United States District Court, N.D. Oklahoma
OKLAHOMA MUNICIPAL ASSURANCE GROUP and COMPSOURCE MUTUAL INSURANCE COMPANY Plaintiffs,
CROSSLAND CONSTRUCTION COMPANY, INC. and CROSSLAND HEAVY CONTRACTORS, INC., Defendants.
OPINION AND ORDER
V. HAGAN UNITED STATES DISTRICT JUDGE.
before the Court is plaintiffs' Motion to Remand (Dkt. #
12). Plaintiffs argue that 28 U.S.C. § 1445(c) bars
removal of this case because it arises under Oklahoma's
workers' compensation laws. Dkt. # 12, at 5. Defendants
respond that this suit arises under Oklahoma tort law and
that § 1445(c) is not applicable. Dkt. # 15, at 7.
case involves a workers' compensation subrogation claim.
Plaintiffs provided workers' compensation coverage for
the City of Grove, Delaware County, State of Oklahoma (the
City) during the relevant time period. Dkt # 12-1, at 1.
Robert Bartley was employed by the City as a plant operator.
Id. On or about February 14, 2014, Bartley fell into
an unmarked construction hole and was injured. Id.
at 1-2. Plaintiffs allege that the hole was left by
defendants and that Bartley's injuries were solely caused
by the negligence of defendants and their agents.
Id. at 2. Bartley filed a workers' compensation
claim to recover for his injuries, and plaintiffs have paid
over $90, 000 in benefits to date. Id.; Dkt. # 12,
February 8, 2016, plaintiffs filed this suit in the District
Court of Delaware County, State of Oklahoma. Dkt. # 12-1.
Plaintiffs assert that Bartley's injuries were caused by
defendants' negligence and, therefore, they have a right
to subrogation under Okla. Stat. tit. 85A, § 43B. Dkt. #
12, at 2. Defendants were served on January 20, 2017. Dkt. #
2-1, at 3. On February 8, 2017, defendants removed the case
to this Court. Dkt. # 2. Plaintiffs now move to remand,
arguing that 28 U.S.C. § 1445(c) bars removal of this
case because it arises under Oklahoma's workers'
compensation laws. Dkt. # 12, at 5.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). “Because the jurisdiction of federal
courts is limited, there is a presumption against our
jurisdiction, and the party invoking federal jurisdiction
bears the burden of proof.” Merida Delgado v.
Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). Section
1441(a) allows a defendant to remove most civil actions from
state court to federal court over which the federal court
would have original jurisdiction. However, this provision is
subject to the restriction provided in 28 U.S.C. §
1445(c), which states that “[a] civil action in any
State court arising under the workmen's compensation laws
of such State may not be removed to any district court of the
a claim “arises under the state workers'
compensation law for purposes of the removal statutes is a
question of federal law.” Suder v. Blue Circle,
Inc., 116 F.3d 1351, 1352 (10th Cir. 1997). The only
guidance from the Tenth Circuit on the scope of §
1445(c) comes from Suder, which involved a claim of
retaliation for filing a workers' compensation claim. To
determine whether workers' compensation retaliation
claims fell under § 1445(c), the Tenth Circuit adopted
the test formulated by the Eighth Circuit in Humphrey v.
Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995), which
Under the plain meaning of the [removal] statute, where a
state legislature enacts a provision within its workers
compensation laws and creates a specific right of action, a
civil action brought to enforce that right of action is, by
definition, a civil action arising under the workers'
compensation laws of that state and therefore § 1445(c)
applies; under such circumstances, the action would be
non-removable, subject only to the complete preemption
Suder, 116 F.3d at 1352 (quoting Humphrey,
58 F.3d at 1246) (alteration in original). Oklahoma's
workers' compensation statute prohibited retaliation for
filing a workers' compensation claim. See
id. (quoting Okla. Stat. tit. 58, § 5 (repealed
2011)). Thus, the Tenth Circuit determined that
workers' compensation retaliatory discharge claims arise
under Oklahoma's workers' compensation laws and are
therefore nonremovable. Id. at 1353.
applied by federal courts, the key question under the
Humphrey test is whether the state's
workers' compensation statute creates the specific right
of action. What types of claims are barred from removal by
§ 1445(c) may be inconsistent across district courts,
but cases generally turn on whether the right to bring the
claim was created in the state's workers'
compensation statutes. For example, in Zurich American
Insurance Co. v. General Motors Corp., 242 F.Supp.2d 736
(E.D. Cal. 2003), a district court in California held that
§ 1445(c) barred removal of a subrogation claim because
the state's workers' compensation laws
“create[d] a cause of action for subrogation with
respect to workers' compensation benefits that would not
otherwise be available at common law.” Zurich,
242 F.Supp.2d at 737-38; see also Pemiscot-Dunklin Elec.
Coop. v. Jacobson, No. 1:06-CV-18-LMB, 2006 WL 2432026
(E.D. Mo. Aug. 18, 2006) (finding that under the
Humphrey test a subrogation claim fell under §
1445(c) because Missouri's workers' compensation
created the cause of action). On the other hand, in
Spearman v. Exxon Coal USA, Inc., the Seventh
Circuit found that a workers' compensation retaliation
case did not arise under Illinois's workers'
compensation laws where the claim was created as an
“independent tort action” by the Illinois courts.
Spearman, 16 F.3d at 725; see also Bray v.
Automatan, LLC, 167 F.Supp.3d 770, 773-74 (D.S.C. 2016)
(holding that a subrogation claim was removable because South
Carolina's workers' compensation laws did not
fundamentally alter what was essentially a common law tort
plaintiffs assert a right to subrogation pursuant to Okla.
Stat. tit. 85A, § 43B, which states that “[a]n
employer or carrier liable for compensation under [the
workers' compensation act] for the injury or death of an
employee shall have the right to maintain an action in tort
against any third party responsible for the injury or
death.” The Oklahoma Supreme Court has explained that
“the legislature did not intend the enactment of the
Workers' Compensation Act to abrogate or modify rights of
the insurance carrier who seeks indemnification for the
amount paid by it because of its contractual
obligation.” Prettyman v. Halliburton Co., 841
P.2d 573, 577 (Okla. 1992); cf. Spearman, 16 F.3d at
725 (discussing whether the Illinois Supreme Court considered
the claim at issue a part of Illinois's workers'
compensation law). Moreover, the Oklahoma Supreme Court has
stated that “an insurance carrier's right to
subrogation is not dependent on [workers' compensation
law]” because “[s]ubrogation is an equitable
right and where one has been subjected to liability and
suffered a loss thereby on account of the negligence of
another, one has a right of action against the other for
indemnity.” Id. at 577 n.1 (citing Aetna
Cas. Co. v. Assocs. Transports Inc., 512 P.2d 137 (Okla.
1973); Travelers Ins. Co. v. Leedy, 450 F.2d 898
(Okla. 1969); Stinchcomb v. Dodson, 126 P.2d 257
(Okla. 1942); State Ins. Fund v. Smith, 88 P.2d 895
(Okla. 1939)). Thus, the purpose of § 43B is to protect
a right to subrogation, not create one. See id. at
577 (“[O]nce the insurer is subrogated, [workers'
compensation law] protects its right to maintain an action
against the third party tort-feasor it its own name.”).
This interpretation is bolstered by the text of § 43B,
which states that an insurance carrier has “the right
to maintain an action in tort against any third
party responsible for the injury or death.” Okla. Stat.
tit. 85A, § 43B. Consequently, § 43B “does
not change the fundamental character of the claim, which is
still preserved within [Oklahoma's] common law tort
system.” Arthur v. E.I. DuPont de Nemours &
Co., 58 F.3d 131, 127 (4th Cir. 1995). Unlike a
workers' compensation retaliation claim, which can only
be brought because the right is created by Oklahoma's
workers' compensation laws, a workers' compensation
subrogation claim is created by Oklahoma common law. Under
the Humphrey test, a subrogation claim does not
arise under the workers' compensation laws of Oklahoma.
plaintiffs' claim is essentially a negligence claim, and
the substance of the claim is governed by Oklahoma common
law. Oklahoma's workers' compensation laws protect
plaintiffs' right to bring the claim, but plaintiffs'
right is independent of Oklahoma's workers'
compensation laws. Thus, plaintiffs' subrogation claim
does not ...