{ "id": 6138857, "name": "Marian SREBALUS v. ROSE CARE, INC.", "name_abbreviation": "Srebalus v. Rose Care, Inc.", "decision_date": "2000-02-09", "docket_number": "CA 99-704", "first_page": "142", "last_page": "150", "citations": [ { "type": "official", "cite": "69 Ark. App. 142" }, { "type": "parallel", "cite": "10 S.W.3d 112" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "235 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684717 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0020-01" ] }, { "cite": "317 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443788 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "9-10" }, { "page": "509", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0005-01" ] }, { "cite": "329 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236184 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0336-01" ] }, { "cite": "67 Ark. App. 390", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141830 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0390-01" ] }, { "cite": "63 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135950 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/63/0001-01" ] }, { "cite": "53 Ark. App. 280", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141802 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0280-01" ] }, { "cite": "66 Ark. App. 93", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137358 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/66/0093-01" ] }, { "cite": "65 Ark. App. 255", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140784 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/65/0255-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "57 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138540 ], "weight": 3, "year": 1997, "pin_cites": [ { "parenthetical": "holding appellant not entitled to compensation for an injury sustained when she fell on ice in her employer's parking lot; merely walking to and from one's car even on the employer's premises does not qualify as performing employment services" } ], "opinion_index": 0, "case_paths": [ "/ark-app/57/0159-01" ] }, { "cite": "334 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655446 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0012-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "opinion_index": 0 } ], "analysis": { "cardinality": 648, "char_count": 15126, "ocr_confidence": 0.752, "pagerank": { "raw": 7.682524327565528e-08, "percentile": 0.4530424360648053 }, "sha256": "1b46aa1887f5244fb3c123945374faa61a0801757fcdbc38a51a20d72aa268e3", "simhash": "1:ed53d5f4fc6cd6a3", "word_count": 2490 }, "last_updated": "2023-07-14T22:09:43.542887+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Rogers, J., agree." ], "parties": [ "Marian SREBALUS v. ROSE CARE, INC." ], "opinions": [ { "text": "Margaret Meads, Judge.\nMarian Srebalus appeals a summary judgment in which the trial court found that the doctrine of election of remedies barred her complaint. We reverse and remand for further proceedings consistent with this opinion.\nAppellant was an employee of Homestead Manor Nursing Home, which is owned by appellee, a self-insured employer. On May 7, 1996, while on the way to work, and while walking through her employers parking lot, appellant stepped into a pothole and suffered severe injuries to her left knee and ankle. Appellee made payments to appellant which were characterized as medical benefits and temporary total disability.\nAppellee ultimately suspended benefits, discontinuing \u201ctemporary total disability\u201d benefits after August 2, 1996, and paying no further \u201cmedical benefits\u201d after the middle of 1997. On December 10, 1998, appellant filed a complaint in circuit court alleging that appellee was negligent in having an unsafe condition on its premises, which negligence was a proximate cause of appellant\u2019s injuries and damages.\nAppellee moved for summary judgment, asserting that appellant made a claim for her injuries under the Arkansas Workers\u2019 Compensation Act (Act) and received benefits pursuant to the Act. In support of its motion, appellee submitted the affidavit of its claims adjuster, Dale Bennett. Bennett asserted that on May 13, 1996, appellant submitted an Employee\u2019s Notice of Injury in which she stated that she injured her left ankle in appellee\u2019s parking lot; that on May 15, 1996, appellee submitted a First Report of Injury or Illness to the Commission; that on May 21, 1996, appellee submitted to the Commission an Employer\u2019s Report of Initial Payment of Compensation or Intention to Controvert, reflecting that a compensation check had been sent to appellant; that an amended Employer\u2019s Report of Initial Payment of Compensation or Intention to Controvert was submitted to the Commission on June 3, 1996; and that on March 21, 1997, appellant filed a Claim for Compensation. It was appellee\u2019s position that under Ark. Code Ann. \u00a7 11-9-105 (Repl. 1996), an employee\u2019s rights and remedies under the Act are exclusive of all other employee rights and remedies on account of injury, and once an employee elects to make a claim under the Act and receives benefits thereunder, she is precluded from maintaining an action at law against the employer. Appellee also asserted that, even if appellant was not covered by the Act because she was on her way to work when she was injured, appellant elected to proceed against it under the Act and received substantial benefits under the Act, thus barring her tort claim as a matter of law.\nAppellant\u2019s response was that she was not covered by the Act because she was not injured while acting within the scope of her employment. She admitted making a claim to the Commission but averred that she does not intend to pursue it. Appellant said that appellee at its whim can deny her benefits because her injury was not work-related.\nAppellant submitted an affidavit in which she stated that after her injury appellee initially told her that she was not injured at work because she was not on company time. After speaking with Bennett, appellee informed her that Bennett said this was not a workers\u2019 compensation case because the incident happened in the parking lot and that he could not cover her claim as a workers\u2019 compensation claim until he checked with upper management. A short time later, Bennett told her they would take the claim under workers\u2019 compensation even though the incident occurred in the parking lot and not on company time. Appellant also stated that appellee told her on more than one occasion that her injury was not a workers\u2019 compensation case because she was not on company time when it occurred. Appellant averred that she initially received benefits, but they were stopped, and she received no further checks even though she was unable to work. She said that during these discussions with Bennett and appellee, she \u201chad no knowledge about what they meant regarding [her] injury being a workers\u2019 compensation case\u201d and that she was handed a document which she now knows is a notice of injury which \u201cthey\u201d prepared and had her sign.\nThe record also contains appellee\u2019s response to appellant\u2019s requests for admissions. Appellee denied that either appellee or Bennett knew, at the time employee benefits were paid to appellant, that she \u201cwas not working within the scope of her employment when she received an injury in the parking lot,\u201d and denied that nursing home management \u201cknew that when [appellant] fell... that her injury should not have been covered under the Workers\u2019 Compensation law.\u201d Appellee also denied that \u201cany benefits to which [appellant] is entitled under the Arkansas Workers\u2019 Compensation Act\u201d were denied. Appellee further denied that appellant \u201casked for any benefits to which she was entitled\u201d under the Act which appellee refused to pay. Appellee admitted that appellant \u201crequested benefits to which she is not entitled\u201d under the Act which were not paid. We think these answers are equivocal at best.\nAfter a hearing at which the court heard arguments of counsel, the trial judge found that under the doctrine of election of remedies, appellant elected the remedy of workers\u2019 compensation. He stated that whether or not appellant was fully satisfied with the amount of payments made, she elected her remedy and is barred from any further litigation in tort. Summary judgment against appellant was entered on March 24, 1999.\nAs a preliminary matter we must determine whether circuit court had jurisdiction over this matter. In VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), our supreme court resolved the question of whether the circuit court or the Workers\u2019 Compensation Commission has jurisdiction to determine whether the Act applies. In that case, appellant filed suit against appellee in circuit court, and appellee moved to dismiss the complaint on the ground that jurisdiction resided exclusively in the Commission. Circuit court agreed and dismissed the complaint. Our supreme court noted that previously it had adhered to the rule that circuit court and the Commission have concurrent jurisdiction to determine the applicability of workers\u2019 compensation laws to a given case, but now recognized that the better rule is to allow the Commission to decide whether an employee\u2019s injuries are covered by the Act. It held that the exclusive remedy of an employee on account of injury arising out of and in the course of her employment is a claim for compensation under the Act, and that the 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. In the instant case, there is no issue regarding whether appellant was performing employment services at the time of her injury. It is undisputed that she fell while on her way to work.\nPrior to Act 796 of 1993, our appellate courts recognized the premises exception to the going-and-coming rule, which provided that although an employee at the time of injury had not reached the place where her job duties were discharged, her injury was sustained within the course of her employment if she was injured while on the employers premises or on nearby property either under the employer\u2019s control or so situated as to be regarded as actually or constructively a part of the employer\u2019s premises. Hightower v. Newark Public System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). However, in 1993, the Arkansas Legislature passed Act 796 of 1993. Under that act, a compensable injury does not include an injury suffered at a time when employment services are not being performed. Ark. Code Ann. \u00a7 11 -9-102(5)(B)(iii) (Repl. 1996). See Hightower, supra (holding appellant not entitled to compensation for an injury sustained when she fell on ice in her employer\u2019s parking lot; merely walking to and from one\u2019s car even on the employer\u2019s premises does not qualify as performing employment services). Here, it is not disputed that appellant fell in appellee\u2019s parking lot while on her way to work. Thus, there is no fact issue to determine, and under Hightower we can say as a matter of law that the Act does not apply. We are not unmindful of the Hightower language \u201csuch as an intentional tort,\u201d but we think that language is meant as an example and not as a restriction. Therefore, we hold that circuit court has jurisdiction over this matter.\nIn reviewing cases where summary judgment is granted, we need only decide whether the trial court\u2019s grant of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Marshall v. Shelter Insurance Companies, 65 Ark. App. 255, 986 S.W.2d 139 (1999). While it is no longer considered a drastic remedy, summary judgment is only appropriate when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court. Guidry v. Harp\u2019s Food Stores, Inc., 66 Ark. App. 93, 987 S.W.2d 755 (1999). The burden of sustaining a motion for summary judgment is on the moving party. Id. On appeal, we view the evidence in a light most favorable to the nonmoving party and resolve any doubt against the moving party. Luningham v. Arkansas Poultry Fed\u2019n Ins. Trust, 53 Ark. App. 280, 922 S.W.2d 1 (1996). Where the decision on a question of law by the trial court depends upon an inquiry into the surrounding facts and circumstances, the trial court should refuse to grant a motion for summary judgment until the facts and circumstances have been sufficiently developed to enable the trial court to be reasonably certain that it is making a correct determination of the question of law. Ingram v. Chandler, 63 Ark. App. 1, 971 S.W.2d 801 (1998). Our task is to determine whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. White v. J.H. Hamlen & Son Co., 67 Ark. App. 390, 1 S.W.3d 464 (1999).\nAppellant argues that the trial court erred in granting summary judgment because she had no remedy under the Act, and that the doctrine of election of remedies does not preclude her suit because she has no remedy under the Act. Appellant relies on Travelers Insurance Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), in support of her election-oRremedies argument. In that case, our supreme court held that election of remedies bars litigation when it is shown that the claimant received or could have received compensation for her injury under the Act. In making this holding, the court cited Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 875 S.W.2d 507 (1994).\nIn Lively, supra, our supreme court discussed the law regarding the doctrine of election of remedies in a workers\u2019 compensation setting, where it stated:\nThe election of remedies bar applies only when it is shown that a complainant either did or could have recovered workers\u2019 compensation. The point of emphasis in this type of election of remedies case is whether it can be determined that a party actually had a remedy under the worker\u2019s compensation laws. In Gentry v. Jett, 235 Ark. 20, 356 S.W.2d 736 (1962), we explained that a party does not elect between inconsistent remedies when he actually only has one available. We said that the general rule as to election of remedies is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy. We further explained:\nElection is to be distinguished from mistake in remedy. The pursuit of a remedy which one supposes he possesses, but which in fact has no existence, is not an election between remedies but a mistake as to the available remedy, and will not prevent a subsequent recourse as to whatever remedial right was originally available.\nWe also quoted with approval Professor Larson\u2019s discussion of the application of the doctrine to worker\u2019s compensation cases, in which he emphasizes that \u201can election of remedy which proves to be nonexistent is no election at all.\u201d\n317 Ark. at 9-10, 875 S.W.2d at 509 (citations omitted).\nIn the instant case, we believe there is a question of fact as to whether appellant either \u201cdid or could have\u201d recovered workers\u2019 compensation. With regard to whether appellant \u201ccould have\u201d received workers\u2019 compensation, appellant\u2019s injury occurred in her employer\u2019s parking lot while on her way to work. There is no factual issue in this regard, and under Hightower, supra, we can say as a matter of law that appellant\u2019s injury was not compensable under our workers\u2019 compensation law. Appellant therefore could not have recovered workers\u2019 compensation benefits for her injury.\nHowever, this does not answer the question of whether appellant \u201cdid\u201d recover workers\u2019 compensation benefits. In her affidavit, appellant averred that both her employer and its claims adjuster stated that this was not a workers\u2019 compensation case. Nonetheless, the claims adjuster said that appellee would take the injury under workers\u2019 compensation. Moreover, appellee did pay appellant\u2019s medical bills until mid-1997 and made several weekly payments to her. Although appellee characterizes these payments as medical benefits and temporary total disability, we think there is a question of fact as to the character of the payments: were they \u201cvoluntary\u201d payments; payments made by mistake; or, as appellee contends, workers\u2019 compensation benefits? Further, we believe there is a question of fact, based upon what appellant had been told by appellee and Bennett, as to whether appellant had full knowledge of all the facts and of her rights so that she could make a deliberate choice and be bound by her election. Indeed, appellant\u2019s affidavit averred that when this was happening, she had no knowledge about what appellee and Bennett meant regarding her injury being covered by workers\u2019 compensation and that she was handed a document which she now knows is a notice of injury which they prepared and had her sign.\nBecause there are questions of fact regarding the character of payments made to appellant and whether appellant made a deliberate choice of remedy with full knowledge of all the facts and of her rights, we hold that the trial judge erred in entering summary judgment for appellee.\nReversed and remanded.\nRobbins, C.J., and Rogers, J., agree.", "type": "majority", "author": "Margaret Meads, Judge." } ], "attorneys": [ "Kinard, Crane & Butler, P.A., by: David F. Butler, for appellant.", "Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Teresa Wine-land, for appellee." ], "corrections": "", "head_matter": "Marian SREBALUS v. ROSE CARE, INC.\nCA 99-704\n10 S.W.3d 112\nCourt of Appeals of Arkansas Division II\nOpinion delivered February 9, 2000\n[Petition for rehearing denied March 15, 2000.]\nKinard, Crane & Butler, P.A., by: David F. Butler, for appellant.\nShackleford, Phillips, Wineland & Ratcliff, P.A., by: Teresa Wine-land, for appellee." }, "file_name": "0142-01", "first_page_order": 170, "last_page_order": 178 }