dissenting. Ark. Code Ann. § 11-9-105(a) (Supp. 1993) provides in part: “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,. . .” We have recognized that the intentional infliction of an injury upon an employee is an exception to the exclusive remedy provision of the Workers’ Compensation Act. See Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). Also, the Workers’ Compensation Act does not preclude an action against a third-party tortfeasor. See Ark. Code Ann. § 11-9-410 (Supp. 1993). Subject to these narrow exceptions, an employer is immune from liability for damages in a tort action brought by an injured employee.
The narrow exception for third-party tortfeasors has been expanded far beyond the original intentions of the General Assembly. See Thomas v. Valmac Indus. Inc., 306. Ark. 228, 812 S.W.2d 673 (1991). In his response to Nucor’s petition for writ of prohibition, Mr. Foster acknowledges that Daniels General Contractors provided contract labor for Nucor. Mr. Foster had been assigned by Daniels to work for Nucor. Thus, Mr. Foster’s only remedy was under the worker’s compensation law. See generally Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992).
Recently, the General Assembly recognized the expansion of the exceptions to the rule of exclusivity under the workers’ compensation law. Act 796 of 1993 amended § 11 -9-105(a) to provide:
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, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an 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 personas the employer may be deemed to have. [Emphasis supplied.]
Even if Nucor was not in fact Mr. Foster’s employer, Nucor was a prime contractor of Daniel General Contractors. Accordingly, the workers’ compensation law would be the exclusive remedy. Although the provisions of Act 796 apply only to injuries which occur after July 1, 1993, clearly the General Assembly has recognized the recent limitations on the exclusivity provision.
Furthermore, in Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993), it was evident from the pleadings that no cause of action at law was stated, i.e., the exclusive jurisdiction of the workers’ compensation commission was clear. Conversely, in The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied 315 Ark. 336-A, 869 S.W.2d 8 (1994), it was equally clear that a cause of action for the tort of outrage — the intentional infliction of emotional distress — was stated, giving rise to an action at law. Because the allegations in Wise met the demanding criteria of the tort of outrage as defined in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), we denied the requested writ of prohibition. In cases falling on the cutting edge, such as this one, I believe we should look beyond the pleadings to determine whether the exclusivity provision of the Workers Compensation Act applies.
For the foregoing reasons, I respectfully dissent from the denial of the writ of prohibition.