UNITED STATES COURT OF APPEALS
Filed 8/26/96
FOR THE TENTH CIRCUIT
DORIS SMITH, as Personal
Representative of the Estate of Jimmy
Ray Smith, deceased,
Plaintiff-Appellant, No. 95-6368
(D.C. No. CIV-95-112-R)
v. (W.D. Okla. )
CONOCO, INC., a subsidiary
corporation of DUPONT DE
NEMOURS & COMPANY, a
Delaware corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, ALDISERT, ** and BALDOCK, Circuit Judges. ***
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court
of Appeals for the Third Circuit, sitting by designation.
***
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff Doris Smith appeals the district court’s order dismissing her
diversity complaint against defendant Conoco, Inc. on the ground that it lacked
subject matter jurisdiction. We review the district court’s order of dismissal for
lack of subject matter jurisdiction de novo, Brumark Corp. v. Samson Resources
Corp., 57 F.3d 941, 944 (10th Cir. 1995), and we affirm.
The facts relevant to the court’s jurisdiction are not disputed. Plaintiff’s
husband suffered a fatal heart attack while working at Conoco. On the day in
question, decedent was at his office at Conoco performing his normal work
activities when he began to feel ill. He entered his supervisor’s office to request
time off but immediately collapsed. The supervisor called Conoco’s emergency
medical personnel, but, according to the complaint, their response was delayed
while Conoco determined whether decedent was an employee or a contract
employee. Plaintiff alleged that Conoco denied decedent access to its emergency
facilities, and instructed the supervisor to contact the local community emergency
service instead. Plaintiff alleged that this delay caused her husband’s death, and
that Conoco negligently failed to provide adequate emergency care for her
husband. The parties agree that decedent was employed by Conoco and that his
heart attack was not work-related.
Conoco filed a motion to dismiss the complaint, asserting that because
Conoco was decedent’s employer, plaintiff’s exclusive remedy was under
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Oklahoma’s Workers’ Compensation Act (WCA). See Okla. Stat. Ann. tit. 85,
§§ 11 and 12 (West 1992). The district court agreed, and dismissed the complaint
for lack of subject matter jurisdiction. It found undisputed evidence that any
emergency assistance rendered to decedent by Conoco’s employees which may
have aggravated decedent’s heart condition was rendered pursuant to Conoco’s
customary policies and procedures for medical emergency responses. The district
court noted that under settled Oklahoma law, an employer may be liable under the
WCA for aggravation of a non-work-related prior injury or medical condition if
such aggravation occurs as a result of an event which “arises out of” and “occurs
within the course of” employment. ITT Continental Baking Co. v. Ware, 620
P.2d 1308, 1310 (Okla. 1980). The district court concluded that to the extent
decedent’s injuries were caused by any negligent acts of Conoco’s employees,
they arose out of, and occurred within the scope of, decedent’s employment, and
were within the scope of the WCA, because they were directed by Conoco’s
policies. See Decker v. Oklahoma State Univ., 766 P.2d 1371, 1374-75 (Okla.
1988) and Rogers Galvanizing v. Woody, 853 P.2d 790, 792 (Okla. Ct. App.
1993)(defining the “arising out of” and “occurring within the course of”
elements). The district court denied plaintiff’s motion for reconsideration.
We have carefully reviewed the briefs of the parties, the district court’s
orders, and the record on appeal. Based on our review of the record, we find no
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reversible error and AFFIRM the judgment of the United States District Court for
the Western District of Oklahoma for substantially the same reasons set forth in
its August 8, 1995 and September 18, 1995 orders.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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