Petition for Writ of Certiorari — Aetna Casualty & Surety Co. v. Ellison
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
o~ Supreme Court, U.S.
\ FILED
941496 MAR 1 0 1995
°* ———FFICE OF THE CLERK
N
In The
Supreme Court of the United States
October Term, 1994
e
AETNA CASUALTY & SURETY COMPANY,
A CONNECTICUT CORPORATION,
Petitioner,
THE HONORABLE JAMES O. ELLISON, JUDGE
OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA,
AND, BRUCE A WATSON,
Respondents.
+
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
+
James K. Secrest, II*
EDWARD J. MAIN
Rocer N. Butter, Jr.
Secrest, Hitt & Foittvo
7134 S. Yale, Ste. 900
Tulsa, Oklahoma 74136
(918) 494-5905
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
Dice WC enc tei A ik A Rie
cacti aang Se
QUESTIONS PRESENTED
1. Whether 28 U.S.C. § 1447(d) is a bar to review
“on appeal or otherwise” of an order remanding an
action to a State District Court, under the following cir-
cumstances:
(a) The order of remand makes no explicit ref-
erence to 28 U.S.C. § 1447(c); and
(b) The order of remand does not hold the
action to be one “arising under the workmen’s
compensation laws” of the state, and does not
explicitly cite 28 U.S.C. § 1445(c), although the
order does state the action to be “closely tied to
the Workers’ Compensation Act of the State of
Oklahoma”; and
(c) The order of remand explicitly refers to the
claims as “bad faith”, which is a common law
tort theory; and
(d) The State District Court from which the
action had been removed lacks jurisdiction over
claims arising under the state’s Workers’ Com-
pensation Act, although it does have jurisdiction
over common law “bad faith” torts?
2. Whether the bar to review “on appeal or other-
wise” of an order of remand contained in 28 U.S.C.
§ 1447(d) is an unconstitutional deprivation of due pro-
cess and equal protection under U.S. Const. Amend. V,
where plaintiffs who oppose removal of an action to
Federal Court may obtain appellate review of a refusal to
remand, but an out of state defendant is denied a similar
right of appellate review of an allegedly erroneous order
remanding an action?
LIST OF PARTIES
The petitioner before this Court is the Aetna Casualty
& Surety Company, a Connecticut corporation. Petitioner
was originally named as a defendant in an action com-
menced in the District Court of Delaware County, State of
Oklahoma, which petitioner sought to remove to the
United States District Court for the Northern District of
Oklahoma.
Pursuant to Supreme Court Rule 29.1, petitioner
states that its parent corporation is Aetna Life & Casualty
Company, and that its subsidiaries are Aetna National
Accounts U.K. Ltd., Aetna Casualty Company of Con-
necticut, Aetna Excess and Surplus Lines Company,
Aetna Lloyds of Texas Insurance Company, Aetna Casu-
alty & Surety Company of Illinois, Aetna Casualty &
Surety Company of Canada, Aetna Casualty & Surety
Company of America, Executive Re, Inc., Farmington
Casualty Company, Chelsea Insurance Company, Ltd.,
and Aetna Commercial Insurance Company.
The respondent in this action is Bruce A. Watson, a
resident and citizen of Delaware County, Oklahoma; this
respondent was the original plaintiff in the action com-
menced in the District Court of Delaware County, State of
Oklahoma, and was the appellee in the appeal to the
United States Court of Appeals for the Tenth Circuit,
docket no. 94-5206.
Also named as a respondent is the Honorable James
O. Ellison, Judge of the United States District Court for
ili
LIST OF PARTIES - Continued
the Northern District of Oklahoma. This respondent pre-
sided over the underlying action once removal was
sought from the District Court of Delaware County, State
of Oklahoma, to the United States District Court for the
Northern District of Oklahoma, and was named as
respondent in a Petition for Writ of Mandamus and/or
prohibition filed with the United States Court of Appeals
for the Tenth Circuit, docket no. 94-5201.
iV
TABLE OF CONTENTS
Page
CIDE Ie FURIOUS? 6 ote cnnsscrersenecascuen i
Se SO CIRIRUE 60 54k Co pha ce cha ondbieeewhants li
EP SIE GAO ENE nk 63 ind ctasinsednsdertecken iv
BAAR COP ARTE PURE SIMS occ cae nv sccvcscareeaccess vi
og kk ee ea eee ey ee 1
pt gt Er ree Tre Ts er re Meet eee oe 1
CONSTITUTIONAL AND STATUTORY PROVI-
Ft PE eT PTET Te ee Te PPC reer te rT eet ee 1
SEALE UMNEIETE GFE 2EOD GPRD cs een ct snes edencnnnann 4
REASONS FOR GRANTING A WRIT .............. 7
A. The Court of Appeals Erred in Holding it Did
Not Have Jurisdiction to Review the Remand
PI re ey Fre ry eer ern) rg ee 7
B. The Bar on Appellate Review is
SINE SC vcedevusencues banpusewesast on 12
ee RM errr prey re reer ear nrr 19
Appendix A
Order, United States Court of Appeals for the
Tenth Circuit filed December 14, 1994............. la
Appendix B
Order, United States District Court for the
Northern District of Oklahoma, filed October
Be an Fe ga a eR te ee ee 3a
Appendix C
Transcript of Proceedings held September 30,
1994, United States District Court for the North-
Ts Tae GE CS gn kk c's voc vncas uenacceses 5a
TABLE OF CONTENTS - Continued
Page
Appendix D
First Amended Complaint, filed March 4, 1994,
in the United States District Court for the
Northern District of Oklahoma .................. l4a
Appendix E
Petition, filed August 31, 1993, in the District
Court of Delaware County, State of Oklahoma... 20a
v1
TABLE OF AUTHORITIES
Page
Cases
Albertson's Inc. v. Carrigan, 982 F.2d 1478 (10th Cir.
TR Ore eee mene ye merce penal TYE ape 9
Bank of the United States v. Devaux, 9 U.S. (5th
Se SON... cg en ckneee wanes wens e een i
Bomer-Blanks Lumber Cv. Inc. v. Oryx Energy Co.,
ar RO. FOP CUED. LG. BOGGS. oon he cvccccvevades 11 ;
Goodwin v. Old Republic Insurance Co., 828 P.2d 431
PE oc Vw as aus sh55 based 0544 Ohi dee enn 11
Grassi v. International Paper Co., 961 F.2d 558 (5th
Sy MEE Moen.xnanwekeda tans teeuddsehegeunueenkeon 10 E
Hook v. Morrison Milling Co., 38 F.3d 776 (5th Cir. ;
DU tN chen bree y kes vecunnkedess edeee nears 18
Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th
| reer re rere Torey rt 9, 13, 16, 17
Kolibash v. Committee on Legal Ethics of the West
Virginia Bar, 872 F.2d 571 (4th Cir. 1989) ........... us
Mathews v. Eldridge, 424 U.S. 319 (1976) .......... 14, 16
Powers v. Travelers Insurance Co., 664 F.Supp. 252
ee SOE bance cxcnesdetsaedsseretaien 9
Scott v. Machinists Automotive Trades District Lodge
No. 190 of Northern California, 827 F.2d 589 (9th
Se TE Una hens 5a 0e dedeiuh sah euiwaens 6d¢KAde eee 10
Sheetmetal Workers’ International Assoc. v. Seay, 693
Ge WD CHUNE GoUly WIMEEDS 0s onc cena cddedatecesenes 9
State ex rel. J. Hahn Bakery Co. v. Anderson, 269 Mo.
es Se rete UNE MEOUD cio csens oshccinenentcusnns 15
ee er |
Vii
TABLE OF AUTHORITIES - Continued
Page
Sate Insurance Fund v. Brooks, 755 P.2d 653 (Okla.
| Oe Sere EP rere Te eer eT Tt ree et 10
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.
| rere errr rr er yr. rT 8, 16, 17
Whitson v. Oklahoma Farmers Union Mutual Insur-
ance Co., 66 Okla. B.J. 351 (Okla. 1995)............ 12
CONSTITUTIONAL PROVISIONS
a i a i vn ea enews 1, 12
Ci a, a cw e wah een one yeu 2, 13, 14
STATUTES
ils Shick Wh URED Sisk ka cca snnsnsteenvcscesarvarenes 1
ER ae eS PCr nr err rrr nr er rere 5, 14
Bil tate 2 ee rere Peer rerT TET TEE Tere 2, 14
p Bik S oi fp |. eer rere ee ree passim
BRS ae By ee eee re 3, 6, 8, 9, 18
yp BRS ee eer rrr reer err passim
85 O.S.Supp. 1994 § 1.2(F) ... 2. ccc cccceeceenceess 3, 10
$5 O.SSupp. 1994 § 11... 2c ccc cece ccc cere eceneces 10
ie a es sa vciwat sandal 4, 10
1§ 12
85 O.S. 199
PPT PPC TIS TT TOTP CT eee ee 4, 10
Vili
TABLE OF AUTHORITIES - Continued
Page
OTHER AUTHORITIES
16A Am. Jur.2d “Constitutional Law”, § 859 (1979) .... 15
3 W. Blackstone Commentaries on the Laws of Eng-
a a rer rr rr rere rey i, yhy ero 15
DRABRE COUR 6 cc cdc ekeed caw curwieneenebarsen owen, 15
OPINIONS BELOW
The Order of the United States Court of Appeals for
the Tenth Circuit filed December 14, 1994, denying peti-
tioner’s Petition for Writ of Mandamus and/or Prohibi-
tion, docket no. 94-5201, is printed in the appendix
hereto, at page la.
The Order of the United States District Court for the
Northern District of Oklahoma remanding the underlying
action to the District Court, State of Oklahoma, filed
October 27, 1994, is printed in the appendix hereto at
page 3a.
JURISDICTION
The Order of the United States Court of Appeals for
the Tenth Circuit denying Petitioner’s Petition for Writ of
Mandamus and/or Prohibition was filed with that Court
December 14, 1994. No Petition for Rehearing was
sought, and, accordingly, no order denying rehearing was
entered.
The Jurisdiction of this Court rests upon 28 U.S.C.
§ 1254(1).
¢
CONSTITUTIONAL AND STATUTORY PROVISIONS
CONSTITUTIONAL PROVISIONS
No person shall . . . be deprived of life, liberty,
or property, without due process of law; . .
U.S. Const. Amend. V.
The judicial Power shall extend . . . to Contro-
versies between two or more States; — between a
State and citizens or another State; — between
Citizens of different states; — between Citizens
of the same State claiming Lands under the
Grants of different States, and between a State,
or the citizens thereof, and foreign States, citi-
zens of subjects.
U.S. Const. Art. III § 2.
FEDERAL STATUTES
Except as otherwise expressly provided by Act
of Congress, any civil action brought in a State
Court of which the District Courts of the United
States have original jurisdiction, may be
removed by the defendant or the defendants, to
the District Court of the United States for the
district and division embracing the place where
such action is pending.
28 U.S.C. § 1441(a).
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
United States.
28 U.S.C. § 1445(c).
A motion to remand the case on the basis of any
defect in removal procedure must be made
within thirty days after the filing of the notice of
removal under § 1446(a). If at any time before
final judgment it appears that the District Court
lacks subject matter jurisdiction, the case shall
be remanded. An order remanding the case may
require payment of just costs and any actual
\
eee
RCo
expenses, including attorney fees, incurred as a
result of the removal. A certified copy of the
order of remand shall be mailed by the clerk to
the clerk of the State Court. The State Court may
thereupon proceed with such case.
28 U.S.C. § 1447(c).
An order remanding a case to the State Court
from which it was removed is not reviewable on
appeal or otherwise, except that an order
remanding a case to the State Court from which
it was removed pursuant to § 1443 of this Title
shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d).
OKLAHOMA STATUTES
The [Workers’ Compensation] Court is hereby
designated and confirmed as a court of record,
with respect to any matter within the limits of
the jurisdiction, and within such limits the
judges thereof shall possess the powers and pre-
rogatives of the judges of the other courts of
record of this state.
85 O.S. Supp. 1994 § 1.2(F).
The liability prescribed in Section 11 of this title
shall be exclusive and in place of all other lia-
bility of the employer and any of his employees,
any architect, professional engineer, or land sur-
veyor retained to perform professional services
on a construction project, at common-law or
otherwise, for such injury, loss of services, or
death, to the employer, or the spouse, personal
representatives, parents, or dependents of the
employee, or any other person.
85 O.S. 1991 § 12.
The right of action to recover damages for per-
sonal injuries or death arising and occurring in
employment as herein defined, except the right
of action reserved to an injured employee or his
dependents or other legal representatives in
§§ 12 & 44 of this Title is hereby abrogated and
all jurisdiction of the courts of this state over
such causes, except as to the cause reserved to
such injured employees or their dependents or
other legal representative in §§ 12 & 44 of this
Title is hereby abolished.
85 O.S. 1991 § 122.
STATEMENT OF THE CASE
Bruce A. Watson commenced two actions in the '
courts of the State of Oklahoma. The first was an action in .
the Oklahoma Workers’ Compensation Court, pursuant to
the Oklahoma Workers’ Compensation Act; Aetna did not
at any time seek to remove that action to a Federal
District Court. In his workers’ compensation claim, Wat-
son alleged that he was injured in the course of his
employment with Megan Coves Resort on July 9, 1991.
Aetna provided workers’ compensation insurance to Wat-
son’s employer. On December 13, 1991, the Oklahoma
Workers’ Compensation Court ordered temporary total
disability payments and medical treatment. That order
was affirmed by a three judge panel of the Oklahoma
Tee
—
Workers’ Compensation Court on February 21, 1992. Wat-
son’s workers’ compensation claim was eventually
resolved by a joint petition procedure.
On August 31, 1993, Watson, as plaintiff, commenced
a separate action in the District Court of Delaware
County, State of Oklahoma, styled Bruce A. Watson,
plaintiff v. the Aetna Casualty & Surety Co., a Connecti-
cut corporation, defendant, docket no. CJ-93-229. Watson
asserted a claim for the tort of “insurance bad faith”
based upon an alleged failure to make the payments as
ordered by the Oklahoma Workers’ Compensation Court.
Appendix E, pp. 20a —- 24a.
Aetna removed Watson’s “bad faith” tort action to
the United States District Court for the Northern District
of Oklahoma on November 3, 1993. Aetna invoked the
Federal Court’s diversity jurisdiction under 28 U.S.C.
§ 1332(a)(1) because Watson is a citizen and resident of
Oklahoma and Aetna is a corporation incorporated under
the laws of a state other than Oklahoma, with its princi-
pal place of business in a state other than Oklahoma, and
because the amount in controversy exceeded $50,000.00.
Watson moved to remand the action from Federal
Court back to the District Court of Delaware County,
State of Oklahoma, citing 28 U.S.C. § 1445(c). Aetna
opposed remand on the grounds that the tort asserted by
Watson's claim did not arise under the Oklahoma
Workers’ Compensation Act, but instead invoked com-
mon law principles, which made the action removable to
Federal Court.
Watson filed a First Amended Complaint with the
Federal District Court on March 4, 1994. Appendix D, pp.
15a-19a. Aetna then moved to dismiss Watson’s First
Amended Complaint arguing that it failed to state a claim
upon which relief may be granted under Oklahoma Tort
Law.
Watson’s motion to remand was heard on September
30, 1994. Although the court initially recognized that the
question was whether Watson’s claim was “pure comp”
or whether “it’s something other than that”, the court did
not in fact find that Watson’s action was “pure comp”
and did not explicitly state that the action was unremov-
able under 28 U.S.C. § 1445(c). Instead, “the court’s very
limited analysis” held that the action was “so tied to the
Workmen’s Compensation Act that it more properly
should be addressed by the State Court.” Appendix C,
pp. 6a, 13a; See Appendix B, pp. 3a-4a.
Aetna sought review of the remand order by Petition-
ing the United States Court of Appeals for a Writ of
Prohibition and/or Mandamus (Docket No. 94-5201), and
by commencing an Appeal under the collateral order
doctrine (Docket No. 94-5206). Aetna argued that the
order of the Federal District Court is “reviewable by
appeal or otherwise” because the remand was not based
upon an explicit finding of a “defect in removal pro-
cedure” either by specific reference to statute, 28 U.S.C.
§§ 1445(c), 1447(c), or by an explicit recital or statutory
language. Instead, the court’s selection of phrasing that
approximates to, while falling short of, the statutory lan-
guage suggests that the court recognized that the action
before it fell outside the bar to removal expressed in 28
U.S.C. § 1445(c).
The United States Court of Appeals denied Aetna’s
Petition for Writ of Mandamus and/or Prohibition by an
Order filed December 14, 1994. The Appellate Court held
it did not have jurisdiction to review the remand order,
citing 28 U.S.C. §§ 1445(c), 1447(d). Appendix A, la-2a. it
is this Order which is the subject of this Petition for a
Writ of Certiorari. Aetna’s separate appeal (Docket No.
94-5206) of the remand order remains pending before the
United States Court of Appeals for the Tenth Circuit.
Petitioner submits the United States Court of Appeals
erred in holding it lacked jurisdiction to review the
remand order “by appeal or otherwise” and by denying
Aetna’s Petition for Writ of Mandamus and/or Prohibi-
tion.
Petitioner also submits that the bar to appellate
review contained in 28 U.S.C. § 1447(d) is unconstitu-
tional. Plaintiffs opposing removal may raise that issue
on appellate review; defendants seeking to secure the
federal tribunal to which they are constitutionally and
statutorily entitled, may be granted no less.
4
REASONS FOR GRANTING A WRIT
A. The Court of Appeals Erred in Holding it Did
Not have Jurisdiction to Review the Remand
Order.
This court should grant certiorari because the United
States Court of Appeals for the Tenth Circuit, by holding
it did not have jurisdiction to review the order of remand
“by appeal or otherwise”, has decided a question of
substance in a manner inconsistent with 28 U.S.C.
§ 1447(d), and in such a manner as to deprive defendants
properly invoking a Federal Court’s removal jurisdiction
of the equal protection of the laws, by refusing to enter-
tain appellate review of an order of remand.
The United States Court of Appeals erred when it
dismissed Aetna’s Petition for Writ of Mandamus and/or
Prohibition for lack of jurisdiction. Section 1447(d) “pro-
hibits review of all remand orders issued pursuant to
§ 1447(c) whether erroneous or not and whether review is
sought by appeal or by extraordinary writ.” Thermtron
Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976).
However, the prohibition is limited to the § 1447(c)
grounds: “but we are not convinced that Congress ever
intended to extend carte blanche authority to the District
Courts to revise the Federal Statutes governing removal
by remanding cases on grounds that seem justifiable to
them but which are not recognized by the controlling
statute.” 423 U.S. at 351. Petitioner submits that the bar to
appellate review must be strictly limited to orders which
expressly state that there is “a defect in removal pro-
cedure” or that the Court “lacks subject matter jurisdic-
tion.” 28 U.S.C. § 1447(c). An order which falls short of
such an explicit statement does not clearly invoke
§ 1447(c), and would fall outside the § 1447(d) bar to
review.
Actions “arising under the workmen’s compensation
laws” of a state may not be removed from state to Federal
Court. 28 U.S.C. § 1445(c). However, that statute would
not prevent removal of claim where the right of action is
a judicially created tort, and not a part of the statutory
workers’ compensation scheme. See Jones v. Roadway
El |
Express, 931 F.2d 1086, 1091 n.3 (5th Cir. 1991) (distin-
guishing unremovable statutory action for retaliatory dis-
charge from removable judicially created claim) citing
inter alia, Powers v. Travelers Insurance Co., 664 F.Supp.
252, 254 (S.D. Miss. 1987) (Judicially created action for
bad faith refusal to pay compensation benefits does not
arise under workers’ compensation act; 28 U.S.C.
§ 1445(c) does not bar removal).
The order of remand in this case does not contain an
explicit reference to 28 U.S.C. § 1445(c) or to 28 U.S.C.
§ 1447(c). The Court approximates to, but falls short, of
invoking the statutory language that the underlying
action is one “arising under the workmen’s compensation
law” of the State of Oklahoma. Instead, the Federal Dis-
trict Court “flou]nd[ ] that the bad faith claims asserted
by plaintiff are so closely tied to the workers’ compensa-
tion act of the State of Oklahoma that such matters
should be addressed by the District Court for the State of
Oklahoma, .. . ” Appendix B, p. 3a. The Order speci-
fically identifies the claim as one for “bad faith”; it
should be interpreted as expressing a preference that
such a claim “should be addressed” by the state court.
Thus, the language of the order suggests a discretionary
remand rather than a finding that the action was unre-
movable.
“A remand order based on a District Court’s per-
ceived discretion is not ordered pursuant to § 1447(c).”
Albertson's Inc. v. Carrigan, 982 F.2d 1478, 1480 (10th Cir.
1993); See also Sheetmetal Workers’ International Assoc. v.
Seay, 693 F.2d 1000 (10th Cir. 1982) (remand based upon a
conclusion that a State Court would be “the most equita-
ble forum” subject to review); Kolibash v. Committee on
10
Legal Ethics of the West Virginia Bar, 872 F.2d 571 (4th Cir.
1989) (appellate review available where action was
remanded on grounds that “licensure of professionals is
basically a state function”); Grassi v. International Paper
Co., 961 F.2d 558 (5th Cir. 1992) (remand “in the spirit of
federalism” may be reviewed). An order remanding state
tort claims against an employer was vacated in Scott v.
Machinists Automotive Trades District Lodge No. 190 of
Northern California, 827 F.2d 589 (9th Cir. 1987). The
Appellate Court held the remand orders reviewable
because “they were discretionary dismissals based on a
determination that the claims would be better heard in
State Court.” Id. at 592.
Moreover, the action was removed from a Court that
did not have jurisdiction over a workers’ compensation
claim. The “insurance bad faith” claim asserted by Wat-
son could not be one “arising under the workmen’s com-
pensation law” of Oklahoma. Exclusive jurisdiction for
such claims lies with the Oklahoma Workers’ Compensa-
tion Court. 85 O.S. 1991 § 122. “The Workers’ Compensa-
tion Court is vested with exclusive jurisdiction to
determine and enforce a compensation risk carrier’s lia-
bility to a claimant.” State Insurance Fund v. Brooks, 755
P.2d 653, 656 Okla. 1988) (emphasis original) (footnote
omitted). The Oklahoma Workers’ Compensation Court is
a Court of Record, distinct from the District Courts of
that state. 85 O.S. Supp. 1994 § 1.2(F). Only limited
remedies are available under the Oklahoma Workers’
Compensation Act. 85 O.S. 1991 & Supp. 1994 §§ 11, 12.
The underlying action, which Petitioner’s sought to
remove to Federal Court, was commenced in the District
Court of Delaware County, not in the Oklahoma Workers’
|
11
Compensation Court. The asserted claim was “insurance
bad faith”, a common-law tort and not one of the limited
remedies under the Oklahoma Workers’ Compensation
Act. Appendix E. Insofar as this claim fell within the
jurisdiction of the District Court of Delaware County, it
could not be one “arising under the workers’ compensa-
tion law” of Oklahoma. Section 1445(c) would not bar
removal of that claim.
The fact that the Federal District Court remanded the
action to the District Court of Delaware County is a
further indication that the claim is not one “arising under
the workmen’s compensation law” of Oklahoma. The
Federal Court could not remand the action to a State
Court that did not have jurisdiction. See Bomer-Blanks
Lumber Co. Inc. v. Oryx Energy Co., 837 F.Supp. 769 (N.D.
La. 1993) (action dismissed rather than remanded, as state
law restricted jurisdiction to court other than one from
which action had been removed).
The existence of a “bad faith” tort claim in the
workers’ compensation context is unsettled under Okla-
homa Law. Goodwin v. Old Republic Insurance Co., 828 P.2d
431 (Okla. 1992) raised the issue, but left many questions
unresolved. Nevertheless, the Court carefully distin-
guished a common law “bad faith” tort claim from one
governed by the Workers’ Compensation Act: “By defini-
tion: intentional, willful acts are not within the purview of the
Workers’ Compensation Act.” Goodwin, 828 P.2d at 434
(emphasis original) (footnote omitted). “It is undisputed
that intentional acts are statutorily excluded under the
Workers’ Compensation Act.” Id. at 434. Thus, the kind of
tort considered by the plurality would be one which fell
outside the Workers’ Compensation Act, rather than one
12
which arises under it. That is the only kind of action
which could have been brought in the District Court of
Delaware County; Section 1445(c) does not bar removal of
such a claim.
In a more recent opinion, the Oklahoma Supreme
Court held that an employee could not assert a “bad
faith” tort against and employer in a State District Court.
Whitson v. Oklahoma Farmers Union Mutual Insurance Co.,
66 Okla. B.J. 351 (Okla. 1995). However, this only pro-
vides additional authority for the proposition that an
“insurance bad faith” tort commenced in a District Court
of Oklahoma is not a claim “arising under” the Oklahoma
Workers’ Compensation Act, and may be removed to
Federal Court consistent with § 1445(c).
Therefore, the kind of claim Watson attempted to
assert was not one arising under the Workers’ Compensa-
tion Act, but a common-law tort. That action was prop-
erly removed to Federal Court, and the order of remand
was in error. That error was compounded by the Appel-
late Court’s conclusion that it lacked jurisdiction to
review that order.
B. The Bar on Appellate Review is Unconstitu-
tional
This court should grant certiorari because the bar on
appellate review “by appeal or otherwise” in 28 U.S.C.
§ 1447(d) is an unconstitutional deprivation of due pro-
cess and a denial of equal protection under U.S. Const.
Amend. V. The Tenth Circuit court of Appeals relied upon
that statute when it dismissed Petitioner’s Petition for
Writ of Mandamus and/or Prohibition. Although it may
EEE
13
be the case that a right to appellate review is not manda-
ted in all circumstances by due process, such a right of
review may not be afforded only to some litigants and
denied to others, consistent with due process and equal
protection.
The Constitution provides Federal Court “diversity
jurisdiction” for the benefit of a special class of litigants
who may be apprehensive of defending claims against
them in the courts of a state of which they are not
citizens. U.S. Const. Art. III, § 2. Such a constitutionally
protected class may not be denied a right of review when
review is allowed as a matter of course to plaintiffs,
litigants for whom the Constitution does not express a
similar special concern.
For example, in Jones v. Roadway Express, 931 F.2d
1086, the plaintiff, a terminated truck driver, obtained
appellate review as a matter of course, and among the
issues raised was the denial of his Motion to Remand.
The Court of Appeals held that a statutorily created
“retaliatory discharge” action arose under the Workers’
Compensation Law of Texas, and required remand of the
action pursuant to 28 U.S.C. § 1445(c). 931 F.2d at 1092.
Jones v. Roadway, provides only one example of how a
party opposing removal may obtain review “by appeal or
otherwise” of a decision of a Federal District Court to
retain jurisdiction. As a matter of fundamental fairness,
the same right of review must be extended to parties who
allege error in a Federal District Court’s decision to
remand an action. Appellate review of an allegedly erro-
neous District Court decision is part of the process;
although a right of appeal may not be present in every
instance, it cannot be allowed to some but denied to other
14
litigants consistent with due process and equal protec-
tion.
This Court has recognized a balancing test to deter-
mine what procedures are required by due process:
First, the private interest that will be affected by
the official action; second, the risk of an erro-
neous deprivation of such interest through the
procedures used, and the probable value, if any,
of additional or substitute procedural safe-
guards; and, finally, the Government’s interest,
including the function involved and the fiscal
and administrative burdens that the additional
or substitute procedural requisites would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The first
factor, the private interest affected, is the right of an out-
of-state defendant to a Federal forum for a trial of the
claims asserted against it. This right is acknowledged in
the Constitution, which provides that “the judicial power
shall extend . . . to controversy . . . between citizens of
different states; . . . ” U.S. Const. Art. III, § 2. This
constitutional power was implemented by Congress
enacting the statutes providing both for the diversity
jurisdiction of Federal Courts, and for the removal of
actions by an out-of-state defendant to Federal Court,
where diversity exists. 28 U.S.C. § 1332, 1441. Thus, the
right of an out-of-state defendant to a Federal forum is of
constitutional dimension:
However true the fact may be, that the tribunals
of the states will administer justice as impar-
tially as those of the nation, to parties of every
description, it is not less true that the Constitu-
tion itself either entertains apprehensions on
this subject, or views with such indulgence the
|
15
possible fears and apprehensions of suitors that
it has established national tribunals for the deci-
sion of controversies between aliens and a citi-
zen or between citizens of different states.
Aliens, or citizens of different states are not less
susceptible of these apprehensions, nor can they
be supposed to be less the objects of constitu-
tional provision because they are allowed to sue
by a corporate name.
The Bank of the United States v. Deveaux, 9 U.S. (5 Cranch)
61, 87 (1809). That is, out-of-state defendants are a class
for which the Constitution has a special concern. That
class may not be deprived of procedures, including
appellate review, that are available to other litigants.
A party otherwise entitled to appeal who, by the
construction of a statute, is prevented from
doing so, where such right is given to all others
in similar cases, is thus deprived of the right of
due process of law.
16A Am. Jur.2d “Constitutional Law”, § 859 pp. 1082-83
(1979), citing State ex rel. J. Hahn Bakery Co. v. Anderson,
269 Mo. 381, 190 S.W. 857 (1916). Even if appellate review
is not, by itself, an essential element of “due process”, it
cannot be allowed to some and denied to others consis-
tent with that Constitutional guarantee. 190 S.W. at 858.
Just as the seeds of due process are found in chapter 39 of
Magna Carta, so chapter 61 recognized the right to peti-
tion for redress of wrong by a King’s Justiciar. Blackstone
considered a hierarchy of courts with appellate review to
be “[a]n institution that seems highly agreeable to the
dictates of natural reason, as well as of more enlightened
policies; ... ” 3 W. Blackstone Commentaries *31 (1768).
16
Therefore, the private interest at stake is that of an
out-of-state defendant to a federal forum for trial of an
action, coupled with the interest any litigant has in appel-
late review to correct a perceived error in an erroneous
action by a Trial Court.
The second factor in the Mathews v. Eldridge balanc-
ing test is “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safe-
guards.” 424 U.S. at 335. This Court has noted that the bar
on review in 28 U.S.C. § 1447(d) extends even to an order
that “might be deemed erroneous by an Appellate
Court.” Thermtron, 423 U.S. at 351. The effect of § 1447(d)
is to eliminate any “procedural safeguards” against the
possibility of an erroneous deprivation of a defendant's
right to a Federal forum. This absence of procedural
safeguards must be weighed against the presence of safe-
guards when a Federal Court erroneously retains jurisdic-
tion of a case. See Jones v. Roadway, supra. The allowance
of review of a remand order “by appeal or otherwise”
would be an additional “procedural safeguard” that
would ensure out-of-state defendants that full measure of
process which is their due.
The third factor of the Mathews v. Eldridge balancing
test is “the government's interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requisites would
entail.” 424 U.S. at 335. The governmental interest in
denying review of remand orders cannot be alleviating a
Federal Court’s case load:
17
That justice may move more slowly in some
Federal Courts than in their state counterparts is
not one of the considerations that Congress has
permitted the District Courts to recognize in
passing on remand issues.
Thermtron, 423 U.S. at 351. The elimination of a legitimate
invocation of a Federal Court’s diversity jurisdiction can-
not be a governmental interest underlying § 1447(d).
Additionally, the policies enunciated in Bank of United
States v. Deveaux, supra, establish that there is a real
governmental interest in the existence of diversity juris-
diction, and in the maintenance of suits between citizens
of different states in a Federal Tribunal.
The interest promoted by § 1447(d) is not so much a
governmental interest, as a private interest in speedy
litigation:
There is no doubt that in order to prevent delay
in the trial of remanded cases by protracted
litigation of jurisdictional issues (citation omit-
ted) Congress immunized from all forms of
appellate review any remand order issued on
the grounds specified in § 1447(c), whether or
not that order might be deemed erroneous by an
Appellate Court.
Thermtron, 423 U.S. at 351. However, the specific means
adopted to that end are not narrowly tailored to avoid
“protected litigation of jurisdictional issues.” Such litiga-
tion may still occur where the District Court declines to
remand an action, and the issue is reasserted on appeal,
as in Jones v. Roadway, supra. In that case, after the liti-
gants proceeded in Federal Court through to Summary
Judgment, the Appellate Court ordered the matter
18
remanded to State Court. The improper removal issue
could also be raised on appeal after trial on the merits, or
in any of a number of other situations in which a party
who opposes removal pursues the issue on appeal. There-
fore, “protracted litigation” is not avoided by declaring
only orders remanding an action to be unreviewable by
appeal or otherwise. In contrast, an interest in avoiding
protracted litigation could be readily furthered by a pro-
cedure which allows immediate appeal of any order on a
motion to remand, either granting or denying said
motion. This could be by Petition for Writ of Mandamus
and/or Prohibition, or by certified interlocutory appeal,
or some other such device. Such a procedure would allow
all parties the same right to appellate redress of an order
they considered erroneous. All parties would be granted
equal protection, and all parties would be due the same
process.
In contrast, the current procedure falls short of any
appearance of fundamental fairness. A remand order
which mechanically recites section 1447(c) or its language
is immune to review, however erroneous, whereas an
order that “provides a reason unrelated to § 1447(c)” is
reviewable. Hook v. Morrison Milling Co., 38 F.3d 776, 780
(Sth Cir. 1994). In the current procedure, form prevails
over substance, at the expense of fundamental fairness.
In summary, petitioner submits that the complete bar
of “review by appeal or otherwise” of an order directing
remand of an action, but not of an order denying remand,
as set forth in 28 U.S.C. § 1447(d) is unconstitutional. It
denies a right of appellate review to out-of-state defen-
dants who invoke a Federal Court’s constitutionally
diversity jurisdiction, although plaintiff's may seek
|
19
review “on appeal or otherwise” of a District Court Order
refusing to remand an action. Therefore, the bar in review
does not provide all litigants the equal protection of the
laws, and deprives out-of-state defendants that full mea-
sure of process which is their due.
S
CONCLUSION
WHEREFORE, petitioner prays that a Writ of Cer-
tiorari issue from this Honorable Court to review the
Order of the United States Court of Appeals for the Tenth
Circuit in this action. In the event that this petition is
granted, petitioners pray that the order of the Appellate
Court be reversed, and that it be directed to accept juris-
diction and review the order of the United States District
Court for the Northern District of Oklahoma, remanding
the underlying action to the District Court of Delaware
County, State of Oklahoma.
Respectfully submitted,
James K. Secrest, II,* OBA #8049
Epwarp J. Main, OBA #11912
Rocer N. Butter, Jr., OBA #13668
Secrest, Hit & Fottuo
7134 S. Yale, Ste. 900
Tulsa, Oklahoma 74136
(918) 494-5905
*Counsel of Record
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
AETNA CASUALTY & SURETY
COMPANY, a Connecticut
corporation,
)
)
)
om )
Petitioner, No. 94-5201
¥. ) (Filed
HONORABLE JAMES O. ) Dec. 14, 1994)
ELLISON, Judge of the United
States District Court for the )
Northern District of Oklahoma,
)
Respondent.
ORDER
Before TACHA and BRORBY, Circuit Judges.
This is an original proceeding in the nature of man-
damus. Petitioner seeks an order directing the district
court to vacate its order remanding case No. 93-C-985-E
to the state court from which the case had been removed
and to exercise jurisdiction over the case.
Upon consideration thereof, the petition is denied.
The district court remanded the case because of a defect
in removal procedure in that the case was removed in
violation of 28 U.S.C. § 1445(c). The court therefore does
not have jurisdiction to review the district court’s order.
2a
28 U.S.C. § 1447(d); Gravitt v. Southwestern Bell Tel Co., 430
U.S. 723 (1977) (per curiam).
Entered for the Court
PATRICK FISHER, Clerk
By /s/ Barbara Schermerhorn
Deputy Clerk
3a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR NORTHERN DISTRICT OF OKLAHOMA
BRUCE A. WATSON,
Plaintiff, ) No. 93-C-985-E
(Filed
Oct. 27, 1994)
-V-
THE AETNA CASUALTY AND
SURETY COMPANY, a
Connecticut Corporation,
Defendant.
ORDER
COMES ON for consideration and hearing before the
undersigned Judge of the United States District Court on
the 30th day of September, 1994, Plaintiff’s Motion for
Remand. The Court, being well and fully advised in the
premises, finds that the bad faith claims asserted by
Plaintiff are so closely tied to the Workers’ Compensation
Act of the State of Oklahoma that such matters should be
addressed by the District Court for the State of Okla-
homa, and therefor, Plaintiff's Motion for Remand should
be and is hereby granted.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the above styled and numbered cause be
and is hereby remanded to the District Court of Okla-
homa, in and for Delaware County.
/s/ JAMES O. ELLISON
Honorable James O. Ellison
Judge of the United
States District Court
4a
APPROVED AS FOR FORM AND CONTENT:
/s/ Bryce A. Hill
Bryce A. Hill
Counsel for Plaintiff
/s/ R. Butler, Jr.
James K. Secrest, II
Roger N. Butler, Jr.
Counsel for Defendant
creihy ype tea coneueeer
5a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRUCE A. WATSON,
Plaintiff,
V.
AETNA CASUALTY AND
SURETY, COMPANY, a
Connecticut Corporation,
Defendant.
No. 93-C-985-E
REPORTER’S TRANSCRIPT OF PROCEEDINGS
HAD ON SEPTEMBER 30, 1994
HEARING ON MOTION TO REMAND
BEFORE THE HONORABLE JAMES O. ELLISON, Chief
Judge.
APPEARANCES:
For the Plaintiff: Mr. Bryce A. Hill
Hill & Knight
717 South Houston, Suite 508
Tulsa, Oklahoma 74127
For the Defendant: Mr. James K. Secrest
Secrest, Hill & Folluo
7134 South Yale, Suite 900
Tulsa, Oklahoma 74136
6a
[p. 2] PROCEEDINGS
September 30, 1994
THE COURT: Please be seated. Good afternoon.
We have you both on the same side of the table. You
should work out this problem.
MR. SECREST: We were close, Judge.
THE COURT: Very close.
MR. SECREST: Real close.
THE COURT: Well, this is one of the most inter-
esting issues that I have had presented because what the
Court is going to have to determine is whether we are
talking about workmens’ compensation or something
else. And the defendant has filed a motion to dismiss but
the Court can’t address that until the plaintiff has an
opportunity to present the motion to remand and the
Court has acted on that. And of course if its pure comp it
will be remanded; if it’s something other than that it will
stay here, then we will address it is [sic] motion to
dismiss.
MR. SECREST: Yes.
THE COURT: So I will hear from plaintiff first.
MR. HILL: Your Honor, on our motion to
remand we - this case is somewhat unusual in that as far
as I know there has only been one of them tried, and that
was two weeks ago in Tulsa County, an insurance bad
faith on a workers’ compensation claim. There has been
several filed and I think even Judge [p. 3] Brett has
addressed a few of them here in this court.
0 ne OP RR cane oan
|
i
i
|
|
7a
THE COURT: But they weren’t exactly pos-
tured, I mean they weren’t postured precisely like this.
MR. HILL: That's true. They are a little differ-
ent although they arose out of the workers’ compensation
court.
THE COURT: Right.
MR. HILL: We would liken this case to the
Cooper case that was addressed by Judge Brett, and in
that case he remanded the action back to Tulsa County
District Court pursuant to Section 1445(c), and that’s the
case we just tried two weeks ago. This case is similar.
And the cause of action of insurance bad faith as it relates
to a workers’ compensation claim comes from Goodwin,
and they go through an extended analysis as to why
workers’ compensation insurance is not excluded from
this duty of good faith and fair dealing.
Now the language in there is somewhat ambiguous.
It talks about there has to be a nonpayment of an award,
of an order and of a claim. It’s our position that while
that is the thing they were talking about in Goodwin, that
order was 18 days late being paid and they said that
wasn’t in and of itself bad faith or actionable bad faith.
They assumed that there was such a cause of action on
the workers’ compensation insurance or carrier.
THE COURT: Of course what you are urging
here is that the defendant’s appeal, the defendant's
appeal really [p. 4] constituted bad faith, aren’t you?
MR. HILL: Well the appeal — and the thing that
Goodwin doesn’t address that I just don’t see how we can
overlook is that there are statutory provisions which is
8a
statutory law that if they receive notice of an injury, there
is a workers’ compensation court rule that within 20 days
they must start making temporary totally [sic] disability
payments and provide medical treatment. There is Sec-
tion 22.5 in the Oklahoma statute that say [sic] that once
they receive notice they are to provide temporary total
disability and medical payments within 10 days. So they
had notice. This man was hurt in August of 1991, we
went to trial in December of 1991. Obviously they had
notice but they didn’t pay for medical treatment or for
temporary disability. One of our elements of damage
includes that he had to have surgery, and Dr. Simmons
would say that had he been provided treatment earlier
the surgery may have been avoided.
THE COURT: What’s available for relief under
the compensation laws in regard to any late payments? Is
there any sort of penalty that can be imposed? I’m not
talking about bad faith.
MR. HILL: There can be. There are instances
where, if in such as this you don’t have a defense, you
can be awarded at the court’s discretion a 10 percent
penalty, and that may be a 15 percent penalty now, that
can be added to a temporary [p. 5] total disability award.
But that is not - really it’s not a punitive type provision,
it’s more of a -
THE COURT: Like interest.
MR. HILL: An interest type provision to try to
enforce people to pay the benefits when they are due.
And that is under a statute. Now that’s not addressed in
Goodwin but I don’t see how you can ignore Oklahoma
law and say an order of the court has got to be enforced
9a
on the one hand but a legislative enactment doesn’t have
to be on the other hand. It doesn’t preclude an action for
violation of the compact. They have obligations and
duties because it is couched in terms of shall and will pay
and what type thing.
And Goodwin also follows the case line of Christian,
Timmons, McCorkle and makes a bad faith claim. All acts
of bad faith, while that may be a tort, the things that gave
rise, all acts of bad faith, the failure to pay, the failure to
deal in good faith, failure to present a defense in this case
whatsoever, arose in the workers’ compensation court
which would make this claim workers’ compensation
related because it deals strictly with our statutes and
workers’ compensation law and the workers’ compensa-
tion court, and that is an Oklahoma matter which under
Title, 25 U.S.C. Section 1445 would necessarily mean it
should be remanded and handled in state court just like
Cooper was that Brett handled back in 1991.
THE COURT: How do you deal with Goodwin?
[p. 6] MR. HILL: How do I deal with Goodwin?
THE COURT: Yes.
MR. HILL: Well, Goodwin is the only case we
have that is published right now. I’m sure the case we
tried two weeks ago will eventually be published and
hopefully answer some questions for us. Goodwin on
page 436 of the Goodwin opinion refers to nonpayment of
a claim. It says nonpayment of a claim will give rise to a
cause of action for bad faith. Other places in the opinion
of Goodwin talks about orders, but there is one specific
10a
place, a paragraph on page 436 of Goodwin where it talks
about a claim, not talking about an order.
The thing that we have here that was not addressed
in Goodwin, which I think distinguishes them, Goodwin
was talking about you must have a court order that’s not
paid.
THE COURT: That was Judge Brett’s wording.
MR. HILL: Okay, and that was Judge Brett's
wording. But in this instance we have an Oklahoma stat-
ute that was not complied with which I think should
carry at least equal, if not more weight, since that was a
statute enacted by our legislature and couldn’t even be
appealed. A court order can be appealed. This was a
legislative mandate that was not followed. In that respect
this is maybe a step beyond Goodwin but it certainly is
one that can easily be made because the statutory enact-
ment must be followed just like a court order must be
followed.
[p. 7] THE COURT: Didn’t Judge Brett in
Cooper really find that bad faith could not be developed
until after a court order had been entered, wasn’t that the
wording?
MR. HILL: He may have worded it that way,
Your Honor. I think what Judge Brett did not understand
and what was not presented in that instance either is the
fact that you have statutory obligations that you must
meet if you are going to write workers’ compensation
insurance in the State of Oklahoma. Also in many
instances there is even a specific statute that will tell you
lla
a Court order is not required for you to comply with this.
It’s in Rule 14.
THE COURT: Well, in this case didn’t you have
a court order that was appealed?
MR. HILL: It was appealed, there was a court
order. But our complaint —
THE COURT: Goes to earlier, I know.
MR. HILL: Is earlier, previous to that.
THE COURT: The 20 day period is what you
are talking about.
MR. HILL: Yeah, the 10 day period and the 20
day period, and here we had to go six months’ went to
court and they didn’t present a defense. They didn’t call a
witness, they didn’t present a defense.
THE COURT: And then they appealed it.
MR. HILL: Then they appealed it. They still
didn’t [p. 8] have a defense. Went to court and it unani-
mously affirmed. And that is the problem we had with
this. They ignored statutory mandates to pay those bene-
fits under compact. If they had a legitimate defense we
don’t argue with the fact they have the right to litigate a
claim, but they have got to litigate it with something.
THE COURT: Okay. Thank you very much.
MR. SECREST: Your Honor, I understand the
Court’s dilemma in this case.
THE COURT: It is a very close and difficult
question the way it is posed.
12a
MR. SECREST: And I’m not sure there is any-
thing I can say or offer to the Court that the Court isn’t
already aware of except to point out that, of course, we
rely heavily on Judge Brett’s opinion in the case and more
importantly the Clinton case, that was another case that
we were involved in, and for the reasons mentioned in
our brief suggest to the Court that not only on our motion
to dismiss but also on the motion to remand, that the
language in that order, even though it’s not on all fours,
the facts are not on all fours, should at least be somewhat
persuasive to this Court. No matter what counsel wants
to call the nature of his lawsuit it’s still, 1 think when you
get down to the bare bones, a bad faith lawsuit which
smacks in the eyes in the face of the common law a
violation of what he would consider or what I would
consider to be a common [p. 9] law versus a statutory or
some type of workers’ compensation, violation of a
workers’ compensation court order. That being the case,
no matter what color you paint the wail, he’s still asking
for recovery from this Court or at least in the Delaware
County court so far which we have removed here, under
a cause of action based on workers’ comp but not neces-
sarily a violation from any sort of workers’ compensation
order as such. And I can stand here and talk for a long
time and I don’t think I could enlighten you at all.
THE COURT: That’s your position and I under-
stand.
w MR. SECREST: Thank you.
THE COURT: Well, it is an extremely close call.
However, I feel that because plaintiff is calling upon a
provision and relying upon a provision of the workmens’
13a
compensation law as far as payment is concerned, and
under the facts of this case whatever bad faith claim is
asserted certainly falls under the umbrella of the work-
mens’ compensation act and the Court feels that it is so
tied to the workmens’ compensation act that it more
properly should be addressed by the state court and I’m
going to grant the motion to remand and I'll direct the
plaintiff to prepare an order and submit it to opposing
counsel reflecting the Court’s very limited analysis and
submit it back to me within 10 days, if you would do that.
It’s good to see both of you gentlemen.
[p. 10JMR. SECREST: Thank you, sir.
MR. HILL: Thank you, Judge.
(Recess).
A TRUE AND CORRECT TRANSCRIPT.
CERTIFIED: /s/ Glen R. Dorrough
Glen R. Dorrough
United States Court Reporter
l4a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF OKLAHOMA
BRUCE A. WATSON,
Plaintiff,
~"
-V-
THE AETNA CASUALTY
AND SURETY COMPANY, a
Connecticut Corporation,
No: 93-C-985-E
(Filed Mar. 4, 1994)
Defendant.
i
FIRST AMENDED COMPLAINT
COMES NOW the Plaintiff, Bruce A. Watson, and for
his causes of action against Defendant, The Aetna Casu-
alty and Surety Company, alleges and states:
I.
At all times material herein, Plaintiff, Bruce A. Wat-
son, was a resident and citizen of Delaware County.
At all times material herein, Defendant, The Aetna
Casualty and Surety Company was a corporation orga-
nized and existing under the laws of the state of Connect-
icut and conducting business in Delaware County, State
of Oklahoma and may be served through the Commis-
sioner of Insurance as service agent at 48 Will Rogers
Memorial Office Building, Oklahoma City, Oklahoma
73105.
15a
II.
INSURANCE BAD FAITH
On July 9, 1991 Plaintiff, Bruce A. Watson, was
involved in an on the job accident which arose out of and
in the scope of his employment with Meghan Coves
Resort. As a result of said accident, Plaintiff sustained
permanent injuries including but not limited to injuries to
his back, right knee, neck, and right shoulder.
Il.
Plaintiff caused an Employee’s First Notice of Acci-
dental Injury and Claim for Compensation (Form 3) to be
filed with the Workers’ Compensation Court for the State
of Oklahoma on or about August 7, 1991.
IV.
At the time of the above mentioned injury Meghan
Coves Resort was insured under a policy of insurance
issued by the Defendant, The Aetna Casualty and Surety
Company, and that said insurance policy provided
workers’ compensation coverage to Plaintiff, Bruce A.
Watson.
V.
The on the job injuries sustained by Plaintiff, Bruce
A. Watson, met the requisite conditions precedent to
recover Workers’ Compensation Benefits under the above
mentioned insurance policy and the laws of the State of
Oklahoma.
l6a
VI.
After trial on the issues of temporary total disability
and other benefits, Judge Ben P. Choate, Jr., of the Okla-
homa Workers’ Compensation Court issued an Order on
December 13, 1991, finding that Plaintiff, Bruce A. Wat-
son, was entitled to temporary total disability benefits
and medical treatment.
VIL.
The December 13, 1991, Order of Judge Choate was
appealed to the Workers’ Compensation Court Three
Judge Panel with the Order being unanimously affirmed
after oral arguments on February 21, 1992.
VII.
The Order On Appeal of the Three Judge Panel was
not appealed by the Defendant and became a final Order
on March 20, 1992.
IX.
Plaintiff was an employee of Meghan Coves Resort at
the time of his on the job injury and Defendant had a
duty to act in good faith and deal fairly with Plaintiff in
payment and administration of workers’ compensation
benefits.
X.
In failing to provide workers’ compensation benefits
to Plaintiff without just cause and without any defense to
17a
the claim constitutes willful, wanton and with gross dis-
regard for the rights of Plaintiff. Further, the actions of
Defendant, by and through its agents and employees,
constitutes gross negligence and entitles Plaintiff to
recover punitive damages from Defendant.
XI.
At all times material herein Defendant was acting by
and through its agents, employees, and representatives
who were acting within the course, scope and authority
of their agency and employment.
XII.
Due to Defendant’s failure to act in good faith and
deal fairly with Plaintiff by refusing to provide payments
of temporary total disability benefits and in failing to
provide required medical treatment in a timely manner,
Plaintiff was required to undergo surgery, has endured
extreme emotional and physical pain and suffering, and
has suffered an increase in permanent disability, embar-
rassment, impaired earning capacity, loss of income and
has been otherwise damaged.
XIII.
Due to Defendant's failure to act in good faith and
deal fairly with Plaintiff by refusing to provide payments
of temporary total disability benefits and in failing to
provide required medical treatment in a timely manner,
Plaintiff will in the future endure extreme emotional and
physical pain and suffering and will suffer an additional
18a
increase in permanent disability, embarrassment,
impaired earning capacity, loss of income and will con-
tinue to be otherwise damaged.
WHEREFORE, premises considered, Plaintiff prays
for judgment against Defendant in an amount in excess of
$10,000.00 for actual damages and an amount in excess of
$10,000.00 for punitive damages together with the costs
of this action, interest at the statutory rate and a reason-
able attorney’s fee.
Respectfully Submitted,
HILL & KNIGHT
/s/ Bryce A. Hill
Bryce A. Hill O.B.A. #11346
717 S. Houston, Suite 508
Tulsa, Oklahoma 74127
(918) 584-2889
JURY TRIAL DEMANDED
ATTORNEY LIEN CLAIMED
/s/ Bryce A. Hill
Bryce A. Hill
19a
CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of March, 1994 I
mailed a true and correct copy of the above and foregoing
First Amended Petition to:
Melvin C. Weiman, Esq.
7134 South Yale, Suite 900
Tulsa, Oklahoma 74136
with proper postage attached thereto fully prepaid.
/s/ Bryce A. Hill
Bryce A. Hill
20a
APPENDIX E
THE DISTRICT COURT OF DELAWARE COUNTY
STATE OF OKLAHOMA
BRUCE A. WATSON,
Plaintiff,
— No. C-93-229
THE AETNA CASUALTY AND
SURETY COMPANY, a
Connecticut Corporation,
ee
Defendant.
PETITION
COMES NOW the Plaintiff, Bruce A. Watson, and for
his causes of action against Defendant, The Aetna Casu-
alty and Surety Company, alleges and states:
i.
At all times material herein, Plaintiff, Bruce A. Wat-
son, was a resident and citizen of Delaware County.
At all times material herein, Defendant, The Aetna
Casualty and Surety Company was a corporation orga-
nized and existing under the laws of the state of Connect-
icut and conducting business in Delaware County, State
of Oklahoma and may be served through the Commis-
sioner of Insurance as service agent at 48 Will Rogers
Memorial Office Building, Oklahoma City, Oklahoma
73105.
2la
Il.
INSURANCE BAD FAITH
On July 9, 1991 Plaintiff, Bruce A. Watson, was
involved in an on the job accident which arose out of and
in the scope of his employment with Meghan Coves
Resort. As a result of said accident, Plaintiff sustained
permanent injuries including but not limited to injuries to
his back, right knee, neck, and right shoulder.
Il.
Plaintiff caused an Employees First Notice of Acci-
dental Injury and Claim for Compensation (Form 3) to be
filed with the Workers’ Compensation Court for the State
of Oklahoma on or about August 7, 1991.
IV.
At the time of the above mentioned injury Meghan
Coves Resort was insured under a policy of insurance
issued by the Defendant, The Aetna Casualty and Surety
Company, and that said insurance policy provided
workers’ compensation coverage to Plaintiff, Bruce A.
Watson.
V.
The on the job injuries sustained by Plaintiff, Bruce
A. Watson, met the requisite conditions precedent to
recover Workers’ Compensation Benefits under the above
mentioned insurance policy and the laws of the State of
Oklahoma.
22a
VI.
After trial on the issues of temporary total disability
and other benefits, Judge Ben P. Choate, Jr., of the Okla-
homa Workers’ Compensation Court issued an Order on
December 13, 1991, finding that Plaintiff, Bruce A. Wat-
son, was entitled to temporary total disability benefits
and medical treatment.
VIL.
The December 13, 1991, Order of Judge Choate was
appealed to the Workers’ Compensation Court Three
Judge Panel with the Order being unanimously affirmed
after oral arguments on February 21, 1992.
VIII.
The Order On Appeal of the three Judge Panel was
not appealed by the Defendant and became a final Order
on March 20, 1992.
IX.
Plaintiff, Bruce A. Watson, received his lump sum
payment and one weekly payment in a timely fashion,
thereafter, without any just cause whatsoever, Defendant
arbitrarily, deliberately, with gross disregard for the
rights of Plaintiff and without any reasonable grounds or
beliefs to do so ceased to pay the remaining Court
ordered benefits to the Plaintiff.
23a
X.
Defendant acted unfairly, in bad faith, in failing to
provide continuing disability payments and medical
treatment benefits as ordered by the Workers’ Compensa-
tion Court.
XI.
Plaintiff was an employee of Meghan Coves Kesort at
the time of his on the job injury and Defendant had a
duty to act in good faith and deal fairly with Plaintiff in
payment and administration of workers’ compensation
benefits.
XII.
In failing to provide workers’ compensation benefits
to Plaintiff as ordered by the Workers’ Compensation
Court the actions of Defendant were willful, wanton and
with gross disregard for the rights of Plaintiff. Further,
the actions of Defendant, by and through its agents and
employees, constitutes gross negligence and entitles
Plaintiff to recover punitive damages from Defendant.
XIII.
At all times material herein Defendant was acting by
and through its agents, employees, and representatives
who were acting within the course, scope and authority
of their agency and employment.
24a
XIV.
Due to Defendant’s failure to act in good faith and
deal fairly with Plaintiff by refusing to provide payments
of temporary total disability benefits and in failing to
provide required medical treatment in a timely manner,
Plaintiff has endured extreme emotional and physical
pain and suffering and has suffered an increase in perma-
nent disability, embarrassment, impaired earning capac-
ity, loss of income and has been otherwise damaged.
XV.
Due to Defendant's failure to act in good faith and
deal fairly with Plaintiff by refusing to provide payments
of temporary total disability benefits and in failing to
provide required medical treatment in a timely manner,
Plaintiff will in the future endure extreme emotional and
physical pain and suffering and will suffer an additional
increase in permanent disability, embarrassment,
impaired earning capacity, loss of income and will con-
tinue to be otherwise damaged.
WHEREFORE, premises considered, Plaintiff prays
for judgment against Defendant in an amount in excess of
$10,000.00 for actual damages and an amount in excess of
$10,000.00 for punitive damages together with the costs
ee
25a
of this action, interest at the statutory rate and a reason-
| able attorneys fee.
Respectfuliy Submitted,
HILL & KNIGHT
/s/ Bryce A. Hill
Bryce A. Hill O.B.A. #11346
717 S. Houston, Suite 508
Tulsa, Oklahoma 74127
(918) 584-2889
JURY TRIAL DEMANDED
ATTORNEY LIEN CLAIMED
/s/ Bryce A. Hill
Bryce A. Hill
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.