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LARGEN v. WENCO ENERGY CORP.2014 OK CIV APP 47Case Number: 112061Decided: 03/21/2014Mandate Issued: 04/29/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 47, __ P.3d __
JEAN LARGEN, Individually and as Personal Representative of the 
Estate of PAUL KANADY, Deceased, Plaintiff/Appellant,v.WENCO ENERGY 
CORPORATION, an Oklahoma corporation, Defendant/Appellee,

Henry Harvey, d/b/a Harvey Machine Tool Co., 
Defendant/Third-Party Plaintiff,v.The Eron Corp., d/b/a H & H 
Resistance Welders, a/k/a H & H Resistance Welders of OK, Third-Party 
Defendant.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE REBECCA NIGHTINGALE, JUDGE

AFFIRMED

Richard A. Shallcross, Shallcross Law Firm, Tulsa, Oklahoma, for 
Appellant,Randall G. Vaughn, Pray Walker, P.C., Tulsa, Oklahoma, for 
Appellee.


Larry Joplin, Presiding Judge:
¶1 Plaintiff/Appellant Jean Largen, Individually and as Personal 
Representative of the Estate of Paul Kanady, Deceased, seeks review of the trial 
court's order granting the motion to dismiss of Defendant/Appellee Wenco Energy 
Corporation, an Oklahoma corporation in Plaintiff's action to recover for the 
wrongful death of Decedent. In this appeal, Plaintiff asserts the trial court 
erred in dismissing the claim before affording her an opportunity to conduct 
discovery and establish a factual basis for the necessary allegation of 
Defendant's intentional misconduct which caused Decedent's workplace death.
¶2 Decedent worked for Defendant. On September 27, 2010, Decedent died in a 
workplace accident when crushed by heavy machinery being moved from Defendant's 
shop for loading on a truck in Defendant's yard. On or about October 7, 2011, 
Plaintiff filed a death claim in the Workers' Compensation Court.
¶3 On October 28, 2011, Plaintiff filed her original petition in the trial 
court. Plaintiff alleged only that Decedent "was killed . . . as a result of the 
defendants' negligence or willful misconduct."
¶4 Defendant filed a motion to dismiss. Defendant asserted that Plaintiff had 
invoked her exclusive remedy in the Workers' Compensation Court, that Plaintiff 
could recover in the trial court only on specific factual allegations of 
Decedent's death "as a result of willful, deliberate, specific intent of the 
employer to cause such injury," and that Plaintiff's bare allegation of "willful 
misconduct" was wholly insufficient to establish Defendant's intentional tort 
under 85 O.S. Supp. 2010 §12, now 
85 O.S. 2011 §302.
¶5 Plaintiff responded. Plaintiff first asserted that, without formal 
discovery, she could not ascertain the precise facts and circumstances 
surrounding the death of Decedent. Plaintiff further asserted, in essence that, 
on her information from eye witnesses, Defendant attempted to move the heavy 
machinery using inadequate "skates," that one or more of the "skates" rolled out 
from beneath the heavy equipment, and the heavy equipment toppled upon Decedent, 
killing him. Plaintiff asserted that neither the Workers' Compensation Court nor 
Defendant had allowed her any formal discovery concerning the precise facts and 
circumstances surrounding the death of Decedent, and for that reason, she could 
not plead more specifically.
¶6 Defendant filed a reply. Defendant asserted the additional facts set forth 
in Plaintiff's response did not establish its intent to cause the injury to 
Decedent, and that §12(v), now §302(I), expressly proscribed pursuit of actions 
in both the Workers' Compensation Court and the trial court. The trial court 
granted Defendant's motion to dismiss, but allowed Plaintiff twenty days to 
amend her petition.
¶7 Plaintiff filed her amended petition. Plaintiff alleged that Defendant 
knew the "skates" employed in the attempt to move the heavy machinery were 
inadequate, that Defendant chose the method only to save money, that Defendant 
knew the concrete floor across which Defendant sought to move the heavy 
machinery was broken and unsafe, and Defendant acted recklessly or intentionally 
in attempting to move the heavy machinery under those circumstances.
¶8 Defendant again responded that Plaintiff's allegations fell well short of 
establishing the "willful, deliberate, specific intent of the employer to cause 
such injury" required by §12, now §302(B). Defendant further alleged Plaintiff 
had pursued some discovery, with which Defendant had cooperated. Defendant also 
again pointed out that Plaintiff had pursued and received payment of death 
benefits in the Workers' Compensation Court, that, notwithstanding Plaintiff's 
dismissal of its Workers' Compensation Court action, Plaintiff had accepted the 
payment of Workers' Compensation death benefits, and §12(v), now §302(I), 
proscribed pursuit of recovery in both the trial court and the Workers' 
Compensation Court.
¶9 On consideration of the parties' submissions and arguments, the trial 
court granted Defendant's motion to dismiss, dismissed the Plaintiff's claim 
against Defendant with prejudice, and entered judgment in Defendant's favor, 
completely disposing of all claims between Plaintiff and Defendant. 12 O.S. §994(A). Plaintiff appeals, 
and the matter stands submitted on the trial court record.
¶10 We review an order granting a motion to dismiss de novo. Wilson 
v. State ex rel. State Election Bd., 2012 OK 2, ¶4, 270 P.3d 155, 157. A motion to 
dismiss for failure to state a claim should not be granted unless the plaintiff 
can prove no facts demonstrating a right of recovery. See, e.g., Simonson v. 
Schaefer, 2013 OK 25, ¶3, 301 P.3d 413, 414.
¶11 Under prior law, §12 of title 85, O.S. Supp. 2005, liability under the 
Workers' Compensation Act was "exclusive and in place of all other liability of 
the employer," unless the "employer's conduct . . . amount[ed] to an intentional 
tort, [i.e.,] the employer . . . (1) desired to bring about the worker's injury 
or (2) acted with the knowledge that such injury was substantially certain to 
result from the employer's conduct." Parret v. UNICCO Service Co., 2005 OK 54 ¶24, 127 P.3d 572, 579. However, 
effective August 26, 2010, §12 was amended to provide in relevant part:


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, . 
    . . , at common law or otherwise, for such injury, loss of services, or 
    death, to the employee, . . . , except in the case of an intentional tort, . 
    . . . 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. . . .
. . .
(v) . . . [I]n the case of an intentional tort, the injured employee or 
    his or her legal representative may maintain an action either in the 
    Workers' Compensation Court or in the district court, but not 
  both.
85 O.S. Supp. 2010 §12 (eff. 
August 27, 2010). Effective August 26, 2011, §12 was repealed, and §302 enacted 
to provide 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 
    common law or otherwise, for such injury, loss of services, or death, to the 
    employee, . . . , 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. . . .
. . .
I. . . . [I]n the case of an intentional tort, the injured employee or 
    his or her legal representative may maintain an action either in the 
    Workers' Compensation Court or in the district court, but not 
  both.
85 O.S. 2011 §302 (Eff. 
August 26, 2011).
¶12 So, from and after the effective date of amended §12 in August 2010, 
"[a]llegations or proof that the employer had knowledge that such injury was 
substantially certain to result from the employer's conduct [do] not constitute 
an intentional tort," and only if "the employee [wa]s injured as a result of 
willful, deliberate, specific intent of the employer to cause such injury" is 
the immunity of amended §12, now §302(A), lost. Under both amended §12 and 
§302(B), the question of whether an employer acted with such deliberate, 
specific intent to cause injury presents a pure question of law.
¶13 Undoubtedly, the law in effect at the time of Decedent's death controls. 
Williams Companies, Inc., v. Dunkelgod, 2012 OK 96, 295 P.3d 1107. Decedent died 
September 27, 2010. The provisions of §12, as amended effective August 27, 2010, 
control in the present case.
¶14 Viewing the allegations of Plaintiff's petition in the light most 
favorable to her, we cannot say the allegations of Plaintiff's petition 
establish Defendant's "willful, deliberate, [and/or] specific intent" to cause 
Decedent's injury or death. That the means chosen by Defendant may not have been 
the safest, or that the Defendant would have been better advised to hire a 
professional mover is clearly open to debate. It might even be said that 
Defendant acted negligently or should have foreseen the possibility of injury in 
pursuing the chosen method to move the heavy machinery. But, even under the 
abandoned "substantial certainty" test, "[t]he employer's cognizance of a 
foreseeable risk, high probability, or substantial likelihood of injury [was] 
insufficient to impose tort liability." Price v. Howard, 2010 OK 26, ¶10, 236 P.3d 82, 88.
¶15 That said, there is absolutely no proof or even inference that Defendant 
acted with a specific and deliberate intent to cause Decedent's death as to 
divest Defendant of the immunity afforded by amended §12. No doubt, this was a 
horrible accident, but an accident it was.
¶16 Furthermore, Plaintiff pursued and recovered death benefits in the 
Workers' Compensation Court. Having so recovered in the Workers' Compensation 
Court, Plaintiff may not pursue a claim of Defendant's intentional tort in the 
trial court. 85 O.S. Supp. 2010 
§12(v); Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ¶20, 861 P.2d 295, 302.1
¶17 The order of the trial court is AFFIRMED.

HETHERINGTON, V.C.J., and BUETTNER, J., concur.

FOOTNOTES

1 "[A]n 
employee who has two remedies for the same injury and has prosecuted one of them 
to conclusion (securing an award or judgment), is barred from resort to the 
other remedy."


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1993 OK 114, 861 P.2d 295, 64 OBJ        2864, Dyke v. Saint Francis Hosp., Inc.Discussed 2005 OK 54, 127 P.3d 572, PARRET v. UNICCO SERVICE COMPANYDiscussed 2010 OK 26, 236 P.3d 82, PRICE v. HOWARDDiscussed 2012 OK 2, 270 P.3d 155, WILSON v. STATE ex rel. STATE ELECTION BOARDDiscussed 2012 OK 96, 295 P.3d 1107, WILLIAMS COMPANIES, INC. v. DUNKELGODDiscussed 2013 OK 25, 301 P.3d 413, SIMONSON v. SCHAEFERDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 994, Procedure When There is More Than One Claim or Party - Final JudgmentCitedTitle 85. Workers' Compensation CiteNameLevel 85 O.S. 302, Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014Discussed 85 O.S. 12, Repealed by Laws 2011, SB 878, c. 318, § 87Discussed at Length










