* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court

of Appeals for the Third Circuit, sitting by designation. 

*** After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The 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.***
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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 district 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 working at Conoco. On the day in

question, decedent was at his office at Conoco performing his normal work

activities when he began to feel ill. He entered his 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 employee or a contract

employee. Plaintiff alleged that Conoco denied decedent access to its emergency

facilities, and instructed the supervisor to contact the local community emergency

service instead. Plaintiff alleged that this delay caused 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, asserting that because

Conoco was decedent’s employer, plaintiff’s exclusive remedy was under
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Oklahoma’s Workers’ Compensation Act (WCA). See Okla. Stat. Ann. tit. 85,

§§ 11 and 12 (West 1992). The district court agreed, 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 rendered pursuant to Conoco’s

customary policies and procedures for medical emergency responses. The district

court noted that under settled Oklahoma law, an employer may be liable under the

WCA for aggravation of a non-work-related prior injury or medical condition if

such aggravation occurs as a result of an event which “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 concluded that to the extent

decedent’s injuries were caused by any negligent acts 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 motion for reconsideration.

We have carefully reviewed the briefs of the parties, the district court’s

orders, and the record on appeal. Based on our review of the record, we find no
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reversible error and AFFIRM the judgment of the United 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