Cornell v. Liberty Mutual Group, Inc. et al
MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on March 16, 2012. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
MELINDA CORNELL, Individually, and as
Parent and Next Friend of TSA and JMT,
CASE No. 11-1021
LIBERTY MUTUAL GROUP, INC.
MEMORANDUM OPINION AND ORDER
Group, Inc.’s Motion for Summary Judgment (Doc. 33), Memorandum
Hearing (Doc. 40) and Plaintiff’s Response in Opposition (Doc.
Also before the court are Plaintiff’s Motion to Certify
Arkansas Constitutional Legal Questions to the Arkansas Supreme
Court (Doc. 49), Defendant’s Response in Opposition (Doc. 50)
and Plaintiff’s Reply (Doc. 60).
On or about June 18, 2008, Plaintiff sustained work-related
injuries at her place of employment and for which she filed a
workers’ compensation claim. (Doc. 1). Her employer’s workers’
compensation carrier was Liberty Mutual Group, Inc. (“Liberty
Plaintiff’s workers’ compensation claim was accepted
and she received certain benefits from Liberty Mutual Group,
Plaintiff brought this action against Liberty
Mutual1, alleging that, as her employer’s carrier, Liberty Mutual
negligently inspected her worksite and failed to warn her of a
dangerous condition that led to her injury. (Doc. 1).
II. Standard of Review
Summary judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving party,
“the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
The plain language of Rule
56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
element essential to that party’s case, and on which that party
Catrett, 477 U.S. 317, 322 (1986).
“A party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
Upon investigation, it was determined that the part or parts
of the hydraulic press machine that malfunctioned were never
part of the inventory distributed by McMaster-Carr Supply
Company and no such springs had been sold to Plaintiff’s
employer, Hubbell Lighting, by McMaster-Carr. Upon joint
stipulation, McMaster-Carr was dismissed with prejudice on
December 6, 2011. (Doc. 29).
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.”
Id. at 323.
If the moving
party meets the initial burden, the burden then shifts to the
opposing party to produce evidence of the existence of a genuine
issue for trial.
Id. at 324.
The evidence must be viewed in the light most favorable to
the nonmoving party, giving the nonmoving party the benefit of
all reasonable inferences.
Kenney v. Swift Transport, Inc., 347
F.3d 1041, 1044 (8th Cir. 2003).
“In ruling on a motion for
“Where the unresolved issues
are primarily legal rather than factual, summary judgment is
Koehn v. Indian Hills Cmty. Coll.,
371 F.3d 394, 396 (8th Cir. 2004).
Arkansas’ Workers’ Compensation Code are the exclusive remedy
for employees who suffer on-the-job injuries and bars any tort
claims against employers for such injuries.
A.C.A. § 11-9-105.
carrier was not intended to be a “third party” against whom an
injured employee could maintain a common law tort action for a
authority to grant immunity to insurance carriers.
the common law rules applicable to third parties who perform
negligent workplace safety inspections and asserts that immunity
is not absolute but must be determined on a case by case basis.
Plaintiff also claims that she is a third party beneficiary to
the workers’ compensation insurance policy between her employer
and the Defendant and that she has a constitutional right to
make a claim of breach of that contract.
Article 5, Section 32, of the Arkansas Constitution, as amended
by Amendment 26 which states in pertinent part:
The General Assembly shall have the power to enact
laws prescribing the amount to be paid by employers
for injuries to or death of employees, and to whom
otherwise no law shall be enacted limiting the amount
to be recovered for injuries resulting in death or
for injuries to person or property....
immunity from tort only to employers, not to insurers. (Doc.
Compensation Act in light of Amendment 26 was decided as far
back as 1946, when the Arkansas Supreme Court found the Act to
be valid as against objections that it is class legislation and
makes unreasonable classifications, denies equal protection and
contracts, and interferes with right to contract, the right to
jury trial, and vested rights by abolishing existing statutory
and common law remedies, and that it abridges privileges and
Hagger v. Wortz Biscuit Co., 1946, 210 Ark. 318
The issue of an insurer’s liability is not, as Plaintiff
contends, a case of first impression in Arkansas.
In Neal v.
Oliver, 246 Ark. 377, 380 (1969), the Supreme Court defined a
“third party” as used in the Act as “some person or entity other
than the first and second parties involved, and the first and
employer or one liable under the compensation act.”
v. Houston General Insurance Co., 259 Ark. 724, 725 (1976), the
Supreme Court held that the benefits payable pursuant to the
workers' compensation act, and the procedure set out in that act
for obtaining those benefits, constitute an exclusive remedy,
intentional tort arising out of the non-payment of benefits.
compensation insurer has no independent liability to a worker
because of the immunity provisions of the workers’ compensation
Burkett v. PPG Industries, Inc., 294 Ark. 50, 55 (1987)
Eighth Circuit’s decision in Kifer v. Liberty Mutual Insurance
Company, 777 F.2d 1325 (1985), which had made “an exhaustive
study of the law with respect to whether a workers’ compensation
act such as [Arkansas’] precluded[d] such liability.” Burkett at
In both Kifer and Burkett, the question was whether an
insurance carrier for its failure to inspect the premises and
warn the employee of danger.
The Eighth Circuit found that the
Act did preclude such liability as did the Arkansas Supreme
“We hold that a workers’ compensation insurance carrier
has the same immunity from suit by an injured employee as is
provided the employer by [the workers’ compensation statute].”
Burkett at 57.
The Court agreed with Kifer that the legislative
at 55-56. “[T]o conclude that to
inspections of the employer's premises would be contrary to the
purposes and policies underlying the Act.”
Kifer at 1337.
In 1993, the Arkansas Supreme Court determined that any
change concerning the exclusivity of the statutory remedies or
the form of those remedies must come from the legislature, not
prohibition to St. Francis County Circuit Court and stating that
Arkansas Constitutional Amendment 26 empowered the General
Assembly to enact laws prescribing the amount of compensation to
be paid by employers for injuries to employees.
the Eighth Circuit, the purpose was to grant to the Legislature
the right to adopt a workers’ compensation act.
Such act serves
employer. This only applies where the employer has secured for
the employee the compensation payments as required by the act.
Ark.Stats. §§ 81-1304, 81-1306; Const. Ark. Art. 5, § 32, and as
amended by Const. Amend. No. 26; Huffstettler v. Lion Oil Co.,
208 F.2d 549 (8th Cir. 1953) (finding that where subcontractor
The purpose of workers' compensation statutes was to change
common-law defenses of contributory negligence, fellow servant,
and assumption of risk.
Employees were required to give up the
chance of recovering unlimited damages in fault-related cases in
Simmons First Nat. Bank v. Thompson, 285 Ark. 275 (1985).
plaintiff is attempting to return to the common-law system based
on fault, when it is to her advantage to do so, but at the same
time to retain the assured benefits of workers' compensation
regardless of fault.
Defendant’s basis for liability, according to Plaintiff, is
regularly inspect the work place in order to detect dangerous
working conditions, Plaintiff being a third-party beneficiary to
any contract or agreement there may have been.
She asserts that
Defendant negligently failed to properly detect the hazardous
nature of the hydraulic press she was using when she was injured
casualty insurance in the State of Arkansas and write workers’
compensation insurance in the state,
Defendant is required to
provide accident prevention services as a prerequisite.
performs a safety consultation under this provision shall have
prevented by a program, inspection, or other activity or service
accidents in connection with operations of the employer.
Legislature intended to place the insurer in the same position
as the employer is elevated based upon the last sentence of the
This section does not create an
independent cause of action at law or in equity.”
A.C.A. § 11-
Even without the benefit of the Supreme Court having
liability, this provision would resolve any question.
The facts are undisputed that Plaintiff was injured at her
place of employment and that she filed a workers’ compensation
action against her employer as a result of those injuries. It is
further undisputed that her claim was accepted and that she has
received workers’ compensation benefits through her employer’s
Worker’s Compensation policy.
Defendant is immune from liability to Plaintiff in this matter.
Because the Defendant is entitled to Summary Judgment in
its favor, a hearing on its Motion (Doc. 40) is unnecessary and
the Motion is DENIED.
On February 8, 2012, Plaintiff filed a Motion to Certify
Arkansas Constitutional Legal questions to the Arkansas Supreme
Court and to Hold in Abeyance Ruling on Defendants’ Summary
Questions are Answered by the Arkansas Supreme Court.
“The [Arkansas] Supreme Court may, in its discretion,
answer questions of law certified to it by order of a
federal court of the United States if there are
involved in any proceeding before it questions of
Arkansas law which may be determinative of the cause
then pending in the certifying court and as to which
it appears to the certifying court there is no
[Arkansas] Supreme Court.”
Because this is not a case of first impression and there is
clear authority from the Arkansas Supreme Court on this issue,
the question of the constitutionality of the exclusive remedy
provisions of the Act is not appropriate for certification and
Plaintiff’s Motion (Doc. 49) is DENIED.
Plaintiff’s Motion to Certify (Doc. 49) is DENIED. Plaintiff’s
Complaint (Doc. 1) is DISMISSED WITH PREJUDICE. Each party is to
bear their own costs.
IT IS SO ORDERED this 16th Day of March, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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