Lopez v. Catholic Charities ( 2023 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/15/2023 09:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    315 Nebraska Reports
    LOPEZ V. CATHOLIC CHARITIES
    Cite as 
    315 Neb. 617
    Sandra Lopez, appellant, v. Catholic Charities
    of the Archdiocese of Omaha, a Nebraska
    nonprofit corporation, appellee.
    ___ N.W.2d ___
    Filed December 15, 2023.   No. S-23-301.
    1. Motions to Dismiss: Rules of the Supreme Court: Workers’
    Compensation. As an affirmative defense, workers’ compensation
    exclusivity can be raised in a motion to dismiss for failure to state a
    claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6).
    2. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal
    and Error. A district court’s grant of a motion to dismiss for failure to
    state a claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6) is reviewed de
    novo, accepting all the allegations in the complaint as true and drawing
    all reasonable inferences in favor of the nonmoving party.
    3. Motions to Dismiss: Torts: Workers’ Compensation: Proof. For an
    employee to prevail against a motion to dismiss a tort action against
    his or her employer, the employee must allege sufficient facts that, if
    true, would demonstrate the Nebraska Workers’ Compensation Act does
    not apply.
    4. Torts: Workers’ Compensation: Statutes. Under the workers’ com-
    pensation statutes, employees give up the complete compensation that
    they might recover under tort law in exchange for no-fault ben-
    efits that they quickly receive for most economic losses from work-
    related injuries.
    5. Statutes: Legislature: Public Policy. It is the function of the Legislature,
    through the enactment of statutes, to declare what is the law and public
    policy of this state.
    Appeal from the District Court for Douglas County: Timothy
    P. Burns, Judge. Affirmed.
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    Nebraska Supreme Court Advance Sheets
    315 Nebraska Reports
    LOPEZ V. CATHOLIC CHARITIES
    Cite as 
    315 Neb. 617
    Thomas M. White, Amy S. Jorgensen, and Hannah
    Schweitzer, Senior Certified Law Student, of White &
    Jorgensen, for appellant.
    Heather B. Veik and Jerald L. Rauterkus, of Erickson  |
    Sederstrom, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    The Nebraska Workers’ Compensation Act has long been
    understood to provide the exclusive remedy for at least some
    injuries suffered by employees at work. When workers’ com-
    pensation is an employee’s exclusive remedy, the employee
    cannot assert tort theories of recovery against his or her
    employer in district court. In this case, Sandra Lopez sued her
    employer in district court, asserting claims of assault and inten-
    tional infliction of emotional distress. Her complaint alleged
    that agents of her employer planned and carried out a realistic
    active shooter drill at its offices and that Lopez suffered physi-
    cal and mental injuries as a result. The district court dismissed
    the suit, concluding that workers’ compensation was Lopez’
    exclusive remedy. Lopez appeals the dismissal and primarily
    asks us to hold that an employee may pursue tort theories of
    recovery against his or her employer for injuries suffered in
    the scope of employment if it is shown that the employer acted
    with a specific intent to injure the employee. We are unper-
    suaded by Lopez’ arguments and therefore affirm.
    BACKGROUND
    Lopez’ Complaint.
    In May 2022, Lopez was employed by Catholic Charities
    of the Archdiocese of Omaha (Catholic Charities). Her allega-
    tions in this case concern an active shooter drill carried out at
    Catholic Charities’ offices at that time.
    According to Lopez’ complaint, three individuals identi-
    fied as the executive director, chief of operations, and chief
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    315 Nebraska Reports
    LOPEZ V. CATHOLIC CHARITIES
    Cite as 
    315 Neb. 617
    of community engagement for Catholic Charities planned and
    carried out the active shooter drill one morning at the office at
    which Lopez worked. Lopez had no advance notice that a drill
    was taking place. Instead, Lopez claims that she reacted in fear
    after hearing loud “bangs” on the door to her office suite and
    being urged by the chief of community engagement to get out
    of her office. When Lopez followed others toward the exits, the
    executive director told her a shooting was taking place. Lopez
    later heard gunshots and saw a fellow employee lying outside
    on the ground, apparently dead or mortally wounded, and with
    what appeared to be blood on her hand. Lopez ran away from
    the building and toward a nearby shopping plaza. While run-
    ning away from the building, Lopez jumped off a retaining
    wall and “jarr[ed]” her back upon landing. Lopez alleged that
    the chief of operations later told her son that “it was all play
    acting and a safety drill” and that “‘[w]e wanted to see how
    people reacted.’”
    Lopez alleged that she went to counseling the day after the
    drill and has continued to seek treatment to address fear and
    depression caused by the above-described events. She also
    alleged that she injured her back as a result of jumping off the
    retaining wall and that she continues to receive treatment for
    that injury as well.
    Based on these allegations, Lopez asserted that Catholic
    Charities was liable for assault and intentional infliction of
    emotional distress. In support of her assault theory of recovery,
    Lopez alleged that Catholic Charities had intentionally ter-
    rorized her and caused her to fear for her life. Her complaint
    sought, among other things, damages for both mental and
    physical injuries, past and future medical expenses, perma-
    nent disability, and the loss of earnings and the impairment of
    future earning capacity.
    Dismissal by District Court.
    Catholic Charities moved to dismiss Lopez’ complaint pur-
    suant to Neb. Ct. R. Pldg. § 6-1112(b)(6) (rule 12(b)(6)). It
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    315 Nebraska Reports
    LOPEZ V. CATHOLIC CHARITIES
    Cite as 
    315 Neb. 617
    asserted that because the Nebraska Workers’ Compensation
    Act (the Act) provided the exclusive remedy for Lopez’ inju-
    ries, her complaint failed to state a claim upon which relief
    could be granted.
    The district court granted Catholic Charities’ motion. In a
    written order, it found that the Act was Lopez’ exclusive rem-
    edy. It specifically rejected Lopez’ argument that she was enti-
    tled to pursue tort theories of recovery in district court because
    she had alleged intentional torts and that Catholic Charities
    acted with specific intent to injure her.
    Lopez filed a timely appeal, and we moved the case to
    our docket.
    ASSIGNMENT OF ERROR
    Lopez assigns that the district court erred by granting
    Catholic Charities’ motion to dismiss.
    STANDARD OF REVIEW
    The district court granted Catholic Charities’ rule 12(b)(6)
    motion to dismiss for failure to state a claim. Although the
    standard of review for such motions is well-established, we
    conclude that this is not a case in which we can quickly recite
    that standard and proceed to apply it. As we will explain,
    there is some inconsistency in our case law as to whether a
    motion to dismiss based on a contention that the Act pro-
    vides the exclusive remedy is an affirmative defense and thus
    properly raised via rule 12(b)(6) or a matter of subject matter
    jurisdiction and thus properly raised via Neb. Ct. R. Pldg.
    § 6-1112(b)(2).
    In one case, we specifically described the exclusivity of the
    Act as an affirmative defense that is subject to waiver and that
    the employer is obligated to prove. See Plock v. Crossroads
    Joint Venture, 
    239 Neb. 211
    , 
    475 N.W.2d 105
     (1991), over-
    ruled on other grounds, Hynes v. Hogan, 
    251 Neb. 404
    ,
    
    558 N.W.2d 35
     (1997), and disapproved on other grounds,
    Downey v. Western Comm. College Area, 
    282 Neb. 970
    , 
    808 N.W.2d 839
     (2012). In another case decided just 2 years prior,
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    315 Neb. 617
    however, we stated that because the plaintiffs’ allegations fell
    within the ambit of the Act, the district court was “without
    subject matter jurisdiction in regard to those allegations”
    and sustained the district court’s dismissal on subject matter
    jurisdiction grounds. See Abbott v. Gould, Inc., 
    232 Neb. 907
    ,
    914, 
    443 N.W.2d 591
    , 596 (1989). This inconsistent treatment
    appears to have continued in subsequent years. See Estate of
    Teague v. Crossroads Co-op Assn., 
    286 Neb. 1
    , 
    834 N.W.2d 236
     (2013) (finding that the Act provided exclusive remedy
    and affirming dismissal for failure to state a claim); Ihm v.
    Crawford & Co., 
    254 Neb. 818
    , 
    580 N.W.2d 115
     (1998) (find-
    ing that the Act provided exclusive remedy and affirming dis-
    missal for lack of subject matter jurisdiction).
    We conclude today that to the extent we have suggested that
    the doctrine of workers’ compensation exclusivity operates as
    a limitation on the subject matter jurisdiction of district courts
    to hear common-law tort claims, our language was imprecise.
    Subject matter jurisdiction refers to the power of a tribunal
    to hear and determine a case in the general class or category
    to which the proceedings in question belong and to deal with
    the general subject matter involved. See, e.g., Bleich v. Bleich,
    
    312 Neb. 962
    , 
    981 N.W.2d 801
     (2022). Article V, § 9, of the
    Nebraska Constitution states that “[t]he district courts shall
    have both chancery and common law jurisdiction, and such
    other jurisdiction as the Legislature may provide . . . .” And
    because a district court’s general jurisdiction is conferred by
    the Nebraska Constitution, the Legislature is without power to
    take that jurisdiction away. See Susan L. v. Steven L., 
    273 Neb. 24
    , 
    729 N.W.2d 35
     (2007).
    Given the foregoing, workers’ compensation exclusiv-
    ity cannot function as a limit on the district court’s subject
    matter jurisdiction over common-law tort claims. Article V,
    § 9, gives the district courts subject matter jurisdiction to
    decide common-law tort claims. That authority cannot be
    taken away via statute, and the doctrine of workers’ compensa-
    tion exclusivity arises from statute. See, e.g., Bennett v. Saint
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    LOPEZ V. CATHOLIC CHARITIES
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    315 Neb. 617
    Elizabeth Health Sys., 
    273 Neb. 300
    , 
    729 N.W.2d 80
     (2007)
    (identifying statutory sources of workers’ compensation exclu-
    sivity jurisprudence); Muller v. Tri-State Ins. Co., 
    252 Neb. 1
    ,
    
    560 N.W.2d 130
     (1997) (same).
    Although the Legislature lacks the authority to divest district
    courts of their subject matter jurisdiction over common-law
    tort claims, the Legislature can create an affirmative defense to
    such tort claims. We understand workers’ compensation exclu-
    sivity to be such an affirmative defense. Our conclusion that
    workers’ compensation is an affirmative defense and not a limit
    on the district court’s subject matter jurisdiction is consist­
    ent with McCracken v. Wal-Mart Stores East, LP, 
    298 S.W.3d 473
     (Mo. 2009), a case in which the Missouri Supreme Court
    resolved its own inconsistent precedent and concluded that
    workers’ compensation exclusivity is an affirmative defense
    and not a limit on the subject matter jurisdiction conferred on
    circuit courts by the Missouri Constitution.
    [1-3] As an affirmative defense, workers’ compensation
    exclusivity can be raised in a motion to dismiss for failure
    to state a claim under rule 12(b)(6). See Weeder v. Central
    Comm. College, 
    269 Neb. 114
    , 
    691 N.W.2d 508
     (2005) (hold-
    ing that defendant can assert affirmative defense in rule
    12(b)(6) motion when allegations that are subject of affirma-
    tive defense appear on face of complaint). A district court’s
    grant of a motion to dismiss for failure to state a claim under
    rule 12(b)(6) is reviewed de novo, accepting all allegations
    in the complaint as true and drawing all reasonable infer-
    ences in favor of the nonmoving party. Benjamin M. v. Jeri
    S., 
    307 Neb. 733
    , 
    950 N.W.2d 381
     (2020). In Estate of Teague
    v. Crossroads Co-op Assn., 
    286 Neb. 1
    , 6, 
    834 N.W.2d 236
    ,
    243 (2013), we stated that for an employee to withstand an
    employer’s rule 12(b)(6) motion to dismiss based on workers’
    compensation exclusivity, “the employee must allege suf-
    ficient facts that, if true, would demonstrate the Act does
    not apply.”
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    LOPEZ V. CATHOLIC CHARITIES
    Cite as 
    315 Neb. 617
    ANALYSIS
    [4] On a number of occasions we have said that the Act
    “provides the exclusive remedy by the employee against the
    employer for any injury arising out of and in the course of the
    employment.” See, e.g., Dutcher v. Nebraska Dept. of Corr.
    Servs., 
    312 Neb. 405
    , 416, 
    979 N.W.2d 245
    , 253-54 (2022)
    (internal quotation marks omitted) (emphasis in original). See,
    also, Ihm v. Crawford & Co., 
    254 Neb. 818
    , 821, 
    580 N.W.2d 115
    , 118 (1998) (“when an employee sustains an injury that
    arises out of and in the course of his or her employment and
    such injury is covered by [the Act], then the employee sur-
    renders his or her right to any other method, form, or amount
    of compensation”). As noted above, the exclusivity of the
    workers’ compensation remedy is derived from statute. We
    have recognized that the principle of workers’ compensa-
    tion exclusivity rests on an implicit bargain in which, under
    the workers’ compensation statutes, employees give up the
    complete compensation that they might recover under tort law
    in exchange for no-fault benefits that they quickly receive
    for most economic losses from work-related injuries. See
    Dutcher, 
    supra.
    Lopez does not dispute that, in general, the Act provides the
    exclusive remedy for injuries arising out of and in the course
    of employment and that an employee may not sue his or her
    employer in tort for such injuries. She makes three arguments,
    however, as to why her complaint should not have been dis-
    missed. We address these arguments in the sections below.
    Specific Intent to Injure.
    Lopez’ primary argument is that her complaint should not
    have been dismissed because she has alleged that individu-
    als in leadership positions at Catholic Charities acted with
    specific intent to injure her. She contends that her complaint
    is fairly read to allege that those individuals planned the drill
    with the intention of placing Lopez and other employees in
    fear and distress and that such facts establish a specific intent
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    to injure. She asks us to hold that an employee is not limited
    to a workers’ compensation recovery if it is demonstrated that
    the employer committed intentional torts and acted with a spe-
    cific intent to injure the employee.
    This court has previously declined invitations to recog-
    nize an intentional tort exception to the doctrine of workers’
    compensation exclusivity. In Abbott v. Gould, Inc., 
    232 Neb. 907
    , 
    443 N.W.2d 591
     (1989), employees sought to sue their
    employer in tort based on allegations that the employer inten-
    tionally subjected the employees to toxins and concealed from
    the employees the dangers of such exposure. We affirmed
    the district court’s dismissal based on workers’ compensation
    exclusivity. We reasoned that the purpose of the workers’ com-
    pensation statute was to do away with common-law remedies
    and defenses and to give compensation without regard to the
    employer’s fault. We concluded that we would subvert the
    purpose of the workers’ compensation statutes if we were to
    permit employees to pursue intentional tort claims against their
    employers outside the workers’ compensation system.
    Over two decades later, in Estate of Teague v. Crossroads
    Co-op Assn., 
    286 Neb. 1
    , 
    834 N.W.2d 236
     (2013), we were
    presented with another case in which a party sought to avoid
    workers’ compensation exclusivity by alleging intentional
    torts. In that case, an employee’s supervisor asked him to
    enter a grain bin and the employee died of asphyxiation
    after being engulfed in grain. The employee’s estate alleged
    that the employer intentionally ignored safety regulations,
    concealed known dangers, and knew that serious injury was
    substantially certain to occur as a result. We again held that
    workers’ compensation was the exclusive remedy. We first
    observed that while the employee’s estate had alleged that
    the employer knew its conduct was substantially certain to
    result in injury, the estate had not alleged that the employer
    acted with a specific intent to injure. We acknowledged that a
    minority of jurisdictions had adopted an exception that allows
    an employer to be sued in tort if the employer knew the
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    315 Neb. 617
    tortious conduct was substantially certain to result in injury,
    but we declined to adopt such an exception. We explained that
    such an exception has proven difficult to apply and would be
    inconsistent with the purposes of the Act.
    Perceiving that Estate of Teague, 
    supra,
     did not address
    cases in which the employer is alleged to have acted with a
    specific intent to injure the employee, Lopez asks us to hold
    that an employee may pursue and obtain a tort recovery if
    he or she can plead and prove the employer acted with such
    intent. Lopez contends that recognition of such a narrow
    exception is not only left open by Estate of Teague, supra, but
    also supported by the language of the Act. She points out that
    the Act provides compensation to employees when injury is
    caused “by accident.” See 
    Neb. Rev. Stat. § 48-101
     (Reissue
    2021). She submits that when an employer acts with specific
    intent to injure the employee, that cannot be characterized as
    an accident. And, Lopez argues, because she has alleged that
    Catholic Charities acted with specific intent to injure her, the
    Act does not cover her claims and she is entitled to pursue
    tort theories in district court.
    We disagree with Lopez’ argument that if an employer
    acts with specific intent to injure an employee, the resulting
    injury cannot be accidental. The Act defines accident as “an
    unexpected or unforeseen injury happening suddenly and vio-
    lently, with or without human fault, and producing at the time
    objective symptoms of an injury.” 
    Neb. Rev. Stat. § 48-151
    (2)
    (Reissue 2021). Lopez argues that she has not alleged an
    accident under this definition because the fear and distress
    she suffered because of the active shooter drill were not unex-
    pected or unforeseen but, according to her complaint, deliber-
    ately planned by agents of Catholic Charities. This argument,
    however, improperly focuses on whether the injuries were
    unexpected or unforeseen to the employer.
    This court long ago concluded that an injury is acci-
    dental and thus compensable under workers’ compensation
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    statutes, if it is unexpected or unforeseen to the employee. In
    Myszkowski v. Wilson and Company, Inc., 
    155 Neb. 714
    , 717,
    
    53 N.W.2d 203
    , 206 (1952), this court, citing cases from other
    jurisdictions and a workers’ compensation treatise of that era,
    said that “an assault is an accident within the meaning of [the
    Act] when from the point of view of the workman who suf-
    fers from it[,] it is unexpected and without design on his part
    although intentionally caused by another” (internal quotation
    marks omitted) (emphasis supplied). See, also, Reserve Life
    Insurance Company v. Hosey, 
    208 Va. 568
    , 571, 
    159 S.E.2d 633
    , 635 (1968) (noting acceptance of definition of accident
    as event that is “unusual and not expected by the person to
    whom it happens”) (internal quotation marks omitted); Klein
    v. New York Times Co., 
    317 N.J. Super. 41
    , 
    721 A.2d 29
    (1998) (holding that employee who punched electrical box in
    anger was not injured by accident because employee should
    have expected injury). Consistent with that understanding,
    in subsequent cases, we have analyzed whether injuries were
    accidental and thus compensable for purposes of the Act by
    determining whether they were unexpected or unforeseen to
    the employee. See, e.g., Owen v. American Hydraulics, 
    258 Neb. 881
    , 
    606 N.W.2d 470
     (2000).
    Indeed, our decision in Estate of Teague, 
    supra,
     makes
    sense only if the question of whether the employee’s death
    was unexpected or unforeseen is viewed from the perspective
    of the employee. After all, the employee’s estate in Estate of
    Teague alleged that the employer was substantially certain
    that serious injury would befall the employee. If the employer
    was substantially certain injury would occur, the injury could
    not fairly be described as unexpected or unforeseen if viewed
    from the employer’s perspective. And, yet, we affirmed the
    district court’s determination that the death was a compen-
    sable accident for purposes of the Act. For these reasons, we
    disagree with Lopez that the accidental injury requirement in
    the Act supports her argument that workers’ compensation
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    exclusivity should not apply when an employer acts with spe-
    cific intent to injure an employee.
    In addition to her argument based on the accidental injury
    requirement, Lopez also asks us to follow the lead of other
    jurisdictions that have recognized intentional tort exceptions to
    workers’ compensation exclusivity provisions. Although Lopez
    is correct that many jurisdictions recognize some form of
    intentional tort exception to workers’ compensation exclusiv-
    ity, many others do not. See 9 Arthur Larson et al., Larson’s
    Workers’ Compensation Law § 103.01 (2017).
    Those jurisdictions that have recognized intentional tort
    exceptions have set forth different rationales for doing so.
    Some states, like South Dakota, have specific legislative provi-
    sions exempting intentional torts from their statutes that pro-
    vide for workers’ compensation exclusivity. See, e.g., Jensen
    v. Sport Bowl, Inc., 
    469 N.W.2d 370
    , 371 (S.D. 1991) (citing
    “SDCL 62-3-2” as basis for intentional tort exception to work-
    ers’ compensation exclusivity). Other states have recognized
    an intentional tort exception without specific legislative lan-
    guage. The Indiana Supreme Court, for example, in a decision
    Lopez relies upon, held that its exclusivity provision did not
    apply to intentional torts based on its conclusion that inten-
    tional torts were not accidental and therefore not even covered
    by workers’ compensation. See Baker v. Westinghouse Elec.
    Corp., 
    637 N.E.2d 1271
     (Ind. 1994). Other states have contin-
    ued to hold that injuries inflicted intentionally are accidental
    and thus compensable under workers’ compensation statutes
    if unforeseen to the injured party, but have nonetheless rec-
    ognized an intentional tort exception to exclusivity based on
    a determination that the employer should not be able to assert
    that the injury was accidental if he or she intended to cause
    the injuries at issue. See, e.g., Meerbrey v. Marshall Field and
    Co., Inc., 
    139 Ill. 2d 455
    , 
    564 N.E.2d 1222
    , 
    151 Ill. Dec. 560
    (1990). See, also, 9 Larson et al., supra, § 103.01.
    Having surveyed intentional tort exceptions recognized by
    other jurisdictions, we are not persuaded to adopt a similar
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    exception here. Unlike South Dakota’s workers’ compensation
    statute, the Act does not contain an explicit provision exempt-
    ing intentional torts from workers’ compensation exclusivity.
    And we are not convinced that the rationales for recognizing
    intentional tort exceptions in states without specific statutory
    language are consistent with the Act and our precedent. As
    we have discussed, under our precedent, an injury occurs by
    accident and is therefore compensable under the Act if it is
    unexpected or unforeseen to the person suffering the injury.
    Furthermore, the Act provides that employees covered by the
    Act “surrender . . . their rights to any other method, form, or
    amount of compensation or determination thereof.” 
    Neb. Rev. Stat. § 48-111
     (Reissue 2021). See, also, Ihm v. Crawford &
    Co., 
    254 Neb. 818
    , 
    580 N.W.2d 115
     (1998). We see no lan-
    guage in the Act that would support a rule whereby injuries
    occurring as a result of an employer’s specific intent to injure
    an employee are exempted from the employee’s surrender of
    rights to other forms of compensation but all other injuries
    are not.
    For these reasons, we find that Lopez’ allegations that
    agents of Catholic Charities acted with specific intent to injure
    her did not save her complaint from dismissal on workers’
    compensation exclusivity grounds.
    Article I, § 13, of Nebraska Constitution.
    Lopez next argues that she should be permitted to pursue
    her tort claims in district court because she will be denied any
    recovery under the Act. Lopez contends that this complete
    denial of any recovery violates article I, § 13, of the Nebraska
    Constitution, specifically its language providing that “[a]ll
    courts shall be open, and every person, for any injury done him
    or her in his or her lands, goods, person, or reputation, shall
    have a remedy by due course of law . . . .”
    In support of her position that she will not be able to obtain
    any recovery for her injuries under the Act, Lopez relies
    on Zach v. Nebraska State Patrol, 
    273 Neb. 1
    , 727 N.W.2d
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    206 (2007). In that case, a state trooper died as a result of
    a self-inflicted gunshot wound and his surviving spouse and
    children sought workers’ compensation benefits. Their theory
    was that the trooper suffered a compensable accident when his
    learning of the consequences of a work-related error caused
    changes in his brain that prompted his suicide. We held that
    the petition did not state a claim for accidental injury. We
    stated that “an injury caused by a mental stimulus does not
    meet the requirement in § 48-151(4) that a compensable
    accidental injury involve ‘violence to the physical structure
    of the body.’” Zach, 
    supra,
     273 Neb. at 8-9, 
    727 N.W.2d at 212
    . But, see, 
    Neb. Rev. Stat. § 48-101.01
    (2) (Reissue 2021)
    (adopted after Zach and providing circumstances under which
    “[p]ersonal injury includes mental injuries and mental illness
    unaccompanied by physical injury for an employee who is a
    first responder” or similar). Lopez argues that under Zach,
    
    supra,
     the injuries to her back are not compensable under the
    Act because they were caused by a mental stimulus.
    It is not clear to us that Lopez is correct that the rule
    recognized in Zach, 
    supra,
     stands in the way of her receiv-
    ing compensation under the Act. But we find it unnecessary
    to resolve that question in this appeal. Even assuming that
    Lopez is correct that she will not be able to obtain compensa-
    tion under the Act, we find that Lopez has not complied with
    the procedural requirements for us to consider her constitu-
    tional argument.
    We understand Lopez to contend that the Act is uncon-
    stitutional to the extent it precludes her from suing in tort
    yet provides no compensation under the rule announced in
    Zach, supra. This is a challenge to the constitutionality of the
    Act and thus implicates Neb. Ct. R. App. P. § 2-109(E) (rev.
    2022). See State v. Denton, 
    307 Neb. 400
    , 
    949 N.W.2d 344
    (2020). Section 2-109(E) requires parties presenting a case
    involving the federal or state constitutionality of a statute to
    file and serve notice thereof by separate written notice or in a
    petition to bypass and to provide the Attorney General with a
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    copy of its brief if the Attorney General is not already a party
    to the case. See State v. Catlin, 
    308 Neb. 294
    , 
    953 N.W.2d 563
     (2021). As we have explained, § 2-109(E), among other
    things, ensures that the Attorney General can carry out the
    duty to defend duly adopted statutory enactments that are not
    unconstitutional. See Denton, 
    supra.
     Without strict compli-
    ance with § 2-109(E), this court will not address a constitu-
    tional challenge to a statute. Denton, 
    supra.
    Our record contains no indication that Lopez complied with
    § 2-109(E) in this case. We thus cannot consider her argument
    that dismissal of her complaint pursuant to the Act violated
    article I, § 13.
    Public Policy.
    Finally, Lopez argues that the dismissal of her complaint
    violates public policy. Lopez asserts that dismissal of com-
    plaints like hers on workers’ compensation exclusivity grounds
    allows employers to intentionally frighten and cause injuries
    to their employees and escape liability. This, Lopez contends,
    violates public policy.
    [5] Again, it is not clear to us that Lopez is precluded from
    obtaining any recovery in this case. In any event, we need not
    answer that question to address her argument. As we often rec-
    ognize, it is the function of the Legislature, through the enact-
    ment of statutes, to declare what is the law and public policy
    of this state. Rogers v. Jack’s Supper Club, 
    304 Neb. 605
    , 
    935 N.W.2d 754
     (2019). Lopez has not, however, identified any
    particular statute or other source of recognized legal authority
    that precludes dismissal in this case. Instead, she appears to
    ask us to reverse the district court’s dismissal based on a deter-
    mination that this outcome is unfair or creates bad incentives
    for employers.
    In response to this argument, we find guidance from the
    Iowa Supreme Court. That court has said that public policy “is
    not determined by this court’s generalized concepts of fairness
    and justice or our determination of what might be most just
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    in a particular case.” Claude v. Guaranty Nat. Ins. Co., 
    679 N.W.2d 659
    , 663 (Iowa 2004) (internal quotation marks omit-
    ted). Because Lopez has not identified any particular statute or
    other source of recognized legal authority that precludes dis-
    missal here, we find her public policy argument lacks merit.
    Nonphysical Injuries.
    For the reasons set forth above, we find that each of Lopez’
    arguments as to why the district court erred by dismissing
    her complaint lacks merit. Prior to concluding, we note that
    we are aware that a number of courts around the country
    have held that when an employee sues his or her employer
    and asserts solely nonphysical injuries, workers’ compensa-
    tion is not the exclusive remedy. See 9 Arthur Larson et al.,
    Larson’s Workers’ Compensation Law § 104.01 (2017); 1 John
    P. Ludington et al., Modern Workers Compensation § 102:4
    at 8 (Matthew J. Canavan & Donna T. Rogers eds., 2016)
    (“[e]xclusivity applies only to personal injury or death liability,
    not to other types of tort liability”). We are further aware that
    in cases where an employee seeks recovery of both nonphysi-
    cal and physical injuries, a number of courts have followed
    the suggestion of a leading commentator and have found that
    workers’ compensation is the exclusive remedy in such cases
    only when the “essence of the tort” is physical. See 9 Larson et
    al., supra, § 104.05[1] at 104-21.
    In this case, although Lopez clearly alleged that she had
    suffered some nonphysical injuries, she made no argument
    that she should be allowed to pursue her tort claims in district
    court because she asserted only nonphysical injuries. Such an
    argument was presumably unavailable to her as her complaint
    also alleged injuries to her back. Neither did Lopez argue
    that she should be allowed to pursue her tort claims because,
    although she claimed both physical and nonphysical injuries,
    the essence of her claims were nonphysical. Instead, she made
    only the arguments we have addressed and rejected above.
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    Because Lopez did not attempt to avoid dismissal based on
    the principles set forth above, our decision today should not
    be read to address whether and how the doctrine of workers’
    compensation exclusivity applies to nonphysical injury torts.
    CONCLUSION
    Because we are not persuaded by Lopez’ arguments that the
    district court erred in dismissing her complaint on workers’
    compensation exclusivity grounds, we affirm.
    Affirmed.
    

Document Info

Docket Number: S-23-301

Filed Date: 12/15/2023

Precedential Status: Precedential

Modified Date: 12/15/2023