* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Ruggero J. Aldisert, Senior Circuit Judge , United States Court of Appeals for the Third Circuit, sitting by design ation.

*** After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.

UNITED STATES COURT OF APPEALS Filed 8/26/96 FOR THE TENTH CIRCUIT

DORIS SMITH, as Personal Representative of the Estate of Jimmy Ray Smith, deceased,

Plaintiff-Appellant,

v. CONOCO, INC., a subsidiary corporation of DUPONT DE NEMOURS & COMPANY, a Delaware corporation,

Defendant-Appellee. No. 95-6368 (D.C. No. CIV-95-112-R) (W.D. Okla. )

ORDER AND JUDGMENT *

Before TACHA, ALDISERT, ** and BALDOCK, Circuit Judges. ***-2-

Plaintiff Doris Smith appeals the district court’s order dismissing her diversity complaint against defendant Conoco, Inc. on the ground that it lacked subject matter jurisdiction. We review the distric t court’s order of dismissal for lack of subject matter jurisdiction de novo, Brumark Corp. v. Samson Resources Corp. , 57 F.3d 941, 944 (10th Cir. 1995), and we affirm. The facts relevant to the court’s jurisdiction are not disputed. Plaintiff’s husband suffered a fatal heart attack while workingat Conoco. On the day in question, decedent was at his office at Conoco perf orming his normal work activities when he began to feel ill. He entered h is supervisor’s office to request time off but immediately collapsed. The supervisor called Conoco’s emergency medical personnel, but, according to the complaint, their response was delayed while Conoco determined whether decedent was an emp loyee or a contract employee. Plaintiff alleged that Conoco denied dec edent access to its emergency facilities, and instructed the supervisor to contac t the local community emergency service instead. Plaintiff alleged that this delaycaused her husband’s death, and that Conoco negligently failed to provide adequate emergency care for her husband. The parties agree that decedent was employed by Conoco and that his heart attack was not work-related. Conoco filed a motion to dismiss the complaint, ass erting that because Conoco was decedent’s employer, plaintiff’s exclusi ve remedy was under-3-

Oklahoma’s Workers’ Compensation Act (WCA). See Okla. Stat. Ann. tit. 85, §§ 11 and 12 (West 1992). The district court agree d, and dismissed the complaint for lack of subject matter jurisdiction. It found undisputed evidence that any emergency assistance rendered to decedent by Conoco ’s employees which may have aggravated decedent’s heart condition was rend ered pursuant to Conoco’s customary policies and procedures for medical emerg ency responses. The district court noted that under settled Oklahoma law, an emp loyer may be liable under the WCA for aggravation of a non-work-related prior inj ury or medical condition if such aggravation occurs as a result of an event whi ch “arises out of” and “occurs within the course of” employment. ITT Continental Baking Co. v. Ware , 620 P.2d 1308, 1310 (Okla. 1980). The district court c oncluded that to the extent decedent’s injuries were caused by any negligent ac ts of Conoco’s employees, they arose out of, and occurred within the scope of , decedent’s employment, and were within the scope of the WCA, because they were directed by Conoco’s policies. See Decker v. Oklahoma State Univ. , 766 P.2d 1371, 1374-75 (Okla. 1988) and Rogers Galvanizing v. Woody , 853 P.2d 790, 792 (Okla. Ct. App. 1993)(defining the “arising out of” and “occurring within the course of” elements). The district court denied plaintiff’s m otion for reconsideration. We have carefully reviewed the briefs of the partie s, the district court’s orders, and the record on appeal. Based on our rev iew of the record, we find no-4-

reversible error and AFFIRM the judgment of the Uni ted States District Court for the Western District of Oklahoma for substantially the same reasons set forth in its August 8, 1995 and September 18, 1995 orders.

Entered for the Court

Bobby R. Baldock Circuit Judge