quick v. deep fork wireless

8/14/2019 Quick v. Deep Fork Wireless

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NOT FOR OFFICIAL PUBLICATION

STANLEY D. QUICK,Petitioner,

vs.DEEP FORK WIRELESS,TEXAS MUTUAL INSURANCECOMPANY, and THE WORKERS'COMPENSATIONCOURT,

Respondents.

PamlaK. CornettFLYNN LAW FIRM, PLLCTulsa, Oklahoma

Leah P. KeeleBrian J. GoreeDorie A. ChristianLATHAM, WAGNER, STEELE &LEHMAN, P.C.Tulsa, Oklahoma

For Petitioner

FELEDFEB ?2009

WORKERS'

FILGDCOURT FClVtL PPEASTATEOFOKLAHOMrEB13 200$

]MIC.I.IAEL. RICHIECLERK

IN THECOURTOFCIVI APPEALS FTHESTATEOPgU.TryfidilPNOURTDIVISION V

CaseNo. 105,977

PROCEEDING O REVIEWAN ORDEROFTHE WORKERS'COMPENSATION OURTHONORABLEELLEN C.EDWARDS,TRIAL ruDGE

VACATED AND REMANDEDFOR FURTHERPROCEEDINGS

For Respondents


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OPINION BY DOUG GABBARD II, PRESIDING JUDGE:Petitioner,StanleyQuick(Claimant),seekseviewof a worker's compensation

court order finding that an insurance policy issued by Texas Mutual InsuranceCompany(Insurer) o Deep Fork Wireless(Employer) does not cover Employer'sliability to Claimant,anddismissing nsurerasapartyto this action.After review,wevacateand remand for further proceedings.

BACKGROUNI)Employer s a Texascompanyengagedn the business f maintainingcellular

communicationtowers. Claimant, a part-time resident of Texas, was hired byEmployer in Oklahoma o perform tower maintenance. nsurer ssueda policy ofworkers' compensationnsurancecovering Employer, effective from January 10,2002, through November 26, 2002. However, Insurer asserts hat the policy onlycoveredEmployeronforthe stateof Texas."

In February 2003, Claimant filed a Form 3 in Oklahoma alleging that hesustaineda work-related njury to hisback, egs, andhips in April 2002 while workingfor Employer n Arkansas.On AugustT 2003,the Oklahomaworkers' compensationcourt enteredan order finding that Claimant's injury aroseout of and n the courseof

his employment, and setting temporarytotal disability payments. Employer did notappear at the compensability hearing, although the order recites that Employer


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receivedcertified notice of theproceeding.Insurer s not namedas a respondentnthe order, and he order has neverbeenpaid.r

In August 20D4,Claimant iled an amendedForm 3, naming asrespondent heRobert English Maintenance Corporation (REMC) and asserting the same injury.Robert English is an officer of Employer and REMC is insuredby anothercarrier.REMC claimed hat t wasnot a properpaflv, denied hat t employedClaimant,andstated hat Claimant"was an employeeof DeepFor[k] Wirelesswhich was insuredby TexasMutual."

In January 2006, Claimant field a Form 13, moving to addInsureras aparty inthe case.Claimant'smedicalprovideralso iled a Form 13,making he same equest.Both Claimant and the medical provider indicatedthat Insurer had been sent noticeof the requestsat its Austin,.Texas,address.2On March 30,2006, after an earlierhearing, he workers' compensation ourt formally added nsureras a party.

Two months ater, nsurer iled a "special entry of appearance." t later fileda Form 10 "Answer." Both filings denied insurancecoverage or Employer in

t In July 2004, after Employeragain ailed to appear, he court entereda default orderawardingpaymentof Claimant's medicalexpenseso a careprovider.2The recorddoesnot revealwhy more than two yearspassedbetween he default order ofliability and he date Claimant moved o add nsurer as aparty. Insurerdoesnot raise his issue,and at tial, Claimantpresenteda letter from Insurer, datedApril2003, informing EmployerofInsurer'spositionregarding Claimant's claim.


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Oklahoma. Claimantmovedto certiff the workers' compensation ourt's udgmentto district court.

In February 2008, Insurer filed a trial brief arguing that the workers'compensation ourt lacked"jurisdiction to enteran order hat [lnsurer] had a policyof workers' compensationnsurance overing" Claimant. Insureradmitted hat "whenpermittedunder Texas aw . . . [its] policy will reimburse ts insured employer orbenefits the employer is required to pay to a worker under another state'scompensationaw." However, t argued hat t was not authorized o do businessnOklahoma,and that the Oklahoma Workers' CompensationAct (the Act) did notconfer urisdiction on the state'sworkersncompensation ourt to "apply the TexasLabor Code, nterpret a Texas nsurancecontract, anddetermine iability of a carrierthat is not authorized to transactbusiness" in Oklahoma.3 Insurer also arguedtheinsurance olicy's reimbursement ndorsementmerelyreated n obligationbetweenEmployer and Insurer which the Oklahoma worker's compensationcourt lackedjurisdiction to construe or adjudicate.

3At trial, Insurerns ounsel epresentedhat Insurer s an nsurerof o'lastresort" in Texas,and hat it is "not licensed o write insurancepolicies in any otherstate." Qlaimantdoesnotdispute his contention. However, even f true, Insuer citedno authority for its claim thatOklahomacourts haveno urisdiction to adjudicate he company's iability for Claimant'sclaims. Insurer did not assertsovereign unmunityas a Texas stateagency. In fact,$ 2054.003(c)of the Texas nsuranceCodeprovides hat Insurer s "not a stateagencyorexecutiveagencyor agovemmentalentity for anypu4rose."


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Claimant responded hat the court had subjectmatter urisdiction becauseClaimant was hired in Oklahoma and was entitled to protection under the Act.Claimant also arguedthat the Oklahoma court was not prohibited from exercisingjurisdiction over nsurereven f Insurerwasnot authorizedtodo businessn thisstateoand that the policy afforded coverage o Employer for Claimant's claim under an"other states"endorsement.Finally, Claimantassertedhat Employer hadpaid,andInsurer had accepted, remiumsbased n part on coveringClaimant's employment,and, herefore, nsurerwasestopped y theAct from denyingcoverage rjurisdiction.

Trial occurred n April2008. The evidencencludedClaimant'spay stub romEmployer reflecting his wagesduring one pay period in June 2002, a copy of theinsurance olicy,Employer'sNovember200 application or workers' compensationinsurancesubmitted hrough a Tulsa,Oklahoma, ndependent nsuranceagency,andEmployer's becember 2001 supplementalapplication,also submitted hrough thesameagency.Theapplicationo ignedby RobertEnglish,states hat t seeksa"Broadform other statesendorsement,"and represents hat although Employer currently didnot conductbusiness out of state," t o'eventuallycould travel o OK, AR, MO [and]LA." In the supplementalapplication, English represented hat Employer had no

operations in other states,but that it "may have TX employees"go to other statesduring the year.


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English testified that he intended to purchasea policy covering all ofEmployer'semployees,ncludingClaimant,whereverheymight be assignedo work.He stated t was hiS intention when he applied for the policy that he would havecoverage or employeesworking in Oklahoma, and that the Tulsa insurance agencywhich sold him the policy indicated o him that the policy coveredall employeeswherever hey worked.

The policy itself contains an o'InformationPage" stating that the workers'compensationnsurance appliesto the Workers' Compensation aw of the stateslistedhere: TEXAS" and hatPartThreeof thepolicy,which applied o "other states"insurance, s "NOT APPLICABLE." However, attached o the policy was an"OTHER STATES' ENDORSEMENT No. TM-OS-2001" that replaced"PartThree-OtherStates nsurance.'nThis endorsement pplied o employeesas definedin theTexasLabor Code,a ndalso ndicated hat Insurerwould reimburseEmployerooforanyamountyou are equired o pay asbenefits or employees, sdefinedabove,

aSection4Ol.0l2 of the TexasLabor Code definesn'employee"as"eachperson n theserviceof anotherunder a conhact of hire, whether expressor imFlied or oral or written "including:(l) an employeee,mployedn the usualcourseand scopeof theemployer's businesswhois directedby the employer emporarily to performservicesoutside he usual courseandscopeof the employer's business; 2) a person,otherthan an ndependent ontractororthe employeeof an ndependent outractor,who is engagedn constnrction, emodeling,or repair work for theemployerat thepre'mises f the employer; and(3) apersonwho isa traineeunder he TexansWork programestablished nderChapter308.


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by the workers' compensation aw of the state shown in the Schedule." Thenoschedule"on page wo of this endorsementists "DesignatedStates"as"[a]ll statesof the United Statesof America exceptstates isted in Item 3.A of the InformationPageandNorth Dakota,Ohio,Washington,WestVirginia andWyoming." Oklahomawas not exceptedand the only state isted n Item 3.A was Texas. A "ScheduleofOperations" n the policy lists, amongother classificationsof employees overed,'oantennamaintenance-radar-& drivers."

On May 22, 2008, the workers' compensationcourt entered wo ordersdisposingof the case. One order dismissedREMC and ts insurer, inding they werenot proper parties o the action. The other orderdismissed nsurer, inding:

-1 -THAT the policy of [Insurer] ssued o [Employer], doesnot cover any liability that [Employer] may have toclaimant as a result of the abovecaptionedclaimneitherdirectly or through the reimbursementprovision of thepolicy.

-2-THAT [Insurer] is not aproper party in this causeof actionand s thereforedismissed.

Claimant now seeksour review.STANDARD OF REVIEW

Whether he workers' compensation ourthas urisdiction presents questionof law for resolutionby this Court. Garrison v. Bechtel Corp., 1995OK 2, fl 8, 889


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P.2d 273, 278. The interpretation of an insurancecontract and whether it isambiguousare ssuesdetermined y the Court as a matter of law. RoadsWest,nc.v. Austin,2004OK Cry APP49, n2l,9l P.3d81, 87. Questions f law are eviewedde novo. Arrow Tool& Gauge . Mead,2000OK 86,1[6, l6 P.3d 120,1123.

ANALYSISClaimant first arguesthe workers' compensationcourt's order is fatally

defectivebecause t is too indefinite for review. Claimant relies upon Benning v.PennwellPublishingCo., 1994OK 113, 885 P.2d 652, andLffier v. McPhersonBrothersTransport, 964OK 225,396P.2d,491.

Both Benning andLelfler dealt with workers' compensationcourt orders thateither failed to adequatelyexplain the basis for the courtnsdecision or were at oddswith the evidence. In Benning, he Oklahoma SupremeCourt held that the lowercourt's "critical conclusionof law" was not "responsiveo thedispositivessue[s]offact formed in the evidentiaryproceeding." Benning at fl 1, 885 P.2d at 653. InLffier, the Court reverseda panel'sorder as being oo "indefinite anduncertain orproperjudicial interpretation"becausehe order simply vacateda compensation wardwithout explanation or findings of the ultimate facts upon which the decision wasbased.Lffier at f 13,396P.2dat494.


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In contrast, hepresentorder clearly stateshat t dismisses nsurerbecausehetermsof Insurer'spolicy did not coverEmployer's iability to Claimant. Becausehepolicy is in the record,and his Court's review is de novo,we find the lower court'sordersufficiently definite for us to conducta meaningful review. We note that whilethe workers' compensationourt's ordermadeno specific inding that t had subjectmatter urisdiction regarding nsurer'sclaim, sucha finding is implicit in the courtosorderconstruing he contract,and nsurerdid not seek eview of such inding.sThus,we find no merit to Claimant's first propositionof error.

Claimant next asserts hat his evidenceproved Insurer should be statutorilyestopped, ursuant o 85 O.S.2001 $$ 65.2 and65.3, rom denyingcoverage.Weagree.

The statutes eferred o are known as he Oklahomaestoppelact. They imposeworkers' compensationiability upon an insurer, egardless f an employer's statusasa ocoveredemployat,"when the evidenceestablisheshat he nsurerhasacceptedpremiumsbasedupon a claimant's salaryat the time of the claimant's njury. Little

5In addition to the workers' compensation ourt'spreviousadjudication hat theClaimant's rqiury was compensiable,he fact that Claimant's employmentcontractwas enteredinto in Oklahomavests he Oklahomacourt with jruisdiction to adjudicateClaimantrsclaim. 85O.S.2001 4;seealsoGarrisonv. echtelCorp.,1995 K2,889P.2d273. TheOklahomaSupremeCourthas stated hat not only does he workers' compensation ourt have urisdictionto determineand enforcean nsurer's liability for a clairn, it has exclusiveurisdiction to do so.SeeState ns.Fund v. Brooks, 1988OK 50, l 6, 755P.zd 653,656.


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v. Muscogee (Creek)N ation, 1997OK 57,938P 2d 739 In D ominicv. CreekNation,1997OK 41,936 P.2d 935, he SupremeCourt delineated hreeelements claimantmust prove in order to invoke estoppelunder the Act: l) an injury occurredduringthe time [claimant's] employermaintaineda compensationiability policy; 2) theinsuredemployerpaid premiumsbasedon the claimant's salary;and 3) claimant'sinjury occurred in and arose out of [claimant's] employment with the insuredemployer. d. atn9,936 P.2dat 938.

Regarding the first element,there is no dispute that Employer maintainedapolicyofworker'scompensationinsuranceattletimeofClaimant'sinjury.lthoughInsurerassertshat hepolicy did not coverEmployer n Oklahoma,thepolicy's termsdo not explicitly exclude from coveragework done outside Texas. In fact, the"reimbursement" provisions of the policy specifically contemplatecoverage ofEmployerfor benefitspayableunder he workers' compensationaw of other states,including Oklahoma, and Employer's application - which was completed andsubmittedby Employer in Oklahoma - specifically informed Insurer that someemployeesmight be dispatched o work in Oklahoma.6 More significantly, as

6'lhis Courthas held that theestoppelactcannot be used o enlargean insurancecontractto "cover more states han t explicitly covers." Traveler'sIns. Co. v.Jones, 1993OK CtV APPn6,n4,867 P.2d1353,1354.Howetrer,Traveler's s distinguishable ecauseheCourt oundthe contract n qtrestionexplicitly did not coverOklahom4 the recordwas"absolutelysilenf'asto whetherpremiumswere collected or coverageunder Oklahoma'scompensationaw, and hecompany or whom the insurancepolicy waspurchased ltimately wasfound to not beclaimant'semployer. A similar distinction applies o Foster WheelerCorp. v. Bennett,1960OK

l 0


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explainedby the Dominic court, a claimant's rights under the Act are baseduponstatute, ather than the contractbetweenhis or her employer and ts insurer:

The rationaleof the "estoppelact" is that an nsurerwho accepts premiums should not evade liability forbenefitsdueundercompensationaw. By long-settled aselaw, the o'estoppelacto'bars he insurer from interposingany challengeto he employer'sstatusasan entity coveredby the compensationaw.Id. atfl 10, 936P.2d at 938 (footnotesomitted)(emphasisn the original).

Regarding he secondelement, t is undisputed hat Employerpaid premiumsto lnsurer for workers performing the samesort of work (tower maintenance)whichClaimantperformed.Although Insurer assertshisproof is insufficient to demonstratethat it acceptedpremiums "basedon the claimant's salary,n' his Court has foundsimilar proof sufficient to sustainaclaimant's burden or invoking estoppelunder theAct. In Squirrel v. BordertownBingo,2005 OK CtV APP 95, 125 P.3d 680, wherethe policy in question involved premiums based on remuneration o employeesclassified by occupation,we noted that $$ 65.2 and 65.3 "do not mandate thatpremiums must be basedon wages or salary. The estoppel act applies withoutreference o the methodusedby the insurer o calculatepremiums." Id. atl9,125

186,354P.2d764,where heSupremeCourt efused ovacatea udgmentdenying iabilityagainstan nsurancecarrierwhose contract*provided specifically that the liability of insurancewas limited to operations mder he KansasWorlcnen's Compensation aw." Id. arn 13,354P.2dat768.il


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P.2dat683; seealsoShires . Wrought ron RangeCo., 1959OK72,339 P.2d105;RoadsWestnc. v.Austin,2004OK CIV APP49,91 P.3d81.

As to the third element,Claimant ndisputably sustainedan njury that occurredin and aroseout of his employmentduring the period when the policy was in effect.

Accordingly, we find thatC aimanthasprovedthe three elementsnecessary orinvocation of estoppelunder the Act, that Insurer is liable for benefits, and that thecourt's finding to the contrary was error.

CONCLUSIONFor all these reasons, he workers' compensationcourt's order denying

Insurer's iability under thepolicy and dismissing nsurer as a party to the action svacatedand remanded or further proceedings.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

RAPP, J., and FISCHER, J.n oncur.

February 3,2009

quick v. deep fork wireless

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