SAVANNAH NICOLE LIND, Administrator of the Estate of James David Lind, Sr. Plaintiff/Appellant,
BARNES TAG AGENCY, INC., an Oklahoma corporation; JAMES BARNES a/k/a JIM T. ROY BARNES; JOHN DOES 1 THROUGH 5; and JOHN DOE COMPANIES 1 THROUGH 5, Defendants/Appellees.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV
Brandon A. Johnson, Grove, Oklahoma, for Plaintiff/Appellant.
Folluo and Lauren M. Marciano, Rhodes, Hieronymus, Jones,
Tucker, & Gable, P.L.L.C., Tulsa, Oklahoma, for
Defendants/Appellees Barnes Tag Agency, Inc. and James Barnes
a/k/a Jim T. Roy Barnes.
Plaintiff/Appellant, the administrator of the estate of a
decedent killed by injuries suffered while performing work on
real property, filed suit against the decedent's employer
as well as the sole stockholder of the employer (who is also
the property owner), alleging negligence. The defendants
moved for summary judgment arguing they possessed immunity
from suit pursuant to the provisions of the Oklahoma
Workers' Compensation Act, 85 O.S. §§ 1-413.
The trial court granted summary judgment in favor of the
defendants. The administrator appealed, arguing the trial
court erred by determining that Jim T. Roy Barnes, as the
individual owner of the property, was immune from suit. The
Court of Civil Appeals, Division IV, affirmed and this Court
The question presented in this cause is whether the sole
shareholder of a corporation, who individually owns a
property where an employee of the corporation sustained fatal
injuries, is immune from suit for common-law negligence in
district court under the provisions of the Oklahoma
Workers' Compensation Act. We hold in the negative.
AND PROCEDURAL HISTORY
James David Lind, Sr. (Decedent) was an employee of
Defendant/Appellee Barnes Tag Agency Inc. (BTA). Decedent was
hired on January 14, 2010, to perform maintenance work on
property owned individually by Defendant Jim T. Roy Barnes
(Barnes), the sole stockholder of BTA. On February 21, 2010,
there was an explosion on the property while Decedent was
present, resulting in a fire. Descendent sustained severe
injuries that led to his death on February 26, 2010.
On February 21, 2012, Decedent's children filed a form 3A
in the Workers' Compensation Court, seeking compensation
under the Oklahoma Workers' Compensation Act (OWCA), 85
O.S. §§ 1-413 (repealed by Laws 2013, SB 1062, c.
208, § 171). The Workers' Compensation Court of
Existing Claims entered orders in 2015 determining
Decedent's injury arose out of the course and scope of
his employment with BTA, and that Decedent's surviving
minor children were entitled to death benefits. The
Workers' Compensation Court of Existing Claims also
determined, on November 17, 2015, that the Decedent was not
an employee of Jim Barnes, and dismissed the workers'
compensation claim against Jim Barnes individually with
prejudice. No appeal was made from that order.
Plaintiff/Appellant Savannah Nicole Lind (Lind) is
Decedent's adult daughter and the administrator of
Decedent's estate. On February 21, 2012, Lind filed a
wrongful death action in district court alleging Defendants
breached a duty of care to assure that the premises were in a
suitably safe condition. Defendants BTA and Barnes moved for
summary judgment in the district court action, asserting
Lind's district court action was barred by the exclusive
remedy provision of the OWCA and her exclusive remedy lay in
the Workers' Compensation Court of Existing Claims. On
June 8, 2016, the trial court granted Defendants' motion
for summary judgment, holding: 1) BTA was the employer of
Decedent and benefits were sought and received under the
OWCA; and 2) immunity from suit under the law extended to
Defendants BTA and Barnes.
Lind appealed, filing a Petition in Error with this Court on
July 1, 2016. Lind asserted the trial court erred by: 1)
determining Lind could not pursue a third-party tort claim
against Barnes individually for wrongful death; 2)
determining the employer BTA's immunity from suit
extended to Barnes, a third-party tortfeasor; 3) determining
Barnes was the co-employee of Decedent within the context of
the 85 O.S Supp. 2006 § 3; and 4) adopting an incorrect
interpretation of 85 O.S.Supp. 2005 § 3. The matter was
assigned to Court of Civil Appeals.
The Court of Civil Appeals, Division IV, issued an opinion on
September 12, 2017, in which it determined the issue on
appeal was whether Barnes was entitled to immunity from
Lind's claim that Barnes was liable as a third-party
tortfeasor pursuant to 85 O.S.Supp. 2006 § 44, which
address claims against third persons. The Court of Civil
Appeals concluded: 1) Barnes was not Decedent's
co-employee within the meaning of 85 O.S.Supp. 2006 § 3;
and 2) Barnes was protected from suit by his status as a
corporate shareholder combined with the Workers'
Compensation Court of Existing Claims' factual findings
and award of benefits.
Lind filed a Petition for Writ of Certiorari with this Court
on October 3, 2017. We granted certiorari on January 16,
2018, and the matter was assigned to this office on January
The appellate standard of review of summary judgment is
de novo.  Boyle v. ASAP Energy, Inc.,
2017 OK 82, ¶7, 408 P.3d 183; Tiger v. Verdigris
Valley Electric Corp., 2016 OK 74, ¶13, 410 P.3d
1007; Lowery v. Echostar Satellite Corp., 2007 OK
38, ¶11, 160 P.3d 959. On appeal, this Court assumes
plenary and non-deferential authority to reexamine a trial
court's legal rulings. John v. St. Francis Hospital,
Inc., 2017 OK 81, ¶8, 405 P.3d 681; Stevens v.
Fox, 2016 OK 106, ¶13, 383 P.3d 269; Kluver v.
Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d
Summary judgment will be affirmed only if the Court
determines that there is no dispute as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Lowery, 2007 OK 38 at ¶11; Wathor
v. Mut. Assur. Adm'rs, Inc., 2004 OK 2, ¶4, 87
P.3d 559; Oliver v. Farmers Ins. Croup of Cos., 1997
OK 71, ¶6, 941 P.2d 985. All inferences and conclusions
to be drawn from the materials must be viewed in a light most
favorable to the nonmoving party. Tiger, 206 OK 74
at ¶13; Wathor, 2004 OK 2 at ¶4;
Oliver, 1997 OK 71 at ¶6.
This cause concerns the interpretation and application of
several provisions of the OWCA that were in effect at the
time of Decedent's injuries. Of primary importance is the
OWCA's exclusive remedy provision, 85 O.S.Supp. 2006
§ 12, which provides in pertinent part:
The liability prescribed in Section 11 of this title shall be
exclusive and in place of all other liability of the employer
and any of his employees, any architect, professional
engineer, or land surveyor retained to perform professional
services on a construction project, at common law or
otherwise, for such injury, loss of services, or death, to
the employee, or the spouse, personal representative,
parents, or dependents of the employee, or any other person.
outset, this Court notes it is undisputed on appeal in this
matter that Decedent was found to be an employee of BTA by
the Court of Existing Claims, and that BTA was ordered to pay
death benefits to Decedent's surviving minor children.
The trial court's grant of summary judgment in favor of
BTA, as Decedent's employer, was proper pursuant to the
exclusive remedy provisions of 85 O.S.Supp. 2006 § 12,
and Lind does not argue otherwise.
The question before this Court today is whether Barnes,
individually, is protected from Lind's suit by the
provisions of the OWCA. Title 85 O.S.Supp. 2006 § 44
addresses claims against third persons, and provides in
(a) If a worker entitled to compensation under the
Workers' Compensation Act is injured or killed by the
negligence or wrong of another not in the same employ, such
injured worker shall, before any suit or claim under the
Workers' Compensation Act, elect whether to take
compensation under the Workers' Compensation Act, or to
pursue his remedy against such other.
Barnes Was not Decedent's Co-employee
Barnes first argument on appeal is that he was a co-employee
of Decedent and thus 85 O.S.Supp. 2006 § 44 does not
authorize Lind's suit against him personally. The COCA