at 50: Burch) Well, "Q (By Mr. it's the first time it Price, Videotaped Deposition of Darla Kae 13. happened, you you that knew of? 4, 2008, — January Exhibit C to Defendant David Well, Right. airplanes A we've flown to these Summary Judgment, Hobza's Motion & Brief for places They it before. had did in 2000—2001 p. providing part in at 92: something. They they or '99 or had an air- — you Perry go Q"... Do recall who asked to on plane they put props that the five-blade on and this October 2006— flew to NBAA. Wayne A Radco...." you anything, I couldn't tell who went or I—I that, know, just you they gone Videotaped Deposition know to Hamp- of Russell Allen 14. ton, 25, 2008, NBAAbefore. March Exhibit A to Plaintiff’s they Q Supplemental Objection Combined the Mo- had flown to NBAA conven- to With— Defendants, Summary Judgment tions for of the tion with— Hobza, Inc., prop David the the Howard AWith a five-blade before....” experi- during a rainstorm and the over- thirty while fitted with the takeoff hours weight plane “substantially condition the inci- propellers without five-bladed mental complications increased the likelihood that repre- airborne with It had also been dent. appears It could occur.”17 also that Hobza company through which from the sentatives that Price should not have been was aware propel- hoped to market ServiCenter passenger pursuant included as a to restric- plane had not flown lers.15 imposed exper- tions on the aircraft under its tanks fueled.16 with the additional At a man- operating imental limitations.18 that Hobza is evidence David 15 There crash, agement meeting following the Hobza (Hobza), defendanVappellee, had knowl- being allowing was: accused of reckless plane approximately was one edge take-off; plane’s told he should have (1,000) heavy pounds too at takeoff anything necessary stopped thousand to have done along passed flight; that information and terminated.19 Hobza was rehired and that he February, Testimony meeting at a 2007. plane’s pilot. indicated that stockholders’ Hobza, Jr., that, agree Q Videotaped Deposition "... ... You would with me of David B. 15. 11, 2007, plane overweight off in the Exhibit D to Defendant David because took October in, rainstorm, Judgment, flying Summary was & Brief for condition it on Hobza’s Motion 15th, p. substantially providing pertinent part at October increased 110: complications likelihood that could occur in Q flew for 20 to 30 "... Where the flight airplane? of this hours. ... AYes...." Uh-huh. A props Q on it. With these MTfive-bladed Hobza, Jr., Videotaped Deposition of David B. Okay. A 11, 2007, October Exhibit D to Defendant David hours, you Q know how—over That 20 to 30 do Summary Judgment Hobza’s Motion & Brief for period what of time those 20 to 30 hours were February pertinent filed on flown? 186-87: No, imagine, A I don’t. I would—I Now, got Q we’ve purely speculating, Plaintiff’s Exhibit would be but I would I well, reasonably period which I believe is attached as imagine it's it was over a short document, time, months, months, three-page couple entitled—it’s SCI 0770 three some- through Experimental thing and it is entitled that. I one—one time the—the like know Commander, Operating you they very Limitations. Have seen Exhibit people from Twin working project before? with us on the interested Yes, they product A I have seen it. be market- because wanted you Page Q organiza- see on 2 of the Exhibit the through Do able the Twin Commander down, operating specifically says engi- that no they brought limitations tion. And came their person may during be carried in this aircraft neering people down and the flight person essential to the just experi- unless that flown for them to—so could purpose flight. Do see that? in the ence—measure the noise level difference Uh-huh, ... airplane...." A I see it. Perry purpose Q Was Price essential 15th, Hamp- flight Videotaped Deposition on 2006? of Russell Allen ton, say probably Exhibit A to Plaintiff’s A I'd he wasn’t essential March Supplemental Objection Combined to the Mo- Defendants, Videotaped Deposition Summary Judgment Lawrence Donald tions for 19, 2007, Hobza, ServiCenter, Inc., Mayer, November Exhibit F to Defen- David the Howard Defendants, Summary April dant David Hobza’s Motion & Brief for Defendants and the 3, 2008, filed Olsen Judgment February providing providing pertinent part p. filed on at 82: pertinent part at 122-24: Okay. Certainly, prior Q"... we know that to 15th, 2006, right. Q All Mr. Hobza has testified 55JS had never been tanks, you primary about it. You have said didn’t read his flown with full as well as full tanks, deposition, you slipper and what I would like for to do correct? it, meeting, why you tell me about the called A like Correct. It had never been flown happened and what in it. that....” me, my get away A ... And I let emotions from Videotaped Deposition Hamp- and I went—I went after David in—in an accu- of Russell Allen ton, fashion, having satory respect March Exhibit A to Plaintiff's to this air- Objection depart Supplemental plane under and circum- Combined to the Mo- the conditions Defendants, Summary Judgment during stances that I had been told existed tions for Hobza, ServiCenter, Inc., preceding David the Howard course of the week. Defendants, gave sure I him much of an Defendants and the Olsen 3, 2008, filed I—I'm not if things pertinent part p. opportunity explain present 88: to or from 90 b) ¶ ¶ THE A nothing in the record indicat- EVIDENCE PRESENTS 16 There is QUESTION OF FACT AS TO Radeo, President and

ing ServiCenter’s that SERVICENTER, THE WHETHER ever that supervisor, was advised Price’s [A MAJORITY STOCK- HOWARD flight indicating the there were facts HOLDER], [THE AND OLSEN impute if Even we were to not be safe. OWNER], PLANE’S WERE EN- ServiCenter,20 knowledge to the rec- actual IN GAGED A JOINT VENTURE SUF- that evidence ord is devoid of TO ENTITLE THE FICIENT STOCK- plane day ap- parties occupied who HOLDER AND THE OWNER TO preciated or were intent on commit- the risk THE PROTECTIONS OF THE EX- by boarding plane for take- ting suicide REMEDY CLUSIVE PROVISIONS Undoubtedly, employer’s conduct in off. THE OF WORKERS’ COMPENSA- flight may allowing plane to take have TION ACT.

been reckless. absent some ¶ 19 Mrs. Price contends that her husband impaired judgment, evidence of none died as result of Howard’s and Olsen’s here, expect negligence piloting in failing which exists we do not individu- design experi- to adhere to the aircraft’s engage in als to self-destructive behavior.21 operating mental limitations. She also as- Furthermore, government safety violation of agree- serts that there is no evidence of an regulations, knowing, even if wilful and does ServiCenter, among ment of an not rise to the level intentional tort22 arising joint to that Olsen of a venture. injure.23 an actual intent to Therefore, argues Price there is no basis upon protection which to extend the ¶ Establishing employer that an has remedy provisions exclusive of the Workers’ resulting employee’s acted a manner Compensation Act either Howard or Ol- injuries being substantially presents certain sen. recovery a formidable barrier in tort.24 ¶ contrast, 20 In argue Howard and Olsen presented, say Under the facts we cannot they, along in- employer’s that the conduct amounted to an joint purpose volved in a venture for the employer intentional tort or that the desired developing marketing the flve-bladed bring injury about the worker’s or acted modifications, propellers, interior and other knowledge injury with the that such improvements. joint As members of ven- substantially certain to result from the em- employer, ture with the Howard and Olsen Therefore, ployer’s conduct. we hold that protection remedy claim the of the exclusive the evidence is insufficient under Parret v. provisions of the Workers’ UNICCOService 2005 OK 127 P.3d Act. subject liability 572 to out- joint The nature of a venture. provided by Compen- side that the Workers’ special 21 A adventure is sation Act. where, persons combination of two or more view, See, Mosseriano, point only living his but I then—as the Patrick’s Inc. v. 1955 OK Servicenter, 1003; corporate 292 P.2d officer of the I terminat- Oklahoma Gas Elec. 1225, 0,¶ Oliphant, put Co. v. ed his contract and it into a 12-month period, meeting runoff and David left and the up fairly shortly folded after that. (Ala.2007). parte Essary, 21. Ex So.2d you Q Do what recall told David Hobza? it, pretty A Yeah I was emotional and I about Alaska, Inc., 22. Williams v. Mammoth thought any- told I have him he should done 581, (Alaska 1995). P.2d 584 thing anything everything physi- he and'— cally verbally or to do knew how to avoid Inc., Conagra, v. 734 S.W.2d 334-35 Mize having depart. the aircraft (Tenn.App.1987). Q Anything else? time, stress, Inc., Gas, A At the under the emotional I 24. Davis v. Continental Natural see ¶ 14, being supra. think I accused him of reckless ...” at note 11 Disputed venture, profit jointly material facts. specific a is in some corporate any partnership or sought without ¶ 23 Both Howard and Olsen died in and, by special agreement, the designation; along with Price’s husband. the crash How profits an officer and director of may respective limit their ard was ServiCen- parties ter, forty-nine owning approximately percent expenses particular part of the provide which (49%) company. of the stock in the Howard any participation each should bear before purchased the aircraft from ServiCenter in Corporations power have the to en- profit.25 son-in-law, Olsen, plane’s 2005. His was the An joint with individuals.26 ter into ventures registered owner. Howard and Olsen assert joint engaged in the activities of a employee they, along agreed with to joint an of each of the venture is cooperate obtaining supplemental type a venturers.27 (STC)31 propel for the certificate five-bladed promote through company. lers sales ¶ 22 the chief characteris While Radco, They also insist that ServiCenter’s joint seeking joint tic of a venture is the President, agreed that modifications such as transaction,28 tanks, single propellers, slipper addition profits from a no factor incorporat and other modifications parties to establish that are en is sufficient purposes ed into Olsen’s of demon joint requisite gaged in a venture. Three strating utility potential their customers. 1) joint They are: a interest elements exist. alleged agreement, paid Under Howard 2) express implied agree or property; an parts airplane; for the installed on the Servi- profits ment to and losses of the ven share labor; and, expense Center stood the 3) ture; showing coop action or conduct upgraded Olsen received the benefit of an project.29 The existence of a eration in the allowing craft for ServiCenter to utilize it to presents question a of fact.30 venture promote Presumably, sales.32 Dail, 279, ¶ 0, (2) Springs supplemental type v. 1940 OK Contents.—A 25. Sand Home certificate also, (1) paragraph Lumber Co. 103 P.2d 524. See Commercial issued under shall consist of the Nelson, 607, 0,¶ aircraft, change engine, propel- 1937 OK 72 P.2d 829. v. to the aircraft ler, appliance respect previously or with to the aircraft, Dail, 25, type issued certificate aircraft Springs 26. Sand Home v. see note su- engine, propeller, appliance. Municipal Herring, or pra; Paving v.Co. 1915 OK (3) 1115, Requirement. supple- of a holder P. 1067. —If type agrees permit mental certificate anoth- person modify er aircraft, to use the certificate to an Mauldin, 233, Dairy 27. Mendonca v. 1966 OK engine, propeller, appli- aircraft or 9, 552; ¶ Self, v. Johnston Grain Co. ance, provide person 169, ¶ the holder shall the other 0, 1959 OK 344 P.2d 653. evidence, acceptable with written in form Administrator, agreement. per- of that A Nelson, v. 28. Commercial Lumber Co. see note aircraft, may change engine, son an aircraft 25, supra. propeller, appliance supplemen- or based on type only person requesting tal certificate if the 21, ¶ Marler, Sperling v. P.2d change supplemental is the holder of Wilkinson, 577; Chapel, Riggs, Martin v. & Ab- type permission certificate or has from the ney, 1981 OK 637 P.2d 81. change.” [Emphasis to make the holder original.] Marler, Sperling supra; see note Central Hickson, Plains Constr. v. 1998 OK CIV APP Hobza, Jr., 32.Videotaped Deposition of David E. P.2d 998. Exhibit 2 to Howard Defen- dants' & Joint Olsen Defendants’ Motion for supplemental type certificate a document 31. A is Summary Judgement Supporting provid- Brief issued the Federal Aviation Administration ing pertinent part 92-94: approves a modification to the aircraft and that, modification, the aircraft certifies point, Q. At or was the what when first (2005)(b) airworthy. § Title 49 U.S.C. anybody time discussion with pertinent part: regard plane obtaining experimental to this certificate? "Supplemental type certificates— (1)Issuance. early pro- may A. That would have been on in the Administrator issue —The gram designated type supplemental when the decision was made to do all the certificate as a aircraft, change type to this to make it a certificate for a to an modifications showpiece airplane engine, advertising propeller, appliance. aircraft and use for by Additionally, the record also indicates that arrangement uti- from the was to benefit ServiCenter, responsible which was to be for piece as a demonstration lizing the aircraft labor, $20,000.00 only at a the made least rights to sell the five-bladed for the exclusive deposit propellers on the installed on the enjoy the stockholder would propellers33 and Furthermore, aircraft.35 board member in holdings in from his profits increase the that it that: testified was understood Hobza company. the project had been directed to sell the involv- ¶24 that How- Although Hobza testified ing experimental propellers; the that he was venture, ard, the in with association surprised to discover that there had been a indi- pay only parts, for there is some would through market renewed effort to them portion that at least a of ServiCenter; cation in the record proceeded project without plane may and, not made to the approval; the modifications his he was unaware of agreement separate entity involving included within that formed the Servi- have been by personally.34 pursue propeller project.36 Center to Fi- paid and were for invoice, ServiCenter, please that would have been two or about the contact Dave Hobza.’ says, 'Generally, through He I work the Servi- three months before. however, by projects, Q. was that decision made Jon Olsen? Center on these Charles and And keep job separate.’ jointly Jon Olsen and Dr. Howard Dave wanted to is that A. Made Wayne accurate? Radco. your knowledge, sitting today, why Q. here A. I don't know he would use that kind To having verbiage. in all Charles contracted with him di- what interest did Jon Olsen have airplane? rectly, going through modifications made to his so it wasn’t the ServiCen- of these going arrangement had made that A. been ter because ServiCenter wasn’t to The Wayne pay I sat in on with Dr. Howard for it....” money spending a Radco was in lieu of lot of Hobza, Jr., Videotaped Deposition they agreement advertising, a—an 35. of David E. had on things they going Exhibit 3 to Howard Defendants' & Defen- were to do certain to this Olsen Summary Judgment airplane flying dants’ Joint Motion for & to make it a advertisement for Brief, February Supporting pro- filed on and on certain items on that viding pertinent part p. airplane agreed pay that he would at 374: Dr. Howard and the would for the material ServiCenter $20,000 you Q. .. Do know if that cost particular provide the labor to install these propellers was ever billed to Dr. How- parts and do these modifications. And in the ard? that, doing propellers going were course Again, A. I don’t think it was. a— this was going to have to—were to cause the basically deposit propellers this was for the required put experimental be to be in an condi- program and also a slot to—to start the STC flown and utilized....” tion Deland, year after the first Flori- da, Propellers. They they the MT felt Hobza, Jr., Videotaped Deposition of David E. get simpler quicker could the STC much 2 to Howard Defen- Exhibit they every and easier because that’s what do dants’ & Olsen Defendants’ Joint Motion for day....” Summary Judgment provid- Supporting & Brief ing pertinent part p. at Ill: Videotaped Deposition of Donald Lawrence Mayer, Q. A attached to "... So to the Servi- Plaintiff's Exhibit the Plain- what was the benefit Objection props? tiff's to Howard & Olsen’s Motion for Center with these Summary Judgment, only filed on March A. Because the ServiCenter would—with STC, pertinent part they buy props directly at: initial would Propeller, they [sic] from MT would market broke, p. right. Q 58 "... All Before we we prop up they them to the and then would sell talking Propeller project, about this MT ServiCenter network and would mark just and as I recall—or to kind of summarize got up again them before the end user are, January you where we them....” objection continuing project, voiced with the going anywhere, you it wasn't had direct- Hobza, Jr., Videotaped Deposition E. of David try ed Mr. Hobza to do whatever he could to Exhibit 2 to Howard & Olsen Defen- Defendants’ project market the or sell it to Twin Command- Summary Judgment dants' Joint Motion for er; right? Brief, Supporting February pro- filed on stockholders, agreed, group A We ... as viding pertinent part p. 168: on that initiative to sell that David take ” says’, project. Q. "... I didn’t direct him.... [sic] He Dave Hobza has re- Well, p. you Q viewed it to when—when found out the invoice and asked me to send effort, payment. you any questions have that there was a renewed both financial- If Therefore, proceed presents ven- we nally, decision to with the hold this cause consultation of the precluding ture was made without issues of material fact an award of summary Board. judgment entitling entire ServiCenter Howard and Ol- authority such apparent had to enter remedy protections Radeo sen to the exclusive Howard and agreement an with Olsen.37 Compensation the Workers’ Act. agree- 25 Howard and Olsen assert c) ¶ 26 MATERIAL EX- ISSUES OF FACT argues Price that there is

ment exists while IST AS TO WHETHER HOBZA WAS any evidence of contract. The evidence no ENTI- PRICE’S CO-EMPLOYEE involving alleged agreement is contradic- TLED THE AF- TO PROTECTIONS tory. It is not for this Court to determine FORDED BY THE EXCLUSIVE However, efficacy of material facts. we REMEDY PROVISIONS OF THE charged looking at facts in the are those WORKERS’ ACT. COMPENSATION light to Price.38 There is most favorable ¶27 Hobza, or the disputed argues evidence of: existence Mrs. Price any agreement among providing the individual nature information to the Olsen; whether, agree- pilot overweight if an about condition of the existed, crash, parties’ day ment actions fell within aircraft on the was not a co- contract; and, whether ServiCenter’s of her independent husband but an authority princi- President had the to bind its contractor associated with the ServiCenter. such, marketing stratagem involving ple to a the As she contends Hobza is not entitled liability protections modifications made to the aircraft. The evi- to the limited joint contradictory. Conversely, dence of venture is Workers’ Act. me, ly personnel agreement and with—with Servi- from the an with Dr. Olsen or—excuse project partici- pursue Dr. Howard center to—to initiate and to or Mr. Olsen to the five- again project, prop pate Propeller bladed once in the MT STC? No, you? A I don’t. how did that affect Well, Q authority any Mr. Radko had the to enter A I was never aware of terms and into joint appropriate ventures that he deemed pursuit conditions associated with either the the ServiCenter business? modifying put configu- it into a guess guess— ... THE WITNESS: Yeah. I props any ration to have five-bladed on it or —I having joint I'm trouble with the reference to arrangements proposed respect to what ventures, of, you because if it rose to the level having the economic benefits of that kind of a know, with, joint arguably, kind aof venture project pursued going to be....” [sic] entity, some kind of I would think that would Burch) (ByQ p. 75-76 "... Mr. If Servicenter good corporate prac- come under the—at least employees personnel were used to renew tice of reference to the board of directors project project, and to work on the make and—and some the full consideration airplane, certainly modifications to this it was board. your approval; right? done without is that Elder) (ByQ brought Mr. But that was never ... THE WITNESS: Yes.... attention; your correct? Burch) (By your knowledge, Q Mr. To Certainly agreement. thing A to enter an The separate there some not sure what the —I'm having I'm trouble iswith the characterization is, right separate word but—but some enter- aas venture...." prise separate entity pursing or some that was pp. Okay. Q Wayne 193 "... Was Radko STC, Propeller this MT other than the Servi- engage types negotia- authorized to in those center?” ” tions for the Servicenter? my knowledge.... A Not to but, any specificity, certainly, A Not with a—a cost-sharing arrangement in connection with Deposition Videotaped of Donald Lawrence project an aircraft modification of the kind that Mayer, November Exhibit to Howard equipped the Servicenter was with the re- Reply Defendants’ & Olsen Defendants' Joint perform, say sources to I would have that I Objection Summary Plaintiff’s to Motion for expect authority that the of the chief Judgment perti- filed executive officer of the Servicenter would in- nent at: negotiating concluding clude and—and a con- Q"... arrangement 168-70 And Mr. Radko had the au- tractual of that matter....” thority agreements to enter into that he appropriate Corp. deemed for the ServiCenter? MLCMart. Sun America Mort. see 6, supra; County A He did. v. Comanche note Gaines Medi- Cox, Q Hosp., supra; Do know of reason that Mr. Radko cal see note Mitchell v. see authority supra. would have not to enter into note Servicenter, Mayer Inc....”. long a time and the testi- that he is Servi- Hobza insists protec- agreement to the same fied that the intent of the was for employee entitled Center Act Hobza to act as a contractor for ServiCenter tions under the Workers’ employer.39 employee.40 rather than to be considered an as his Mayer how When was asked Hobza should

Disputed material facts. crash, characterized on the date of the he be that Hobza could described as a indicated be forty-nine percent Mayer, held a of the member of the Board of Directors (49%) pre- in the and interest ServiCenter ServiCenter, contractor, and an as their as defining arrange- the pared agreement the testimony agent for This is Jon Olsen.41 employer and Hobza. The ment between the supported by giv- a document the record Agreement agreement is entitled “Contractor authority ServiCenter, ing Hobza the to act as Olsen’s David Inc. And between the agent change, modify, place to and or the paragraph that providing in the first Hobza” experimental category.42 aircraft in the to as “the Contractor De- the document is serve ‘Contractor’) (the spite agreement ... between his statements exe- Hobza, Jr., Well, Videotaped Deposition A one of the ones that come to mind is 39. of David B. 11, 2007, report D to Defendant Exhibit David the use a W-2 form him of earn- Judgment, Summary & Brief for ings preceding year corpo- Hobza’s Motion fiscal of for 4, 2008, pertinent part April providing filed on ration. at W-2, 27-28: you you Q get When have—when a its very you’re difficult to ever contend that actu- point, your position change Q"... At did some ally independent and an contractor not an em- being president from when first went ployee; is that fair? Company posi- the Service to another with absolutely A That’s fair. tion? here, W-2, Q And with the we Servicen- know AYes. salary, right. paying ter was—was Mr. Hobza a through Q me that. Take years, general A Correct. A two or three consen- After withholding Q we have a sus was that we could—that should And taxes? company president we different and that AThat's correct. us, working young had a Including, Q man that example, Security for Social tax- put position president we in the and him es? company employee and I became an correct, AThat’s also. working basically a—as a salesman as and— your knowledge Q [sic] And of this are is salesman, a coordinator with—as coordinated employee, that means doesn’t it? customers for services that the ServiCen- ... THE WITNESS: There is consid- is—there provided....” ler believe, legal precedent, erable I to draw that conclusion from that information....” Videotaped Deposition of Donald Lawrence 19, 2007, Mayer, Exhibit K to Defen- November Deposition Videotaped of Donald Lawrence Reply Response dant David Hobza’s to Plaintiff's 19, 2007, Mayer, November Exhibit 4 to Howard Summary Judgment to Hobza's Motion for filed Defendants’ and Olsen Defendants’ Joint Motion providing pertinent part on Brief, Summary Judgment Supporting for & filed pp. 175-77: February pertinent part on Q"... On the date of the—the takeoff and the p.at 109: crash, say capacity is it that one fair 15th, 2006, Q On October what was employee David Hobza was as an of the Servi- position Hobza's with the David Servicenter? center? owner, A He was an and he was member of Well, agreement A de- document and board directors of the Servicenter. relationship fined the with—between Servicen- Olsen, acting agent He was as an Jon styled and David and at least was ter as as airplane, owner of affect the modifica- by intended the drafter to establish David as tion and recertification of the in the contractor. experimental category, working and he was say experience And I that from firsthand auspices agreement under the contractor knowledge, signed it I it because I wrote between himself the Servicenter....” on behalf of the Servicenter. hand, On the other I’m also aware of addition- indicia, evidence, 42. Exhibit 7 to Howard Defendants & Olsen De- al materials and that could Summary Judgment fendants’ Joint Motion for person lead a reasonable to conclude that Brief, Supporting February filed on dat- operating capacity David was in the as an 15th, September ed and addressed to "whom employee on at least October be, may signed by Q Jon P. And it concern” those additional indicia would Olsen/owner example? providing: Hobza, regarding agreement with intended solved the trier of fact both the cuting the independent that of relationship be existence of a venture and the status of that the contractor, also testified that there were independent he versus contractor. agreement might Therefore, that the other indicators we reverse the cause and remand employer-employee.43 to be that of construed proceedings provi- it for with the consistent opinion. sions an Generally, question of whether independent contrac- individual serves as PART; AFFIRMED IN IN REVERSED employee an is for the trier of fact.44 tor or PART; REMANDED. of law when no The issue becomes one can be drawn from the facts other inference EDMONDSON, C.J., TAYLOR, V.C.J., presented other than that the individual HARGRAVE, KAUGER, WATT, capacity of one or the other.45 serves the WINCHESTER, COLBERT, REIF, JJ., highly facts here are contested. Rea- The concur. implica- people could differ their sonable Therefore, OPALA, cause J.,

tions. we hold concurring part. presents precluding of material fact issues OPALA, J., concurring in part summary judgment entitling award of Hobza remedy protections of the to the exclusive join 1 Because I did pro- not the court’s Compensation Act. Workers’ nouncement in Parret v. UNICCO Service Co., 54, 572, I OK P.3d cannot CONCLUSION today’s opinion. concur in entire Insofar as ¶30 crash, day flight appears appel- On the the the court to extend to some optimum, not the was full protection Compen- conditions were lees of the Workers’ advisable, flying weight than remedy with more sation Act’s exclusive found in 85 flight place took in violation of stan- Supp.2005 12, § and the by exonerating O.S. them experimental set forth in its certificate. law, dards liability from all tort I common con- nothing in there is the record compelled cur. But I am to recede from all employer to demonstrate that the was sub- parts holding. other of the court’s stantially that its would be certain Therefore,

injured. the evidence is insuffi-

cient under Parret v. UNICCO Service 54, subject 127 P.3d 572 to the OK liability provided by

employer to outside that However,

the Act. Workers’ disputed

there are facts which must be re- 5) specialist supervision; "As Owner of Aero-Commander N55JS without the skill re- 6) quired particular occupation; Give David Hobza the au- whether [sic] Mr. S/N11195. me, employer supplies thority agent change, the mentalities, tools, or the workman the instru- to act as place and the of work for the modify place experi- and or this aircraft in the work; 7) person doing length of time for category." mental 8) person employed; which the is the method of 9) payment, by by job; whether 37, the time or supra. Page Hardy, v. 43.See note In see regular whether or not the work is ¶ 10, infra, note 44 at the Court addressed 10) employer; business of the whether or not the employees independent distinction between parties creating relationship are believe by considering following contractors factors: servant; 11) right of master and of either 1) parties, the nature of the contract between the relationship liability. to terminate the without oral; 2) degree whether written or of control which, by agreement, employer may exer- 0,¶ Page Hardy, 44. v. 1958 OK 334 P.2d indepen- cise on the details of the work or the Brown, 782; 3) Co. v. Harris Meat Produce by agent; enjoyed dence the contractor or 280; ¶ 0, Shepard Crumby, OK v. employed engaged in a whether or not the one 0,¶ OK 293 P. occupation business and whether he distinct or occupation oth- carries on such or business for ers; 4) Brown, occupation the kind of with reference to see note Harris Meat & Produce Co. whether, locality, usually supra; Maryland Casualty done in the the work is Co. v. State Indus. Com’n, 155, 3,¶ under the direction of the 298 P.

Case Details

Case Name: Price v. Howard

Court Name: Supreme Court of Oklahoma

Date Published: Jun 14, 2010

Citation: 236 P.3d 82

Docket Number: 105,943

Court Abbreviation: Okla.