                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-1858
                                    ___________

Curtis Ray Frisby, Special               *
Administrator of the Estate of           *
Shirley Fay Frisby,                      *
                                         *
      Plaintiff - Appellant,             * Appeal from the United States
                                         * District Court for the
      v.                                 * Western District of Arkansas.
                                         *
Milbank Manufacturing Co.,               *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: February 16, 2012
                                  Filed: July 31, 2012
                                   ___________

Before LOKEN, BYE, and MELLOY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

      Shirley Frisby collapsed and died from an apparent heart attack while working
on an assembly line at Milbank Manufacturing Company’s facility in El Dorado,
Arkansas. A claim for workers’ compensation death benefits was filed just before the
two-year statute of limitations expired. See Ark. Code § 11-9-702(a)(1). After a
contested hearing, the Arkansas Workers’ Compensation Commission denied the
claim, concluding that the claimant failed to establish by a preponderance of the
evidence both “that Mrs. Frisby sustained a compensable myocardial infarction
injury” and “that an accident is the major cause of the physical harm that Mrs. Frisby
sustained.” See Ark. Code §§ 11-9-102(4)(A)(i), (iv); 11-9-114(b)(1). Curtis Frisby
as administrator of his wife’s estate then commenced this wrongful death diversity
action against Milbank. The district court1 dismissed the action as time barred.
Frisby appeals, arguing that the filing of a workers’ compensation claim tolls the
statute of limitations for a tort claim against the employer for the same injury, and
alternatively that the Arkansas “savings statute” applies and provided him one year
after the workers’ compensation claim denial to file this action for the same injury.
Reviewing the district court’s application of Arkansas law de novo, we affirm.

                                      I. Tolling

       It is undisputed that the three-year statute of limitations for wrongful death
actions expired while the claim for workers’ compensation benefits was pending
before the Commission. See Ark. Code § 16-62-102(c)(1). Under Arkansas law, a
limitations period is tolled “[w]here an individual is prevented from exercising his
legal remedy by the pendency of legal proceedings.” Ragland v. Alpha Aviation,
Inc., 686 S.W.2d 391, 393 (Ark. 1985). Frisby argues his action is not time-barred
for this reason because he was required to pursue remedies before the Commission
before he could maintain a suit in tort. Therefore, he contends, the claim for benefits
to the Commission prevented exercise of his legal remedy and tolled the statute of
limitations. The district court rejected the argument, noting that no case has applied
this principle to proceedings before the Workers’ Compensation Commission. After
careful review of the relevant Supreme Court of Arkansas precedents, we agree.

       The issue is whether Frisby could have filed a timely wrongful death action
either before the claim for workers’ compensation benefits was filed, or while that
claim was pending before the Commission. A claim for workers’ compensation


      1
       The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

                                         -2-
benefits is an employee’s exclusive remedy against her employer for injury or disease
arising out of or in the course of employment. See Ark. Code § 11-9-105(a), (b)(1);
Liberty Mut. Ins. Co. v. Coleman, 852 S.W.2d 816, 818 (Ark. 1993). However, an
employee may sue the employer in tort for an injury not covered by the Act, such as
an intentional tort or one not committed during the course of employment.2 Many
cases establish that, before the coverage issue is resolved, the Commission has
jurisdiction to consider a claim for benefits, and a court has jurisdiction over a
properly venued tort action. In VanWagoner v. Beverly Enterprises, 970 S.W.2d 810,
811-12 (Ark. 1998), the Supreme Court of Arkansas overruled prior cases and held
that the Commission has exclusive authority to determine whether the Act covers a
particular injury and therefore provides the claimant’s exclusive remedy. Adopting
the “administrative law rule of primary jurisdiction,” the Court held that the
Commission has “exclusive, original jurisdiction to determine the facts that establish
jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but
one of law, such as an intentional tort.” Id. at 812.

       Designed to ensure proper relationships between courts and administrative
agencies, the doctrine of primary jurisdiction provides that a court, despite having
subject matter jurisdiction, may not resolve “issues which, under a regulatory scheme,
have been placed within the special competence of an administrative body.” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1959); see Austin v. Centerpoint Energy
Arkla, 226 S.W.3d 814, 823-24 (Ark. 2006). The court retains subject matter
jurisdiction but allows the agency to address the contested issues. Reiter v. Cooper,
507 U.S. 258, 268-69 (1993). The court has discretion to stay the civil action while


      2
        The parties vigorously dispute whether this principle applies to a claim for an
injury that occurred during the course of Mrs. Frisby’s employment but was ruled
non-compensable by the Commission after an administrative hearing. Compare
Automated Conveyor Sys. v. Hill, 208 S.W.3d 136, 138-39 (Ark. 2005), with Hickey
v. Gardisser, No. CA10-98, 2010 WL 2195438 (Ark. App. June 2, 2010). We need
not address the issue because Frisby’s claim is in any event time-barred.

                                           -3-
awaiting the agency’s ruling, or to dismiss the action without prejudice if the parties
would not be unfairly disadvantaged, for example, by the running of an applicable
statute of limitations. Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 609
(8th Cir.), cert. denied, 525 U.S. 962 (1998).

        The Supreme Court of Arkansas has applied these primary jurisdiction
principles in workers’ compensation cases. The issue arises most often when the
parties to a tort action dispute whether the defendant was acting as plaintiff’s
employer or as a third party at the time of plaintiff’s injury. The Supreme Court has
emphasized that the Commission’s primary jurisdiction to decide this issue does not
strip the court of subject matter jurisdiction over plaintiff’s tort action. See Merez v.
Squire Court Ltd. P’ship, 114 S.W.3d 184, 189 (Ark. 2003). Rather, when correcting
a lower court’s failure to defer to the Commission, the Court has remanded to allow
plaintiff to seek the Commission’s determination of coverage instead of ordering the
case dismissed for lack of jurisdiction. See Stocks v. Affiliated Foods Sw., Inc., 213
S.W.3d 3, 6 (Ark. 2005).

       Though the Supreme Court of Arkansas has not considered this tolling issue,
its primary jurisdiction precedents confirm that Frisby could have filed his wrongful
death tort action before the claim for workers’ compensation benefits was filed with
the Commission, or while that claim was pending. Frisby argues that Supreme Court
of Arkansas decisions granting writs of prohibition to courts that ignored the
Commission’s primary jurisdiction to determine coverage establish that courts lack
jurisdiction over a tort action before the Commission has ruled. See Int’l Paper Co.
v. Clark Cnty. Circuit Court, 289 S.W.3d 103, 105-07 (Ark. 2008); Erin, Inc. v. White
Cnty. Circuit Court, 253 S.W.3d 444, 449 (Ark. 2007). But those decisions were
based on the trial courts’ lack of jurisdiction to decide the coverage issue, not on a
lack of subject matter jurisdiction over the underlying tort claims. As the Supreme
Court explained in Merez, 114 S.W.3d at 189:



                                          -4-
      the trial court plainly had subject-matter jurisdiction over the suit filed
      by Appellants, which stated claims for negligence. What the trial court
      did not have jurisdiction over was the determination of the applicability
      of the Workers’ Compensation Act . . . . That jurisdiction belongs to the
      Commission.

See Clark County, 289 S.W.3d at 107 (“at this point in the litigation the exclusive
jurisdiction of this case lies with the Commission . . . and we therefore grant the writ
of prohibition”) (emphasis added).

       Frisby argues that the Supreme Court of Arkansas would follow the decision
of the Supreme Court of California in Elkins v. Derby, 525 P.2d 81 (Cal. 1974), in
which that Court held it would be inequitable and inefficient not to toll the statute of
limitations for tort actions while the injured party pursued an unsuccessful claim for
workers’ compensation benefits. However, California law (at least at that time)
provided a one-year limitations period for both tort actions and workers’
compensation claims; the Court noted that, without tolling, “to avert loss of his rights,
an injured party is forced to initiate proceedings with both the compensation board
and a superior court [that would impose] onerous procedural burdens upon himself,
his employer, and the already overtaxed judicial system.” Id. at 88.

        By contrast, Arkansas law provides two years to bring a claim before the
Commission and three years to commence a tort action; thus, even without tolling,
relatively few protective tort actions will need be filed before the Commission
determines Workers’ Compensation Act coverage.3 Moreover, the no-jurisdiction
rule Frisby urges would eliminate an injured party’s opportunity to file the tort action
first and avoid delay incident to the Commission’s primary jurisdiction by persuading
a court that “the [coverage] facts are so one-sided that the issue is no longer one of


      3
        We were advised at oral argument that the Commission has a procedural rule
that cases must be decided within 90 days of the administrative hearing.

                                          -5-
fact but one of law.” VanWagoner, 970 S.W.2d at 812. The principles of primary
jurisdiction being so clearly established, we conclude that the Supreme Court of
Arkansas would hold that a pending claim before the Commission is not a legal
proceeding that prevents an injured party from filing a tort action and thereby tolls the
statute of limitations for that legal remedy. Accord State ex rel. Kansas City Stock
Yards Co. v. Clark, 536 S.W.2d 142, 146-47 (Mo. 1976); Winston v. Richard W.
Wines, Inc., 351 P.2d 929, 930-31 (Wash. 1960).4

      Because Frisby was able to file a timely wrongful death tort action before or
concurrent with the claim for workers’ compensation benefits, the district court
correctly rejected his tolling argument. Under Arkansas law, ignorance of an
available cause of action does not toll the statute of limitations. Stracener v.
Williams, 137 S.W.3d 428, 431 (Ark. App. 2003).

                               II. The Savings Statute

       Frisby also argues that the Arkansas “savings statute” gave him one year after
the Commission dismissed the workers’ compensation claim to file this wrongful
death action. As relevant here, the savings statute provides that, if “any action” is
commenced within the time prescribed “and the plaintiff therein suffers a nonsuit . . .
the plaintiff may commence a new action within one (1) year after the nonsuit
suffered.” Ark. Code § 16-56-126. The statute’s purpose is to give those litigants
“who, from causes incident to the administration of the law, are compelled to abandon
their present action . . . a reasonable time in which to renew such action.” State Bank
v. Magness, 11 Ark. 343, 1850 WL 563, *3 (1850). The district court rejected this

      4
       We acknowledge that a far stronger case for tolling would be presented if the
Commission ruled an injury compensable before the statute of limitations for a tort
action expired, making workers’ compensation benefits the claimant’s exclusive
remedy, and a reviewing court reversed that ruling after the statute of limitations
expired. See Butler v. Glen Oak’s Turf, Inc., 395 S.E.2d 277, 279 (Ga. App. 1990).

                                          -6-
contention, concluding that the Commission’s fourteen-page opinion “is a decision
on the merits of the claim [which] is not the same as a nonsuit.” We agree.

       Frisby argues that dismissing the workers’ compensation claim based on
Milbank’s defense “that the death of Mrs. Frisby was not occasioned by any unusual
or extraordinary exertion had the same effect as a non-suit.” He relies on the broad
statement by the Supreme Court of Arkansas in a number of cases that, “[f]or the
purposes of the [savings] statute, a dismissal of a complaint on defendant’s motion
is the same as a nonsuit.” Carton v. Mo. Pac. R.R. Co., 747 S.W.2d 93, 94 (Ark.
1988), quoted in Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001). But the
contention takes those decisions completely out of context. Each involved a
dismissal without prejudice for a flaw unrelated to the merits of the plaintiff’s claims,
such as lack of diversity jurisdiction or failure to exhaust prison remedies. Here, the
workers’ compensation claim on behalf of Mrs. Frisby was denied on the merits for
two distinct reasons. No prior Arkansas decision supports calling this a “nonsuit.”5

      For the foregoing reasons, the judgment of the district court is affirmed.

MELLOY, Circuit Judge, dissenting.

      I respectfully dissent from the majority holding that the statute of limitations
was not tolled during the pendency of appellant's workers' compensation proceeding.




      5
       We also have considerable doubt whether the savings statute applies in
workers’ compensation cases, see Single Source Transportation, Inc. v. Kent, 258
S.W.3d 416, 418 n.1 (Ark App. 2007), and if it does, whether the claimant’s cause[s]
of action in tort would be “the same in substance” as the nonsuited workers’
compensation claim for savings statute purposes, see Dillaha v. Yamaha Motor Corp.,
U.S.A., 23 F.3d 1376, 1377-78 (8th Cir. 1994). But we need not address these issues.

                                          -7-
       The majority holds that there is nothing to prevent a workers' compensation
claimant from filing a concurrent tort proceeding in state court. While I do not take
issue with the majority statement that the Arkansas state courts have primary
jurisdiction over tort claims, that does not resolve the issue of when those claims can
be filed. I believe the more recent Supreme Court of Arkansas precedent clearly
establishes that a tort claim cannot be filed in the Arkansas Circuit Court until the
Workers' Compensation Commission determines whether it has jurisdiction over the
claim. I believe International Paper Co. v. Clark County Circuit Court, 375 Ark. 127,
289 S.W.3d 103 (Ark. 2008) is controlling. The court there explained that the
Workers' Compensation Commission has exclusive jurisdiction to determine whether
an injury that arguably arose out of a person's employment was within the ambit of
the Workers' Compensation Act. Until that determination is made ". . . the circuit
court is therefore wholly without jurisdiction." In International Paper, the Supreme
Court of Arkansas, on facts that are very analogous to our situation, granted a writ of
prohibition because the circuit court had denied a motion to dismiss. The court went
on to order that the case be dismissed "because at this point in the litigation the
exclusive jurisdiction of this case lies with the Commission." Id. at 132.

       I believe International Paper, which appears to be the most recent Supreme
Court of Arkansas decision on the interplay of circuit court and Workers'
Compensation Commission jurisdiction, is controlling, as it requires the dismissal of
any suit filed in the Arkansas circuit courts prior to the Workers' Compensation
Commission's resolution of the jurisdictional issue. The majority's attempt to
distinguish International Paper incorrectly characterizes the holding in that case.
While it is true that a circuit court lacks jurisdiction to decide the coverage issue, the
holding in International Paper went beyond that, effectively stating that the circuit




                                           -8-
court is "wholly without" jurisdiction over the case unless and until6 the Commission
resolves the coverage issue: "Accordingly, at this stage of the litigation, we conclude
the Commission has exclusive jurisdiction to determine the applicability of the Act
to the matters alleged in the complaint, and the circuit court is therefore wholly
without jurisdiction." Id. at 131.

       Moreover, even if there is some possibility that the suit could be stayed, it
seems to me to be an extremely inefficient procedure to require a suit be filed, and
then stayed, over a matter which may ultimately be determined to be within the
exclusive jurisdiction of the Workers' Compensation Commission. Such a result is
totally inconsistent with the normal concept of requiring a claimant in a judicial
proceeding to first exhaust any administrative or non-judicial remedies that may be
available to him or her. Indeed, the majority's reliance on the doctrine of primary
jurisdiction in reaching this inefficient result is peculiar, as the Supreme Court of
Arkansas specifically adopted that doctrine in the workers' compensation context to
do away with the inefficient litigation tactics the majority now says are required of
injured employees who may have viable tort claims. Int'l Paper, 375 Ark. at 130. The
majority speculates that, notwithstanding the court's holding today, relatively few
protective actions will need to be filed, citing for support counsel's assertion at oral
argument that the Commission has a procedural rule requiring decisions within ninety
days of the administrative hearing. The typical wait between the filing of a claim and
the administrative hearing, however, is neither discussed in the majority opinion nor

      6
       Of course, a circuit court has jurisdiction from the outset if "the facts are so
one-sided that this issue is no longer one of fact but one of law, such as an intentional
tort." Int'l Paper, 375 Ark. at 130–131. A holding that the pendency of a claim
before the Commission tolls the statute of limitations for related tort claims would do
nothing to change this settled rule, contrary to the majority's assertion. Indeed, such
"one-sided" cases are exempted from the typical jurisdictional analyses applied by the
Supreme Court of Arkansas to employment tort actions in the workers' compensation
context. Accordingly, it is puzzling that the majority suggests a holding, one way or
another, on the tolling issue would impact such cases.

                                          -9-
apparent from the record. What is apparent from the record, however, is that sixteen
months elapsed between when the claim was filed and when the hearing occurred in
this case. If this wait is at all typical, then even the speediest of claimants will be well
advised to file protective actions in cases like these. This is not to mention the
possibility of administrative appeals and other procedural delays—all circumstances
that, taken together, will needlessly multiply litigation in the courts, a result that is
entirely contrary to the Supreme Court of Arkansas's decision to vest the Commission
with primary and exclusive jurisdiction at the outset of these cases.

       For these reasons, I respectfully dissent and would hold that the statute of
limitations was tolled during the pendency of the workers' compensation proceedings.
                        _______________________________




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