Farley v. City of Claremore

465 P.3d 1213

Shelli FARLEY, individually and as surviving spouse of Jason Farley, deceased, Plaintiff/Appellant,

v.CITY OF CLAREMORE, Oklahoma, Defendant/Appellee.

No. 115,400

Supreme Court of Oklahoma.

FILED MAY 5, 2020

Steven R. Hickman, Frasier, Frasier & Hickman, L.L.P., Tulsa, Oklahoma, for Plaintiff/Appellant.

Andrew W. Lester, Courtney D. Powell, Spencer Fane L.L.P., Edmond, Oklahoma, for Defendant/Appellee.

EDMONDSON, J.

¶1 Plaintiff, a surviving spouse, successfully obtained a death benefits award in the Workers' Compensation Commission. She then brought a District Court action for damages alleging the death of her spouse was caused by negligence and an intentional tort committed by her spouse's employer who is a local government entity. She argued her action was also for the benefit of her surviving child, as well as the surviving parents and brother of the deceased. We conclude: A tort action for damages suffered by a surviving spouse, surviving child, and parents of a deceased adult child does not survive for the purpose of a 12 O.S. § 1053 wrongful death action when: (a) The wrongful death action arises from an injury compensable by an exclusive workers' compensation remedy and the tort action is brought against the employer of the deceased; and (b) The employer possesses governmental tort claim sovereign immunity. The wrongful death injury was adjudicated and compensated by a successful workers' compensation claim after the death of the decedent. This successful adjudication demonstrates the decedent's injury was exclusively before the Commission and not cognizable as a District Court claim at the time of decedent's death. The parents' action for loss of companionship damages was extinguished at the time of decedent's death and did not survive. We hold the local government entity possessed sovereign immunity because the governmental tort claim against the City was for liability for an injury properly compensated by a claim before the Workers' Compensation Commission. The brother of the deceased did not possess a wrongful death § 1053 action for loss of consortium. We also conclude plaintiff lacked standing to seek injunctive relief. We affirm the District Court's dismissal of the petition with prejudice.

I. Trial Court Proceedings and Issues Raised

¶2 Plaintiff, Shelli Farley, is the surviving spouse of Jason Farley, a former fireman for the City of Claremore who died while responding to an emergency request for assistance during a flash flood in Claremore, Oklahoma. Shelli Farley (Farley) brought an action in the District Court of Rogers County against the City of Claremore (the City) both in an individual capacity and as representative of Jason's estate and alleged an entitlement to damages flowing from Jason's death based upon theories of negligence and intentional tort.¹ In addition to seeking wrongful death damages pursuant to Oklahoma's Government Tort Claims Act (OGTCA), she sought an injunction against the City to require the City to comply with an alleged national standard for operation and training of the City's personnel who perform emergency swift water rescues. Her petition expressly states she has been damaged by medical and funeral expenses for Jason.²

¶3 The City filed a special entry of appearance with a motion to dismiss. Attached to the motion to dismiss is an order of the Workers' Compensation Commission awarding death benefits to Shelli ten months prior to her commencing her District Court action. The appearance and motion relied on 12 O.S. § 2005.2(A) (entry of appearance does not waive § 2012 defenses); 12 O.S. § 2012(B)(1) (lack of jurisdiction over the subject matter) and 12 O.S. § 2012(B)(6) (failure to state a claim upon which relief may be granted). The City argued the following in its motion:

(1) Workers' Compensation remedy was the sole remedy for plaintiff,³and plaintiff had previously and successfully pursued that remedy and was seeking a double recovery;

(2) Plaintiff's claims are barred by 51 O.S. § 155(14) of the OGTCA,⁴ and

(3) Plaintiff's claims are barred by 51 O.S. § 155(6) of the OGTCA;⁵

(4) Plaintiff's claims are barred by 11 O.S. § 29-108 ;⁶

(5) Plaintiff's claims are barred by 51 O.S. § 155(5) of the OGTCA;⁷

(6) Plaintiff's claims are barred by 51 O.S. § 155(4) of the OGTCA;⁸ and (7) Plaintiff lacks standing to seek injunctive relief, and plaintiff's request is beyond the scope of an injunction because an order requiring municipal adoption of a specific standard for water rescues is an attempt to make the City create a "legislative decision."

The City's motion has an attached exhibit showing a prior workers' compensation award of death benefits to Shelli and Jason Farley's minor child.

¶4 Shelli Farley, as surviving spouse and mother of the deceased's minor child, sought and obtained workers' compensation death benefits for the death of Jason. The amount awarded to Farley was a lump sum ($100,000.00) plus $571.55 per week (backdated and continuing).⁹ The amount awarded to the surviving minor child was a lump sum ($25,000.00) to be paid into an interest bearing account with Farley as guardian until the child is 18 years of age, and a weekly benefit of $122.48.¹⁰

¶5 The Commission's Order states funeral expenses were already paid pursuant to 85A O.S. § 47 at the time of the workers' compensation award.¹¹ The award is dated ten months prior to filing Farley's District Court petition action also seeking funeral expenses. Costs were awarded against the City in the Order. The City did not contest Farley seeking workers' compensation benefits. The City stipulated to the facts relating to Jason's employment, his wages, his death as compensable by the Commission, the City's insurance coverage, and the identities of Shelli as surviving spouse and their child as a surviving minor child. No one appeared for either the City or insurance carrier at the hearing before the Commission. The Commission heard testimony from Farley prior to entering the award. The order of the Workers' Compensation Commission is dated July 31, 2015, approximately ten months before May 2016 when Farley brought her action in the District Court of Rogers County against the City.

¶6 Farley responded to the City's motion to dismiss with "Plaintiffs' Opposition to Defendant's Motion to Dismiss with Prejudice and Supporting Brief." She did not contest or otherwise challenge the fact she had previously sought and obtained a workers' compensation award for the death of Jason. Farley argued the following in her response:

(1) Workers' Compensation remedy is not the exclusive remedy because the parents and brother of the deceased, Jason, do not have a remedy with the Workers' Compensation Commission remedy. Further, plaintiff's petition alleges grief and loss suffered by the brother and parents of the deceased spouse.

(2) Plaintiff's claim is not barred by the OGTCA because the City has an obligation to maintain the water drainage system for the City. Section 155(5) of the OGTCA does not bar the claim because the City's actions were ministerial and/or operation as opposed to discretionary.

(3) Plaintiff has standing to seek an injunction because she is a resident of the City and has a personal stake in the outcome of the firefighters being correctly trained for a swift water rescue.

¶7 The City filed a Reply to plaintiff's response which included the following arguments:

1. City of Claremore was immune from liability because Farley had pursued and obtained a worker's compensation remedy.

2. Shelli Farley had obtained a workers' compensation award and the OGTCA confers immunity when the loss is covered by workers' compensation. [citing 51 O.S. § 155(14) ].

3. The parents and brother of the deceased, Jason, do not have a wrongful death remedy.

4. The City is immune pursuant to § 155(4) and § 155(6).

5. Farley lacks standing to obtain an injunction.

¶8 The trial court granted the motion to dismiss with prejudice. The District Court's order includes the following.

After reviewing the filings and hearing the arguments of counsel, the Court finds that when all of the facts alleged are taken as true and inference appropriate drawn, there is no set of facts which would entitle plaintiff to the relief she seeks.

The District Court's order did not state which of the several grounds raised by the City were sufficient for dismissing plaintiff's action.

¶9 Farley appealed the trial court's order and this Court retained the appeal. Her petition in error has three assignments of error on appeal.

1. She states the District Court granted defendant's motion because the deceased was "a person covered by the Workers' Compensation Act." However, the District Court erred because the Petition alleged death as a result of an "intentional tort" and the trial court failed to address plaintiff's constitutional claims relating to how 85A O.S. § 5 defines an intentional tort.

2. The City is not exempt from liability pursuant to the OGTCA § 155(5) because the City failed to maintain a drainage system it had previously installed.

3. "The District Court [erred] in granting dismissal, per the submissions of the parties."

¶10 Farley's appeal is prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the appellate briefs and the assignments of error on appeal are those listed in an appellant's petition in error.¹² Farley's arguments in her trial court filings which serve as her Rule 1.36 appellate briefs are as follows.

(1) Workers' Compensation remedy is not the exclusive remedy because the parents and brother of the deceased, Jason, do not have a remedy with the Workers' Compensation Commission remedy;

(2) Farley's claim is not barred by the OGTCA because the City has an obligation to maintain the water drainage system for the City, and § 155(5) of the OGTCA does not bar her claim because the City's actions were ministerial as opposed to discretionary; and

(3) Farley has standing to seek an injunction because she is a resident

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