*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 9 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHEILA RENAE COSHATT, as personal representative of the Estate of Duston Price, deceased, Plaintiff-Appellant,

v. CANADIAN VALLEY ELECTRIC COOPERATIVE, INC., Defendant-Appellee. No. 01-7131 (E.D. Okla.) (D.Ct. No. 01-CV-301-S)

ORDER AND JUDGMENT *
Joseph T. Acquaviva, Jr. (Tim D. Cain and Jeff C. G rotta on the briefs) of Wilson, Cain & Acquaviva, Oklahoma City, Oklahoma, for Plaintiff-Appellant. Richard D. Wagner (I. Michele Drummond with him on the brief) of Wagner, Stuart & Cannon, Tulsa, Oklahoma, for Defendant-App ellee.

Before KELLY, Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.1 Although Oklahoma law does not mandate a specific time limit within which an

electric utility must restore service, it does require an electric utility to “make such efforts as are reasonable under the circumstances to minimize the adverse effects of disconnection of service” “[f]or the purpose of essential repair, maintenance or testing of utility equipment.” Okla. Admin. Code § 165:35-21-30(2). Oklahoma law also requires -2- In this diversity case, Ms. Renae Coshatt appeals adistrict court order dismissing her complaint against Canadian Valley El ectric Cooperative for lack of subject matter jurisdiction. The district court de termined Ms. Coshatt’s exclusive remedy was under the Workers’ Compensation Act of O klahoma. See Okla. Stat. Ann. tit. 85, §§ 11, 12. Exercising jurisdiction u nder 28 U.S.C. § 1291, we conclude the district court did not err in dismissi ng Ms. Coshatt’s complaint.

Canadian Valley Electric Cooperative provides elect ricity to customers in Oklahoma through overhead electric distribution lin es. These lines require daily maintenance and repair. For the most part, Canadia n Valley uses its own employees and equipment to perform the maintenance and repair work.

On one particular occasion, Canadian Valley hired G ordon Construction Company as an independent contractor to assist in r epairing distribution lines following a severe ice storm. Due to the magnitude of the storm damage, Canadian Valley could not complete the work in the time required by Oklahoma law using only its own employees. 1 Tragically, an employee of Gordonelectric utilities to have a “written restoration of service policy/plan” with the objective of

restoring service “as soon as possible.” Id. § 165:35-19-4(2).

-3- Construction, Dustin Price, sustained injuries and died while working on a distribution line.

The personal representative of Mr. Price’s estate, Ms. Coshatt, brought suit against Canadian Valley in the United States Distri ct Court for the Eastern District of Oklahoma. She apparently claimed Canad ian Valley negligently electrocuted Mr. Price when it energized the distri bution line upon which he was working. Canadian Valley moved to dismiss the comp laint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedur e, challenging the facts upon which the district court’s subject matter jurisdict ion depended. The district court granted the motion and held it lacked subject matte r jurisdiction over the action due to the exclusive remedy provisions of the Worke rs’ Compensation Act of Oklahoma. Ms. Coshatt appeals.

We review de novo whether the district court proper ly dismissed a complaint under Rule 12(b)(1) for lack of subject m atter jurisdiction. See Holt v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995). We review f or clear error the district court’s findings of jurisdictional facts. See id.-4-

The Workers’ Compensation Act of Oklahoma is the ex clusive remedy for accidental injuries sustained during the course and scope of a worker’s employment. See Okla. Stat. Ann. tit. 85, §§ 11, 12. See also Harter Concrete Prod., Inc. v. Harris , 592 P.2d 526, 528 (Okla. 1979); Carroll v. District Court of the Fifteenth Judicial Dist. , 579 P.2d 828, 830 (Okla. 1978). Claims arising under the Act must be brought in the Workers’ Compe nsation Court of Oklahoma.
See Okla. Stat. Ann. tit 85, §§ 26(B), 122. See also State Ins. Fund v. Asarco , Inc ., 782 P.2d 113, 114 (Okla. 1989); Carroll , 579 P.2d at 830. A principal hirer for whom an independent contractor is working is im mune under the Act from tort liability for injuries sustained by the contractor’ s employees during the course of employment. See Okla. Stat. Ann. tit. 85, §§ 11, 12. See also Izard v. United
States , 946 F.2d 1492, 1494 (10th Cir. 1991) (citing Murphy v. Chickasha Mobile Homes, Inc. , 611 P.2d 243, 244-45 (Okla. 1980)). In order to qualify as a principal hirer, the contract work performed by the independent contractor must be “necessary and integral” to the hirer’s operatio ns. See Bradley v. Clark, 804 P.2d 425, 427 (Okla. 1990); Izard, 946 F.2d at 1494 (citing Murphy , 611 P.2d at 244-45).

Work performed by an independent contractor is “nec essary and integral” to a hirer’s operations when it “(1) [is] directly ass ociated with the day-to-day-5-

activity carried on by the hirer’s line of trade, i ndustry or business or (2) would customarily be done in that line of business.” Murphy , 611 P.2d at 248. “[A]s a sharp tool for implementing” this two-part standard , the Oklahoma Supreme Court in Bradley v. Clark

adopted a “more restrictive” three-tier analysis f rom Louisiana case law. 804 P.2d at 427-28 (adopting t he three-tier analysis set forth in Berry v. Holston Well Serv., Inc. , 488 So.2d 934, 937-38 (La. 1986)). Under the three-tier Bradleyanalysis, a court should inquire (1) whether the c ontract work is specialized or non-specialized; (2) if non- specialized, whether the contract work is a part of the hirer’s trade, busin ess, or occupation; and (3) whether the hirer was engaged in the same contract work as the contractor at the time of the injury. See Bradley , 804 P.2d at 428 n.10.

In a well-reasoned decision applying the three-tier Bradleyanalysis, the district court held Gordon Construction and Mr. Pri ce were performing work necessary and integral to Canadian Valley’s operati ons at the time of Mr. Price’s injuries and death. In considering the first tier of the analysis, the district court concluded the contract work – repairing damaged ele ctrical lines – was nonspecialized because Canadian Valley “was not withou t the skill, knowledge, training or equipment to perform the task in questi on” and actually performed the work “on a daily basis.” Under the second tier of the analysis, the district court-6-

concluded the contract work was part of Canadian Va lley’s trade, business, or occupation because the work was regular and customa ry; Canadian Valley possessed the equipment necessary to perform the wo rk; its employees had the skill and training necessary to perform the work; a nd its employees performed the work on a daily basis. Finally, the district court concluded the third tier of the Bradleyanalysis was satisfied. Canadian Valley employees were repairing damaged distribution lines at the time of Mr. Price ’s injuries and death. We see no error in the district court’s conclusions. Unde r the circumstances of this case, we agree with the district court the contract work was necessary and integral to Canadian Valley’s operations.

Ms. Coshatt argues the district court “improperly f ocused on the individual task being performed by Dustin Price.” She believe s the contract work “is properly characterized as nonrecurring, time-sensit ive emergency repairs, notdayto-day line repair.” The Bradleycourt noted “[n]onrecurring or extraordinary” repairs are usually not necessary and integral to a hirer’s operations. Bradley , 804 P.2d at 428 n.10. In essence, Ms. Coshatt argu es the contract work was nonrecurring and extraordinary because the ice stor m was the “worst ... in 100 years” and caused damage “the magnitude of which li kely will not be seen again.” She acknowledged at oral argument, however, there i s no case law to support this2Ms. Coshatt does cite in her appellate brief various Louisiana appeals court cases

in support of her argument, but all the cases are distinguishable on their facts. In each of the cited cases, the hirers rarely, if ever, performed the contract work in question. See Richard v. Teague , 636 So.2d 1160, 1171 (La. Ct. App. 1994); Graves v. Lou Ana Foods, Inc. , 604 So.2d 150, 158 (La. Ct. App. 1992); Fountain v. Central Louisiana Elec. Co., Inc. , 578 So.2d 236, 239 (La. Ct. App. 1991). For example, a Louisiana appeals court concluded in Fountainthe major conversion of a particular electric line was “nonrecurring” when it was done only about once every twenty years and the hirer had a policy of contracting out line conversions of such magnitude – 13.2 kilovolts to 34.5 kilovolts. Fountain , 578 So.2d at 236, 239. In contrast, Canadian Valley performed the contract work on a daily basis. The ice storm changed only the amount of work, not the type of work, Canadian Valley employees normally performed. The contract work itself was therefore not extraordinary or nonrecurring.

-7- argument. 2 In any event, we disagree with her argument for t wo reasons. First, we do not believe the severity of the ice storm or the amount of damage to the distribution lines significant under the facts of t his case. The ice storm did not change the type of work Canadian Valley customarily performed and hired Gordon Construction and Mr. Price to perform. Seco nd, Ms. Coshatt’s factual assertions are not supported by the record. The re cord indicates only the ice storm was “severe” and the amount of damage require d Canadian Valley to hire Gordon Construction to help make timely repairs. T here is no evidence the severity of the ice storm or the amount of damage i t caused was nonrecurring or extraordinary. In fact, Ms. Coshatt conceded at or al argument ice storms damage electric distribution lines every year in Oklahoma.3 Ms. Coshatt again cites certain Louisiana appeals court cases in support of her

argument, but, as discussed above, we believe the critical factor in each was the hirer’s employees rarely, if ever, did the type of work in question. See Richard , 636 So.2d at -8- In a related argument, Ms. Coshatt claims the contr act work cannot be necessary and integral to Canadian Valley’s operati ons because it did not have enough manpower to complete the work in the time re quired by law. A court should consider as a factor in the second tier of t he Bradleyanalysis whether the hirer has “the equipment and/or manpower capable of performing the contract work.” Bradley , 804 P.2d at 428 n.10. This factor “focuses on de termining whether the contract work, as it relates to the hirer , is ordinarily handled through employees.” Id . Canadian Valley admits it did not have sufficien t employees to complete the work in a timely manner but argues it ordinarily performs the contract work. It also argues its employees were c apable of performing the contract work and were performing the same work as Gordon Construction and Mr. Price. We conclude Canadian Valley had manpowe r capable of performing the contract work. All the evidence indicates Cana dian Valley normally used its own employees to maintain and repair electric distr ibution lines. Although Canadian Valley occasionally hired independent cont ractors like Gordon Construction to help make timely repairs, we cannotfind any Oklahoma law indicating the use of independent contractors in su ch a manner renders otherwise necessary contract work unnecessary to the hirer’s operations. 31171; DeWoody v. Citgo Petroleum Corp. , 604 So.2d 92, 98 (La. Ct. App. 1992);

Fountain , 578 So.2d at 239

. This is consistent with the focus of the second tier of the Bradleyanalysis, which is to determine whether the contract work is ordinarily handled through the hirer’s employees. See Bradley , 804 P.2d at 428 n.10; DeWoody, 604 So.2d at 98. Unlike the facts in the cases cited by Ms. Coshatt, Canadian Valley’s employees performed the contract work on a daily basis. Canadian Valley only hired Gordon Construction to assist its own employees in order to complete the contract work in a timely manner.

-9- In sum, we conclude the district court correctly di smissed Ms. Coshatt’s complaint for lack of subject matter jurisdiction. Gordon Construction and Mr. Price were performing work necessary and integral t o Canadian Valley’s operations at the time of Mr. Price’s injuries and death. Canadian Valley was therefore a principal hirer and is liable to Mr. Pr ice, if at all, only under the Workers’ Compensation Act of Oklahoma in Workers’ C ompensation Court. The district court’s order is AFFIRMED

.

Entered by the Court: WADE BRORBY United States Circuit Judge