Mandate Issued: 09/27/2017
FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA
HONORABLE BOB W. HUGHEY, JUDGE.
W. Haiges, HAIGES, COURY & ASSOCIATES, Edmond, Oklahoma,
E. Arnold, LYTLE, SOULE & CURLEE, P.C., Oklahoma City,
Oklahoma, for Defendant/Appellee.
Kenneth L. Buettner, Chief Judge.
Plaintiff/Appellant Christina Shadid appeals from the trial
court's order dismissing her lawsuit against
Defendant/Appellee Angel Soriano. Shadid was attacked by a
dog while acting within the scope of her employment at
Defendant K 9 University, LLC, a company that boards and
trains dogs. Soriano is the owner and managing partner of K 9
University, as well as the owner of the dog that attacked
Shadid. We recognize 85A O.S.Supp.2013 § 5 abrogated the
dual capacity doctrine and hold that Shadid's exclusive
remedy against Soriano is provided by the Administrative
Workers' Compensation Act. AFFIRMED.
On September 7, 2014, while acting within the scope of her
employment, Shadid was attacked and injured by a dog owned by
Soriano. Shadid filed a claim with the Workers'
Compensation Commission September 2, 2015. The claim was
resolved by a Joint Petition Settlement November 12, 2015.
Shadid then filed a lawsuit against K 9 University and
Soriano, not as her employer but as the dog owner, in
district court September 7, 2016. Shadid voluntarily
dismissed the suit against K 9 University based on the
exclusive remedy provision of the Administrative Workers'
Compensation Act. See 85A O.S.Supp.2013 § 5. On
December 7, 2016, Soriano filed a motion to dismiss for
failure to state a claim arguing 85A O.S.Supp.2013 § 5
also precluded Shadid from seeking a district court remedy
against him. The trial court entered an order granting
Soriano's motion to dismiss March 31, 2017. Shadid
In reviewing an order dismissing a case for failure to state
a claim upon which relief can be granted, the appellate court
applies a de novo standard to determine if the
plaintiff's petition is legally sufficient. See
Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841. The
court must take as true all of the challenged pleading's
allegations together with all reasonable inferences which may
be drawn from them. Id. "A pleading must not be
dismissed for failure to state a legally cognizable claim
unless the allegations indicate beyond any doubt that the
litigant can prove no set of facts which would entitle him to
relief." Frazier v. Bryan Mem. Hosp. Auth.,
1989 OK 73, ¶ 13, 775 P.2d 281.
The issue on appeal is whether, because Soriano is also the
owner of the dog, the dual capacity doctrine applies.
The seminal case on the dual capacity doctrine is Weber
v. Armco, Inc., 1983 OK 53, 663 P.2d 1221:
According to the dual-capacity doctrine, an employer who is
generally immune from tort liability may become liable to his
employee as a third-party tortfeasor; if he occupies, in
addition to his capacity as employer, a second capacity that
confers on him obligations independent of those imposed on
him as an employer. It is the second capacity which imposes
tort liability on the employer for creating duties to his
employees which are independent from the employment
This concept of duality, which confers third-party status
upon the employer, is more meaningful when viewed in terms of
an employer having a dual persona. An employer may become a
third person if he possesses a second persona so completely
independent from and unrelated to his status as an employer,
that by established standards, the law recognizes it as a
separate legal person. The determinative issue is one of
identity, not of activity or relationship.... The term dual
persona provides legal clarity because it focuses upon the
identity of the employer and not upon activity or
relationship. A single legal person may be said to have many
capacities, as the term capacity has no fixed legal meaning.
As a result, few courts have extended the dual-capacity
doctrine far enough to destroy employer immunity when only a
separate relationship or theory of liability existed.
Id. ¶¶ 5-6 (footnotes omitted).
"Application of the dual-capacity doctrine requires that
the second persona of the employer be completely independent
from his obligations as an employer." Id.
There are circumstances in which application of the
dual-capacity doctrine is appropriate. The doctrine should
not be used when it would serve only to evade the exclusivity
provision of the Oklahoma Workers' Compensation Act. The
doctrine requires a strict and limited application to avoid
imposing liability in every instance upon a
defendant-employer. The decisive dual-capacity test is not
concerned with how separate or different the second function
of the employer is from the first, but whether the second
function generates obligations unrelated to those flowing
from that of employer. This means that the employer must step
outside the boundaries of ...