Opposition Brief — Aetna Casualty & Surety Co. v. Ellison

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LI NA SUALTY & SUR! CC

(4 ( t | ( (jit! RAT

| iWVNKLE JAMES O LLLISON, I[UDGi

UN! lev STAI DOSPEICT COURT

OR iHE NORTLIERN DISTRICT OF OKLAHOMA

Ni’ BKUCT WATSON,

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On Vetitron Fx Vrit Of Certiorari

The Un: ’ States Court Of Appeals

For The tenth Circuit

ERIEF IN OPPOSITION

B \ HH oF Esq

Hine & KNicnt

? South Houston, Suite 508

luisa, Oklahoma 74127

4 ~ a * PASY

QUESTION PRESENTED FOR REVIEW

Respondent, Bruce A. Watson, rejects the Petitioners’

characterization of the questions presented. The follow-

ing question regarding jurisdiction should initially be

considered:

1) Whether the Petitioner has presented any federal

question or other basis upon which this Court should

accept a petition for writ of certiorari?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

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I THUG 6 6 orb naNies thn eve epeed eae 2

SERA IGANY TOU IOI: occ ccrscsacwenscamaaer ss 2

STATEMENT OF THE CASE............-..-.-.005. 5

FESS on gccaristvicrestieapevasee eee 7

CO PEEIE osc aceecsceecvedevesesveieeree 13

Appendix A

Order, United States District Court for the Northern

District of Oklahoma, filed October 27, 1994.......

Appendix B

Order, United States Court of Appeals for the Tenth

Circuit filed December 14, 1994..................

Appendix C

Order, United States District Court for the North-

ern District of Oklahoma, in the case of William C.

Cooper v. National Union Fire Insurance Company of

Pittsburgh, Pennsylvania; and G.A.B. Services, Inc.,

eS rs bi

Appendix D

Order, United States Court of Appeals for the Tenth

Circuit, in the appeal of William C. Cooper v.

National Union Fire Insurance Company of Pittsburgh,

Pennsylvania; and G.A.B. Services, Inc., Case No.

PPNGE b vap dance dhan ba ¥eabaneadaess Cee

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TABLE OF AUTHORITIES

Page

Cases

Carnegie-Mellon University v. Cohill, 484 U.S. 343,

108 S. Ct. 614, 98 L. Ed. 2d 720 (1988)........... 7,8

Gravitt v. Southwestern Bell Telephone Co., 430 U.S

(0, RRC EES Fee .. 9

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,

96 S. Ct. 584, 46 L. Ed. 2d 542 (1976)........ 7, 8, 9, 10

STATUTES

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No. 94-1496

#

In The

Supreme Court of the United States

October Term, 1994

+

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

*

BRIEF IN OPPOSITION

¢

OPINIONS BELOW

The two unreported written opinions rendered by

subordinate courts in this matter were rendered by the

Honorable James O. Ellison, Judge of the United States

District Court for the Northern District of Oklahoma by

Order filed on October 27, 1994, (Appendix A, la) and by

Circuit Judges Tacha and Brorby of the United States

Court of Appeals for the Tenth Circuit by Order filed on

December 14, 1994. (Appendix B, 3a).

+

1

JURISDICTION

On December 14, 1994, the United States Court of

Appeals for the Tenth Circuit entered its Order finding

that it did not have jurisdiction to consider an appeal

from a remand order of the United States District Court

for the Northern District of Oklahoma. No Petition for

Rehearing was sought by either party. Petitioner seeks a

Writ of Certiorari from that Order.

Petitioner claims jurisdiction pursuant to Title 28

U.S.C. §1254(a), however, Respondent disputes appellate

jurisdiction exists pursuant to Title 28 U.S.C. §1447(d).

*

STATUTORY PROVISIONS

FEDERAL STATUTES

28 U.S.C. §1441. Actions removable generally.

(a) 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 origi-

nal 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. For purposes of removal under this

chapter, the citizenship of defendants sued under ficti-

tious names shall be disregarded.

(b) Any civil action of which the district courts have

original jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

States shall be removable without regard to the citizen-

ship or residence of the parties. Any other such action

shall be removable only if none of the parties in interest

properly joined and served as defendants is a citizen of

the State in which such action is brought.

(c) Whenever a separate and independent claim or

cause of action within the jurisdiction conferred by sec-

tion 1331 of this title is joined with one or more otherwise

non-removable claims or causes of action, the entire case

may be removed and the district court may determine all

issues therein, or, in its discretion, may remand all mat-

ters in which State law predominates.

(d) Any civil action brought in a State court against

a foreign state as defined in section 1603(a) of this title

may be removed by the foreign state to the district court

of the United States for the district and division embrac-

ing the place where such action is pending. Upon

removal the action shall be tried by the court without

jury. Where removal is based upon this subsection, the

time limitations of section 1446(b) of this chapter may be

enlarged at any time for cause shown.

(e) The court to which such civil action is removed

is not precluded from hearing and determining any claim

in such civil action because the State court from which

such civil action is removed did not have jurisdiction

over the claim.

28 U.S.C. §1445. Nonremovable actions.

(c) 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. §1447. Procedure after removal generally.

(c) A motion to remand the case on the basis of any

defect in removal procedure must be made within 30

days after the filing of the notice of removal under sec-

tion 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter juris-

diction, the case shall be remanded. An order remanding

the case may require payment of just costs and any actual

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.

(d) 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

section 1443 of this title shall be reviewable by appeal or

otherwise.

OKLAHOMA STATUTES

TITLE 85 O.S. §3 DEFINITIONS

(7) “Injury or personal injury” means only acciden-

tal injuries arising out of and in the course of employ-

ment and such disease or infection as may naturally

result therefrom and occupational disease arising out of

and in the course of employment as herein defined. Pro-

vided, only injuries having as their source a risk not

purely personal but one that is reasonably connected with

the conditions of employment shall be deemed to arise

out of the employment.

STATEMENT OF THE CASE

On August 7, 1991, Respondent, Bruce A. Watson,

filed his Employees First Notice of Accidental Injury and

Claim for Compensation (Form 3) with the Workers’

Compensation Court of the State of Oklahoma alleging an

injury to his right knee and low back. On September 13,

1991, the employer and petitioner, who was the workers’

compensation insurance carrier for the employer,

answered and denied the claim of respondent. Trial was

held before the Honorable Ben Choate of the Workers’

Compensation Court on December 12, 1991. At trial peti-

tioner presented no witnesses and provided no evidence

to show respondent, Mr. Watson, was not injured, was

not injured in the manner he claimed, was not in need of

medical attention, or that the medical attention he had

received, which included arthroscopic surgery to his right

knee on June 16, 1991, was not necessary and reasonable.

Subsequent to the trial in the Workers’ Compensation

Court Judge Choate entered an Order finding Mr. Watson

had sustained an accidental personal injury arising out of

and in the course of his employment and awarded bene-

fits.

The Order of Judge Choate was appealed by peti-

tioner to the Workers’ Compensation Three-Judge Panel

for review. The Order of Judge Choate awarding benefits

to Mr. Watson was unanimously affirmed. At a later date

the claim of Mr. Watson was settled on a Joint Petition,

which represents a full, final and complete settlement of

his workers’ compensation claim.

On August 31, 1993, Mr. Watson filed a civil action in

the District Court of Delaware County, State of Okla-

homa, alleging that petitioner had dealt with him unrea-

sonably and in bad faith during the course of his

workers’ compensation claim.

On November 3, 1993, petitioner removed the civil

action to the United States District Court for the Northern

District of Oklahoma. Respondent, Bruce Watson, filed

his Motion for Remand on November 12, 1993, asserting

that the action would be remanded due to the mandates

of Title 28 U.S.C. §1445(c). Mr. Watson’s Motion for

Remand was heard before the Honorable James O. Ellison

on September 30, 1994. Judge Ellison ruled 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 Oklahoma”, and thereby granted

Mr. Watson’s Motion for Remand. Judge Ellison’s ruling

was memorialized in a written Order and filed on Octo-

ber 27, 1994. (App. 1)

Petitioner filed its Notice of Appeal with the United

States District Court for the Northern District for Okla-

homa on October 27, 1994, and filed its Petition for Writ

of Prohibition and/or Mandamus with the United States

Court of Appeals for the Tenth Circuit on November 3,

1994. The Court of Appeals directed both parties to file

briefs on the jurisdictional issue of “Whether the district

court order entered on October 28, 1994, remanding the

case to the state court is reviewable on appeal or other-

wise?” After both parties briefed the issue the Court of

Appeals entered its Order on December 14, 1994, denying

eit

petitioners Petition for Writ of Prohibition and/or Man-

damus citing its lack of jurisdiction to review the district

court's order as the reason for denying the writ.

It is the December 14, 1994 Order of the United States

Court of Appeals for the Tenth Circuit from which peti-

tioner now appeals and seeks a Writ of Certiorari.

¢

ARGUMENT

I.

THE COURT SHOULD DENY THE PETITION AS

THERE IS NO JURISDICTIONAL BASIS FOR REVIEW

BY THIS COURT

The United States Supreme Court's decisions as to

the reviewability and propriety of a remand order is

governed by this court’s decisions in Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed.

2d 542 (1976), and Carnegie-Mellon University v. Cohill, 484-

U.S. 343, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988).

In Thermtron, the Defendants had removed a diver-

sity case to Federal Court in compliance with the jurisdic-

tional and procedural requirements set out in 28 U.S.C.

§1441 and 1446. The District Court’s written opinion

acknowledged that Petitioners had properly removed the

case. Nevertheless, the district Judge remanded the case

to the state court on the grounds that his docket was

crowded, diversity cases were assigned the lowest prior-

ity for available trial time, and that Plaintiffs would

receive a speedier trial in the state court. While recogniz-

ing that Defendants had a statutory right to remove the

action, the Judge believed that the rights must be “bal-

anced against the Plaintiffs’ rights to forum of their

choice and their right to a speedy decision on the merits.”

See Thermtron, 423 U.S. at 340, 96 S. Ct. at 587. The

Defendants understandably appealed.

The question before the Supreme Court in Thermtron

was whether, in light of the prohibition on review of

remand orders set out in 28 U.S.C. §1447(d) the Court of

Appeals had jurisdiction to review the district court’s

order. Answering in-the affirmative, the Court reasoned

that the ban on review in 28 U.S.C. §1447(d) was to be

construed in pari materia with the grounds for remand

stated in 28 U.S.C. §1447(c).

This Court initially held that a district court may not

remand a case to state court on discretionary grounds not

authorized by 28 U.S.C. §1447(c). See Thermtron, 423 U.S.

at 345, 351, 96 S. Ct. at 590, 593. Secondly, this Court held

that the bar against review of remand orders contained in

28 U.S.C. §1447(d) applies only to remand orders autho-

rized by 28 U.S.C. §1447(c). Id. at 346, 96 S. Ct. at 590.

Thirdly, this Court held that where a district court issues a

remand order on grounds not authorized by 28 U.S.C.

§1447(c), the order is reviewable by writ of mandamus.

Id. at 352-353, 96 S. Ct. at 593-594. Applying these rules,

this Court found that the district court had exceeded its

authority under 28 U.S.C. § 1447(c) and that a writ of

mandamus should issue to require the district court to

entertain the removed action.

In the subsequent case of Carnegie-Mellon, this Court

revised the first rule and affirmed a discretionary remand

ee ee ee eT

based on the doctrine of pendent jurisdiction. The Car-

negie-Mellon Court held that where a case is properly

removed on the basis of federal question jurisdiction, and

the federal question claim drops out of the lawsuit early

in the litigation, the district court may, in its discretion,

dismiss or remand any remaining pendent state law

claims, even though such a remand is not authorized by

28 U.S.C. §1447(c).

In light of these two cases, this Court must decide

whether the remand in the instant case was authorized by

§1447(c). This Court, in Thermtron, emphasized that

review was available only because a district court remand

order did not purport to remand on a ground authorized

by §1447(c). However, in the case at bar, Judge Ellison in

his remand order determined that “ . . . the bad faith

claims asserted by Plaintiff are so ciosely tied to the

Workers’s Compensation Act of the State of Oklahoma

that such matters should be addressed by the District

Court for the State of Oklahoma, and therefore, Plaintiff's

Motion for Remand should be and is hereby granted.” It

should be noted that while Judge Ellison did not speci-

fically cite Title 28 U.S.C. §1445(c), it is clear he was

relying upon that statute as his authority for the remand

by his statements referring to the Oklahoma Workers’

Compensation Act. Petitioner in this matter also realizes

§1445(c) was the authority relied upon by Judge Ellison

as that statutory provision was the only statutory author-

ity presented in support of the Motion for Remand. No

other authority was presented and no other ground was

given for the remand order.

A case directly on point with the present case is

William C. Cooper v. National Union Fire Insurance Company

10

of Pittsburgh, Pennsylvania; and G.A.B. Services, Inc., Case

No. 90-C-2-B, D.C.N.D. of Oklahoma, Order entered

remanding on June 7, 1990. (Appendix C, 5a). In that case,

Plaintiff brought a cause of action for insurance bad faith

due to the non-payment of benefits ordered by the

Workers’ Compensation Court. The cause of action was

initially filed in the state district court and removed by

the Defendant to the United States District Court for the

Northern District for Oklahoma. Judge Brett entered his

Order remanding the action to the state district court

after “[H]aving determined Plaintiff’s claims arise under

the Workers’ Compensation laws of the State of Okla-

homa, the Court is logically drawn to the conclusion that

removal from the state court was improvident and

remand should be granted.” Defendants appealed the

remand order of Judge Brett to the United States Court of

Appeals for the Tenth Circuit and were assigned Case No.

90-5141. The Court of Appeals, through Circuit Judges

McKay, Baldock and Ebel, entered an Order, filed on

March 1, 1991, (Appendix D, 8a) finding that the remand

order of Judge Brett was “not reviewable by appeal or

otherwise where the remand is based on the district

court’s determination that it is without jurisdiction. See 28

U.S.C. §1447(d); Gravitt v. Southwestern Bell Telephone Co.,

430 U.S. 723 (1977) (per curiam); Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336 (1976).” Just as Defendant

did in the present action, Defendant in the Cooper case

filed a Petition for Writ of Certiorari with the United

States Supreme Court. Defendant's Petition for Certiorari

was denied by this Court in Case No. 91-6 by way of

Order filed on October 7, 1991.

11

In the present matter, just as in the Cooper action cited

above, once the United States District Court for the

Northern District of Oklahoma was presented with statu-

tory authority which precluded it from assuming jurisdic-

tion, 28 U.S.C. §1445(c), it had no alternative but to find

that removal was improvidently granted requiring it to

remand the case to the state court from which it was

removed. Since the district court followed 28 U.S.C.

§1445(c) in determining that removal was improvidently

granted, the United States Court of Appeals for the Tenth

Circuit was precluded from reviewing the district court’s

decision pursuant to 28 U.S.C. §1447(d). The Court of

Appeals, as well as the United States Supreme Court,

lacks jurisdiction to review the remand order of the dis-

trict court and therefore Petitioner is not entitled to the

writ it seeks.

II.

TITLE 28 U.S.C. §1447(D) IS NOT UNCONSTITU-

TIONAL

The removal statutes grant a right of access to a

federal forum. The motivating concern for granting that

statutory right was to protect litigants against local preju-

dice, influence and discrimination. If a district court

judge were permitted to order a case remanded on discre-

tionary grounds, such as his docket was too crowded,

and the restriction on appeals from remand orders was

intact, Petitioner may have a point that it does not have

equal access to the appellate court for such abuses of

discretion. However, a district court has virtually no dis-

cretion in determining when a case may be remanded. All

12

federal district courts are bound by the statutory provi-

sions of 28 U.S.C. §1445, which specifically sets out what

species of action may not be removed. If a civil action

falls into one of the categories set out in §1445, it must be

remanded and that remand order is not subject to review

on appeal or otherwise pursuant to §1447(d) as there

cannot have been an abuse of discretion. The potential for

abuse of discretion is not present where the remand is

based on a non-discretionary ground such as the instant

case pursuant to 28 U.S.C. §1445(c). Given the narrow

scope of what actions may be remanded, Petitioner is not

deprived of its Constitutional right of due process as the

present case was not remanded on discretionary grounds

that may benefit from appellate review, but rather was

remanded on a narrow statutorily provided ground that

would not benefit from further review or discussion by

an appellate court. The doorway into the federal district

court by way of removal is very broad, the pathway out

of the federal district court by way of remand is

extremely narrow. If a particular civil case meets the

requirements that will allow it to leave the federal district

court on that narrow path, there is no need for appellate

review and there has been no violation of a party’s Con-

stitutional rights as there has been no abuse of discretion

by the district court.

13

CONCLUSION

In view of the foregoing and for the reasons stated

herein, the Respondent respectfully requests that this

Court deny the Petitioner’s Petition for Writ of Certiorari.

Respectfully submitted,

Bryce A. Hit, Eso.

717 South Houston, Suite 508

Tulsa, Oklahoma 74127

(918) 584-2889

Counsel of Record for Respondent

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

BRUCE A WATSON,

Plaintitt, No. 93-C-985-E

(Filed

Oct. 24, 2994)

-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 therefore, 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

bes inenneeeemneen erent

APPROVED AS FOR FORM AND CONTENT:

/s/ Bryce A. Hill

Bryce A. Hill

Counsel for Plaintiff

/s/_ R. Butler, Jr.

James K. Secrest, I

Roger N. Butler, Jr.

Counsel for Defendant

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AETNA CASUALTY & SURETY

COMPANY, a Connecticut

corporation,

No. 94-5201

(Filed

Dec. 14, 1994)

Petitioner,

-V-

)

)

)

)

)

)

HONORABLE JAMES O. 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

4a

violation of 28 U.S.C. § 1445(c). The court therefore does

not have jurisdiction to review the district court’s order.

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

5a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

WILLIAM C. COOPER,

Wiel, Case No. 90-C-2-B

(Filed

Jun. 7, 1990)

-V-

NATIONAL UNION FIRE

INSURANCE COMPANY OF

PITTSBURGH, PENNSYLVANIA:

and G.A.B. SERVICES, INC.,

Defendants.

Nee eee eee ee ee ee”

ORDER

This matter comes on for consideration upon the

Motion to Remand filed by William C. Cooper. Addi-

tion.ily considered is the Motion to Dismiss, filed by the

Defendants, National Union Fire Insurance Company of

Pittsburgh, Pennsylvania and G.A.B. Services, Inc.

This action was initially filed in the District Court for

Tulsa County, State of Oklahoma, the Plaintiff, alleging

bad faith insurance practices and intentional/negligent

infliction of emotional distress. The matter grew out of a

Workers’ Compensation claim made by Plaintiff due to an

injury suffered while an employee of Loffland Brothers, a

corporation located in Tulsa, Oklahoma, Loffland

Brothers was insured by Defendant National Union Fire

Insurance Company, with Defendant G.A.B. administer-

ing the workers’ compensation benefits under the policy.

6a

Piaintiff alleges Defendants failed to continue payments

due him under the Workers’ Compensation Award.!

Defendants removed the matter to this Court alleging

diversity of citizenship and an amount in dispute being

in excess of $50,000.00. Defendants simultaneously filed a

Motion to Dismiss based upon lack of subject matter

jurisdiction. The gravamen of Defendants’ dismissal

effort is that the Workers’ compensation Court of the

State of Oklahoma has exclusive jurisdiction of cases

arising out of state workmen’s compensation laws.

Defendants have positioned themselves contradic-

torily. Either their removal from state court was improper

or their current motion to dismiss is meritless.

Defendants could only validly remove this matter to

the federal court if it was not an action arising under the

workmen’s compensation laws of the State of Oklahoma.

Civil actions arising under the state workmen's compen-

sation laws are nonremovable. 28 U.S.C. § 1445(c). Diver-

sity of citizenship does not abrogate § 1445.* However, it

has been held § 1445 does not prevent removal from a

state court of an action which involves another state’s

workmen's compensation laws. See Jackson -v- Diamond M

Co., (D.C. Miss 1983), 575 F. Supp. 995, where an action in

1 Plaintiff was awarded permanent disability benefits for

317.5 weeks at a rate of $160.00 per week, a total of $51,752.50,

plus medical benefits and vocational rehabilitation benefits.

2 Notwithstanding this, had the case originally been lodged

in federal court, citizenship diversity would have been suffi-

cient to vest the court with jurisdiction to hear the matter.

Prescott -v- U.S., D.C. Nev. 1981, 523 F.Supp. 918, affirmed 731

F.2d 1388.

a Mississippi state court arising under the workmen’s

compensation laws of Louisiana was held removable to

federal district court. The Jackson Court concluded that

§ 1445, prohibiting removal of workmen’s compensation

cases, applied only to actions arising under that form

state’s compensation laws.

In the instant matter, the threshold issue is whether

Plaintiff’s claim arises under the workmen’s compensa-

tion laws of the State of Oklahoma. Apparently there is

no dispute that plaintiff has received all of the compensa-

tion award due him. Plaintiff argues that facts giving rise

to Plaintiff’s claims for bad faith insurance practices and

intentional infliction of emotional distress are directly

connected to and arose under the payment of a Workers’

Compensation Order. The Court agrees. In a similar case,

the Court ruled that the Oklahoma Workers’ Compensa-

tion Act provides the exclusive remedy for all claims of

an injured worker until the Oklahoma legislature pro-

vides otherwise. Joseph Edwin Roberts, et al. -v- Commercial

Union Insurance Company, Case No. 88-C-540-B, D.C. N.D.

of Oklahoma, Order entered October 20, 1988.

Having determined Plaintiff’s claims arise under the

Workers’ Compensation laws of the State of Oklahoma,

3 The Workers’ Compensation Court entered an Order

requiring the insurance carrier to pay the remainder of the

award in a lump sum which the Court presumes, has been done

in that the parties treat the matter a fait accompli.

4 Defendant attempts to tenuous distinction between a

claim arising under the Workers’ Compensation laws and a

claim arising out of a Workers’ Compensation suit. The Court

finds this distinction, under these facts, disingenuous.

8a

the Court is logically drawn to the conclusion that

removal from state court was improvident and remand

should be granted.

It will be the Order of the Court that this matter be

and the same is hereby REMANDED to the District Court

for Tulsa County. Defendant’s Motion to Dismiss is there-

fore OVERRULED as moot.

IT IS SO ORDERED this 7th day of June, 1990.

/s/ Thomas R. Brett

THOMAS R. BRETT

UNITED STATES

DISTRICT JUDGE

9a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM C. COOPER,

Plaintiff-Appellee,

-V-

)

)

)

)

NATIONAL UNION FIRE ) No. 90-5141

INSURANCE COMPANY OF )

PITTSBURGH, PENNSYLVANIA,

Defendant, )

and ,

G.A.B. SERVICES, INC.

)

Defendant-Appellant.

ORDER

(Filed Mar. 1, 1991)

Before McKAY, BALDOCK and EBEL, Circuit Judges.

This matter comes on for consideration of the appel-

lee’s motion to dismiss and request for sanctions and the

response filed thereto.

Upon consideration thereof, the motion to dismiss is

granted. A remand order is not reviewable by appeal or

otherwise where the remand is based on the district

court’s determination that it is without jurisdiction. See

28 U.S.C. § 1447(d); Gravitt -v- Southwestern Bell Telephone

10a

Co., 430 U.S. 723 (1977) (per curiam); Thermtron Products,

Inc. -v- Hermansdorfer, 423 U.S. 336 (1976). The appellee's

request for sanctions is denied.

4

i

APPEAL DISMISSED.

Entered for the Court

/s/ Robert L. Hoecker

ROBERT L. HOECKER, Clerk

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