KENKEL v. PARKER

2015 OK 81, 362 P.3d 1145, 2015 Okla. LEXIS 114, 2015 WL 7444384

Opinions

KAUGER, J. _ >

{1 The issue presented is whether shareholders, uninvolved in the management of a bankrupt corporation which was without workers' compensation insurance, may be held personally liable for a workers' compensation court award to an employee, We hold that, under such cirenmstances, shareholders cannot be held personally liable for the payment of the employee's workers' compensation award.

ALLEGED FACTS AND PROCEDURAL HISTORY

_ T2 This cause concerns a litany of litigation and pleadings lasting over 15 years between the defendant/appellant, Joseph Parker (Parker/employee) and a bankrupt business named (Global Health Initiative (GHI) which at one time employed Parker, Cardiology Digital Education (CDE), the apparent precursor entity to GHI, was an Oklahoma limited lability company, established in 1998, to provide materials for continuing medical education, CDE shut down and GHI replaced it sometime. in 2000. The assets of CDF were transferred to GHI. GHI issued shares in GHI to the former shareholders, of CDE. Additional shares in GHI were available for purchase.¹ The chairman of the board and president of GHI was Amjad Iqubal, M.D. There were three additional officers.² None of these individuals are parties to this cause.

T3 On December 11, 2000, Parker was allegedly injured on the job: It is undisputed that GHI did not have workers' compen-gation insurance. - On February 9, 2001, Parker filed a workers' compensation «claim in the Workers' Compensation Court, On November 12, 2002, it awarded the employes, by default judgment against GHI, $17,595.60 plus interest. On November 22, 2002, Parker filed the judgment in the district court of Tulsa County in an attempt to: collect 'the money awarded by the Workers Compensa— tion Court:. '

T 4 On March 7, 2008, after futile efforts to garnish the GHI bank accounts, Parker filed a motion in the district court of Tulsa County to pierce the corporate veil and to proceed against individual GHI shareholders in an attempt to collect his compensation awards. The trial judge denied Parker's request due to lack of evidence. On May 22, 2003, GHI filed notice of bankruptcy. By August of 2004, Parker had filed an appeal in the Tulsa County casé that culminated in an unpublished opinion in ease no. 101,088, Parker v. Global Health Initiative, (Parker 1) in which the Court of Civil Appeals, on March 16, 2007, reversed the trial court's determination that stockholders could not be held liable for the workers' compensation award and remanded the cause to the trial court, GHI did not defend or participate in the case on appeal. 60d

€ 5 Subsequently, accordmg to Parker, he did not pursue collection against 1nd1v1_dua1 shareholders but, instead, returned to the Workers' Compensation Court on June 19, 2008, seeking permanent partial and permanent total awards and an increase in his . original award. GHI was not served notice of this proceeding and the cause was consequently undefended. On February 20, 2009, the Workers' Compensation Court entered another award in favor of Parker and against GHI totaling $286,476.20. In June of 2009, Parker, through his counsel, sent letters to some of the GHI shareholders, seeking collection of the shareholders' pro rato share for payment of workers' compensation awards. However, for unexplained reasons, not all shareholders were asked to pay "their portion" of the judgments.³

T6 Meanwhile, the GHI stockholders filed a declaratory judgment action in Tulsa County against Parker on April 21, 2010, in case no. - CV-2010-468 asserting that the employee could not pierce the corporate veil and hold them personally liable for the GHI's workers' compensation debt. After Parker 1 was remanded to the trial court, it was consolidated with the GHI stockholders' case on April 18, 2011.

T7 The - plaintiffs/appellants, - doctors Thomas Kenkel and Robert Gold (doe-tors/stockholders) were two of the doctor stockholders, and they brought this appeal. In the trial court, the' doctors specifically sought a declaration that: 1) Parker had no valid judgement against them; 2) Parker was not entitled to proceed against them for the injuries he sustained; 3) Parker= was not entitled to collect the workers' compensation judgment; 4) they have the right to. defend against any of Parker's claims ab initio; 5) they are not shareholders of GHI at all but if they were, they were merely minority shareholders; and 6) they are not liable for the debts Parker is attempting to collect. According to exhibits filed by Parker,⁴ there were. 4,072,800 shares issued in the CDE and GHI companies Of the seventeen plaintiff/appellees who have their shares listed in Parker's affidavit, (not all are listed), the shares held by the individuals ranged from forty thousand to one-hundred eighty thousand.⁵ The doctors were apparently minority shareholders of GHI, The record does not show that they had any involvement in the admlmstratmn of GHI whatsoever.

% 8 The doctors filed a motion for summary judgment and the employee filed a cross-petition for summary judgment. After a July 7, 2011, hearing, the trial court granted the doctors' motion for summary. judgment, finding that they were entitled to judgment in their favor on the petition for declaratory judgment and on Parker's counterclaim. In an order filed August 19, 2011, it held that the corporate veil could not be pierced against stockholders to render them personally liable for workers' compensation awards. The trial court entered. a judgment for all of the doctors claims.⁶

T9 The employee appealed and on September 24, 2014, the Court of Civil Appeals reversed the trial court, The matter was remanded to the trial court with directions to enter judgment in Parker's favor, declaring that he may proceed to collect his certified judgments against GHI shareholders,. We granted certiorari on January 18, 2015.⁷ Subsequently, over the employee's objection, we allowed the remaining stockholders to intervene.⁸ On July 16, 2015, intervenors John Cattaneao, Eric Engles, Marsha How-erton, Barbara Fries, William Sawyer, and Joey Manduano requested to be dismissed as intervenors from the appeal with prejudice because they had entered into a settlement agreement with the employee. We grant that request herein.

( 10 STOCKHOLDERS ARE NOT INDIVIDUALLY LIABLE WHEN A COMPANY NEGLECTS TO SECURE WORKERS' COMPENSATION INSURANCE COVER AGE,.

{11 The employee contends" that public policy behind mandating workers' compensation insurance coverage requires corporate entities to be disregarded and stockholders held to be the responsible parties when a company neglects to secure workers' compensation coverage. Regardless of whether there is one shareholder, five shareholders, or 5,000 shareholders, the corporate veil should be pierced without regard to any culpability, or fraud under such cireumstances. The doctors argue that stockholders should not be held liable for the recovery of workers' compensatmn benefits against a company, especially when such stockholders are minority stockholders and are neither officers, directors, employees, nor involved in the management or operation of the corporation.

T°12 A corporation is an artificial person,⁹ a creature of statutory law.¹⁰ The Oklahoma General Corporations Act, 18 0.8. 2011 $ 1001 et seq., sets forth the creation of corporations in Oklahoma and the law regarding them. There is a long legal history of a separation between a corporation and its shareholders. A basic tenet of American corporate law is that the corporation and its shareholders are distinct, separate entities.¹¹ Ignoring this distinction is known as "piere-ing the corporate veil," ¹² and the distinction is not ignored, unless it can be shown that there is a design or scheme to perpetrate a fraud or defeat. public convenience, justify wrong, or defend crime.¹³

113 Nearly 80 years ago, in Buckner v. Dillard, 1989 OK 144, € 0, 184 Okla. 586, 89 P.2d 326, the Court clearly explained that one of the recognized purposes of incorporation is to permit persons to avoid personal liability, either entirely or beyond a statutory amount. Buckner involved a coal minor who was injured and who obtained a workers' compensation award -for his injuries against an insolvent company. The company. had not secured workers' compensation insurance (at that time it was known as Workmen's Compensation), Various incarnations of partnerships and agreements were involved in the coal mine operation, and liability was sought against Buckner, who was an officer and stock-holder in the partnerships involved. The Court held that Buckner could not be individually liable for the compensation award because there was no ev1dence that the various companies involved were created as a device or artifice to evade the workers' compensatlon laws.

{14 Since Buckner, was dealded both corporate law and workers' compensation laws have gone through many incarnations. Nevertheless, the rules of law governing whether a corporate veil may be pierced and the public policy behind the workers' compensation regulatory scheme have not changed. Recently, in Evans & Associates Utility Services v. E’spmosa, 2011 OK 81, T 14, 264 P.3d 1190, the Court explained the purposes behind workers' compensation law, noting that:

The Workers' Compensation Act was designed to provide compensation to covered '* workers for loss of earning capacity, incurred as a result of work-related accidents. It is a mutual compromise in which the employee relinquishes his/her right to sue for damages sustained in job-related injuries; and the employer accepts no-fault liability for a statutorily prescribed measure of damages. However, in exchange for the employer's greater and more certain exposure, the Act also provides the employer with certain advantages. It offered the employer a maximum loss and protected employers from excessive judgments. The object of the Act is to compensate, within -the limits of the act, for loss of earning power and disability to work occasioned by injuries to the body in the performance of ordinary labor. - (Citations omitted). to.

115 Workers' Compensation is also a creature of statute, and it does not operate outside the limits designed by the Legislature.¹⁴ It is the exclusive remedy for work related accidents sustained during the course and seope of a worker's employment.¹⁵ Nevertheless, we find nothing in either the workers' compensation statutes nor the corporate law statutes which indicates that the Legislature intended to trump corporate shareholder lability laws when it provided for a mutual compromise 'between 'an employee's right to sue for damages sustained in job-related injuries and an employer's statutorily pre-seribed lability. To the contrary, statutory limits of liability for the shareholders of dissolved Oklahoma Corporations are expressly set forth in 18 0.8. 2011 § 1100.3 which provides that a shareholder liability for claims against a dissolved corporation cannot be greater than the shareholder's pro rata share of the corporation or the amount distributed to the shareholder-whichever is less.¹⁶ Here, GHI was insolvent and . bankrupt. There is no evidence presented which would suggest that anything was distributed among shareholders after its dissolution.

116 This Court has permitted the piercing of the corporate veil to uphold public policy in limited civeumstances.¹⁷ We have also declined to permit such piercing if there was no evidence that the establishment of such a corporate entity was done solely to avoid the payment of worker's compensation claims.¹⁸ Nor do we permit such a piercing today. There is no evidence that the corporation was established to avoid workers' compensation claims. - It is arguable that there was a corporate history of gross mismanagement, as evidenced by its bankruptey, but. the evidence before the trial court would indicate that the decision not to have valid workers' compensation insurance did not rest in the hands of the shareholders who are parties to this action.

- T17 To argue that they are liable because public policy must make someone liable is an argument not well taken,. If the corporate veil were pierced under these facts, we would effectively be erasing the doctrine altogether,. If the Legislature chooses to expose shareholders to such lHability, it may do so. Until then, we hold that shareholders cannot generally be held personally liable for the payment of the employee's workers' compensation award.

18 We recognize that the Court of Civil Appeals reached a different conclusion 'in Thomas v. Vertigo, Inc., 1995 OK CIV APP 45, 900 P.2d 458, cert. denied, July 18, 1995, when it held that the corporate veil could be pierced for public policy reasons because an employee was injured in the course of her work at a restaurant and the. corporate entity that owned the restaurant did not maintain worker's compensation insurance. It is vital to note that, in Thomas, all corporate stock was owned by one individual., The same individual served as the director and president of the corporation that owned the restaurant. The person who was held personally liable was the person who made the decision not have a valid own risk permit or to carry worker's compensation insurance. Because Thomas differs factually from this cause, we need not overrule it today. However, to the extent that the unpublished opinion in case no. 101,038, Parker v. Global Health Initiative, (Parker 1) is inconsistent with today's pronouncement, it is hereby expressly overruled © 60004 >

CONCLUSION

19 Both corporations and workers' compensation are creatures of statutes.¹⁹ Corporations were specifically designed to separate a corporation from its shareholders, including liability.²⁰ Unless it can be shown that there is a design or scheme to perpetrate a fraud or defeat publié convenience, justify wrong, or defend crime, the distinction is not ignored.²¹ Workers' Compensation was designed as a mutual comproniise to provide compensation to covered workers for loss of earning capacity incurred as a result of work-related" accidents, while relinquishing the right to sue and an employer accepting statutorily prescribed no-fault liability for a measure of damages.²² Nowhere under either statutory scheme, has the Legislature chosen to eradicate the reasons for piercing the corporate veil to expose stockholders liable for a company's failure to secure workers' compensation coverage. We decline to do so today.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ArF. FIRMED,

COMBS, V.C.J.,(separate writing); KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, JJ., concur. COLBERT, J., concurs in resuitl REIF, C.J., (separate writing) and GURICH, J., dissent.

1 . Affidavit of Joseph G. Parker, filed in case number CV-2010-468, District Court of, Tulsa - County on November 30, 2010. I

2 . Appellee's Supplement to Record on Accelerated Appeal, filed September. 20, 2011, page 2.

3 . Answer, Cross Petition and Third Party Petition of Joseph G. Parker filed in case number CV-2010-468, District Court of Tulsa County on June 2, 2010, at page 3. }

4 , 'The actual corporate records are not included in the record. According to Parker, the corporate minute book of GHI, its stock ledger, and . other corporate records were held by an attorney, In May of 2003, these records were delivered to Amjad Iqubal, , Parker's response to Plaintiff's Motion for Summary Judgment and Counter Motion for Summary Judgement, filed in Case Number CV~-2010-00468, District Court of Tulsa County on November 30, 2010, at pages 8-9. GHI/Iqubal filed for chapter 7 bankruptcy in May of 2003, and Iqubal subsequently moved from Oklahoma to Ohio.

5 . Defendant's Exhibit 1, filed with the Affidavit of Joseph G. Parker, filed in case number CV-2010-468, District Court of Tulsa County on November 30, 2010. November 30, 2010. * >

6 . Title 12 0.8.2011 § 994(A) provides pertinent part:

A. When more than one claim for relief presented in an action, whether as a claim, counterclaim, cross-claim, or- third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the f111ng of a final Judgment decree, or final order..

7 . Appellate jurisdiction to review the district court's declaratory judgment is under art, 7, § 4 of the Okla, Const. and pursuant to 12 0.8.2011 § 1654 which states declaratory judgments "shall be rev1ewable in the same manner as other judgments." Lockett v. Evans, 2014 OK 34, ¶ 3, 330 P.3d 488. Summary Judgment is a pretnal procedure available where there is no dispute as to the material facts and the inferences that may be drawn from the undisputed material facts and where the evidentiary materials establish each and every material fact necessary to support the judgment as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160 P.3d 959, 963. We review a summary judgment de novo, without deference to the lower court. State ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, ¶ 12, 338 P.3d 613.

8 . This Court granted the Petition to Intervene of sixteen additional plaintiffs and third party defendants on April 4, 2015, and the employee filed a response and an objection on April 7, 2015.

9 . East Central Oklahoma Elec. Co-op., Inc. v. Oklahoma Gas & Elec. Co., 1973 OK 3, ¶ 13, 505 P.2d 1324.

10 . Sneed v. Tippett, 1925 OK 336, ¶ 12, 114 Okla. 173, 245 P. 40,

11 . Fanning v. Brown, 2004 OK 7, ¶ 16, 85 P.3d 841 Sautbine v. Keller, 1966 OK 209, ¶ 0, 423 P.2d 447 [Even a family corporation is separate and distinct from its shareholders.]; State ex rel. Okla. Employment Sec. Com'n v. Tulsa Flower Exchange, 1943 OK 109, ¶ 13, 192 Okla. 293, 135 P.2d 46. Dole Food Co. v. Patrickson, 538 U.S. 468, 474-75, 123 S.Ct. 1655, 1660, 155 L.Ed.2d 643 (2003) [A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities.] First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 625, 103 S.Ct 2591, 77 LEd.2d 46 (1983) [Separate legal personality has been described as 'an almost indispensable aspect of the public corporation.]; Burnet v. Clark, 287 U.S. 410, 415, 53 S.Ct. 207, 77 L.Ed. 397 (1932) [A corporation and its stockholders are generally to be treated as separate entities.]. An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest, See 1 W. Fletcher, Cyc. of the Law of Private Corporations 31 (rev. ed. 1999).

12 . Carter v. Schuster, 2009 OK 94, 117, 227 P.3d 149; Seitsinger v. Dockum Pontiac Inc., 1995 OK 29, 110, 894 P.2d 1077; Hulme v. Springfield Life Ins. Co., 1977 OK 108, §15, 565 P.2d 666.

13 . Fanning v. Brown, see note 11, supra; Mid-Continent Life Ins. Co. v. Goforth, 1943 OK 244, 110, 143 P.2d 154, 156. [Courts may disregard the corporate entity and hold stockholders personally liable for corporate obligations or corporate conduct under the legal doctrines of fraud, alter ego, and when necessary to protect the rights of third persons, and accomplish justice.]; Buckner v. Dillard, 1939 OK 144, 121,184 Okla. 586, 89 P.2d 326, 328. [The notion of a corporation's legal entity, apart from the persons composing it, is introduced for convenience and to serve the ends of justice.].

14 . In the Matter of the Death of Hyde, 2011 OK 31, 19, 255 P.3d 411.

15 , Price v. Howard, 2010 OK 26, §8, 236 P.3d 82. toZ

16 . Title 18 0.S.2011 § 1100.3 states: A. A shareholder of a dissolved corporation the assets of which were distributed pursuant to subsection A or B of Section 1100.2 of this title shall not be liable for any claim against the corporation in an amount in excess of the shareholder's pro rata share of the claim or the amount so dlsmbuted to the shareholder, whichever is less. .

C. The aggregate 11ab111ty of any shareholder -of a dissolved corporation for claims against the dissolved corporation shall not exceed the amount distributed to the shareholder in dissolution

17 . Mid-Continent Life Ins. Co. v. Goforth, 1943 OK 244, 193 Okla. 314, 143 P.2d 154.

18 . Buckner v. Dillard, 1939 OK 144, €0, 184 Okla. 586, 89 P.2d 3:26,

19 . Sneed v. Tippett, see note 10, supra; In the Matter of the Death of Hyde, see note 14, supra.

20 . Fanning v. Brown, see note 11, supra; Saut bine v. Keller, see note 11, supra; State ex rel. Okla. Employment Sec. Com'n v. Tulsa Flower Exchange, see note 11, supra.

21 . Fanning v. Brown, see note 11, supra; Mid-Continent Life' Ins. Co. v. Goforth, see note 13, supra; Buckner v, Dillard, see note 13, supra.

22 . Evans & Associates Utility Services v. Espino-sa, 2011 OK 81, 114, 264 P.3d 1190,