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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.