author: Donald L. Corbin, Justice. Steele Hays, Justice, Robert L. Brown, Justice,

text:
    MAPCO, INC. v. Linda PAYNE
    90-214
    812 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991
    [Rehearing denied September 16, 1991.]

      Penix, Penix & Lusby, by: Bill Penix, for appellant.

      Keith Blackman, for appellee.

       Hays, J., would grant rehearing.

   Donald L. Corbin, Justice.

Appellee, Linda Payne, filed suit against appellant, Mapco, Inc., her former employer. Appellee alleged in her complaint that appellant violated the provisions of Ark. Code Ann. § 11 -9-107 (1987) by refusing to reemploy her when she completed her convalescence from knee surgery for a work-related injury. She alleged this was retaliatory conduct in violation of the public policy of the State of Arkansas. The jury awarded appellee a $15,000 verdict. Appellant challenges the verdict, claiming there was insufficient evidence for submission of the case to the jury and that unemployment benefits should have been deducted from the $15,000 award. We affirm.

In 1983, appellant employed appellee as a clerk at a Mapco convenience store and gasoline station in Trumann, Arkansas. She received a job-related injury to her knee on August 25,1986. She did not work that week or a large part of the following week. She returned to work full-time on September 1, 1986. She testified that although her knee continued to bother her, she continued to work for eight or nine months. She testified that the company gave her permission to see Dr. Ball, who performed surgery on her knee on August 7, 1987. She filed workers’ compensation claims relating to this knee injury.

Appellee testified about her attempts to return to work following her surgery. She said she went to the Mapco store on more than one occasion to talk to Brenda Davis and J.B. Broadway, her immediate supervisors, about returning to work. She said they ignored her. She also stated that in October 1987 when she went to the store, she received a note from Mr. Broadway telling her to turn in her uniforms. On December 26, 1987, she went back to the store to submit a doctor’s release, at which time Mr. Broadway gave it back to her, saying, “I don’t need this.” When she called back on December 28, 1987, to tell Mr. Broadway she would be available to work on January 4,1988, Ms. Davis told her, “We still don’t need you.”

The evidence reveals that at least five other people were either hired or fired, or quit from December 1, 1987 to May 29, 1989. Cheryl Covey, a co-employee, testified that J.B. Broadway and Brenda Davis ignored appellee. She said they went into the office, shut the door, and told appellee they were too busy to talk to her. They also avoided appellee’s telephone calls. She overheard Mr. Broadway and Ms. Davis saying they were going to have to do something with appellee because “she was going to cause the company grief.” Mr. Broadway and Ms. Davis instructed Ms. Corey not to talk about appellee.

In its brief, appellant states the first point of this appeal as follows:

If this case is affirmed, the law of Arkansas will be that failure to reemploy a worker after an injury, for whatever reason, constitutes evidence of discrimination sufficient to sustain a jury verdict for damages.

In support of this claim, appellant argues there was insufficient evidence of discrimination to submit the case to the jury. Appellant also argues that the public policy exception to our employment-at-will doctrine should not be extended to apply to this case. We disagree.

Section 11-9-107 states:

Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of his claiming benefits under this chapter or who in any manner obstructs or impedes the filing of claims for benefits under this chapter shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not to exceed one hundred ($100) dollars, or by imprisonment of or not to exceed six (6) months, or by both fine and imprisonment.

True enough, this statute is basically penal in nature and the remedy it provides is pursuable through administrative action before the Workers’ Compensation Commission. However, we take the view that this remedy is not exclusive. This statutory provision is the clearest announcement by our legislature of a strong public policy that condemns retaliatory conduct by an employer who refuses to reemploy an employee for exercising a statutorily confirmed right to compensation for job-related injuries. Such conduct by an employer gives rise to an exception to our employment-at-will doctrine. See Sterling Drug, Inc v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Thus, appellant could properly bring this action for damages for the retaliation. See Wal-Mart Stores, Inc, v. Baysinger, 306 Ark. 239, 806 S.W.2d 385 (1991).

Necessarily, the burden of proving a retaliatory discharge is properly placed upon the employee. See 2A A. Larson, The Law of Workmen’s Compensation, § 68.36(c) (1990). Here, appellee had the burden of proving that she was not rehired in violation of the public policy of this state, namely the policy stated in section 11-9-107. The prima facie case should be made by a showing that the workers’ compensation claim was a cause for the retaliation. This may be proved, as in most any other action, by circumstantial evidence. As Professor Larson points out in his treatise, ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Larson further elaborated that proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations. Id. Once the employee has made a prima facie case of retaliatory discharge, the burden shifts to the employer to raise a defense of non-retaliatory reasons for the discharge. See 2A A. Larson, The Law of Workmen’s Compensation, § 68.36(d) (1990).

Clearly, appellee presented sufficient facts to justify the court in letting the case go to the jury. Appellee presented evidence of a job-related injury. She also presented evidence that, following the filing of her workers’ compensation claim and convalenscence from surgery to treat a job-related injury, her supervisors ignored her and avoided any attempt she made to communicate with them regarding her claim or reemployment. Mr. Broadway and Ms. Davis admitted they were mad at her for allowing the doctor to schedule surgery so as to interrupt Ms. Davis’ vacation plans. They also were overheard stating that appellee could cause the company grief. Finally, it was established that there were vacancies at appellee’s previous place of work. There were no averments that appellee had been anything but an exemplary employee since 1983.

Following the presentation of the foregoing evidence, appellant offered very little evidence of non-retaliatory reasons for the refusal to re-hire appellee. The evidence that was offered was contradicted by appellee’s evidence. There was substantial evidence to support the jury verdict.

As its second claim in this appeal, appellant argues that the $2,418.00 unemployment benefits paid by the State of Arkansas to appellee should not be classified as a collateral source and should be deducted from the judgment.

In Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), a case of first impression in Arkansas, this court noted that the Federal District Court in Collins v. Robinson, 568 F. Supp. 1464 (E.D. Ark, 1983), aff'd per curiam, 734 F.2d 1321 (8th Cir. 1984), had adopted the proposition that unemployment compensation benefits are considered a collateral source in tort cases. The Green Forest court adopted the same rule in employment cases. We refuse to reverse ourselves in this regard and reaffirm our position thus announced in Green Forest, supra.

Affirmed.

Hays and Brown, JJ., dissent.

Steele Hays, Justice,

dissenting. I respectfully dissent for

the reasons stated in Judge Brown’s dissenting opinion, in which I join, and for the reason stated in a dissent to the majority opinion in Wal-Mart v. Bay singer, also issued today.

Robert L. Brown, Justice,

dissenting. Like the majority, I agree that our cases recognize a public policy exception to the employment-at-will doctrine and that the exception extends (and should extend) to cases where employees are terminated because they have filed a workers’ compensation claim. This policy has been codified by the General Assembly and is clear. See Ark. Code Ann. § 11-9-107 (1987). The public policy exception, however, should not extend to the facts of this case, where no intent or motive by the employer to violate that public policy was shown. Under such facts the trial court was remiss in not directing a verdict for the appellant.

All that was presented by Linda Payne in the way of proof was that she was ignored by the cashier, Brenda Davis, and the manager, J.B. Broadway, when she returned to work after her operation and that she was not rehired. There was also vague testimony from an employee who had been fired by Brenda Davis that she heard Davis and Broadway say that Payne “was going to cause the company grief.” On the other hand Davis and Broadway testified that Payne had been back at work for almost a year since hurting her knee when she scheduled her operation. The operation was scheduled immediately after she returned from vacation and was in conflict with Davis’s own vacation which had to be cancelled. Davis and Broadway admitted that they were angry at Payne for doing this. They denied that filing the worker’s compensation claim itself had anything to do with the refusal to rehire.

Admittedly, proving motive and intent in these cases is difficult. Yet, something more must be shown in the way of circumstantial evidence beyond the mere filing of a worker’s compensation claim and a subsequent refusal to rehire. Nonetheless, that is really all that was shown by Payne in this case. Here, Broadway had valid reasons for not taking Payne back: interference with Davis’s vacation, prolonged telephone conversations, and customer complaints. On the other hand, the evidence at trial that filing the worker’s compensation claim was the real reason for not rehiring was highly speculative. The majority cites proof that Payne was ignored by Davis and Broadway. Both individuals conceded that they were angry at Payne for other reasons. Rude treatment and vague statements to a fired employee are not sufficient in my judgment to find a public policy violation.

Reversing a jury verdict should be done with caution, and I espouse such a course reluctantly. But for us to uphold a jury verdict, the evidence must be substantial. See Wal-Mart Stores v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). In this case, the evidence presented was far from substantial but was sufficient only to raise suspicion and conjecture. I have no other choice but to dissent.

Hays, J., joins.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Robert L. BARKER v. C. Dean NELSON, Robert A. Barker, II, Sherry Barker, Daniel Thomas Barker and Pamela Barker
    91-60
    812 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellant.

      Griffin, Rainwater, & Draper, P.A., by: Gary M. Draper, for appellees.
   Robert L. Brown, Justice.

Appellant Robert L. Barker appeals an order of the chancery court finding a valid conveyance* of certain land by him and his former wife, Helen Barker, to their sons, Robert A. Barker, II and Daniel Thomas Barker, and to their wives by means of a 1982 warranty deed.

The facts leading up to the execution of the deed and the aftermath are widely disputed. According to the sons, Robert and Daniel, they were called to their parents’ home with their wives on the night of September 1, 1982, and presented with a warranty deed executed by Barker and his wife deeding them four lots in the city of Crossett, with the parents retaining a life estate in all four lots. One of the lots described in the warranty deed had previously been sold to Daniel in 1979. Another lot was the parent’s homestead. At the meeting, according to the sons’ testimony, the original deed was passed around the table and shown to them, and each son paid consideration of $1.00 for the deed. At the conclusion of the meeting, Barker and his wife retained possession of the deed.

The catalyst for the meeting and the grant, according to Robert, was an investigation by a government agency into the fact that Barker was drawing two disability checks from the Civil Service and the Marine Corps. According to Robert, Barker was concerned that he might have to pay some of the disability money back to the government, and because of that he decided to deed his real property to his sons. Barker denied that the disability checks prompted the execution of the deed and further denied that the September 1,1982 meeting with his sons even took place. He testified, rather, that the deed was made because Helen Barker was in poor health, and they both wanted to avoid losing the land to the state if he or his wife had to enter a nursing home.

Within one or two days after the meeting, Robert and Daniel testified, each received a photostatic copy of the warranty deed from their parents—Daniel got his from his mother and Robert got his from his father. Barker denies that he gave either son a copy of the deed. According to both sons, their mother urged them to record their copies of the deed. The original deed stayed in the possession of Barker and his wife, and they placed it in their safe. It was not recorded. Three years later, in 1985, one of the lots described in the deed was sold by Barker and his wife to third parties, apparently with the knowledge of Robert and Daniel. From 1982 forward Barker paid real estate taxes on the property, continued to reside on one of the lots, and received rental income from the lease of two of the lots.

Helen Barker died on November 13, 1988. In March or April 1989, Barker met with his sons and their wives at a restaurant and informed them that he might remarry. Angered by this news, Robert and Daniel recorded one of the copies of the warranty deed in the Ashley County Circuit Clerk’s office on May 12, 1989. Thereafter, Barker did remarry. The original deed remains in Barker’s possession and was never recorded.

On July 12, 1990, Barker filed suit against his sons, their wives, and the circuit clerk (collectively, the appellees) to cancel and expunge the recorded deed on grounds that it was a copy without original signatures and further to void the 1982 conveyance for failure to deliver. The chancellor found that the warranty deed was delivered and was a valid conveyance of real property, but that the deed, as a photocopy, should not have been recorded and must be expunged. In his incorporated findings, the chancellor further agreed with the sons that Barker and his wife intended to deliver the property to them in order to remove it from the possibility of loss to the federal government. The chancellor, however, refused to void the conveyance, and Barker has appealed on that issue.

Barker’s sole argument is that no delivery of the original deed to the sons transpired and, accordingly, no conveyance of title occurred. In advancing this argument, Barker contends that there was no intent to deliver as evidenced by the fact that one lot included in the 1982 grant was conveyed to a third party in 1985, without objection from the sons. As additional evidence of no intent, Barker points to the prior grant of another lot to his son Daniel in 1979. Finally, he argues that he and his former wife continued to reside on one of the remaining lots and to pay the real estate taxes on that property.

We begin by acknowledging that a delivered deed passes title as between the parties even though it has not been recorded. See Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954). Ordinarily, for there to be a delivery of a deed we have said that the grantor must intend to pass title immediately, and the grantor must lose dominion and control over the deed. See e.g., Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990); Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967); Smith v. Van Dusen, 235 Ark. 79, 357 S.W.2d 22 (1962). In the Broomfield and Smith decisions, we further held that the intention to convey title must be manifested by what is said and done by the grantor and grantee. This statement partially echoes past authority where we stated that the question of delivery of a deed is one of intention of the grantor, as manifested by his acts or words or both. See Cribbs v. Walker, 74 Ark. 104 (1905), citing 9 Am. & Eng. Enc. Law p. 154.

Where the deed includes the reservation of a life estate in the grantor, however, the requirements of delivery are different. See Grimmett v. Estate of Beasley, 29 Ark. App. 88, 777 S.W.2d 588 (1989); Cribbs v. Walker. In Cribbs we reversed the chancellor’s decision and held that when a husband deeded property to his wife and showed her the deed, but reserved a life estate in himself and kept the deed in his personal safe, there was an effective delivery. To the same effect, the Arkansas Court of Appeals reversed the chancellor in Grimmett v. Estate of Beasley on similar facts and held that when the grantor reserved a life estate, delivery of a deed to the grantor’s brother (the grantee) occurred when she showed the instrument to her brother, even though she kept the deed in her possession, used the property, and paid real estate taxes on the property. Also, in Grimmett the grantee had copies of the deed in his possession with the original signature of the grantor. Again, as was the case in Cribbs v. Walker, the distinguishing factor in the Grimmett case was the reservation of a life estate in the grantor. Since actual possession of the property by the grantee would not occur until the grantor’s death, physical control of the deed by the grantee was not required in either case.

We hold that the distinction made in Cribbs and Beasley is a legitimate one and that when a life estate is retained by the grantor under the deed and the grantee is shown the original deed by the grantor, possession of the original deed instrument need not be transferred to the grantee in order to effect a delivery.

Moreover, the chancellor in the case before us made precise findings of fact, among which was the critical finding that in 1982 Barker intended to convey the remainder interest in his property to his sons, while reserving a life estate in himself and his wife. A second critical finding was that Barker delivered the deed to his sons at his home on September 1, 1982, when he passed the original deed around the table and showed it to them. The chancellor further gave credence to the testimony of the sons that the reason for the conveyance was Barker’s fear of losing the property to the federal government. Lastly, the chancellor, by not referencing the transaction in his findings, apparently discounted the effect of Barker’s 1985 transfer of one of the lots to a third party. In addition, though the chancellor did not make a specific finding on this point, we do note that the sons had a photostatic copy of the deed in their possession which they used for recordation in 1989. They testified that the copy came from their parents and that their mother urged them to record their copies.

In sum, the chancellor heard testimony from multiple witnesses and had full opportunity to observe the witnesses and evaluate their credibility. He found that the evidence preponderated in favor of the appellees. We are unable, under these circumstances, to say that the chancellor’s findings were clearly erroneous. See Ark. R. Civ. P. 52(a).

We, therefore, affirm.


author: Robert L. Brown, Justice. Donald L. Corbin, Justice,

text:
    Judy L. BLACK v. Charles R. BLACK, III
    91-8
    812 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Penix, Penix & Lusby, by: J. Robin Nix II, for appellant.

      Snellgrove, Laser, Langley & Lovett, by: David N. Laser, for appellee.
   Robert L. Brown, Justice.

This case comes to us on the sole question of whether the chancellor actually referred to the Arkansas Family Support Chart in making his decision on child support, as required, and sufficiently rebutted the presumption that the support chart is correct.

The facts in this case are not in issue. Appellant Judy L. Black and appellee Charles R. Black, III, were divorced on June 10,1986. At the time they had four minor children. As part of the property settlement, the appellant received approximately $280,000 in cash and an interest in the appellee’s pension fund. At the time of the decree the appellant was not working. The chancellor, in his decree, ordered the appellee to pay $500 a month for each minor child as child support. He further ordered a $1,000 alimony payment to the appellant for one year only.

On October 3, 1989, the appellant filed a petition to modify the decree due to material changes in circumstances involving the needs of the children and the appellee’s ability to pay. In her petition she referred to the fact that two of her four children had reached their majority, and child support was, as a consequence, no longer being paid on their behalf. Total child support each month for the remaining two minor children was, therefore, $1,000.

At the trial it developed that the appellee was indeed earning more income. Whereas in 1986 his income had been about $186,500, his income tax return in 1989 reflected earnings of about $276,500, and in addition to that he received between $18,000 to $20,000 a year in non-taxable income. Accordingly, his annual income had increased over $100,000. It further developed at the trial that all four children still lived with the appellant, and no child was working. The appellant was employed and earned about $800 a month. Of the $280,000 cash settlement, she had some $12,000 remaining. Since the divorce, she had bought a larger home, new furniture totaling approximately $10,000, jewelry worth about $4,500, and a car for her oldest daughter requiring monthly payments. She testified her monthly expenses were $4,000 to $4,500. The appellee had made gifts to his four children in varying amounts for college or for commencement of careers, which were revocable.

The chancellor, in his letter opinion dated August 1, 1990, referred to the change in the appellee’s income, the status of the four children, the financial condition of the appellant, and the appellee’s gifts to the four children at some length. After doing so, he determined that an increase of $250 per month for the two remaining minor children for a total monthly child support payment of $1,500 was appropriate. On September 6, 1990, the chancellor ordered the increased payment, and incorporated his letter opinion by reference into his order. In both his letter opinion and the order, he made mention of the child support chart. In his letter opinion he said that the court “may consider” the child support chart with a number of other factors to determine change of circumstances. The chancellor then added: “It should be noted at this point that the child support chart is not mandatory and the court may disregard it in making any change or refusing to make any change.” He cited Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989), as authority for these propositions. In his order, he further stated:

For the reasons set forth in the letter dated August 1, 1990, attached thereto and incorporated herein by reference, the support chart is not mandatory and is not followed in the specific amount of increased support awarded by this court.

The controlling law on what is required to determine child support was made clear by Act 948 of 1989, now codified in part as Ark. Code Ann. § 9-12-312(a)(2) (1991):

(a)(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.

Also, by Per Curiam order dated February 5,1990, we emphasized that the child support chart created a rebuttable presumption of the amount that was appropriate, and we listed factors to be considered by the court in arriving at the amount of support:

In adopting this per curiam, the Court creates a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for dissolution of marriage, separation, or child support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate.
Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:
1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child Care;
8. Accustomed standard of living;
9. Recreation;
10. Insurance;
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source.

Additional factors may warrant adjustments to the child support obligations and shall include:

1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child; and
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements.

In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990).

In his letter opinion the chancellor stated that the child support chart is not mandatory. That is essentially correct. We have previously held, as has the Arkansas Court of Appeals, that there may be other matters in addition to the child support chart that have a strong bearing in determining the amount of support. See Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987); Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). The factors listed in our Per Curiam order are examples of such other matters.

The case of Ross v. Ross, though, does not hold that a chancellor may disregard the child support chart completely. Nor is the matter of referencing the chart discretionary with the chancery court in light of Act 948 of 1989 and our February 5, 1990 Per Curiam order. Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.

We are mindful that the chart did not contemplate monthly income as high as that of the appellee. But using the chart as a guide, an amount could have been extrapolated. In this regard we point to a recent case where we held that it was sufficient for a chancery court to use figures on the existing support chart to project monthly support amounts appropriate for a party with monthly income exceeding the chart amounts. See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). In Scroggins, after projecting such an amount, the chancery court explained in written detail, after consideration of all relevant factors under our Per Curiam order, why that amount should not be followed. We held that that was the appropriate procedure.

Here, the chancellor’s letter opinion gives a detailed explanation for his decision to modify the child support. He discusses specific changes in circumstances in 1989, the year of the petition to modify, as compared to 1986, the year of the divorce, and concludes that the support must be increased. But other than mentioning in his letter opinion that the child support chart may be considered and disregarded, there is nothing to confirm that he indeed referred to the chart in making his decision, projected a support chart amount premised on the appellee’s monthly income, and presumed that amount to be correct. Nor can we confirm that he weighed the factors set out in our Per Curiam order and because of those factors determined that the amount extrapolated from the support chart would be unjust or inappropriate. Certainly, the chancellor’s written findings are not couched in those terms. His order does say that he declined to follow the chart, but, again, that does not confirm that he ascertained the chart amount and found it to be unjust or inappropriate.

We are, therefore, unable to determine in the case before us whether the chancellor followed the correct procedure. Certainly, there is no family support chart amount set out in his letter opinion or order. Moreover, his letter and order are not informative on whether all relevant factors were considered, though clearly some were.

We have the power to decide chancery cases de novo on the record before us, but in appropriate cases we also have the authority to remand such cases for further action. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). This case requires a remand. We leave it to the discretion of the chancellor to decide whether a more detailed and explanatory opinion will suffice to meet the requirements of our Per Curiam order and Ark. Code Ann. § 9-12-311 (a) (2), or whether further proof from the parties is necessary on the applicable factors and other relevant matters.

Reversed and remanded.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent. The majority seems to be rigidly linked to the family support chart. It requires strict adherence to a recitation by the chancellor that the court has sifted through the relevant factors announced in our Per Curiam of February 5, 1990, one by one to determine the appropriate amounts of child support. The majority admits it is essentially correct that the support chart is not mandatory. The majority does hold that a reference to the chart is mandatory. I have no difficulty in reading and understanding that the chancellor did “reference the chart” when he stated in his order that he declined to follow the chart. I would affirm.


author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    CMS JONESBORO REHABILITATION INC. d/b/a Northeast Arkansas Rehabilitation Hospital, Inc. v. Boyd and Delores LAMB
    91-70
    812 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Hillburn, Calhoon, Harper, Pruniski, & Calhoun, Ltd., by: James M. McHaney, Jr. and Paula Jamell Stonegard and Lyons & Emerson, by: Jim Lyons, for appellant.

      Rees Law Firm, by: David Rees, for appellees.
   Robert L. Brown, Justice.

This appeal arises from a default judgment entered against the appellant, CMS Jonesboro Rehabilitation, Inc. d/b/a Northeast Arkansas Rehabilitation Hospital, Inc. (“CMS”), and in favor of the appellees, Boyd Lamb and Delores Lamb, in the amount of $23,572.75. CMS advances the arguments that the service was defective and, alternatively, that the failure of CMS to answer was due to excusable neglect and unavoidable casualty or misfortune.

We do not agree, and we affirm the judgment.

The appellees filed their complaint against CMS and its parent company, Continental Medical Systems, Inc. (“Continental”), on July 25, 1989, alleging damages to the appellees’ residence caused by a dirt-pounding process associated with the construction of a CMS facility that sent shock waves and vibrations to the appellees’ property. The appellees sought to serve CMS by serving its agent, The Corporation Company, with complaint and summons on July 25, 1989, by certified mail, return receipt requested. The receipt was signed by R.L. Wright on the “Signature-Agent” line on July 28, 1989. Under the category on the receipt entitled “Type of Service,” the “Certified” box was marked with an “x.” No check or mark of any kind was made in the “Restricted Delivery” box on the receipt. At the time of service a Standing Delivery Order form was on file with the U.S. Postal Service showing that R.L. Wright was an authorized agent of The Corporation Company to receive unrestricted and restricted delivery mail. After receiving the complaint and summons, The Corporation Company forwarded the same to CMS.

Approximately four and one-half months after the certified mail receipt was signed, and specifically on December 11, 1989, the appellees took a default judgment against CMS and Continental in the amount of $23,572.25. CMS and Continental did not discover the default judgment until April 25, 1990, and moved to set it aside on May 3, 1990. The trial court reviewed affidavits submitted by the parties and evidentiary depositions and heard testimony from a witness and arguments of counsel at a hearing on August 15, 1990. By order entered on August 17, 1990, the trial court denied the motion to set aside with regard to CMS but granted it with regard to Continental, due to lack of in personam jurisdiction.

CMS argues, first, that service of process by the appellees did not satisfy the dictates of Ark. Rule Civ. P. 4(d) (8) (A), which authorizes service of summons and complaint by mail:

Service of a summons and complaint upon a defendant . . . may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee.

Ark. R. Civ. P. § 4(d)(8)(A). In the case before us, the mail was appropriately addressed to The Corporation Company, which was the registered agent of CMS, with a return receipt requested. A receipt signed by R.L. Wright on behalf of The Corporation Company is also in the record. These facts are not in dispute.

CMS’s argument, however, centers on whether the mailing by the appellees was a “delivery restricted” to The Corporation Company under Rule 4(d)(8)(A). We hold that it was. It is true that the Restricted Delivery box was not checked on the U.S. Postal Service form. Nevertheless, the procedure followed by the postal service and The Corporation Company was the designated procedure under Rule 4(d)(8)(A) had the box been checked: a person authorized to accept restricted mail did so and signed the required receipt which was returned to the appellees and is now part of the record.

It is undisputed that R.L. Wright was authorized to accept restricted mail on behalf of The Corporation Company. Evidencing this fact was the card on file with the postal authorities at the time which was signed by Wright and which contained the added notation: “This authorization is extended to include Restricted Delivery.” Furthermore, Wright signed for and accepted the mail containing the complaint and summons, the same as he would have done had the “Restricted Delivery” box been marked. Under such facts it would strain credulity to hold that the delivery was not, in fact, carried out in restricted fashion and that the purposes and objectives of Rule 4(d)(8)(A) were not, in fact, met.

We particularly note the language in Rule 4(d)(8)(A) which provides when service can be the basis for a default judgment. The rule states that a default judgment shall not be entered “unless the record contains a return receipt signed by the addressee or the agent of the addressee.” That is exactly what was done in this case—a return receipt signed by the appropriate person, R.L. Wright, on behalf of The Corporation Company was made part of the record. The object of the rule is to give CMS knowledge of the appellees’s suit, and that object has clearly been met. For reasons unrelated to service of process, CMS simply failed to respond to the complaint.

In its argument CMS relies heavily on a prior case of this court handed down in 1989 which had somewhat similar facts. See Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989). In Wilburn the trial court also refused to set aside a default judgment where service of complaint and summons was by certified mail, return receipt requested, but where the “Restricted Delivery” box was not marked. However, in Wilburn, the person who received the certified mail with the complaint and summons was not authorized by the defendant to receive restricted delivery in accordance with U.S. Postal Service regulations. We reversed the trial court and voided the default judgment. In our decision we referred to both the failure to mark the “Restricted Delivery” box and the recipient who was not authorized to receive restricted mail:

There was no evidence that appellee had directed the summons and complaint to be mailed with restricted delivery. Nor was there any evidence that appellant had specifically authorized, in writing, that L.D. Madden was to be his agent to receive mail. Consequently, the default judgment was void ab initio, and the trial court erred in denying appellant’s motion to set it aside.

298 Ark. at 463; 768 S.W.2d at 532.

The facts in this case are distinguishable from the Wilburn case. Delivery was made in this case as if the “Restricted Delivery” box had been marked. Moreover, in this case R.L. Wright was clearly authorized by The Corporation Company to receive restricted deliveries.

CMS next argues that R.L. Wright could not accept service for The Corporation Company under Ark. R. Civ, P. 4(d)(5), because that rule limits service on a domestic corporation to delivery of the complaint and summons to “an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.” Here, CMS is a domestic corporation with The Corporation Company as its agent for service of process. Mr. Wright was the agent authorized to receive restricted and unrestricted mail, including process, for The Corporation Company. Indeed, Wright did sign for and accept the process sent by mail to The Corporation Company pursuant to Rule 4(d)(8)(A). We find no merit in CMS’s argument.

In the same vein, CMS points to the Arkansas Code and specifically to a statute directed to service of process when a corporation is the registered agent, which is the situation in the case before us:

Service of any process, notice, or demand upon a corporate registered agent, as agent, may be had by delivering a copy of the process, notice, or demand to the registered agent, president, vice-president, the secretary, or an assistant secretary of the corporate registered agent.

Ark. Code Ann. § 4-26-503(a)(2) (1987). But, again, Rule 4(d)(8)(A) clearly provides for service by mail to be received by an agent of the addressee. Accordingly, the argument of CMS is without merit. We note that alternative means of serving process, such as the alternative set out in Rule 4(d)(8)(A), are contemplated under the statute advanced by CMS in support of its argument:

(c) Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a corporation in any other manner now or hereafter permitted by law.

Ark. Code Ann. § 4-26-503(c) (1987).

CMS finally argues unavoidable casualty or excusable neglect under Ark. R. Civ. P. 55(c) and unavoidable casualty or misfortune under Ark. R. Civ. P. 60(c)(7). In our cases, we have recognized that defaults are not favored in the law and that a default judgment may be a harsh and drastic result affecting the substantial rights of a party. See Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). CMS offers as grounds for relief that it contacted its insurance carrier on receipt of the complaint and summons, and the carrier agreed to defend the action on behalf of CMS. The carrier apparently reneged subsequently and advised CMS to demand a defense by the general contractor. This was done, and according to CMS the general contractor agreed to assume the defense. No defense, however, was mounted by the general contractor.

We have held in the past that misunderstandings about who will defend an action are not sufficient to show unavoidable casualty or misfortune under the old Rule 60(c). See McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). And we have further held that a party cannot invoke the aid of this court under Rule 60(c) when that party ignored the action and failed to stay informed. See Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978).

Nor do we hold that the misunderstanding on the part of CMS is sufficient to constitute excusable neglect. Unlike the case of Burns v. Madden, where the attorney for the plaintiff had previously represented the defendant and had advised the defendant to contact his insurance carrier, here there was no previous attorney/client relationship involved and no potential for that kind of misunderstanding to develop. There is no question that there was neglect by CMS. The only question is whether it was excusable. The trial court’s remarks on this point are instructive:

I don’t think that because their client made a deal with the contractor or with the insurance company or with someone else and then forgot about it and didn’t follow up, I don’t think that’s excusable neglect or unavoidable casualty. I think that’s not attending to your business.

We agree. CMS did nothing to assure that the general contractor was indeed defending it. And four and one-half months did pass from the date of filing the complaint to the date of entry of a default judgment during which time CMS apparently did not monitor the case. More was required of CMS than was shown in this case, and that formed the basis for the trial court’s finding. We have previously held that the decision to grant or deny a motion to set aside a default judgment lies within the sound discretion of the trial court, and the question on appeal is whether the trial court abused that discretion. See Burns v. Madden, Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978). There was no abuse of discretion in this case.

Affirmed.

Dudley and Newbern, JJ., dissent.

Corbin, J., not participating.

David Newbern, Justice,

dissenting. The question in this case is whether the service of process was defective. The Rule governing service by mail is Ark. R. Civ. P. 4(d)(8)(A) which provides, in relevant part:

Service of a summons and complaint upon a defendant . . . may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.

Because delivery was not “restricted to the addressee or the agent of the addressee,” there was no compliance with this provision.

The Court’s opinion makes much of the fact that a person authorized to receive restricted deliveries actually received the process, and the fact that in holding service was invalid because delivery was not restricted in Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), we mentioned that the recipient was not a person authorized to receive restricted delivery. That does not cure the problem. The fact remains that the plaintiff did not choose a form of mail with delivery restricted. The service was defective no matter who received it.

Rule 4(e)(3) was amended in 1983 to make requirements for mailing of service outside Arkansas consistent with the mailing requirements for service in the State. The Reporter’s Note accompanying the 1983 revision makes it clear with the “restricted delivery” contemplated is the method of delivery so described in postal service regulations. In the Wilburn case we discussed the applicable postal regulation, pointing out that Section 933.41 of the postal regulations directs carriers to deliver mail marked “Restricted Delivery” only to the addressee or agent.

The majority opinion also refers that portion of Rule 4(d)(8)(A) which states “Service pursuant to this paragraph shall not be the basis for . . . default . . . unless the record contains a return receipt signed by the . . . agent of the addressee.” All that needs to be said about this segment of the Rule is that service was clearly not had “pursuant to this paragraph” because delivery was not restricted to the addressee or agent of the addressee.

It is easy to make light of the failure to “check the box” indicating restricted delivery, but unless the box is checked, the mail is not marked “Restricted Delivery,” and delivery is thus not restricted. The problem caused by this decision is a serious one. R.L. Wright was not given the process as a result of his having been designated to receive restricted deliveries. He received it because he happened to be the person who showed up. Holding that the service was valid because a person authorized to receive restricted deliveries actually received it is analogous to holding that actual notice is sufficient even though the law did not require that notice be given directly to the defendant, a practice thoroughly condemned as a violation of due process in Wuchter v. Pizzuti, 276 U.S. 13 (1928). Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). See also Wilburn v. Keenan Companies, Inc., supra.

As we wrote in the Wilburn case,

Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by Rules of Court. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Edmonson v. Farris, 263 Ark. at 508. In cases where judgments are void, proof of a meritorious defense is unnecessary. Edmonson v. Farris, 263 Ark. at 508.

In Edmonson v. Farris, supra, the Trial Court had determined that the fact that service was not precisely in accordance with the then applicable statutory requirement was a mere “technical distinction” insufficient to invalidate the service. Writing for a unanimous Court, Justice Frank Holt made short work of responding to that position by stating that the service requirements of the statute are in derogation of the common law and must be “exactly complied with.” Otherwise, the service results in void judgment.

The compliance in this case was not exact. The service was defective. The judgment is void.

I respectfully dissent.

Dudley, J., joins in this dissent.

       By Per Curiam order effective February 1,1991, Rule 60(c) was amended to apply to judgments other than a default judgment. Subparagraph (7) of Rule 60(c) was deleted and replaced by former subparagraph (8). Rule 55(c) was amended to include “mistake,” “inadvertence,” and “surprise” as grounds for setting aside a default judgment.


text:
    Jeff ENGLAND and Don Ragar v. DEAN WITTER REYNOLDS, INC. and Robert W. Bass
    90-321
    811 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      David M. Hargis, for appellants.

      Friday, Eldredge & Clark, by: Michael G. Thompson, Elizabeth J. Robben and Tonia P. Jones, for appellees.
   Edwin B. Alderson, Jr., Special Chief Justice.

Appellants appeal an Order of Dismissal of the lower court which granted the Appellees’ Motion to Compel Arbitration and for Dismissal. The court in that Order dismissed Appellants’ Complaint and stated “. . . if they desire to further pursue their alleged claims against the Defendants, (Plaintiffs) must do so in accordance with the arbitration agreements entered into by the parties”.

Appellants, Jeff England and Don Ragar, (along with Keith French who joined in the complaint in the lower court but did not appeal the decision) while working in the Little Rock branch of E. F. Hutton negotiated in the Fall of 1987 with Appellees Dean Witter Reynolds, Inc. and Appellees Robert W. Bass, a Vice President of Dean Witter and the branch Manager for its Securities Operations in Little Rock. The negotiations concluded with agreement among the parties that Appellants would become employees of Dean Witter. The parties executed a letter agreement dated December 11, 1987, an Account Executive Employment Agreement dated December 15, 1987 and a Uniform Application for Securities Industries Registration or Transfer dated December 16, 1987 known in the industry as a “Form U-4”. The December 15 Agreement provided for arbitration and also that it would be governed by Arkansas Law. The Form U-4 contained a comprehensive arbitration agreement providing for arbitration of “any dispute, claim or controversy that may arise . . .” in accordance with Rule 347 of the New York Stock Exchange which likewise calls for arbitration of any controversy arising out of the employment.

Almost instantly problems arose between Appellants and Appellees and Appellants’ employment ceased in early 1989. England, Ragar and French filed their complaint in the lower court in August, 1989 alleging fraudulent inducement, intentional misrepresentation, gross negligent misrepresentation, prima facie tort and tort outrage. Their prayer was for unspecified compensatory damages plus $20,000,000 punitive damages. Appellees filed a Motion to Compel Arbitration and for Dismissal of the Complaint. The Order of Dismissal granting the motion and dismissing the Complaint was entered in February, 1990.

The Points of Appeal relied on by the Appellants are as follows:

1. All authorities, state and federal, require an agreement to arbitrate the specific subjects involved and the matter is one of contract.
The “choice of law by agreement” issue was entirely omitted from the lower court’s ruling. 2.
The lower court failed to follow the rules for construction of contracts under Arkansas Law. 3.
The lower court ignored the rules requiring jury determination when the making of an agreement to arbitrate is in issue. 4.
The lower court erred by its determination of material and disputed fact issues which is an unconstitutional usurpation of the jury function and a denial of the right to a jury trial. 5.

All parties admit that the Form U-4 was executed by the parties. As a contract involving interstate commerce it is covered by the Federal Arbitration Act. The Federal Arbitration Act provides that if the making of the Arbitration Agreement is in issue a party may demand a jury trial. Notwithstanding the plethoric arguments by Appellants’ counsel it was clear to the lower court and it is clear to this court that there was indeed an agreement to arbitrate. In this connection we think that the lower court should have made a specific finding that there was no material issue of fact to be determined.

While the substantive issues are determined by the Federal Arbitration Act the procedural issues are determined by Arkansas*Law. Appellees argue that the order of the lower court is not appealable. Most states which have adopted the Uniform Arbitration Act have held that an order compelling arbitration is not appealable. In Chem-Ash, Inc. v. Arkansas Power and Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988) this court held that the lower court’s order compelling arbitration is not appealable. The court stated:

If we permit an Appeal from every order referring a case to arbitration, the policy favoring arbitration would be frustrated, and we would be twice reviewing a case.

Substantively the lower court made the correct decision, however its order must be modified to show a clear determination that with respect to the existence of an agreement to arbitrate there was no material issue of fact to be determined. In addition the lower court is directed not to dismiss the action but to retain jurisdiction of the controversy until the arbitration process has been concluded. Accordingly, the Appeal is dismissed and Mandate issued consistent with this Opinion.

Special Justice Janet L. Burtness joins in this opinion.

Holt, C. J., Dudley, J. and Brown, J., not participating.


author: Constance G. Clark, Special Justice. Steele Hays, Justice,

text:
    Guy THOMAS, By His Guardian, the City National Bank of Ft. Smith, et al. v. VALMAC INDUSTRIES, INC. and Tyson Foods, Inc.
    91-30
    812 S.W.2d 673
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Matthew P. Horan, Nicholas H. Patton, and Gregory A. Hoover, for appellants.

      Bassett Law Firm, by: Woody Bassett and Gary V. Weeks, for appellees.
   Constance G. Clark, Special Justice.

Guy Thomas, a truck driver for Tyson Foods, Inc., was injured on May 13,1987, while working on a trailer in the course and scope of his employment with Tyson. On March 23, 1990, Mr. Thomas’s guardian, the City National Bank of Fort Smith, and his wife, Mary Thomas, filed suit in Johnson County Circuit Court to recover damages for personal injuries sustained as a result of the accident. The plaintiffs named as defendants in the action Valmac Industries, Inc., Tyson Foods, Inc. and four other persons not parties to this appeal. Mr. Thomas claimed that his injuries were the proximate result of the defendants’ negligence and the unreasonably dangerous condition of the trailer, which he alleged was owned by and had been defectively modified pursuant to instructions from Valmac. The complaint also alleged that on May 25, 1988, Valmac merged with Tyson and that Tyson thereby succeeded to the liabilities of the predecessor corporation.

Valmac and Tyson filed a motion to dismiss the complaint pursuant to Rule 12(b)(1) and (b)(6) of the Arkansas Rules of Civil Procedure. They contended that the plaintiffs’ exclusive rights and remedies were those provided under the Arkansas Workers’ Compensation Act and, therefore, the circuit court lacked jurisdiction over the subject matter of the action and the complaint failed to state facts upon which relief could be granted. The trial court granted the motion and dismissed the complaint as against Valmac and Tyson. Pursuant to the joint motion of the parties, the court then entered a final judgment under Ark. R. Civ. P. 54(b), paving the way for this appeal by the Thomases. We conclude that the trial court did have jurisdiction of the subject matter of the action and that the complaint stated facts upon which relief could be granted and, therefore, reverse.

The issue presented by this appeal is one of first impression in this state—does the exclusivity provision of our Workers’ Compensation Act bar an injured worker from pursuing a tort claim against his employer as the successor to the liabilities of the alleged tortfeasor? We find that an injured employee who would otherwise have a valid third-party claim against the alleged tortfeasor should not be barred from pursuing his action simply because the tortfeasor merged with the injured worker’s employer.

It has long been settled that, as a general rule, an employer who carries workers’ compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987); Brown v. Patterson Constr. Co., 235 Ark. 433, 361 S.W.2d 14 (1962). This so-called exclusivity doctrine arises out of Ark. Code Ann. § 11-9-105 (1987), which provides that “[t]he 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 . . . .” Certain narrow exceptions to the general rule have been carved out by the courts. For instance, an employer who wilfully and intentionally injures his employee is not immune from a common law tort action. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).

Litigants in some states attempted to circumvent the exclusive remedy principle by professing to bring suit against their employers in some capacity other than as employers—for example, as owners of property upon which a job-related injury occurred or as manufacturers or vendors of hazardous equipment causing injury on the job. Under this dual capacity doctrine, an employer who would ordinarily be protected from tort liabilities by the exclusivity rule could become liable in tort if, in addition to his relationship as employer, he occupied some other capacity that could be said to confer upon him obligations independent of those imposed upon him as an employer. Professor Larson explains in his treatise why the dual capacity doctrine formerly embraced by some courts has now fallen into disfavor:

When one considers how many such added relations an employer might have in the course of a day’s work—as landowner, land occupier, products manufacturer, installer, modifier, vendor, bailor, repairman, vehicle owner, shipowner, doctor, hospital, health services provider, self-insurer, safety inspector—it is plain enough that this trend could go a long way toward demolishing the exclusive remedy principle. 2A A. Larson, The Law of Workmen’s Compensation, § 72.81(a) (1990).

Professor Larson goes on to state that while the dual capacity doctrine is unsound, the dual persona doctrine, which recognizes the duality of legal persons, is a legitimate concept. Thus, says Larson,

An employer may become a third person, vulnerable to tort suit by an employee, if—and only if—he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person. 2A A. Larson, The Law of Workmen’s Compensation, § 72.81 (1990).

It is the dual persona doctrine which the appellants urge us now to adopt.

We recently discussed the dual capacity and dual persona doctrines in Landers v. Energy Systems Management Co., 305 Ark. 267, 807 S.W.2d 33 (1991). The plaintiff in that case, Kenneth Landers, was employed by PSC Laboratory Management Services, which was participating in a joint venture with Energy Systems Management Co. (Ensco). Landers’ suit against Ensco for negligence was barred by the trial court on the ground that the plaintiffs remedy was limited to workers’ compensation benefits. The plaintiff argued that Ensco should not be immune from tort liability because, in addition to its role as a joint venturer and employer, it occupied a second, or dual, capacity that conferred upon it obligations independent of those imposed upon it as an employer. Specifically, Landers argued that Ensco owned the property on which the joint venture did business, it was required to but failed to provide a barrel tilter (an implement required by federal safety regulations), and its employee was responsible for safety within the entire Ensco premises.

While not rejecting the dual persona concept, we concluded in Landers that the doctrine did not apply to the facts of that case. In fact, it is apparent that in the Landers case, we were really dealing with a dual capacity argument and not one founded on the dual persona theory. The plaintiff merely alleged that Ensco occupied a capacity or relationship in addition to that of joint venturer and employer. He could not establish that Ensco possessed a second persona completely independent from and unrelated to its status as an employer.

In contrast to Landers, the appellants in this case bring their action against Tyson not as Guy Thomas’s employer, but as the successor corporation to Valmac. The appellants look to the Arkansas Business Corporation Act to establish liability on the part of Tyson. Ark. Code Ann. § 4-26-1005(b) (1987) provides that when a merger has been effected:

(1) The several corporations parties to the plan of merger or consolidation shall be a single corporation which, in the case of a merger, shall be that corporation designated in the plan of merger as the surviving corporation ....
(2) Subject to § 4-26-1008, the separate existence of all corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease.
* * *
(6) Such surviving or new corporation shall henceforth be responsible and liable for all the liabilities and obligations of each of the corporations so merged or consolidated. Any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted as if the merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place. . . .

The appellants contend that under the language of this statute, Tyson, as the surviving corporation, is responsible for any liabilities of Valmac, the merged corporation. We find that this is precisely the type of situation which calls for the application of the dual persona doctrine.

One of the first cases to embrace the dual persona theory was the decision of the Court of Appeals of New York in Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S.2d 879 (1980). In Billy, the plaintiffs decedent, an employee of USM Corporation, was killed when a 4,600 pound “jam” from a vertical boring mill broke loose and struck him. Although the decedent’s widow applied for and received workers’ compensation benefits, she also brought a tort action against USM Corporation, the parent corporation of USM and three other corporations which had been absorbed by USM through corporate mergers prior to the accident. USM moved for summary judgment on the basis of the exclusive remedy provision of New York’s workers’ compensation law. The lower courts agreed with USM that the exclusivity provision of the workers’ compensation act barred the common law tort claim, but the Court of Appeals reversed.

After first rejecting the dual capacity doctrine, the Billy court adopted what is now known as the dual persona doctrine, reasoning that USM should not be permitted to avoid the obligations it inherited through corporate merger simply because of the “fortuity” that the injured party was its employee. The court went on to explain:

Conceptually, the deceased employee’s executrix is suing not the decedent’s former employer, but rather the successor to the liabilities of the two alleged tortfeasors. That USM also happens to have been the injured party’s employer is not of controlling significance, since the obligation upon which it is being sued arose not out of the employment relation, but rather out of an independent business transaction between USM and Farrel. . . .
Through its merger with Consolidated and Farrel, USM voluntarily assumed any obligations that those corporations may have had to individuals who might suffer injury as a result of a defect in their product. It would be grossly inequitable to permit USM to avoid its assumed obligations solely because the injured party was coincidentally an employee and the injuries in question arose in the course of his employment. 51 N.Y.2d at 161-62, 412 N.E.2d at 940, 432 N.Y.S.2d at 884-85.

Accord Robinson v. KFC National Management Co., 171 Ill. App. 3d 867, 525 N.E.2d 1028 (1988); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 550 N.E.2d 127 (1990); and Schweiner v. Hartford Accident & Indemnity Co., 120 Wis. 2d 344, 354 N.W.2d 767 (Ct. App. 1984).

This court believes the application of the dual persona doctrine is called for even more strongly here than it was in Billy. There, the merger of Consolidated and Farrel (the designer and installer, respectively, of the “ram” that killed the decedent) into USM occurred a number of years prior to the accident. Here, the merger of Valmac into Tyson, according to the unrefuted allegations in the plaintiffs’ complaint, did not take place until May 25,1988, one year after the accident. Thus, in this case, Guy Thomas clearly had a third-party claim against Valmac at the time he sustained his injury.

Tyson’s argument centers around the assertion that, prior to his injury, Guy Thomas was an employee of Valmac. Tyson also maintains in its brief that in October of 1984, Tyson “acquired Valmac through a tender offer” and, shortly thereafter, “assumed responsibility and control of Valmac operations and Valmac employees, including Thomas, became Tyson employees.” Thus, Tyson contends that even if it succeeded to any liability on the part of Valmac, it also succeeded to the immunity from suit which Valmac possessed as Mr. Thomas’s employer.

The problem we have with this argument is that Tyson does not dispute the complaint’s allegation that on May 13,1987, the date of his injury, Guy Thomas was an employee of Tyson. Furthermore, Tyson offered no evidence, in the form of an affidavit or otherwise, to refute the allegation of the complaint that the merger of Valmac and Tyson occurred on May 25,1988. Tyson’s argument is based entirely upon statements contained in its brief. We have previously held that it is incorrect to base a decision on a motion to dismiss (or a motion for summary judgment) upon allegations contained in the parties’ briefs. Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985). In this case, taking the unrefuted allegations of the complaint as true, Valmac was not Mr. Thomas’s employer on the day of his injury. Consequently, Tyson had no immunity to inherit when the merger took place one year later.

In conclusion, we find that under the particular facts of this case, the exclusivity provisions of our Workers’ Compensation Act do not bar the appellants from maintaining their tort action againstTyson Foods, Inc. Because the trial court does have jurisdiction of the subject matter of this action, and because the complaint on its face states facts upon which relief could be granted, we hold that the trial court erred in granting the motion to dismiss.

We would add that the appellants also asserted that the trial court may have treated the appellees’ motion to dismiss as one for summary judgment pursuant to Ark. R. Civ. P. 56. The appellants submit that if the trial court did treat the motion to dismiss as one for summary judgment, it improperly dismissed the complaint because there were genuine issues of material fact. We do not find it necessary to reach this issue, inasmuch as we conclude that the trial court’s ruling on the Rule 12(b)(1) and (b)(6) motion was in error.

Reversed.

Hays, J., dissents.

Brown, J., not participating.

Steele Hays, Justice,

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 defendants 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.