FOR WRIT OF PROHIBITION FROM THE MILLER COUNTY CIRCUIT COURT
NO. 46CV-15-13-2 HONORABLE CARLTON D. JONES, JUDGE
Wyly-Rommel, PLLC, by: Sean F. Rommel, for petitioner.
Rutledge, Att'y Gen., by: Michael A. Cantrell, Ass't
Att'y Gen., for respondent.
K. WOOD, Associate Justice
Truman Arnold Companies ("TAC") seeks a writ of
prohibition following the entry of an order by the Miller
County Circuit Court denying its motion to dismiss the
complaint of its former employee, Teresa Jones. TAC argues
that the Workers' Compensation Commission has exclusive
jurisdiction to make factual inquiries regarding
jurisdiction, which leaves the circuit court without
jurisdiction, at this stage, over Jones's claims against
TAC for negligent supervision, retention, and hiring of a
store manager who Jones alleges sexually harassed her. We
grant the petition for writ of prohibition.
alleges she was sexually assaulted by John Kelly, a store
manager, in a carwash of a TAC convenience store where she
and Kelly worked. She initially brought suit against TAC and
Kelly in the Miller County Circuit Court alleging outrage,
battery, and defamation. However, she nonsuited that case and
filed a separate action in federal district court for federal
and state sexual harassment and retaliation, outrage,
battery, negligent supervision and retention, and defamation.
Jones later nonsuited her claims against Kelly. TAC filed a
motion for summary judgment against all of Jones's
claims. Jones abandoned her claims against TAC for outrage,
battery, and defamation, and the federal district court
entered summary judgment in favor of TAC on the remaining
federal and state law sexual-harassment and retaliation
claims. The federal court declined to continue exercising
jurisdiction over the remaining state negligent-supervision
and retention claims and dismissed them without prejudice.
then filed the present action in the Miller County Circuit
Court, alleging that TAC was negligent in its supervision,
retention, and hiring of Kelly. TAC filed a motion to dismiss
the complaint in reliance on the exclusive remedy afforded by
Arkansas Code Annotated section 11-9-105 (Repl. 2012) of the
Workers' Compensation Act. Jones replied that the
Workers' Compensation Act does not provide coverage for
intentional torts that do not arise out of the employment.
After a hearing, the circuit court denied TAC's motion to
dismiss. The circuit court ruled that the Act does not
provide coverage for Jones's claims because her alleged
injuries amounted to "mental injury or illness, "
which is not compensable under workers' compensation
pursuant to Arkansas Code Annotated § 11-9-113(a)(1) and
because her complaint did not contain sufficient allegations
identifying whether a "crime of violence" had
occurred under the exception to the physical-injury
limitation within § 11-9-113(a)(1). Thereafter, TAC
filed a petition for writ of prohibition in this court. We
took the petition as a case and ordered the parties to brief
of prohibition is extraordinary relief that is appropriate
only when the lower court acts wholly without jurisdiction.
Reynolds Metal Co. v. Cir. Ct. of Clark Cnty., 2013
Ark. 287, 428 S.W.3d 506. The writ's purpose is to
prevent a court from exercising a power not authorized by law
when there is no adequate remedy by appeal or otherwise.
Id. Writs of prohibition are prerogative in nature
and extremely narrow in scope and operation. Int'l
Paper Co. v. Clark Cnty. Cir. Ct., 375 Ark. 127, 289
S.W.3d 103 (2008). They are used with great caution and
forbearance and only in cases of extreme necessity.
Id. We have granted writs of prohibition when a
circuit court wrongfully exercises jurisdiction over a matter
that is within the province of the Workers' Compensation
Commission to decide. See, e.g., Central Flying
Serv., Inc. v. Pulaski Cnty. Cir. Ct., 2015 Ark. 49, 454
S.W.3d 716; Entergy Ark., Inc. v. Pope Cnty. Cir.
Ct., 2014 Ark. 506, 452 S.W.3d 81; Entergy Ark.,
Inc. v. Pope Cnty. Cir. Ct., 2014 Ark. 508, 454 S.W.3d
197; Wenco Franchise Mgmt., Inc. v. Chamness, 341
Ark. 86, 13 S.W.3d 903 (2000).
employer who has secured for its employees the benefits of
workers' compensation is immune from liability for
damages in a tort action brought by an injured employee.
Entergy Ark., Inc., 2014 Ark. 506, at 6, 452 S.W.3d
at 84. This rule, known as the exclusivity doctrine, arises
from Ark. Code Ann. § 11-9-105, which provides that
"[t]he rights and remedies granted to an employee
subject to the provisions of this chapter, on account of
injury or death, shall be exclusive of all other rights and
remedies of the employee, his legal representative,
dependents, [or] next of kin." Essentially, if an
employee is granted a right or remedy under the Workers'
Compensation Act, the employee is limited to the relief
provided under the Act.
court settled the question of who decides whether an employee
has a right or remedy under the Act in VanWagoner v.
Beverly Enterprises, 334 Ark. 12, 16, 970 S.W.2d 810,
812 (1998). Prior to VanWagoner, this court had held
that the Workers' Compensation Commission and the circuit
courts had concurrent jurisdiction to determine whether the
Workers' Compensation Act was applicable in a given case.
See, e.g., Craig v. Traylor, 323 Ark. 363,
915 S.W.2d 257 (1996). In VanWagoner, we recognized
the perils of this approach. We explained that the Commission
has vast expertise in this area and that the goals of
uniformity, speed, and simplicity would best be achieved by
granting the Commission exclusive, original jurisdiction to
determine the applicability of the Workers' Compensation
Act. VanWagoner, 334 Ark. at 15, 970 S.W.2d at 812.
Therefore, we held that the Arkansas Workers'
Compensation 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." Id. Since
VanWagoner, this court has consistently held that if
there are questions of fact about whether the Act provides a
right or remedy, those questions of fact are solely within
the jurisdiction of the Commission to decide; therefore, a
writ of prohibition is warranted when a circuit court
encroaches on the jurisdiction of the Workers'
Compensation Commission. See Entergy, 2014 Ark. 506,
at 7, 452 S.W.3d at 85.
argues that because there are questions of fact regarding the
Act's applicability, VanWagoner requires that
the Commission, not the circuit court, have the exclusive
"jurisdiction to determine jurisdiction." We agree.
First, Jones's complaint alleges claims of negligence,
not intentional tort. In her complaint, Jones alleged that
TAC negligently hired, supervised, and retained Kelly and
that it should have known that Kelly's conduct would
subject third parties to an unreasonable risk of harm. Our
caselaw is clear that claims of an employer's negligence,
which result in physical injury, are covered exclusively by
the Workers' Compensation Act and fall within the
exclusive jurisdiction of the Commission. See Int'l
Paper Co, 375 Ark. 127, 289 S.W.3d 103. Furthermore,
whether it can be said that the particular incidents alleged
by Jones have "arisen out of" the employment
relationship is a factual inquiry. Phillips v. Ark. State
Hwy. and Transp. Dep't, 52 Ark.App. 170, 172, 916
S.W.2d 128, 130 (1996) ("Whether sexual harassment is a
risk to which an employee is exposed because of the nature of
the work environment is a fact that should be decided on a
case-by-case basis."). We have repeatedly said that
factual questions or mixed questions of fact and law, such as
these, lie exclusively with the Commission because they are
not so one-sided that the issue can be determined as a matter
of law. See Entergy Ark., Inc., 2014 Ark. 506, at
7-8, 452 S.W.3d at 85; Reynolds Metal Co., 2013 Ark.
287, at 5, 428 S.W.3d at 509; Int'l Paper Co.,
375 Ark. at 131, 289 S.W.3d at 106-07. Because Jones's
claims sound in negligence, they are insufficient to satisfy
the intentional-tort exception to the Act's
exclusive-remedy provision. See Saine v. Comcast
Cablevision of Ark., Inc., 354 Ark. 492, 126 S.W.3d 399
(2003). As to whether the Workers' Compensation Act is
intended to apply to negligence resulting in a sexual assault
such as Jones alleges, this jurisdictional question must
initially be determined by the Commission.
addition, the causal relationship between the physical and
mental injuries raises numerous factual questions. Arkansas
Code Annotated section 11-9-113(a)(1) limits the scope of
compensable mental injuries to those "caused by a
physical injury" to the body except in cases where the
injured person is a "victim of a crime of
violence." Thus, a court could apply Arkansas Code
Annotated section 11-9-113(a), and find the action does not
fall within the Act as a matter of law. However, in this
case, the circuit court weighed Jones's factual
allegations before concluding that this action did not fall
within a right or remedy of the Act, rather than determining
that the mental-injury exception applied as a matter of law.
It stated that "[i]n Mrs. Jones' Complaint, she also
alleges 'personal injuries and mental suffering, ' .
. . The Court finds that these alleged injuries arise from
more a mental anguish type of injury than from a physical
impact injury." Thus, the circuit court evaluated
questions of fact to determine jurisdiction, and we have said
that role is within the exclusive province of the
Workers' Compensation Commission.
while addressing whether Jones's mental injuries were a
result of a crime of violence, the circuit court stated that
this exception might be applicable "depending upon the
facts and circumstances as they arose in the claims." It
further stated that although it could not determine at that
time whether there had been a crime of violence that
"this does not mean, however, that upon further
discovery and development of the case" that it may
apply. Accordingly, given the facts as alleged in the
complaint, the circuit court reserved its power and continued
to exercise jurisdiction to make additional factual
determinations regarding ...