                                   Cite as 2014 Ark. 508

                SUPREME COURT OF ARKANSAS
                                      No.   CV-14-402

ENTERGY ARKANSAS, INC.;                          Opinion Delivered   December 11, 2014
ENTERGY OPERATIONS, INC.; AND
DP ENGINEERING, LTD. CO.                         PETITION FOR WRIT OF
                  PETITIONERS                    PROHIBITION OR CERTIORARI;
                                                 PETITION FOR WRIT OF
V.                                               PROHIBITION


POPE COUNTY CIRCUIT COURT
                 RESPONDENT
                                                 PETITIONS FOR WRIT OF
JESS CLAYTON                                     PROHIBITION GRANTED.
          SEPARATE RESPONDENT


                          PAUL E. DANIELSON, Associate Justice


       Petitioners Entergy Arkansas, Inc. (“EAI”); Entergy Operations, Inc. (“EOI”)

(collectively “Entergy”); and DP Engineering, Ltd. Co. (“DP”), petition this court for writs

of prohibition directed to the respondent Pope County Circuit Court, which denied their

motions to dismiss the complaint of the plaintiff below, Jess Clayton.1 Entergy and DP

contend that the circuit court is precluded from continuing to exercise jurisdiction over


       1
        While not named as a respondent by Entergy and DP, Clayton has assumed the role
of a separate respondent for purposes of these petitions. This court has observed that the
proper party as respondent to a petition for writ of prohibition is the circuit court, not the
judge, and not an injured worker or his or her representative. See International Paper Co. v.
Clark Cnty. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008). However, in the instant case,
the Attorney General notified this court on May 9, 2014, that it would not file a response to
Entergy’s petition on behalf of the named respondent, the Pope County Circuit Court. In
addition, this court granted DP’s motion for leave to join in Entergy’s petition on May 29,
2014, and DP filed its petition for writ of prohibition on June 5, 2014.
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Clayton’s claims against them because jurisdiction lay exclusively with the Arkansas Workers’

Compensation Commission (“the Commission”) to determine the applicability of the

Workers’ Compensation Act. For the reasons set forth in Entergy Arkansas, Inc. v. Pope County

Circuit Court, 2014 Ark. 506, delivered this same day, we grant the writs of prohibition.

       The record in the instant case reflects that on September 19, 2013, Jess Clayton filed

a personal-injury complaint in the circuit court.2 The complaint alleged that on Easter

Sunday, 2013, Clayton was working at Entergy’s Arkansas Nuclear One (“ANO”) facility

near Russellville, when he was injured by a falling steel beam. Clayton asserted that he

suffered multiple and massive physical injuries, including a broken back and leg, as well as

severe cuts, scrapes, and contusions.

       Clayton averred that he was an employee of Precision Surveillance Corporation

(“PSC”), “which was contracted by Entergy.” Clayton claimed that prior to his injury,

Entergy had decided to complete needed maintenance at its ANO facility that included the

removal of the “Main Turbine Generator Stator,” which weighed over a million pounds.

Clayton stated that the stator required a crane to move it and that Entergy had hired Siemens

“to help plan, execute, hire subcontractors, and provide other support” for the required

maintenance. According to the complaint, Bigge was contracted as the crane provider, and

DP was retained to “provide engineering advice as to the ability of the turbine building deck

to support the weight of the crane and the stator.” Clayton claimed that on the day of the


       2
       The complaint named several defendants, including: Bigge Power Constructors; Bigge
Crane and Rigging Co.; Bigge Group, Inc.; Siemens Energy, Inc.; DP; EAI; EOI; VEI
General Contractors, Inc.; and John Doe 1, John Doe 2, and John Doe 3.

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accident, while the lift of the stator was in progress, he, along with others, was directed to

remove a guardrail to facilitate the stator’s move; just after doing so, the crane holding the

stator buckled and crashed down, resulting in the crane’s beams falling, one of which injured

Clayton. Clayton alleged ordinary negligence, negligent hiring, negligent training, negligent

supervision, negligent retention, and negligent retention of an independent contractor on the

part of Bigge, Siemens, DP, Entergy, and VEI Contractors, and he sought damages and

punitive damages, declaratory relief, and a jury trial.

       On October 30, Entergy moved to dismiss or, alternatively, to stay the proceedings.

The basis for the motion was that both EAI and EOI were statutory employers, or

alternatively special employers, of Clayton and were therefore immune from suit under

Arkansas’s workers’ compensation laws. Entergy alternatively sought a stay of the action with

direction to the parties to present the issue to the Commission, if the court determined that

there was a factual issue preventing Entergy’s dismissal. Attached to Entergy’s motion were

several exhibits consisting of multiple pages. Clayton responded to the motion, asserting that

he was PSC’s employee and that he was covered by workers’ compensation insurance

provided by PSC. Clayton claimed that neither EAI nor EOI could satisfy the requirements

to be a statutory or special employer as a matter of law, and therefore, Entergy’s motion to

dismiss should be denied. Clayton later amended his response to include additional exhibits,

and he filed a first amended complaint, incorporating by reference his original complaint and

requesting damages for future pain and suffering. Entergy also filed a motion to dismiss the

amended complaint or, alternatively, to stay the proceedings, incorporating by reference its


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prior motion, brief in support, and reply to Clayton’s response.

       DP similarly filed a motion to dismiss, in part, on December 18, 2013. It asserted that,

in the event that Clayton was a statutory or special employee of Entergy at the time of his

injury, DP’s general employees, who were also onsite at ANO, were Entergy’s special

employees as well. DP claimed that its general employees were also protected as Clayton’s

co-employees by the exclusive-remedy provisions of Arkansas’s workers’ compensation laws,

making them personally immune from liability. DP alleged that if its employees’ personal

liability was extinguished under the exclusive-remedy provision, so too was any vicarious

liability that could be imputed to DP. DP further adopted and incorporated by reference the

arguments, authorities, and exhibits relied on by Entergy, and sought dismissal of Clayton’s

ordinary-negligence claim or, alternatively, a stay of the proceedings pending review by the

Commission.

       On December 19, 2013, the circuit court held a hearing on various pending motions

in both the instant case and that involving the death of Wade Walters, including Entergy’s and

DP’s motions to dismiss.3 It subsequently entered its order denying the motions on March

12, 2014. The circuit court’s twenty-three-and-one-third page order contained fifty-three

findings of fact and forty-three conclusions of law. The order ultimately concluded that

neither EAI nor EOI could satisfy the requirements to be a “statutory” or “special” employer

of Walters or Clayton as a matter of law; it therefore denied Entergy’s motion to dismiss in



       3
        The circuit court further noted that the hearing included matters in a case styled as
Entergy Arkansas, Inc. v. Bigge Crane & Rigging Co., No. 2013-166.

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its entirety. The circuit court further concluded that DP could not establish immunity as a

matter of law and also denied its motion to dismiss in its entirety.

       On May 7, 2014, Entergy filed the instant petition for writ of prohibition or certiorari

with this court, claiming that the circuit court is wholly without jurisdiction and seeking to

prevent the circuit court from continuing to exercise jurisdiction over the matter until the

Commission has spoken. It contends that the Commission has exclusive, original jurisdiction

to decide in the first instance whether Clayton’s claims against it are covered by the Workers’

Compensation Act. Entergy avers that both of its defenses under the Act are fact-based and,

therefore, the Commission must decide in the first instance the fact-driven question of

whether Entergy is a statutory or special employer covered by the Act. Clayton, on the other

hand, urges that the material facts are undisputed such that the circuit court had jurisdiction

to determine Entergy’s immunity as a matter of law.

       DP also petitions this court for a writ of prohibition, adopting and incorporating

Entergy’s arguments in its petition. DP contends that Arkansas law is clear that the

Commission has exclusive jurisdiction to consider and decide issues of fact, including factual

issues regarding the existence of a special-employer relationship, as well as issues of fact

regarding whether a person is entitled to co-employee immunity. Accordingly, it urges, the

circuit court encroached upon and supplanted the Commission’s jurisdiction when it issued

the order denying DP’s and Entergy’s motions to dismiss and declined to send the issues of

special employer/employee, exclusive-remedy immunity, and co-employee immunity to the

Commission for consideration and determination, and the writ should be issued. As he did


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in response to Entergy’s petition, Clayton argues that the parties agreed that the facts were

undisputed such that the circuit court could determine the issues before it as matters of law.

To that end, he contends, the circuit court correctly exercised its jurisdiction in denying the

motions to dismiss.

       We agree with Entergy and DP that the writs are warranted for the reasons set forth

this same day in Entergy Arkansas, Inc. v. Pope County Circuit Court, 2014 Ark. 506. We

therefore grant the petitions for writ of prohibition.

       Petitions for writ of prohibition granted.

       BAKER and HART, JJ., dissent.

       KAREN R. BAKER, Justice, dissenting. I dissent in this case for the same reasons

that I dissent in the companion case of Entergy Arkansas, Inc. v. Pope County, 2014 Ark 506,

___ S.W.3d____ delivered this same day.

       HART, J., joins in this dissent.

        Quattlebaum, Grooms, Tull & Burrow PLLC, by: Steven W. Quattleaum, John E. Tull III,
and Michael N. Shannon;
        Davis, Clark, Butt, Carithers & Taylor, PLC, by: Constance G. Clark, Colin M. Johnson,
and Kelly Carithers; and
        Munson, Rowlett, Moore and Boone, P.A., by: Bruce E. Munson, Elizabeth A. Fletcher, and
Beverly D. Rowlett; and Kane Russell Coleman & Logan PC, by: Lawrence T. Bowman and Sanjay
K. Minocha, for petitioners.

      Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks;
      Walas Law Firm, PLLC, by: Breean Walas; and
      Bailey & Oliver Law Firm, by: Sach D. Oliver, Frank H. Bailey, and T. Ryan Scott, for
respondents.




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