Ark. Code Ann. § 11-9-105 (2026)

Research References

ALR.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable. 101 A.L.R.5th 61.

Contractual waiver of exclusivity of workers' compensation remedy. 117 A.L.R.5th 441.

Postaccident conduct by employer, employer's insurer, or employer's employees in relation to workers' compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers' compensation statute. 120 A.L.R.5th 513.

Right to workers' compensation for injury suffered at worker's home where home is claimed as “work situs.” 4 A.L.R.6th 57.

Construction and Application of Exclusive Remedy Rule Under State Workers' Compensation Statutes with Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Requisites for, and Factors Affecting, Applicability and Who May Invoke Rule. 42 A.L.R.6th 545.

Construction and Application of Exclusive Remedy Rule under State Workers' Compensation Statute With Respect to Liability for Injury or Death of Employee as Passenger in Employer-Provided Vehicle — Against Whom May Rule Be Invoked and Application of Rule to Particular Situations and Employees. 43 A.L.R.6th 375.

Exclusive Remedy Provision of State Workers' Compensation Statute as Applied to Injuries Sustained During or as the Result of Horseplay, Joking, Fooling, or the Like. 44 A.L.R.6th 545.

Ark. L. Rev.

Workmen's Compensation — Contribution and Indemnity — Employer's Liability to Third Party Tortfeasor, 8 Ark. L. Rev. 512.

Comparative Negligence, 9 Ark. L. Rev. 357.

Workmen's Compensation — Third Party's Right to Indemnification — Absence of Express Indemnity Agreement, 16 Ark. L. Rev. 315.

Workmen's Compensation — Common Law Tort Liability of Principal Contractor to Employees of Sub-Contractor, 17 Ark. L. Rev. 213.

Note, Wal-Mart Stores, Inc. v. Baysinger: Retaliatory Discharge in Arkansas Workers' Compensation Cases, 45 Ark. L. Rev. 939.

Copeland, The New Arkansas Workers' Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1.

Flavio Rios Guerrero v. OK Foods, Inc.: Advocating for a Broader Intentional-Tort Exception to the Workers' Compensation Exclusive-Remedy Doctrine, 61 Ark. L. Rev. 133.

U. Ark. Little Rock L.J.

Note: Wallis v. Mrs. Smith's Pie Co., 1 U. Ark. Little Rock L.J. 103.

Survey of Arkansas Law: Worker's Compensation, 4 U. Ark. Little Rock L.J. 255.

Notes, Workers' Compensation — Supervisory Employees Are Immune From Tort Actions, 8 U. Ark. Little Rock L.J. 523.

Lucy, Workers' Compensation Law: Act 797 of 1993 and the Definition of “Compensable Injury,” 20 U. Ark. Little Rock L.J. 265.

Annual Survey of Caselaw, Tort Law, 26 U. Ark. Little Rock L. Rev. 985.

Case Notes

Constitutionality.

This section is not unconstitutional nor was it unconstitutionally applied to bar claim of employer against insurer alleging fraudulent conduct. Seawright v. United States Fid. & Guar. Co., 275 Ark. 96, 627 S.W.2d 557 (1982).

Subsection (a) was unconstitutional, as amended in 1993, as it granted tort immunity to a prime contractor, even when there was no statutory employment relationship with the injured employee. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Circuit court did not have jurisdiction over a wrongful death claim filed by an estate due to the fact that the Workers' Compensation Commission had exclusive jurisdiction, pursuant to this statute, and jurisdiction in the circuit court was not proper based on a challenge to the constitutionality of the Workers' Compensation Law. Even though the Commission did not have the authority to declare a statute unconstitutional, such issues should have been first raised at the administrative law judge or Commission level. Central Flying Serv., Inc. v. Pulaski County Circuit Court, 2015 Ark. 49, 454 S.W.3d 716 (2015).

Subsection (a) of this section was constitutional as applied in this case because the General Assembly may define who is an employer pursuant to the power given to it by the Arkansas Constitution; under the circumstances of this case, the parent companies of the employer had an employment relationship with the injured party. Myers v. Yamato Kogyo Co., 2019 Ark. App. 306, 578 S.W.3d 296 (2019), review granted, 2019 Ark. LEXIS 264 (Sept. 19, 2019).

In General.

Where an action involves both the Uniform Contribution among Tortfeasors Act, § 16-61-201 et seq., and this chapter, it is in the interest of public policy and in keeping with the intent of the General Assembly to give this chapter priority as an exclusive remedy. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

This section does not allow a claimant to maintain a personal injury suit for damages when his employer, by disputing the claim, fails to secure worker's compensation payment for the claimant. Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994).

Purpose.

The purpose of workers' compensation statutes was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Applicability.

The exclusive remedy provided by this section applies to a worker injured by the active negligence of a non-supervisory co-employee. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996).

Administrator's wrongful death suit against decedent's employer and insurance carrier was properly dismissed on the grounds of the exclusive remedy provision of this section; administrator's argument that the claim did not sound in tort but on an indemnity contract between the employer and the city was without merit because the administrator was merely an incidental, not intended, third party beneficiary. Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Where Arkansas' workers' compensation law provided that an injured employee who did not receive the necessary benefits was allowed to file a workers' compensation claim or file a complaint in circuit court, the Arkansas rule of law was better than the Louisiana rule of law, which would have prevented the injured person's negligence suit against a non-employer corporation, thereby foreclosing the injured person's day in court; thus, the Arkansas rule applied despite the fact that the accident itself occurred in Louisiana. Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917 (2005), appeal dismissed, 2009 Ark. 89, 302 S.W.3d 33 (2009).

Section 16-55-202 is not an unconstitutional intrusion on the rule-making authority of the Supreme Court of Arkansas, it must be interpreted based on its plain terms, and it clearly allows juries to consider the fault of employers and other non-parties in tort suits, including products liability suit, without restriction and regardless of whether the employer or non-party could be directly joined in the suit. The fact that an employer may be protected from be sued under the Arkansas' Workers' Compensation Act, based on its payment of workers' compensation and medical benefits to an injured worker, does not preclude a jury from considering whether the employer is at fault or is partially at fault for the accident giving rise to the worker's injuries because a finding of fault pursuant to § 16-55-202 does not render the employer subject to any liability for its fault. Bohannon v. Johnson Food Equip., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 45273 (E.D. Ark. June 9, 2008).

Motion to strike the notice of intent to assert non-party fault, which was filed by defendants who were sued by an injured worker in a products liability suit, was denied. By it plain terms, § 16-55-202 allowed defendants to request that the jury to consider the fault of the worker's employer and a non-party manufacturer of a component used in the chicken processing machine that was the focus of the suit, and it did not matter that the employer could not be directly sued in the suit, based on the exclusivity provision of Arkansas' Workers' Compensation Act, or that the manufacturer had not been made a party in the suit or served under Ark. R. Civ. P. 4, as no liability would be imposed, even if the jury found the employer or the manufacturer to be at fault pursuant to § 16-55-202. Bohannon v. Johnson Food Equip., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 45273 (E.D. Ark. June 9, 2008).

Action by Legal Representative.

Administrator's argument that estate was entitled to recover for breach of implied contractual duty to supply a safe work place was contrary to plain meaning of this section. Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Action by Spouse.

Exclusive remedy provision did not apply to widow's claims of misrepresentation and extreme mental anguish; her alleged injuries were not the result of an aggravation of the initial, compensable injury suffered by her husband, and this chapter did not provide a remedy for her injuries. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

Because spouse's action for emotional distress was one manifestly premised on a nonphysical injury, and because her injury was not compensable and beyond the scope of coverage of this chapter, the claim was not barred by the exclusive-remedy provision of this chapter. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

Common-law Remedies for Retaliation.

By enacting § 16-118-107, the Arkansas General Assembly did not intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers' compensation law which it expressly annulled at § 11-9-107. Lambert v. LQ Mgmt., L.L.C., 2013 Ark. 114, 426 S.W.3d 437 (2013).

Contributory Negligence.

An employee's contributory negligence does not prevent application of a penalty against the employer under § 11-9-503 for violating safety provisions. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986).

Discrimination.

There is no remedy under this chapter for an employee who is terminated from his or her job on the basis of a disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of this chapter does not preclude an employee from bringing an action under the Arkansas Civil Rights Act, § 16-123-101 et seq., based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Dual Employment.

Benefits claimant was an employee of both a staffing agency and a company under the dual employment doctrine for purposes of the exclusive-remedy provision of this statute; both the claimant and the company operated on a belief that the claimant would have full-time employment after logging a certain amount of hours. The fact that the implied employment contract was instituted through a temporary employment agency did not negate the fact of the claimant's dual employments. Randolph v. Staffmark, 2015 Ark. App. 135, 456 S.W.3d 389 (2015).

Substantial evidence supported the Workers' Compensation Commission's decision that dual employment existed and that a company was a special employer immune from suit where there was a shared-services agreement between the company and a temporary-employment agency; the company had a workers' compensation policy in effect at the time of the employee's injury and was not required to prove that the employee was actually covered by the policy to be entitled to the exclusive-remedy provisions. Pineda v. Manpower Int'l, Inc., 2017 Ark. App. 350, 523 S.W.3d 384 (2017).

Election of Remedies.

Acceptance of settlement for all claims arising pursuant to this chapter barred a subsequent tort claim against the employer under the common law. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Where there was no final determination whether the Workers' Compensation Law applied to the injury in question, the court declined to hold that employee had made an election such that he was barred from any of the relief he had sought in the event it was ultimately determined that his injury was not job-related and thus not covered by the Workers' Compensation Law. Riverside Furn. Corp. v. Rogers, 295 Ark. 452, 749 S.W.2d 664 (1988).

An employee who files for workers' compensation may still bring a civil cause of action, for the public policy exception comprehends conduct by the employer which contravenes the statute, § 11-9-107, and the stated objectives of the Workers' Compensation Act. Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), superseded by statute as stated in, Pedigo v. P.A.M. Transp., Inc., 891 F. Supp. 482 (W.D. Ark. 1994), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Trotter v. Weyerhaeuser Corp., — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 42099 (W.D. Ark. May 18, 2009).

When an employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy provisions and proceed in a common-law tort action, i.e., the employee has the option to pursue his claim for damages either in tort or under this chapter; however, once the employee makes that election, the employee may not later avail himself of the remedy not chosen. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).

Where employee settled a claim with the employer before the Commission, and discharged employer's liability for any past or future injuries, the trial court had no jurisdiction to proceed on employee's later intentional tort claims in circuit court, since those claims were properly concluded before the Commission. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996).

A teacher's claim against the school district which employed her for the intentional tort of outrage was barred by the doctrine of election of remedies where she had previously pursued worker's compensation benefits based on the same injuries. Gourley v. Crossett Pub. Sch., 333 Ark. 178, 968 S.W.2d 56 (1998).

Workers' claim for compensation benefits was barred under the election of remedies doctrine where it was clear that the worker actively initiated and participated in the proceedings in Illinois by signing papers sent to him by his Illinois counsel and agreeing to the filing of his claim in Illinois, and that he knowingly received benefits pursuant to this award. Elliot v. Maverick Transp., 87 Ark. App. 118, 189 S.W.3d 62 (2004).

To maintain a suit in tort contemplated by subsection (b) of this section, a plaintiff must prove negligence on the part of the defendant. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Subsection (b) of this section penalizes employers without subjecting them to strict liability. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Although an injured worker alleged that a healthcare company was a prime contractor for purposes of § 11-9-402(a), such a finding by the court would have afforded him no relief since he had elected to sue in tort under subsection (b) of this section, and § 11-9-402(a), which made a prime contractor liable for compensation to employees of subcontractors who failed to secure compensation, was a workers' compensation statute that governed claims filed with the Arkansas Workers' Compensation Commission. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Mere fact of a freight lessor's, a freight carrier's, and a healthcare company's noncompliance with § 11-9-404, in failing to secure the payment of workers' compensation, did not establish their negligence for purposes of subsection (b) of this section, because an injured truck driver, who sought damages for a work-related back injury, did not demonstrate that their failure to maintain insurance coverage caused his injury. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

In order to establish liability on the part of a freight lessor, a freight carrier, and a healthcare company under subsection (b) of this section, a truck driver, who injured his back while disconnecting a trailer from his truck, was required to demonstrate negligence on their part since, under the plain meaning of subsection (b), the no-fault theory of workers' compensation did not carry over to suits filed in tort. The statute did not state that suits filed in tort were to be based on a theory of strict liability, and under the rule of strict construction, no such intent could be inferred. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008).

Employees.

As supervisory employees, defendants in a personal injury and wrongful death action arising out of an industrial accident are protected from personal liability by the same immunity that § 11-9-105 confers upon the employer itself, the remedies provided being exclusive. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Negligence action against an air-ambulance helicopter pilot brought by a flight nurse and an EMT was properly dismissed because the pilot was immune from suit under the statute; at the time of a helicopter accident, the pilot, as a co-employee, was performing the employer's duty to provide a safe work place for the nurse and EMT. Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723 (2013).

Employer.

Workers' Compensation Commission found that parent companies and principals and stockholders of the employer were also employers for the purpose of the exclusive-remedy provision, which was not a clearly wrong interpretation of this section under the circumstances; the finding that the parent companies were employers and other defendants were third parties was supported by substantial evidence, and as the deceased employee's widow was receiving death benefits from the employer, she was not allowed to sue the parent companies in tort for alleged workplace negligence. Myers v. Yamato Kogyo Co., 2019 Ark. App. 306, 578 S.W.3d 296 (2019), review granted, 2019 Ark. LEXIS 264 (Sept. 19, 2019).

In the context of this case, an “employer” includes its principals and stockholders. Only parties who are so-called statutory employers are immune in tort under the exclusive-remedy provision, and parent companies that own subsidiaries having a direct employment relationship with the claimant are statutory employers. Myers v. Yamato Kogyo Co., 2019 Ark. App. 306, 578 S.W.3d 296 (2019), review granted, 2019 Ark. LEXIS 264 (Sept. 19, 2019).

There is no comma following “partner” in the language “or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer” in subsection (a) of this section, which tends to indicate that the phrase “acting in his or her capacity as an employer” modifies only the noun “partner”. Myers v. Yamato Kogyo Co., 2019 Ark. App. 306, 578 S.W.3d 296 (2019), review granted, 2019 Ark. LEXIS 264 (Sept. 19, 2019).

In this case, the deceased employee's widow did not allege that the parent companies had a status so completely independent from, and unrelated to, a status as an employer that would except her complaint from workers' compensation law. She did not, for example, plead any intentional torts or independent bad acts that would place the claims outside a normal employment context. Myers v. Yamato Kogyo Co., 2019 Ark. App. 306, 578 S.W.3d 296 (2019), review granted, 2019 Ark. LEXIS 264 (Sept. 19, 2019).

Employment Services.

There was no err in finding that the decedent's death was compensable under workers' compensation, because it was undisputed that the decedent was within the time and space boundaries of his employment, and finished with his break and en route to receive further instructions, which constituted performance of employment services. Mitchell v. Tyson Poultry, Inc., 104 Ark. App. 327, 292 S.W.3d 848 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 723 (Mar. 18, 2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 483 (June 4, 2009).

Exclusivity.

Workers' compensation laws held to provide exclusive remedy in the following cases: Young v. G.L. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477 (1942); Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1 (1946); Barth v. Liberty Mut. Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948); Kimpel v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S.W.2d 932 (1950) (previous decisions under prior law); Huffstettler v. Lion Oil Co., 110 F. Supp. 222 (W.D. Ark.), aff'd, 208 F.2d 549 (8th Cir. 1953); Brown v. W.H. Patterson Constr. Co., 235 Ark. 465, 361 S.W.2d 13 (1962); Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967); Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Johnson v. Houston Gen. Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976); Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979); Moss v. Southern Excavation, Inc., 271 Ark. 781, 611 S.W.2d 178 (1981); Woodell v. Brown & Root, Inc., 2 Ark. App. 106, 616 S.W.2d 781 (1981); Seawright v. United States Fid. & Guar. Co., 275 Ark. 96, 627 S.W.2d 557 (1982); Daniels v. Commercial Union Ins. Co., 5 Ark. App. 142, 633 S.W.2d 396 (1982); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983), aff'd, 728 F.2d 1129 (8th Cir. Ark. 1984).

For defendant company to defend negligence action on the ground that this chapter provided the exclusive remedy, it was required to prove that plaintiff was its employee and that it had secured payment as required by § 11-9-404; plaintiff was not required to prove that he was not company employee. French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981).

An employer who is covered under this chapter cannot be sued in tort. Daniels v. Commercial Union Ins. Co., 5 Ark. App. 142, 633 S.W.2d 396 (1982).

As supervisory employees, the defendants in a personal injury and wrongful death action arising out of an industrial accident were protected from personal liability by the same immunity that the statute confers upon the employer itself, the remedies provided by the statute being exclusive. Simmons First Nat'l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985).

Where the employee was required to do the same work with the same exposure after he was injured the first time, the only remedies available to the employee were those pursuant to the Workers' Compensation Act, since the employer's actions were not of such magnitude as to constitute an intentional tort and thereby removed the employer from the protection of the act. White v. Apollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986).

Subject to a few narrow exceptions, an employer is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

Writ of prohibition by Supreme Court preventing trial court from proceeding with tort action brought by injured employee against employee's supervisor was proper where the actions of the supervisor, who was acting within the scope of his supervisory duties during the course of his employment, were neither willful nor intentional, and thus workers' compensation laws were exclusive remedy. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

The benefits payable pursuant to the Workers' Compensation Act, and the procedure set out in that act for obtaining those benefits, constitutes an exclusive remedy. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988); Smith v. Rockwood Ins. Co., 684 F. Supp. 607 (E.D. Ark. 1988).

One consequence flowing from the exclusive nature of the Workers' Compensation Act is that the remedy precludes an action at law, including an intentional tort arising out of the nonpayment of benefits. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988); Smith v. Rockwood Ins. Co., 684 F. Supp. 607 (E.D. Ark. 1988).

The exclusive language of the Workers' Compensation Act does not preclude an Arkansas court from recognizing legal obligations owed by employers to their employees when acting in distinctly different legal roles than that of employer. Estate of Blakely v. Asbestos Corp., 766 F. Supp. 721 (E.D. Ark. 1991).

This section is the exclusive remedy of an employee injured in the course of his employment and makes no exceptions for contract actions. Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991).

The exclusive remedy provision of this section does not bar an employee from being legally entitled to recover under § 23-89-209, the underinsured motorist statute, against a coemployee who was the owner or operator of the vehicle in which the employee was riding at the time of the injury. Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79, 924 S.W.2d 828 (1996).

Summary judgment in favor of company was improper because the determination of whether the company was a stockholder-employer within the meaning of subsection (a) of this section was exclusively with the Arkansas Workers' Compensation Commission. Stocks v. Affiliated Foods Southwest, Inc., 363 Ark. 235, 213 S.W.3d 3 (2005).

Appellate court affirmed summary judgment in favor of employer after employee lost his arm during a work-related accident because the exclusivity provisions of of this section applied; the intentional-tort exception did not apply. Guerrero v. Ok Foods, Inc., 94 Ark. App. 333, 230 S.W.3d 296 (2006).

Grant of summary judgment in favor of company and its owner in individual's product liability action against the company for injuries she sustained while working on a production line for the company was reversed as the Arkansas Workers' Compensation Commission had exclusive jurisdiction to resolve the matter. Moses v. Hanna's Candle Co., 366 Ark. 233, 234 S.W.3d 872 (2006).

Court granted a writ of prohibition preventing a circuit court from exercising jurisdiction over a husband's action against an employer arising out of the death of his wife while she was working for the employer because at the point in the litigation, the circuit court was wholly without jurisdiction over the claims as under Arkansas Workers' Compensation Act, §§ 11-9-101 — 1001, the claims were within the exclusive jurisdiction of the Arkansas Workers' Compensation Commission. Int'l Paper Co. v. Clark Co. Cir. Ct., 375 Ark. 127, 289 S.W.3d 103 (2008).

Co-employees' appeal of an order dismissing their action against a pilot to recover damages for injuries they sustained from a medical-helicopter crash was dismissed because the circuit court lacked jurisdiction to determine whether the co-employees' injuries were covered under Workers' Compensation Act, and although the co-employees were arguing that the pilot was a third person who did not enjoy immunity under the Act, the Workers' Compensation Commission had exclusive original jurisdiction to determine that issue; when a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Act, the Commission must first decide the issue. Miller v. Enders, 2010 Ark. 92 (2010).

Substantial evidence supported the Arkansas Workers' Compensation Commission's finding that a pilot was an employer of a decedent for purposes of this section as: (1) the parties stipulated that the pilot was president of the decedent's employer, a member of its board of directors, a major stockholder, and its sales manager; (2) the pilot took an active role in the management and personnel decisions of the company, and was the decedent's sales supervisor; and (3) the company was family-owned and operated. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64 (2010).

Arkansas Workers' Compensation Act, § 11-9-101 et seq., including the exclusive-remedy provision of subsection (a) of this section, is made possible by Ark. Const. Amend. 26, which amended Ark. Const. Art. V, § 32; that amendment provides that the Arkansas general assembly has the power to enact legislation prescribing the amount of compensation employers are required to pay for injuries or deaths of employees. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64 (2010).

This section of the Work Near High Voltage Lines Act (Act) had priority over the exclusive remedy provisions of Workers' Compensation Law. Thus, an employer had to indemnify a utility for attorney's fees it incurred in defending personal injury actions as a result of the employer's failure to comply with the notification provisions of the Act. Intents, Inc. v. Southwestern Elec. Power Co., 2011 Ark. 32, 376 S.W.3d 435 (2011).

Circuit court properly dismissed an estate's wrongful-death and survival action against a decedent's employer on the ground that the claims fell within the exclusive-remedy provision of the Workers' Compensation Law because the claims were within the coverage formula of the law, even though the decedent was ultimately denied recovery due to his asbestos claim being time-barred under the law. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Where the deceased employee had retired from his employment in 1995 but was not diagnosed with mesothelioma until 2012 and thus his workers' compensation claim was barred by § 11-9-702(a)(2)(B), his estate's civil action against the employer for wrongful death also failed; because the Workers' Compensation Law covered occupational diseases and asbestos-related claims, the exclusive-remedy provision applied to bar the civil action. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Statute of repose creates a substantive right to be free from liability after a legislatively determined period of time, and § 11-9-702(a)(2)(B) represents a policy-driven, legislative judgment to shield an employer from claims that arise three years after the last injurious exposure; coupled with the exclusive-remedy provision, it was not the intent to absolve an employer of liability after a period of time only to subject the employer to liability in tort after that period. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230 (2016).

Administrative law judge's finding that the exception to the exclusivity doctrine did not apply was affirmed where, by a plain reading of subdivision (b)(1) of this section, the employer had secured payment of compensation as required by the Workers' Compensation Law by having a workers' compensation insurance policy in effect. Unless the workers' compensation insurance policy is void ab initio, versus merely voidable, then this coverage is in existence for the protection of an injured employee. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Wording of this section has been interpreted and applied to mean that the employer must prove insurance coverage, not necessarily that an individual employee is in fact covered or in fact paid. Wilhelm v. Parsons, 2016 Ark. App. 56, 481 S.W.3d 767 (2016).

Substantial evidence supported the Workers' Compensation Commission's finding that decedent restaurant employee was killed during and in the course and scope of his employment because all of the evidence demonstrated that the decedent was carrying out his employer's purpose and advancing its interests at the time of his death during the armed robbery; accordingly, the Commission properly found that the employer was protected by the exclusive-remedy provision. Herrera-Larios v. El Chico 71, 2017 Ark. App. 650, 535 S.W.3d 305 (2017).

When the injured construction worker's complaint in circuit court alleged that the employer failed to provide workers' compensation and the employer failed to appear, the circuit court erred in concluding that it had subject-matter jurisdiction over the worker's complaint; instead, the Workers' Compensation Commission had exclusive, original jurisdiction to determine the facts that established subject-matter jurisdiction. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

Even though no answer was filed, the allegation in the injured worker's complaint that the employer “failed to provide workers' compensation benefits for his employees” did not establish as a matter of law that he failed to “secure the payment of compensation” under subsection (b) of this section and § 11-9-404; the allegation failed to address whether the employer had a policy of workers' compensation insurance in effect at the time of the employee's injury. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

When the injured construction worker's complaint in circuit court alleged that the employer failed to provide workers' compensation and the employer failed to appear or file an answer, the employer did not waive the affirmative defense of exclusivity under the Workers' Compensation Law; a challenge to subject-matter jurisdiction cannot be waived. Stan v. Vences, 2019 Ark. App. 56, 571 S.W.3d 24 (2019).

Foreign Awards.

Complete double recovery under the workers' compensation acts of two states is not permitted on the strength of the discredited analogy of recovering on two private contracts of accident insurance. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961).

Employee receiving salary from employer in Arkansas and another state entitled to weekly payments for loss of salary in both states but not entitled to two awards for hospital and medical expenses. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961).

Payments of maximum benefits under the compensation law of one state does not bar an employee from asserting a subsequent claim under the law of a sister state unless the law of the first state so prohibits, but there can be no double recovery, only the difference by which the second award is greater than the first may be recovered. Missouri City Stone, Inc. v. Peters, 257 Ark. 917, 521 S.W.2d 58 (1975).

Proceedings before the Arkansas Workers' Compensation Commission and a workers' compensation claim in Oklahoma are not mutually exclusive, but all states having a legitimate interest in an injury have the right to apply their own rules and standards, either separately, simultaneously or successively. Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992).

Immunity.

Insurer and safety consultant were not immune under the exclusive remedy provision of this section because they were “third parties” as defined by § 11-9-410. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Immunity under this section has been extended only in two instances: (1) to the employer's workers' compensation carrier; and (2) to co-employees who were performing the employer's duty to provide a safe work place at the time of the injury. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997).

Appellate court granted individual's writ of prohibition asserting that respondent Pulaski County Circuit Court was without jurisdiction to proceed in a case where individual alleged that he enjoyed immunity from suit as an employer under the Arkansas Workers' Compensation Act. McCarthy v. Pulaski County Circuit Court, 366 Ark. 316, 235 S.W.3d 497 (2006).

Civil Justice Reform Act, § 16-55-201 et seq., can not be interpreted to permit a jury to apportion fault in a tort suit to an immune non-party employer because doing so would render the statute unconstitutional. Such an interpretation would violate the employer's fundamental constitutional rights because subsection (a) of this section, the exclusivity provision of the Arkansas Workers' Compensation Act, § 11-9-101 et seq., deprives courts of subject matter jurisdiction over employers, thereby protecting employers from compulsory process, and it also provides immunity to employers with regard to claims arising from a covered worker's employment-related injuries. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

While a products liability defendant could issue a non-party notice under § 16-55-202(b)(2) with regard to a non-party equipment manufacturer, it could not issue a § 16-55-202(b)(2) apportionment of damages notice with regard to an injured worker's employer and co-employee: (1) the purpose of the notice under § 16-55-202 was to allow an apportionment of liability with regard to the injured worker's damages; (2) a § 16-55-202 notice could only be used with regard to an individual or entity that could be made a party to the suit by way of cross or third party claims; and (3) defendant could not file a § 16-55-202 notice against the employer or the co-employee because they were statutorily immune pursuant to subsection (a) of this section, the exclusive remedies provision of the Workers' Compensation Act, § 11-9-101 et seq. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Section 16-55-202 should be interpreted as being compatible with § 16-64-122(a), which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13 and 14, but excludes non-parties who are otherwise immune from suit. Employers have immunity under subsection (a) of this section, the exclusive remedies provision of the Workers' Compensation Act, § 11-9-101 et seq., with regard to claims arising from employment-related injuries sustained by covered workers. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Arkansas Workers' Compensation Commission erred in concluding that it had jurisdiction over an employee's tort claims against a corporation and its owner, and in deciding that the corporation and owner were immune under subsection (a) of this section because there was no employment relationship between the employee and the corporation and owner. Johnson v. Ark. Steel Erectors, 2009 Ark. App. 755, 350 S.W.3d 801 (2009).

In employee's products liability action against the manufacturer of the product that injured him while he was working, the circuit court properly precluded the manufacturer's attempt to allocate fault to the nonparty employer in its amended answer; because the employer was clothed with immunity from liability in tort under the exclusive-remedy provision of the workers' compensation statutes, the employer could not have joint or several “liability” in tort and therefore did not meet the definition of “joint tortfeasor” in the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., or fall within the confines of that act. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56 (2020).

The Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., does not allow for the apportionment of fault to an immune nonparty employer. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56 (2020).

The language of § 16-55-201 is clear; it speaks in terms of the allocation of fault among the “defendants” to the action but is silent as to the allocation of nonparty fault. Instead, the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., addresses the allocation of nonparty fault. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56 (2020).

Indemnity.

Utility company was entitled to sue contractor on indemnity agreement by virtue of judgment taken against utility company by employee of contractor for injuries sustained even though it had not made contractor a party to damage suit by employee, since liability of contractor to employee was limited to payment of compensation. C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953).

An employer who has paid Workers' Compensation benefits to an employee must indemnify a third person held liable for the employee's injury where, as between the third person and the employer, the injury was the fault of the employer. Fidelity & Cas. Co. v. J.A. Jones Constr. Co., 200 F. Supp. 264 (E.D. Ark. 1961), aff'd, 325 F.2d 605 (8th Cir. Ark. 1963).

Architects' insurer could not obtain indemnity from employer of workmen for damage judgments paid to workmen for injuries, since under this section the workmen would have had no right of tort action against employer. Fidelity & Casualty Co. v. J. A. Jones Constr. Co., 325 F.2d 605 (8th Cir. Ark. 1963).

Where Workers' Compensation insurance company paid benefits and sought subrogation claim against liability carrier, liability carrier was not entitled to assert a claim against employer on the ground that the employer was negligent or assert a claim for contribution or indemnity. Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971).

Cross-complaint against employer should not have been dismissed on ground that remedy was limited by this section where it stated a cause of action for implied indemnity. Oaklawn Jockey Club, Inc. v. Pickens-Bond Constr. Co., 251 Ark. 1100, 477 S.W.2d 477 (1972).

In absence of a contract for indemnity running in favor of the third party, a negligent third party tortfeasor is not entitled to either indemnity or contribution from a negligent employer where their concurrent negligence has produced the injury or death of the employee. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

A third party will have indemnity from a negligent employer where the liability that has been imposed upon the third party is purely vicarious and without fault on his part. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Evidence was sufficient to find an implied promise that the employer would indemnify third party for any damages he is made to pay as a result of the employer's negligence. Smith v. Paragould Light & Water Comm'n, 303 Ark. 109, 793 S.W.2d 341 (1990).

There exists an exception to the exclusivity of the workers' compensation remedy when there is a contract or special relation capable of carrying with it an implied obligation to indemnify running from the employer to a third party; however, the exception does not extend to a fully executed sales contract, in which implied duties or warranties do not run from the purchaser (employer) to manufacturer, but from the manufacturer to the purchaser. To find that when a purchaser buys a product, he makes an implied contract with the manufacturer to use that product in such a way as not to bring liability upon the manufacturer would be stretching the concept of contract out of all relation to reality. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992).

The mere acknowledgement of the employer's duty to maintain and operate a machine in a safe manner and to comply with Occupational Safety and Health Act regulations does not express an agreement of indemnity running to the manufacturer so as to constitute an exception to the exclusivity of the Workers' Compensation Law. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992).

When a telephone company worker was injured in an accident involving a delivery driver, the telephone company was not liable to indemnify the delivery company under an implied indemnity exception to the exclusivity of the Workers' Compensation Law, because there was no special relationship between the telephone company and the delivery company. The relevant statutes and safety regulations that the telephone company was said to have violated merely created a duty of safety to the public and the telephone company's employees. R&L Carriers Shared Servs., LLC v. Markley, 2017 Ark. App. 240, 520 S.W.3d 268 (2017).

Insurance Carrier.

Workers' compensation insurance carrier has same immunity from suit by an injured employee as is provided employer. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987); Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997).

Intent.

Where employer willfully assaulted employee, the fact that employee might have recovered under this chapter did not bar employee's action for damages. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).

In order to avoid the bar of this section, complaint must allege intentional or deliberate act by employer with a desire to bring about the consequences of the act and not willful and wanton conduct by negligent direction to the employee to use a device known by the employer to be defective or failure to warn the employee of an unsafe condition of which the employer was aware. Griffin v. George's, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).

If an employer commits acts with an actual, specific, and deliberate intent to injure the employee, the employee may pursue a common-law action in tort. Phifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983), aff'd, 728 F.2d 1129 (8th Cir. Ark. 1984); Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Injured employees did not allege the type of intent necessary to trigger the exception to the exclusivity provision of this section. Pyle v. Dow Chemical Co., 728 F.2d 1129 (8th Cir. Ark. 1984).

Whenever an employee is injured by the willful and malicious acts of his employer he may treat the acts of the employer as a breach of the employer-employee relationship and seek full damages in a common-law action; however, he must elect one remedy or the other. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

Failure to warn of dangers or failure to provide safe conditions, deliberately placing an employee in a dangerous position and willfully violating governmental regulations does not bring the cause of action within the ambit of an intentional tort. That type of activity by an employer, even where flagrant, does not constitute an intentional tort for purposes of the exclusivity provision of this chapter. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985).

While it is true that the intentional infliction of an injury upon an employee by an employer is an exception to the exclusive remedy provision of this chapter, that exception is not created by the bare allegation that the employee's injury was the result of willful and wanton conduct by the employer; in order to escape the application of subsection (a), the complaint must allege a deliberate act by the employer with a desire to bring about the consequences of the act. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993).

Even if employer's behavior of exposing employee to asbestos fibers was intentional, it was not enough to escape the exclusivity provision in subsection (a). Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).

Jurisdiction.

Federal District court did not have jurisdiction of diversity action for damages by employee against employer, a self-insurer under this chapter based on injuries sustained in course of employment, since remedy under this chapter was exclusive. Shultz v. Lion Oil Co., 106 F. Supp. 119 (W.D. Ark. 1952), appeal dismissed, 202 F.2d 752 (8th Cir. Ark. 1953).

Where the reformation action under this chapter was primarily an action for the reformation of an insurance policy, no action before the Workers' Compensation Commission could be maintained until the reformation was attained; deceased's administratrix was the proper party to bring the action for reformation, and the chancery court was the proper forum. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961).

Any claim that employee has against employer, employer's Workers' Compensation insurance carrier, or agent of carrier must be determined by a proceeding before the Workers' Compensation Commission. Ragsdale v. Watson, 201 F. Supp. 495 (W.D. Ark. 1962).

Workers' Compensation Commission did not have exclusive jurisdiction where decedent was alleged to have been an independent contractor. Co-Ark. Const. Co. v. Amsler, 234 Ark. 200, 352 S.W.2d 74 (1961).

The first jurisdictional fact that had to be established was that the claimant or decedent was in fact and in law an employee of the person against whom the claim was asserted. Eagle Star Ins. Co. v. Deal, 337 F. Supp. 1264 (W.D. Ark. 1972), rev'd, 474 F.2d 1216 (8th Cir. 1973).

Federal district courts, like state courts, have no subject-matter jurisdiction in cases in which exclusive jurisdiction is vested in the Workers' Compensation Commission. Phifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980).

The Workers' Compensation Commission has jurisdiction to determine questions concerning an employer's insurance policy, including the extent of coverage, when they are ancillary to a determination of the claimant's rights. In resolving questions concerning the extent of coverage, the commission has authority to pass upon issues involving fraud in procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of injury, and construction of extent of coverage. Roy Horton Tomato Co. v. Home Ins. Co., 683 F. Supp. 714 (E.D. Ark. 1988).

The contention by a workers' compensation insurance carrier that an employee was not acting within the course and scope of employment when his injury occurred was one that was required to be made before the Workers' Compensation Commission because of the exclusive remedy provisions of this section. Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998).

The exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under this chapter, and the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (Ark. 1998).

Circuit court erred by granting summary judgment in a negligence case against a contractor based on lack of supervision and control because the circuit court did not have jurisdiction to determine if the Arkansas Workers' Compensation Act applied to the case; evidence regarding the relationship between two companies was insufficient to show that the Act did not apply as a matter of law. Merez v. Squire Court Ltd. P'ship., 353 Ark. 174, 114 S.W.3d 184 (2003).

Circuit court lacked jurisdiction to determine whether employees' alleged asbestos exposure injuries were covered under the Workers' Compensation Act and whether the claims against the employer were barred by the exclusive remedy provision of this section; exclusive jurisdiction of the matter was with the Workers' Compensation Commission because the facts presented were not so one-sided so as to demonstrate that the Act did not apply as a matter of law. Carter v. Georgia-Pacific Resins, Inc., 368 Ark. 19, 242 S.W.3d 616 (2006).

Filing of a workers' compensation claim did not toll the statute of limitations on a wrongful death suit; the Workers' Compensation Commission's primary jurisdiction to determine workers' compensation coverage did not prevent the tort action from being filed while the workers' compensation claim was pending. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Company was entitled to a writ of prohibition, because the lung disease and silicosis claim was covered by the Workers' Compensation Law, and the circuit court lacked jurisdiction to determine whether the claimant's alleged disease from his exposure at home was covered under the Law; the time of disablement was within three years of his last injurious exposure, and the claimant failed to file his claim within the one-year limitation period. Porocel Corp. v. Circuit Court of Saline County, 2013 Ark. 172 (2013).

Workers' Compensation Commission had exclusive, original jurisdiction to determine the applicability of workers' compensation laws to an out-of-state employee's tort claim against a co-employee where the employee had sought relief through the Commission, did not prevail, and then asserted that Arkansas lacked jurisdiction. Curtis v. Lemna, 2014 Ark. 377 (2014).

Employer's petition for writ of prohibition was granted because the Workers' Compensation Commission, not the circuit court, had exclusive jurisdiction to decide questions of fact regarding the applicability of the Workers' Compensation Law to the employee's claims. The employee's claims of negligent hiring and retention were claims of negligence, not intentional tort; the question whether the alleged sexual assault arose out of the employment was a factual inquiry; the causal relationship between the alleged physical and mental injuries raised issues of fact relevant to § 11-9-113; and the facts as presented in the complaint could not be determined to fall outside the Workers' Compensation Law as a matter of law. Truman Arnold Cos. v. Miller County Circuit Court, 2017 Ark. 94, 513 S.W.3d 838 (2017).

Prime Contractor.

The term “prime contractor” in subsection (a) presupposes work to be done for a third party. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

By amending this section in 1993, the General Assembly clearly intended to extend tort immunity to a prime contractor regardless of whether the subcontractor had paid workers' compensation benefits to its injured employee. Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

Sexual Harassment.

Under Arkansas law sexual harassment is not a risk to which an employee is exposed because of the nature of the employment but is a risk to which the employee could be equally exposed outside employment, therefore, such claim is neither covered nor barred by the Workers' Compensation Act. King v. Consolidated Freightways Corp., 763 F. Supp. 1014 (W.D. Ark. 1991).

Special Employer.

Nothing in this chapter reflects that its exclusivity provision is not applicable to a “special employer,” since a special employer might well be liable for worker's compensation claims if the employee has made a contract for hire, express or implied, with the special employer, the work being done is essentially that of the special employer, and the special employer has the right to control the details of the work. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

A special employer falls within the exclusivity provision of this chapter, and neither a negligence nor contract action can be filed against special employer by claimant or insurance carrier for general employer as a subrogee because the exclusivity provision makes no exceptions for contract actions. National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996).

Subrogation.

A workers' compensation insurance carrier could not, as subrogee of an injured employee, sue the sole owner and officer of the employer as a third person for injuries sustained by the employee in the crash of an airplane piloted by the owner/officer. Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998).

Summary Judgment.

Where request for summary judgment, with its supporting affidavit, failed to show that plaintiffs had remedy under this chapter, summary judgment in a suit for wrongful death was improper. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966).

Trial court erred in granting a potential employer's motion for summary judgment in a negligence action on the grounds that it did not have jurisdiction to determine if the claim was covered by the provisions of the Arkansas Workers' Compensation Act where the evidence failed to clearly show which employer an employee was working for on the date of the accident. Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003).

Supervisory Employees.

Since an employer is immune from a cause of action based on the negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility. Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986).

Liability on the basis of a willful and malicious act by an employer's supervisor will not render the employer liable to the employee in tort. Fore v. Circuit Court, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled in part, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (Ark. 1993), overruled, Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (Ark. 1993), overruled in part, Wise Co. v. Clay Circuit, 315 Ark. 336A (1994).

Termination of Employment.

Where an employee has alleged two separate injuries, one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her physical disability as a result of the injury, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by the Arkansas Civil rights Act, § 16-123-101 et seq.Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).

Third-Party Tortfeasors.

Although under this section employer cannot rely on claims of negligence on part of fellow employee, assumption of risk or contributory negligence, the third party tort feasor is not deprived of the common-law defenses. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971).

Where defendant supervisor was part-owner of employer corporation, defendants in a wrongful death action could not obtain contribution from him as third party defendant because he, rather than the corporation, was regarded as the employer for the purpose of the exclusive remedy clause of this section. Jack Morgan Constr. Co. v. Larkan, 254 Ark. 838, 496 S.W.2d 431 (1973).

A working partner does not become a fellow employee, subject to third party liability pursuant to § 11-9-410, because of active involvement in the operations of the business. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993).

Where a third party tort action was filed against a company based on the allegation that claimant was a special employee of the company, in granting a writ of prohibition, the Court implicitly held that the special employee issue was to be decided by the Arkansas Workers' Compensation Commission as it had exclusive, original jurisdiction to determine the applicability of the Arkansas Workers' Compensation Act. Nucor Corp. v. Rhine, 366 Ark. 550, 237 S.W.3d 52 (2006).

—Co-Workers.

This chapter does not prevent an employee, or his personal representative, from maintaining an action for negligence of a fellow employee. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).

Exclusive jurisdiction to entertain an employee's claim against employer for injuries caused while working as his employee rests in the Workers' Compensation Commission; no exception is made when the injury is caused by a fellow employee. Campbell v. Waggoner, 235 Ark. 374, 360 S.W.2d 124 (1962).

Before an action for damages may be sustained against an employer for the intentional actions of fellow employees, there must be allegations of willful and intentional acts by the employer or it must be alleged that he directed, authorized, or commanded his other employees to do the wrongful acts and the mere fact that an employer's supervisory employee injures another employee by inflicting an intentional tort is not cause to allow such an action. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

In a case regarding a third party's liability (co-employee) for the employee's injury at work, because the co-employee was responsible for transporting the employee to and from a work site, he was involved in the employer's duty of providing the employee a safe place to work; thus, workers' compensation was the employee's exclusive remedy and the trial court did not err when it granted the co-employee's motion for summary judgment. Gafford v. Cox, 84 Ark. App. 57, 129 S.W.3d 296 (2003).

Substantial evidence supported the Workers' Compensation Commission's finding that the employee and co-employee were acting within the scope of their employment at the time of a golf outing accident where both were at the golf course for a sales meeting, which included lunch and the continued discussion and free flow of ideas regarding the employer's business while playing golf and having a team dinner with spouses. Curtis v. Lemna, 2014 Ark. 377 (2014).

Workers' Compensation Commission's decision that a co-employee was entitled to immunity under this section for a golf outing accident was supported by substantial evidence where the co-employee drove the golf cart for the employee and the co-employee to participate in the employer's team building golf outing. Curtis v. Lemna, 2014 Ark. 377 (2014).

—Dual Capacity.

Where employer manufactured asbestos products, and such products were used in employer's plants to fireproof ceilings by an outside contractor, the court applied the dual capacity doctrine, so that the Workers' Compensation Act did not bar an employee's product liability suit since the employer owed a separate duty as a manufacturer to the employee. Estate of Blakely v. Asbestos Corp., 766 F. Supp. 721 (E.D. Ark. 1991).

Under the dual persona theory, an employer may become a third person, vulnerable to tort suit, if he possesses a second persona, completely unrelated to his employer status, that could be recognized by legal standards as a seperate legal person. Thomas ex rel. City Nat'l Bank v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

Where plaintiff-employee had a third party claim against the tortfeasor at the time of the accident, and the tortfeasor subsequently merged with his employer, an action could be brought against his employer under the dual persona doctrine, in the employer's status as the successor corporation of the tortfeasor. Thomas ex rel. City Nat'l Bank v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), superseded by statute as stated in, Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995), superseded by statute as stated in, Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

After the legislature amended subsection (a) to abrogate the dual-persona exception, it would be unreasonable for the court to expand that doctrine since it was clearly defunct and unequivocally annulled. Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (Ark. 1999).

Underinsured Motorist Insurance.

An action by an employee against his employer's insurance carrier for underinsured motorist benefits was not an action against the employer and, therefore, was not barred by exclusive-remedy provision of the Workers' Compensation Act. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001).

Writ of Prohibition.

Employer's petition for a writ of prohibition was granted in a case where summary judgment, based on subsection (a) of this section, was denied in a negligence suit; whether an employer/employee relationship existed was within the jurisdiction of the Arkansas Workers' Compensation Commission, and there was no other remedy available to the employer because the denial of the motion for summary judgment was not reviewable, even after a trial on the merits. Coonrod v. Seay, 367 Ark. 437, 241 S.W.3d 252 (2006).

Writ of prohibition was granted because a circuit court was wholly without jurisdiction to decide whether the Arkansas Workers' Compensation Act applied since there was a conflict over the narrow exception to the exclusivity doctrine; moreover, there was no adequate remedy since a motion for summary judgment was not subject to appeal. A motion to dismiss was treated as such since matters outside of the pleadings were considered. Get Rid of It Arkansas, Inc. v. Hughes, 368 Ark. 535, 247 S.W.3d 838 (2007).

Trial court lacked jurisdiction to decide the existence of an employer-employee relationship between employers and a deceased worker, for exclusivity purposes, because the Workers' Compensation Commission had exclusive jurisdiction to first decide relevant fact questions, since the facts were not so one-sided as to allow such a determination as a matter of law; thus, the employers were entitled to a writ of prohibition. Entergy Ark., Inc. v. Pope County Circuit Court, 2014 Ark. 509, 452 S.W.3d 81 (2014).

Cited: Layne-Arkansas Co. v. Henderson, 221 Ark. 691, 255 S.W.2d 423 (1953); Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804 (1955); Carter v. Fraser Constr. Co., 219 F. Supp. 650 (W.D. Ark. 1963); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Ellington v. Hartford Steam Boiler Inspection & Ins. Co., 53 F.R.D. 280 (W.D. Ark. 1971); Roberts v. Smith Furn. & Appliance Co., 263 Ark. 869, 567 S.W.2d 947 (1978); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325 (8th Cir. 1985); First Nat'l Bank v. Tracor, Inc., 851 F.2d 212 (8th Cir. 1988); Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988); Wilson v. Beloit Corp., 869 F.2d 1162 (8th Cir. 1989); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991); Daniels v. Riley's Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992); Agricultural Group-Compensation Self-Insurer Fund v. Polk County Circuit Court, 331 Ark. 24, 958 S.W.2d 531 (Ark. 1998); Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112 (2000); WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000); Automated Conveyor Sys. v. Dooley, 360 Ark. 218, 200 S.W.3d 442 (2004); Phillips v. United States, 422 F.3d 709 (8th Cir. 2005); Craven v. Fulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005); Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005).