The Oklahoma Supreme Court just nullified the legislature’s attempt to limit an employee’s tort actions against an employer to an employee’s injuries caused by the employer’s deliberate intent to injure. Wells v. Oklahoma Roofing & Sheet Metal, 2019 OK 45 (June 18, 2019).

In 2005, the Oklahoma Supreme Court in Parret v. UNICCO adopted the “substantial certainty” test to determine when a claim against an employer can be filed outside of workers’ compensation court.  The Parret test—at least as applied by plaintiff lawyers and some judges—allowed an injured employee to recover under a standard that was akin to recklessness as opposed to requiring a true intentional tort.

In 2010 and again in 2014, the legislature rebuked Parret’s seemingly more lenient test by enacting a statutory definition of “intentional tort,” which requires the employee to show more than substantial certainty:   the employee must show the employer had the specific and deliberate intent to injure the employee.

This past week, the Wells Court, in a split decision, nullified this statutory test and re-instated the “substantial certainty” test by reasoning that the tests are one and the same, and that where substantial certainty is shown, the injury is not accidental and cannot be covered by workers compensation. The decision also noted that proof of intent would almost always be circumstantial.  As a result, dismissal or summary judgment based upon exclusive jurisdiction will be much harder to obtain in those cases involving serious injury and questionable safety practices. The return to Parret will likely lead to an increase in tort suits against employers. These lawsuits will undoubtedly spur additional argument and litigation over the definition of an “occurrence” and “intentional injury” as those terms are found in most employer liability insurance policies.