Lively v. Libbey Memorial Physical Medical Ctr
In Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 875 S.W.2d 507 (1994) the Court discussed the law regarding the doctrine of election of remedies in a workers' compensation setting, where it stated:
The election of remedies bar applies only when it is shown that a complainant either did or could have recovered workers' 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's 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:
Election 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.
We also quoted with approval Professor Larson's discussion of the application of the doctrine to worker's compensation cases, in which he emphasizes that "an election of remedy which proves to be nonexistent is no election at all." (317 Ark. at 9-10, 875 S.W.2d at 509.)