Opinion
No. CA02-82
October 2, 2002
Appeal from the Pulaski County Circuit Court, No. CIV 2000-8483, Honorable John Ward, Judge, Vacated and Dismissed.
This action was brought by appellants Nigel Merez and Ormond Marshall against appellee Squire Court Limited Partnership for injuries suffered by appellants, who were employed by Carson Equities, LLC (not a party) (Carson), the contractor hired to renovate two apartment buildings owned by appellee. The Pulaski County Circuit Court entered summary judgment for the building owner, and the employees now appeal, contending that the entry of the summary judgment was erroneous. Houston General Insurance Company, Carson's workers' compensation carrier, intervened and filed a separate notice of appeal. We, however, conclude sua sponte that pursuant to the exclusive remedy provision of the Workers' Compensation Act, codified at Ark. Code Ann. § 11-9-105(a) (Repl. 2002), the circuit court lacked jurisdiction to consider the complaint, and we, consequently, vacate and remand with instructions to dismiss. Although this argument was not ruled on below, it is well settled that this court may consider subject-matter jurisdiction for the first time on appeal. See Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984).
Appellee Squire Court Limited Partnership owns two apartment buildings in Pulaski County, Squire Court One and Squire Court Two (also known as Gra-Bec Apartments). Henry Mann is the president of Squire Court Partners, Inc., the general partner of appellee. His son, Michael Mann, owned and operated Carson. Carson was hired in July 1997 to renovate both apartment complexes. On May 28, 1998, a stairway in one of the buildings in Squire Court Two collapsed, injuring the appellants. Appellants filed suit, alleging that appellee was negligent in failing to warn of dangerous conditions at the complexes. Appellants further alleged that, because of the control and supervision of the project exercised by Henry Mann, appellee was, in effect, the general contractor and therefore responsible for any negligence on the part of Carson. Appellee denied the allegations and moved for summary judgment, contending that it did not owe any duty to appellants because Carson was an independent contractor. Appellant Marshall received workers' compensation benefits from Carson's carrier. The trial court granted summary judgment for appellee without stating its reasons. This appeal followed.
There is no indication in the record whether appellant Merez received any workers' compensation benefits or the amount of any such benefits.
Appellee argues in this court, as it did below, that appellants' remedy was a workers' compensation action against Carson. Arkansas Code Annotated section 11-9-105 (Repl. 2002) provides in pertinent part as follows:
(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, . . . or anyone otherwise entitled to recover damages from the employer, . . . or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or person as the employer may be deemed to have.
The exclusive remedy provisions of this section were extended to "prime contractor of the employer" in the 1993 Workers' Compensation Act. The relatively recent case D.B. Griffin Warehouse Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999), cited by appellant, involved injuries suffered by an employee in October 1991.
The case of VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998), is controlling. There, the claimant was employed by Beverly when she tripped and fell on a rug at her place of employment. She filed a claim for benefits under the Act, and Beverly denied the claim. A hearing was scheduled before the Workers' Compensation Commission on the issue of compensability. The claimant later canceled the hearing and filed suit against Beverly in circuit court. The circuit court dismissed the suit with prejudice, and the claimant appealed. The supreme court affirmed the circuit court's ruling on the ground that the Workers' Compensation Commission has exclusive jurisdiction to determine the applicability of the workers' compensation laws. The court stated:
We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.
Id. at 16, 970 S.W.2d at 812 (citations omitted).
In the present case, accepting as true appellants' allegations that appellee exercised such control over the project that appellee was acting as the general contractor for the project, section 11-9-105 would bring the appellee within its coverage. There is no dispute that the injury occurred on appellee's premises. Nor is it disputed that appellant Marshall has already received workers' compensation benefits for his injury and that such benefits were also available to appellant Merez. Furthermore, it is not alleged by appellants that their injuries resulted from an intentional tort by appellee. Accordingly, the Workers' Compensation Commission has exclusive authority to determine the facts that establish jurisdiction in this matter. WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000); VanWagoner, supra.
Vacated and dismissed.
Pittman and Bird, JJ., agree.