                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 15 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOHN A. HAMMOCK,

                Plaintiff-Appellant,

    v.                                                   No. 02-6126
                                                   (D.C. No. 01-CV-684-M)
    UNITED STATES OF AMERICA,                            (W.D. Okla.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff John A. Hammock appeals from the entry of summary judgment in

favor of the defendant United States in this case brought under the Federal Tort



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. The district court held

that Mr. Hammock’s tort action fell within the compass of Oklahoma’s workers’

compensation statute, Okla. Stat. tit. 85, § 11, and was therefore barred by the

associated exclusive-remedy rule in Okla. Stat. tit. 85, § 12. The court concluded

that Mr. Hammock’s direct employer was an independent contractor of an agency

of the United States which, in turn, assumed the role of Hammock’s “principal

employer” under § 11(B)(1). We review the district court’s grant of summary

judgment, including its construction of the controlling state statutes, de novo.

See Bldg. & Constr. Dep’t v. Rockwell Int’l Corp.   , 7 F.3d 1487, 1492 (10th Cir.

1993); see also Salve Regina Coll. v. Russell , 499 U.S. 225, 231 (1991).

      Based on authoritative guidance provided by the Oklahoma Supreme Court

in response to certified questions, we conclude that Mr. Hammock’s employer

was not an independent contractor of the United States but a mere vendor and that

the state workers’ compensation scheme does not impose statutory compensation

obligations on vendees like the United States–which means that it also does not

nullify the ordinary tort liability assumed by the United States under the FTCA.

We therefore reverse.

      Mr. Hammock was employed by Southern Sales to deliver, stock, rotate,

take inventory and promote the sale of Miller beer at a variety of retail stores.

In 1997, he suffered an on-the-job injury at a Fort Sill store run by the Army and


                                          -2-
Air Force Exchange Service (AAFES), an agency of the Defense Department that

provides retail services to military personnel around the world. While replacing

a neon advertising sign, Mr. Hammock received a shock from an exposed

electrical transformer, knocking him from a ladder and causing him serious

injury. After administrative redress was denied, he filed this FTCA suit seeking

$300,000 in compensatory damages. He claimed that the exposed transformer

was a dangerous condition and that AAFES breached the duty of care it owed him

as a business invitee to correct or warn of the condition.

      The United States moved for summary judgment, asserting that it was

insulated from tort liability as Mr. Hammock’s principal employer under the state

workers’ compensation scheme. The United States offered an affidavit from an

AAFES vice president, who explained in detail its internal operations. Noting

these included the transport of inventory from AAFES’ warehouses to its retail

outlets, the United States contended that in contracting for product vended by

Southern Sales, AAFES hired the company to do delivery work that was a

“necessary and integral part” of its own business, satisfying the test for extending

workers’ compensation coverage to a contractor’s employees.     Bradley v. Clark ,

804 P.2d 425, 428 (Okla. 1990). Hence, the United States contended its liability

to Mr. Hammock was exclusively through workers’ compensation.




                                         -3-
       Mr. Hammock advanced two distinct, though not inconsistent, lines of

argument against application of the worker’s compensation exclusivity principle.

First, he argued that the extension of a principal employer’s liability for workers’

compensation to employees of certain independent contractors–and the           Bradley

test through which the extension is implemented–is categorically inapposite in the

context of a vendor-vendee relationship, which involves the provision of goods by

a supplier rather than the performance of services by a contractor. He noted that

the same court that originally crafted the test adopted in     Bradley had recognized

a clear-cut distinction between vendors and contractors in this very regard.         See

Broussard v. Heebe’s Bakery, Inc.     , 268 So. 2d 656, 660 (La. 1972) (holding

worker’s compensation act inapplicable “where the transaction between the

[plaintiff’s] immediate employer and the [purported principal] . . . employer is

that of purchase and sale, or where some other relation besides that of principal

and contractor exists between them”);      Rance v. Harrison Co. , 737 So. 2d 806, 809

(La. Ct. App. 1999) (reflecting continuing validity of       Broussard distinction

between independent contractor and vendor);         accord Meyer v. Piggly Wiggly

No. 24, Inc. , 500 S.E.2d 190, 193 (S.C. Ct. App. 1998),       aff’d , 527 S.E.2d 761,

763 (S.C. 2000). Alternatively, Mr. Hammock argued that Southern Sales’

vending service did not, in any event, constitute work that was a necessary and

integral part of AAFES’ retail business under the        Bradley test.


                                             -4-
      The district court agreed with the United States. The court discounted the

vendor cases cited by Mr. Hammock because they were decided by non-Oklahoma

courts under other workers’ compensation statutes, and noted that Oklahoma had

not specifically recognized what it characterized as “a vendor/vendee exception”

to workers’ compensation coverage. As for the   Bradley test, the court held that

product delivery does not entail specialized skills and that AAFES, through its

own extensive inventory-distribution operations, was conducting the same

business for which it engaged Southern Sales.

      Noting the lack of authority on the matters disputed in the case, we issued

an order pursuant to Tenth Circuit Rule 27.1 and Okla. Stat. tit. 20, §§ 1601-1611,

certifying the following questions to the Oklahoma Supreme Court:

      1. Does a vendor of merchandise qualify as an “independent
      contractor” for the retailers it supplies, within the meaning of Okla.
      Stat. tit. 85, § 11, such that a retailer may potentially assume
      workers’ compensation liability (and quid pro quo tort immunity) as
      a “principal employer” of the vendor’s employees? If the answer
      depends on the extent to which the vendor contracts to perform
      substantial services in conjunction with the goods it provides, do the
      actions of the vendor in this case–delivering, stocking, rotating,
      inventorying, and promoting the brand of beer it vends–suffice, as a
      matter of law, to make it the defendant retailer’s independent
      contractor under § 11?

      2. If the vendor here qualifies as the defendant retailer’s
      independent contractor (or if that is not a threshold predicate for
      assessment of the latter’s status as a principal employer under § 11),
      does the vendor satisfy, as a matter of law, the “necessary and
      integral part of [the] business” test for workers’ compensation
      coverage set out in Murphy v. Chickasha Mobile Homes, Inc.,

                                         -5-
      611 P.2d 243, 248 (Okla. 1980), and later sharpened by the
      three-tiered inquiry adopted in Bradley v. Clark, 804 P.2d 425, 428
      (Okla. 1990)?

Hammock v. United States, No. 02-6126, Order filed March 28, 2003.

      The Oklahoma Supreme Court has now issued a decision answering the

first question in such a way as to resolve this appeal in favor of Mr. Hammock

and to obviate consideration of the second question:

             A vendor of merchandise does not qualify as an independent
      contractor for the vendee it supplies, within the meaning of 85 O.S.
      § 11, such that a retailer may potentially assume workers’
      compensation liability (and quid pro quo tort immunity) as a
      “principal employer” of the vendor’s employees. The relationship
      between Southern Sales and AAFES remained one of vendor/vendee,
      despite the services performed by Hammock in delivering, stocking,
      rotating, inventorying, and promoting Miller beer at the PX. Because
      Southern Sales is not an independent contractor of AAFES, and
      because that relationship is a threshold predicate for assessing
      AAFES’ status as a principal employer under § 11, we need not
      answer the second certified question.

Hammock v. United States , No. 99,053, 2003 WL 22234602, at *4 (Okla.

Sept. 30, 2003).

      The district court granted summary judgment in favor of the United States

on the ground that it was immunized from tort liability by the exclusive-remedy

provision of the Oklahoma workers’ compensation scheme. In light of the state

supreme court’s decision clarifying that the statutory scheme has no application to

the parties in this case, summary judgment must be reversed. We express no

views on the merits of the FTCA claims reinstated by this decision.

                                        -6-
      The judgment of the United States District Court for the Western District of

Oklahoma is REVERSED, and the cause is REMANDED for further proceedings

consistent herewith.

                                                   Entered for the Court


                                                   Robert H. Henry
                                                   Circuit Judge




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