STATE OF OKLAHOMA

1st Session of the 53rd Legislature (2011)

SENATE JOINT
RESOLUTION 28	By:	Bingman

AS INTRODUCED

A Joint Resolution relating to workers’ compensation; ordering a legislative referendum pursuant to the Oklahoma Constitution; clarifying language; providing ballot title; and directing filing.

BE IT RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE 1ST SESSION OF THE 53RD OKLAHOMA LEGISLATURE:
SECTION 1.  Pursuant to Section 3 of Article V of the Oklahoma Constitution, there is hereby ordered the following legislative referendum which shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people for their approval or rejection at the next General Election.
SECTION 2.     AMENDATORY     85 O.S. 2001, Section 12, as last amended by Section 3, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 12), is amended to read as follows:
Section 12.  The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person, except in the case of an intentional tort, or where the employer has failed to secure the payment of compensation for the injured employee as provided for in Section 61 of this title.  An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury.  Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort.  The issue of whether an act is an intentional tort shall be a question of law for the court.  If an employer has failed to secure the payment of compensation for his injured employee, as provided for in Section 61 of this title, an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee; provided:
(i) 1.  The immunity created by the provisions of this section shall not extend to action by an employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker;
(ii) 2.  The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; and
(iii) 3.  This provision shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in paragraph (ii) of this section.  This section shall not be construed to relieve the employer from any other penalty provided for in this title for failure to secure the payment of compensation provided for in this title.;
(iv) 4.  For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.;
(v) 5.  If, as provided in this section, the employer has failed to secure the payment of compensation as provided for in Section 61 of this title or in the case of an intentional tort, the injured employee or his legal representative may maintain an action either in the Workers' Compensation Court or in the courts, but not both.; and
(vi) 6.  Nothing contained herein shall abrogate any rights arising under the Oklahoma Constitution.
SECTION 3.  The Ballot Title for the proposed act shall be in the following form:
BALLOT TITLE
Legislative Referendum No. ____	State Question No. ____
THE GIST OF THE PROPOSITION IS AS FOLLOWS:
This measure amends Section 12 of Title 85 of the Oklahoma Statutes.  It clarifies language.
SHALL THE PROPOSAL BE APPROVED?
FOR THE PROPOSAL — YES	_____________
AGAINST THE PROPOSAL — NO 	_____________
SECTION 4.  The President Pro Tempore of the Senate shall, immediately after the passage of this order for legislative referendum, prepare and file in accordance with Section 3 of Article V of the Oklahoma Constitution, one copy of this order for legislative referendum, including the Ballot Title set forth in SECTION 3, with the Secretary of State and one copy with the Attorney General.

53-1-419	CD	1/18/2011 3:02:12 PM