dissenting. The majority has as a held that appellant, an Arkansas worker, “elected” Ohio “remedy” when he received workers’ compensation benefits pursuant to Ohio law from an Arkansas employer for an injury that occurred in Arkansas. In so holding, it turns a blind eye on the bad faith actions of the employer, which led to appellant pursuing his workers’ compensation claim in a forum where he had no legitimate contacts. Because I consider such bad-faith actions contrary to the public policy upon which the workers’ compensation system is based and fundamentally unconscionable, I must dissent.
The majority opinion omits several essential facts. While emphasizing that appellant signed forum-selection documents, including the one entitled “Agreement to Select the State of Ohio as the State of Exclusive Remedy,” the majority opinion somehow avoids reference to evidence of bad faith by the employer. For instance, the majority opinion states that appellant thought that he was being employed by Steve Johnson. However, it fails to reveal that appellant obtained this belief after asking Johnson about PaySource and after Johnson told appellant that he (Johnson) was the employer. The majority opinion also omits appellant’s testimony that Johnson’s secretary told him (appellant) that he had to sign the forum-selection documents by the following week in order to receive paychecks. Another co-worker, Rick Stetka, also testified that he was told that he had to sign the documents in order to be paid.
Both the Commission and the majority erroneously state that this is an election-of-remedies case. The election-of-remedies doctrine bars more than one recovery on inconsistent remedies (e.g. a tort remedy versus a contract remedy). Pro-Comp Mgmt, Inc. v. R.K. Enterprises, LLC, 366 Ark. 463, 237 S.W.3d 20 (2006). The purpose of the doctrine is to prohibit more than one recovery for the same injury. Regions Bank v. Griffin, 364 Ark. 193, 217 S.W.3d 829 (2005). However, appellant is not seeking to pursue any remedy other than workers’ compensation. He is exercising his right to pursue his workers’ compensation claim under the laws of the state of Arkansas, which the majority concedes is the only state that has a legitimate interest in his compensable injury. The issue is not election of remedies at all, but election of the forum for appellant’s claim. While precedent from this court has inaccurately referred to this as an election-of-remedies issue, see Elliot v. Maverick Transp., 87 Ark. App. 118, 189 S.W.3d 62 (2004),1 the issue is accurately framed as whether appellant made a valid election to pursue his workers’ compensation remedy in Ohio rather than before the Arkansas Workers’ Compensation Commission.
All states having a legitimate interest in a compensable injury may apply their own laws in adjudicating the claim. Robinson v. Ed Williams Construction Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992). Claims for compensation may be instituted in any state having jurisdiction over the claim. Id. The receipt of benefits under the laws of one state does not preclude the receipt of benefits under another state unless the first state so declares. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975). Several statutes establish Arkansas’s public policy of making employers responsible for injuries suffered in the course and scope of one’s employment. See Ark. Code Ann. §§ ll-9-103(a) (Repl. 2002) (binding every employer and employee in the state to the workers’ compensation code); ll-9-105(a) (Repl. 2002) (establishing workers’ compensation as the exclusive remedy for injured employees); 11-9-108(a) (Supp. 2007) (rendering void any agreement by an employee to waive liability under the workers’ compensation code, unless otherwise provided in the chapter); 11-9-401 (a)(1) (Repl. 2002) (mandating that every employee compensate its employees for disabilities and deaths from compensable injuries without regard to fault as a cause ofinjury); 11-9-1001 (Repl. 2002) (stating that the purpose of the workers’ compensation code is to provide for disability benefits for injured workers, to pay reasonable and necessary medical expenses, and return the workers to the workforce). Therefore, any action which operates to divest an employee of rights under Arkansas workers’ compensation law should be viewed with extra scrutiny.
In Missouri City Stone, our supreme court affirmed the claimant’s pursuit of benefits in Arkansas even after the employer paid benefits under Oklahoma law. The claimant in that case was an Arkansas resident injured in Oklahoma. The majority now claims that the instant case is distinguishable because Missouri City Stone did not involve a forum-selection clause. Under Missouri City Stone, an employee who receives benefits from a foreign jurisdiction is not precluded from maintaining a claim under Arkansas law. That holding cannot be avoided by pointing to an agreement that was entered into in bad faith. It follows, therefore, that the decision in that case is controlling and factually on point.
In the instant case, the Arkansas employer required appellant to sign a forum-selection clause regarding a forum where neither the employer nor appellant had legitimate contacts. Arkansas courts enforce forum-selection clauses, see Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005), but only if there is a substantial connection between the contract and the forum state. Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991) (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957)). As stated in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471 (1985) (citations and internal quotes omitted), “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.” In enforcing a forum-selection clause, the constitutional touchstone remains whether the party has purposefully established “minimum contacts” with the forum state. Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)). Even the majority notes that the analysis under Elliot would apply “when two or more states have sufficient contacts for both to have jurisdiction.” One does not establish those contacts merely by signing a forum-selection clause. Rather, jurisdiction becomes proper when those contacts proximately result from actions by the party that create a substantial connection with the forum state. Rudzewicz, supra.
This court should be focused on whether appellant, voluntarily and without bad faith on the part of the employer, pursued benefits in a foreign jurisdiction. However, under the guise of a bad-faith analysis, the majority merely undertakes a contract analysis without an in-depth analysis of the actions of the employer.2 True, parties are presumed to have read and understood their contract, and parties are bound under the law to know the contents of the documents they sign. See Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002); McCaleb v. Nat’l Bank of Commerce, 25 Ark. App. 53, 752 S.W.2d 54 (1988). However, the notion that a party is presumed to know the contents of the document he signs does not bind that party to agreements that are unconscionable or against public policy, such as the “agreement” in this case. The majority opinion stands for the proposition that an employer may channel workers’ compensation claims to any state by using coercive action to secure a worker’s assent to a forum-selection clause, even if the employee otherwise has no legitimate connections to that state. If this does not constitute bad faith, then one will be hard-pressed to find circumstances that do.3
The majority’s analysis also operates to abrogate Missouri City Stone, which this court is bound to follow. See, e.g., Smith v. Aluminum Co. of America, 78 Ark. App. 15, 76 S.W.3d 909 (2002) (noting that the court of appeals is bound by the decisions of the supreme.court). Our supreme court has declared that the receipt of benefits under the laws of one state does not preclude the receipt of benefits under another state unless the first state so declares. But under the majority’s holding, once someone receives benefits under the law of one state, he cannot receive benefits under the laws of this state. In effect, the majority has eviscerated the holding in a supreme court case.
It is inconsistent with both due process and the public policy of the State of Arkansas to enforce a coerced “agreement” whereby an Arkansas employee is forced to pursue workers’ compensation benefits from an Arkansas employer for a compensable Arkansas injury in a different state with which the employee has no connections. Such an agreement violates public policy, deprives Arkansas workers from the protection of Arkansas workers’ compensation laws, and is patently unconscionable. It perverts fairness to hold that employers can meet due process requirements for minimum contacts by coercing employees to sign unconscionable agreements that deprive Arkansas employees of the right to prosecute their claims for Arkansas injuries before the Arkansas Workers’ Compensation Commission.
I respectfully dissent and am authorized to state that Judge Bird joins this opinion.
I am not advocating that this court overrule Elliot or any other precedent of this court. However, the court misspoke in Elliot when it referred to the issue as an election-of-remedies problem.
The Commission also glossed over appellant’s bad-faith claim, devoting only one sentence to the issue in its opinion.
The majority writes, “Appellate is literate, educated, and worked in management. He admitted that he held the agreement for several days before signing it and returning it to the secretary. He had plenty of time to ask questions before signing.” (Emphasis added.) This should beg the question of whether the average worker is in a good position vis-a-vis an employer to make inquiries when told to sign a document in order to continue receiving paychecks. It also disregards the fact that appellant obtained no consideration for “electing” to have his workers’ compensation benefits adjudicated under Ohio law in Ohio despite having no contacts with that state.