dissenting. The trial court granted a motion by Valmac Industries, Inc. and Tyson Foods, Inc., to dismiss for lack of jurisdiction and failure to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). I would affirm on both counts.
The complaint names six defendants1 and alleges that Guy Thomas “was injured while working on a trailer manufactured, distributed, sold, owned, and modified by the defendants . . . caused by the defective and unreasonably dangerous condition when sold and subsequently modified.” Thomas further alleges that the defendants were negligent in failing to inspect the trailer, failing to instruct as to the proper and safe use of the trailer, failing to warn of the dangers in the use of the trailer, in placing the release handle in a position that it could not be operated safely and in designing the center gate so that the gate could not be released safely.
Thus, the complaint alleges strict liability and negligence. The complaint does not state how the injury occurred or how the trailer was defective and unreasonably dangerous. It does not allege that either Valmac or Tyson manufactured or supplied the trailer within the context of the Arkansas Product Liability Act and clearly does not state a cause of action based on strict liability. As to the negligence counts, the complaint simply throws a blanket over six defendants with no attempt to differentiate as to their involvement or accountability. In more conventional litigation these generalities might be forgiven, but when exclusivity under workers’ compensation is at stake, it is critical for the plaintiff to state facts which give rise to common law liability in tort. In Johnson v. Houston General Insurance Company, 259 Ark. 724, 536 S.W.2d 121 (1976), for example, an employee filed suit at law against his employer’s carrier, alleging retaliatory conduct brought on by his having filed a workers’ compensation claim. The complaint was dismissed by the trial court for failure to state a cause of action and this court affirmed, pointing out that the complaint failed to state specific facts constituting elements of actionable damage. How these several defendants can respond to these all-inclusive allegations other than by simply denying them is not apparent, and that meets neither the letter nor the spirit of fact pleading. Ark. R. Civ. P. 8; Wilson v. Overturff, 157 Ark. 385, 248 S.W. 898 (1923) (“The complaint must contain a statement in ordinary and concise language, without repetition, of facts constituting the plaintiffs cause of action . . . directly and positively alleged. . . .”)
Of even greater importance is the failure to allege essential facts which would give a court of law jurisdiction over Valmac and Tyson in this particular case. Tyson was Thomas’s employer at the time of his injury, which was suffered in performance of his duties. Tyson has paid to date in excess of $350,000 in workers’ compensation benefits (a fact the majority opinion fails to mention). The majority places considerable reliance on a decision of the Court of Appeals of New York, Billy v. Consolidated Machine Tool Corporation, 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S. 879 (1980), (to which two members of that court dissented). But essential factors on which the Billy court relied are not present here, and that is a fatal defect in establishing both jurisdiction and a cause of action in this case. It is evident from the briefs that Thomas began working for Valmac in 1977 and later, at some undisclosed date, became the employee of Tyson. But the tort which the Billy court recognized was committed by a party which “never had an employer-employee relationship with the injured party.” (My emphasis). Equally important, neither the complaint nor the briefs, so far as I can determine, state when the defect occurred. The significance of the latter date in establishing liability under the dual persona doctrine is stressed by Professor Larson in his analysis of the Billy case, because if it was while Thomas was Valmac’s employee, then Tyson, as corporate successor to Valmac, also succeeded to Valmac’s immunities under the business corporation act, on which the majority rely. See Ark. Code Ann. § 4-26-1005(b)(3).
Turning to the dual persona doctrine, I disagree that this court should adopt that theory as an exception to the rule of exclusivity under the workers’ compensation law. The majority opinion ascribes greater support for the dual persona doctrine by Professor Larson than is borne out by the text itself. See 2A A. Larson, The Law of Workmen s Compensation § 72.81 (1990). The text does recite that whereas the disfavored dual capacity approach should be “jetisoned,” the dual persona approach may have legitimate application “in exceptional cases.” One of the exceptional cases examined by Larson is Billy v. Consolidated Machine Tool Corporation, supra, which the majority now incorporates into the law of Arkansas. Larson makes particular note of two pertinent factors which were present in Billy but which are absent from our case—Billy had never worked for the predecessor corporation (Valmac’s counterpart) and the defective equipment was manufactured before the merger. Thus, of two facts critical to the applicability of the dual persona view, at least one is missing from this case and perhaps both. Had these factors been present, according to Larson, the successor corporation in Billy could claim the inherited immunity of the predecessor corporation. Larson at 14-232.
From another angle, the issue in this case is whether the exclusivity provision of the Workers’ Compensation Act is paramount to the third party liability provision. Today’s holding subordinates the exclusivity provision, which I believe is central to the act, to the third party liability provision, the end result being that the same employer, although having paid thus far $353,000 in workers’ compensation benefits, is liable anew for unlimited damages at common law. In an analogous situation, where the right of contribution by a tortfeasor was asserted against the employer, necessitating a similar balancing, this court unanimously subordinated the joint-tortfeasor act to the Workers’ Compensation Act. In Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), an AP&L lineman sued Bashlin for injuries attributable to a defective lineman’s belt. Bashlin filed a third party complaint against AP&L for contribution as a joint tortfeasor. The trial court dismissed AP&L by summary judgment and we affirmed:
The Uniform Contribution Among Tortfeasors Act and the Workers’ Compensation Act are both involved in this action. One of them must give because both cannot prevail in the matter before us. Therefore, we hold that it is in the interest of public policy and in keeping with the intent of the General Assembly to give the compensation act priority as an exclusive remedy. In matters involving workers’ compensation benefits the employer shall be immune from third party tortfeasors’ claims.
Finally, I would cite language in the case of McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn. 1977). Tennessee’s Workers’ Compensation Act, like ours, provides that remedies under the act are exclusive of all other remedies and has a third party liability provision, (Section 50-914, T.C.A.) similar to our own Ark. Code Ann. § 11-9-410 (1987). While McAlister is a dual capacity case, implicit in the opinion is a disdain for concepts which defeat the aegis of exclusivity by constructing an alter ego for the employer:
Nothing in Sec. 50-914, T.C.A. may be construed to evince a legislative intent that an employer may ever be classified as a “third person,” without doing violence to the plain language which permits common law suits against “some person other than the employer.” The employer is the employer; not. some person other than the employer. It is that simple. The injured workman is confined to the benefits provided by the Workmen’s Compensation Act and may not sue his employer in tort.
I respectfully dissent to the reversal in this case.
S. & T. Manufacturing Co., Inc.; Steco Sales, Inc.; Saul Spector; Jacimore Metals, Inc.; Valmac Industries, Inc.; and Tyson Foods, Inc.