                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                             October 28, 2004 Session

NOEL CRAWLEY and JOSEPHINE CRAWLEY v. HAMILTON COUNTY,
                      TENNESSEE

                 Direct Appeal from the Circuit Court for Hamilton County
             No. 00-C-199 Division III  Hon. L. Marie Williams, Circuit Judge



                 No. E2003-03028-COA-R3-CV - FILED JANUARY 21, 2005


Plaintiffs’ action for damages against defendant was dismissed by summary judgment on grounds
that “fringe benefits” provided by defendant was plaintiff’s exclusive remedy. We vacate the
summary judgment.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, J., joined.


Marvin Berke, Chattanooga, Tennessee, for Appellant.

R. Dee Hobbs, Special Counsel for Hamilton County Sheriff’s Department, Chattanooga, Tennessee,
for Appellee.



                                              OPINION



                Plaintiffs filed suit against Hamilton County, alleging that Noel Crawley was injured
while working in the County Jail as a corrections officer, which injuries were proximately caused
due to the negligence of another officer. Crawley alleged that he sustained serious injuries to his left
shoulder, as well as aggravating a pre-existing injury.

                Hamilton County filed a Motion for Summary Judgment, alleging that it had never
accepted the provisions of the workers compensation statute, but instead adopted its own policies
regarding on the job injuries. It alleged that its policy provides for medical coverage and payment
of monetary compensation to injured employees in lieu of workers compensation benefits, and that
this was the employee’s exclusive remedy. In support of the Motion, the County filed the Affidavit
of Bill Stoll, who stated that he was familiar with the County’s policy, and that plaintiff had received
payment of his medical expenses for 3 years, totaling $52,386.02, and that the County had declined
to subject itself to coverage under the worker’s compensation act pursuant to Tenn. Code Ann. §50-
6-106(1)(B)(6).

                Also attached to the Motion was the Affidavit of Carole Miller, an employee of the
Sheriff’s Department, who stated that she was familiar with the policy and that the policy was
revised on September 17, 1997 to provide medical and salary benefits to employees injured on the
job, and that after plaintiff was injured on February 9, 1999, he continued to receive his salary for
one year pursuant to the policy.

               The policy was also attached to the Motion, and states, in pertinent part:

               The rights and remedies herein granted to an employee because of and on account of
               a personal injury arising out of an accident which occurs in the course and scope of
               employment shall exclude all other rights and remedies of such employee, his/her
               personal representatives, dependents or next of kin, common law or otherwise, on
               account of such injury insofar as Hamilton County, Tennessee and the Hamilton
               County Sheriff’s Department are concerned.

               The Court entered an Order, finding that it was undisputed that plaintiff was injured
on the job, and that he received benefits pursuant to the policy in question. The Court concluded
there was no question of law or fact, and that Hamilton County was entitled to summary judgment
because it had not accepted the provisions of the workers comp law, but had adopted rules and
regulations determining all fringe benefits to employees pursuant to Tenn. Code Ann. §8-8-401, and
that such benefits had been paid in full.

               Plaintiffs have appealed, insisting that summary judgment was improperly granted.

                 Hamilton County argues that summary judgment was proper, relying on Tenn. Code
Ann. §8-8-409, which empowers the County Sheriff’s Civil Service Board to “adopt and amend rule
and regulations” and to “determine all fringe benefits to employees”, as authority for the adoption
of its on-the-job injury policy, which provides that it is the employee’s exclusive remedy. The
County argues that the payment of wages and medical expenses as provided by the policy is a “fringe
benefit” as listed in Tenn. Code Ann. §8-8-409, and that it was the within the County’s power to
designate this as the sole benefit for this type of injury. Neither party cites any case law on point




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with this issue.1

               The only case which we have found relevant to this issue is the case of Brown v. City
of Memphis, 1998 WL 742385 (Tenn. Ct. App. Oct. 22, 1998), wherein the plaintiff, an employee
of the City of Memphis, sued the City for an on the job injury he sustained while working at the
City’s sewage treatment plant. The City, like Hamilton County, had elected not to be covered by the
Tennessee Workers’ Compensation Act, but instead had adopted its own policy for on the job
injuries, which provided for payment of medical bills and lost wages. Id. The plaintiff employee
was paid benefits pursuant to that policy, and then sued the City under the Governmental Tort
Liability Act(“GTLA”), and the trial court granted summary judgment to the City. Id.

                The Western Section of this Court analyzed the interplay of the GTLA and the City’s
policy regarding on the job injuries, and determined that the plaintiff could properly bring suit
pursuant to the GTLA because his injury was proximately caused by the negligence of another
employee within the scope of his employment, which was a situation for which immunity was
expressly removed under the GTLA. Id., see Tenn. Code Ann. §29-20-102 and 205. The Court
further held that the program adopted by the City was not intended as compensation for the
negligence of a fellow employee, but rather was intended as a “fringe benefit for any type of work-
related accident”. Id. at 3. The Court discussed that the policy was similar to worker’s
compensation in that regard, except that it did not contain an exclusivity provision, which the policy
in this case does.

                 The Court reasoned that the GTLA specifically removed immunity for a suit such as
the plaintiff’s, which alleged negligence by an employee of a municipality, and that since the on-the-
job injury policy was not intended for such situations, it was merely a “separate and distinct fringe
benefit to the employee”. Id. The Court recognized that plaintiffs injured “by the negligence of
employees of municipalities were the intended beneficiaries” of the GTLA, and that the plaintiff
therein could also recover under the GTLA. Id. Similarly, here, the fact that plaintiff is also an
employee who has the “fringe benefit” supplied by the County’s policy for on-the-job injuries, does
not mean that the plaintiff cannot sue the County for the negligence of a fellow employee which
caused injury, a right granted by the GTLA.2

                While the policy adopted in this case does contain an exclusivity provision which


        1
           We have found no precedent in other states on the issue of the propriety of a county
government adopting such a policy in lieu of worker’s compensation, perhaps because all other
states, except one or two, mandate worker’s compensation coverage for public employers. See
Muhlheim v. Knox County Bd. of Educ., 2 S.W.3d 927 (Tenn. 1999).
        2
         Other cases where an employee successfully sued a governmental employer for on-the-job
injury pursuant to the GTLA are McMurry v. Metropolitan Gov’t of Nashville, 2003 WL 535918
(Tenn. Ct. App. Feb. 26, 2003), and Keaton v. Hancock County Bd. of Educ., 2003 WL 2010739
(Tenn. Ct. App. Apr. 30, 2003).

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purports to limit the employee’s remedy, it is apparent based on well-settled rules of statutory
construction that such a provision which directly conflicts with the rights granted by the GTLA is
not effective. It has long been held that “municipal ordinances in conflict with and repugnant to a
State law of a general character and state-wide application are universally held to be invalid.”
Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619, 621 (Tenn. 1968). The test of whether such
county or municipal rule is in “conflict with and repugnant to” a statute is whether the rule takes
away a right granted by the state, or conversely grants a right denied by the state. As stated by the
Supreme Court, “the city may not pass an ordinance which ignores the State's own regulatory acts,
or deny rights granted by the State or grant rights denied by the State and thus in effect nullify the
State law.” State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 268 S.W.2d 330,
334 (Tenn. 1954). As we have further explained, “[a] test which has been widely used in
determining whether the provisions of a municipal ordinance conflict with a statute governing the
same subject, is whether the ordinance prohibits an act which the statute permits, or permits an act
which the statute forbids.” City of Knoxville v. Currier, 1998 WL 338195 (Tenn. Ct. App. 1998).

                In this case, the County has adopted a policy which provides for, as the County
alleges, “fringe benefits” for an employee injured on the job, but which then purports to limit the
employee’s right to sue the County or to seek any other redress for such injury. While the County
is empowered by Tenn. Code Ann. §8-8-409 to adopt such a policy providing for “fringe benefits”,
it cannot then also adopt a policy which takes away the right to sue conferred by the GTLA for a
situation such as this. We hold that the Trial Court erred in granting summary judgment to the
County, vacate the summary judgment and remand for further proceedings.

               The cost of the appeal is assessed to Hamilton County.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




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