                                                                                     07/19/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               May 22, 2017 Session

        CHRISTOPHER LEA WILLIAMS v. JOHN BURACZYNSKI

                  Appeal from the Circuit Court for Knox County
                     No. 2-10-16     William T. Ailor, Judge


                           No. E2016-01605-COA-R3-CV


This appeal arises from a motor vehicle accident. Christopher Lea Williams
(“Williams”) and John Buraczynski (“Buraczynski”) both worked for Progression
Electric, LLC (“Progression”). In January 2015, Buraczynski was driving his vehicle
with passenger Williams as part of a carpool arrangement when they were involved in an
accident. Williams subsequently claimed he was entitled to and received workers’
compensation benefits. Williams then sued Buraczynski, personally, in the Circuit Court
for Knox County (“the Trial Court”). Buraczynski filed a motion for summary judgment,
arguing that Williams’ exclusive remedy was in workers’ compensation. The Trial Court
granted Buraczynski’s motion. Williams appealed. We affirm the judgment of the Trial
Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Henry S. Queener, III, Nashville, Tennessee, and, Jennifer K. O’Connell, Knoxville,
Tennessee, for the appellant, Christopher Lea Williams.

Thomas M. Horne, Chattanooga, Tennessee, for the appellee, John Buraczynski.
                                        OPINION

                                       Background

      This case arises from a motor vehicle accident involving two co-workers. On
January 12, 2015, Buraczynski was driving Williams as part of a carpool arrangement.
Both worked for Progression. The two co-workers were involved in an accident in which
Williams was injured.

        Williams sought and obtained workers’ compensation benefits from Progression
or its insurance carrier. Neither Progression nor its insurance carrier denied that Williams
was in the course and scope of his employment with Progression at the time of the
accident. In January 2016, Williams then filed suit against Buraczynski and Progression
alleging that Buraczynski was negligent in operating the vehicle at the time of the
accident. Progression filed a motion to dismiss for failure to state a claim asserting that
Williams’ claim against it was barred by the exclusive remedy provision of Tenn. Code.
Ann. § 50-6-108(a). Williams thereafter nonsuited his claim against Progression and the
case proceeded against Buraczynski. In May 2016, Buraczynski filed a motion to amend
his answer to add the defenses of judicial and equitable estoppel. The motion was
granted. According to Buraczynski, Williams should not be allowed to claim in this
action that he was acting outside the scope of his employment at the time of the accident
when Williams already had applied for and received workers’ compensation benefits.
Buraczynski instead argued that Williams’ exclusive remedy is his workers’
compensation.

        In March 2016, Buraczynski filed a motion for summary judgment, which the
Trial Court granted following a June 2016 hearing on the motion. The Trial Court stated
as follows in its oral ruling, which was incorporated into its July 2016 final order:

              The Court having reviewed the record and the motion, as well as the
       response and the affidavits that have been filed, it is of the opinion that the
       following are the undisputed facts:
              The Plaintiff and Defendant, John Buraczynski, were riding together
       in Mr. Buraczynski’s vehicle on their way to work. During that ride at
       some point, the vehicle was involved in a collision and the Plaintiff was
       injured.
              Later the Plaintiff made representations to his employer that he was
       acting in the course and scope of his employment and that the employer
       made a determination that the Plaintiff was in the course and scope of his
       employment and as a result, Workers’ Comp benefits, Workers’ Comp

                                             -2-
       benefits were paid to the Plaintiff by the employer’s Workers’
       Compensation carrier.
               The Plaintiff has now filed an affidavit in this matter wherein he
       makes statements that at the time of the wreck, he was not on Progression
       Electric, LLC’s premises at the time of the wreck; that he was not in a
       vehicle owned by Progression Electric, LLC; that he was not on the clock
       for Progression Electric, LLC; and he was not doing what he was employed
       by Progression Electric, LLC to do.
               The Court is of the opinion that in making a claim for Workers’
       Compensation benefits that the Plaintiff made admissions that are contrary
       to his affidavit and that TCA 50-6-108 subsection (a) reads as follows:
               The rights and remedies granted to an employee subject to this
       chapter, on account of personal injury or death by accident, including a
       minor, whether lawfully or unlawfully employed, shall exclude all other
       rights and remedies of the employee, the employee’s personal
       representative, dependents or next of kin, at common law or otherwise, on
       account of the injury or death.
               Based on the Court’s review of the statute, as well as the case law
       that has been presented, the Court is of the opinion that based on the Rye
       decision, the Plaintiff, I’m sorry, the Defendant has negated an essential
       element of the Plaintiff’s complaint and, therefore, the complaint against
       Defendant John Buraczynski should be dismissed.

Williams timely filed an appeal to this Court.

                                             Discussion

       We restate and consolidate the issues raised on appeal into the following
dispositive issue: whether the Trial Court erred in granting Buraczynski’s motion for
summary judgment.1

       As our Supreme Court has instructed regarding appellate review of a trial court’s
ruling on a motion for summary judgment:



1
  After entry of the Trial Court’s order granting Buraczynski’s motion for summary judgment, Williams
filed a fourth amended complaint naming a third party “John Doe” driver defendant. The record appears
to be silent as to whether leave to amend ever was granted by the Trial Court. Buraczynski contends that
this appeal therefore is not of a final order. We disagree. As no order was entered with respect to the
fourth amended complaint, and the order granting Buraczynski summary judgment adjudicated all issues
in the case, we may proceed to decide this appeal.
                                                  -3-
       Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                     ***

[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
“must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
Ct. 1348. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
                                       -4-
        the nonmoving party. If a summary judgment motion is filed before
        adequate time for discovery has been provided, the nonmoving party may
        seek a continuance to engage in additional discovery as provided in
        Tennessee Rule 56.07. However, after adequate time for discovery has
        been provided, summary judgment should be granted if the nonmoving
        party’s evidence at the summary judgment stage is insufficient to establish
        the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
        56.04, 56.06. The focus is on the evidence the nonmoving party comes
        forward with at the summary judgment stage, not on hypothetical evidence
        that theoretically could be adduced, despite the passage of discovery
        deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

        Williams argues on appeal that the Trial Court erred in interpreting his decision to
seek and obtain workers’ compensation as evidence that he was acting in the scope of his
employment at the time of the accident.2 Buraczynski disagrees and cites to Tennessee
law which he maintains establishes workers’ compensation as the exclusive remedy
under the undisputed facts of this case. Tenn. Code Ann. § 50-6-108(a) (2014) provides
the following in regards to exclusive remedy in workers’ compensation:

        (a) The rights and remedies granted to an employee subject to this chapter,
        on account of personal injury or death by accident, including a minor
        whether lawfully or unlawfully employed, shall exclude all other rights and
        remedies of the employee, the employee’s personal representative,
        dependents or next of kin, at common law or otherwise, on account of the
        injury or death.

      With respect to recovery of damages from a third-party tortfeasor, Tenn. Code
Ann. § 50-6-112 (c)(1) (2014), provides for a subrogation lien in favor of the employer as
follows:

        (c)(1) In the event of a recovery against the third person by the worker, or
        by those to whom the worker’s right of action survives, by judgment,
        settlement or otherwise, and the employer’s maximum liability for workers’
        compensation under this chapter has been fully or partially paid and
2
  Citing Tenn. R. App. P. 27, Buraczynski argues that Williams’ failure to cite properly to the record in
his brief on appeal is grounds for waiver of appellate review. A party that fails to comply with Rule 27 in
an appellate brief risks waiving appellate review. Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App.
2000). However, we decline to find waiver in the present case and will decide this appeal on its merits.
                                                   -5-
      discharged, the employer shall have a subrogation lien against the recovery,
      and the employer may intervene in any action to protect and enforce the
      lien.

       This Court addressed whether a worker could bring a common law negligence
action against a co-worker where the exclusive remedy provision of Tenn. Code Ann. §
50-6-108(a) applied. In Waddell v. Ogledzinkski, No. E2001-03131-COA-R3-CV, 2002
WL 31895580, at *8-9 (Tenn. Ct. App. Dec. 30, 2002), no appl. perm. appeal filed, we
stated as pertinent:

      Mr. Waddell appears to argue that granting Mr. Ogledzinkski [his co-
      worker] immunity is contrary to the purpose of the statute as determined by
      the Court in Millican.

             Mr. Waddell also cites the more recent case of Plough v. Premier
      Pneumatics, Inc., supra. In Plough an injured employee filed tort actions
      against some, but not all, of several allegedly negligent third parties within
      the one year limitation period and his employer sought to bring actions
      against the remaining third parties within six months of the expiration of
      that one year. This Court disagreed with the appellees’ argument that an
      employer may only sue third parties when the injured employee has failed
      to sue any third party within one year of the injury and determined that the
      employer’s lawsuits were permitted under the statute. Mr. Waddell
      references the Court’s determination that in enacting the statute the
      Legislature intended “to place the pecuniary loss on the author of the
      misfortune, thus allowing both employer and employee to benefit.” Mr.
      Waddell asserts that allowance of his negligence action against Mr.
      Ogledzinkski will place the pecuniary loss in this case upon the author of
      the misfortune in accord with legislative intent.

              We disagree that the Courts’ analyses of legislative intent set forth in
      Millican and Plough require that we allow Mr. Waddell’s present tort suit
      against Mr. Ogledzinkski. Neither of these cases sanction a common law
      negligence action by one employee against another for injuries arising out
      of and in the course of their common employment. While recognizing the
      legislative intent that an injured employee receive full recovery of damages
      and that the pecuniary loss incurred by such employee be placed on the
      author of his misfortune, we must at the same time recognize the competing
      rights and expectations acquired by a co-employee subject to the workers’
      compensation law. As recognized by the courts of this state, one of these
      rights and expectations is that such co-employee not be subject to a tort suit
                                            -6-
      by another employee for actions taken in furtherance of the employer’s
      business.

            For the foregoing reasons we affirm the judgment of the Trial Court
      and remand for collection of costs below.

      This Court discussed exclusive remedy and third parties in relation to workers’
compensation further in the case of Ridenour v. Carman, No. M2012-00801-COA-R3-
CV, 2013 WL 1097805, at *5-6 (Tenn. Ct. App. Mar. 15, 2013), rule 11 appl. perm.
appeal denied Aug. 14, 2013, as follows:

             Workers’ compensation is a “unique concept in the law,” which
      operates to “provide quick and efficient compensation to injured workers in
      exchange for immunizing employers from tort liability and limiting their
      damages.” Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 882
      (Tenn. 2005) (internal citations omitted). Tennessee Code Annotated § 50-
      6-108(a) of the Workers’ Compensation Law states “[t]he rights and
      remedies to an employee subject to this chapter, on account of personal
      injury or death by accident, ... shall exclude all other rights and remedies of
      the employee, the employee’s personal representative, dependents or next
      of kin, at common law or otherwise, on account of the injury or death.”
      However, Tennessee Code Annotated § 50-6-108(a) “do[es] not shield
      everyone in the work environment under all circumstances” from liability.
      Taylor v. Linville, 656 S.W.2d 368, 369 (Tenn. 1983).

             Workers’ compensation is the injured employee’s exclusive remedy,
      unless a third party, other than the employer, causes the injury. Davis v.
      Alexsis, Inc. 2 S.W.3d 228, 229 (Tenn. Ct. App. 1999) (citing McAlister v.
      Methodist Hosp., 550 S.W.2d 240, 242 (Tenn. 1977)). Tennessee Code
      Annotated § 50-6-112(a) expressly allows the injured worker to recover
      against a third party under certain circumstances:

             When the injury or death for which compensation is payable
             under this chapter was caused under circumstances creating a
             legal liability against some person other than the employer to
             pay damages, the injured worker, ... shall have the right to
             take compensation under this chapter, and the injured worker,
             ... may pursue the injured worker’s remedy by proper action
             in a court of competent jurisdiction against the other person.



                                            -7-
               The action authorized by Tennessee Code Annotated § 50-6-112(a)
        is in tort. Davis, 2 S.W.3d at 229 (citing Plough, Inc. v. Premier
        Pneumatics, Inc., 660 S.W.2d 495 (Tenn. Ct. App. 1983)). The policy for
        allowing suit against a responsible third party is that “since the third party
        could not have been liable for workers’ compensation, he should be
        prepared to make the injured person whole under normal tort principles.”
        Posey v. Union Carbide Corp., 705 F.2d 833, 834 (6th Cir.1983).

               Plaintiff alleges that Chad Carman was reckless, grossly negligent,
        or negligent on November 12, 2007, when he came upon the scene of
        Plaintiff’s accident and failed to render aid or call for medical assistance,
        and instead simply loaded Plaintiff into another truck and drove him home,
        without taking any steps to advise anyone of Plaintiff’s condition.
        Tennessee Code Annotated § 50-6-112(a) expressly allows an injured
        worker to pursue a tort remedy when the injury was caused “under
        circumstances creating a legal liability against some person other than the
        employer....” See also Davis, 2 S.W.3d at 229. By his own deposition
        testimony, Chad Carman was not an employee of the Auction Company at
        the time of the incident, he was merely helping his father, thus, Plaintiff’s
        claims against Chad Carman are claims against a third party, not the
        employer. As a consequence, the Workers’ Compensation Law does not
        bar Plaintiff’s claim against Chad Carman. Davis, 2 S.W.3d at 229; see also
        McAlister, 550 S.W.2d at 242.

               For the foregoing reasons, we find that Chad Carman failed to
        establish that he is entitled to judgment as a matter of law. Therefore, we
        reverse the grant of summary judgment to Chad Carman.

       Williams argues on appeal that, in order for the exclusive remedy protection to
apply to Buraczynski, “the undisputed facts of this case must establish Williams was
employed by Progression when the accident occurred and that the accident arose out
of and in the course of his employment.” (Bold in original) Williams contends the
evidence presented failed to establish those necessary conditions. Buraczynski argues, on
the contrary, that Williams’ actions in both seeking and obtaining workers’ compensation
benefits serve to cancel his current representations. Buraczysnki states that, whether
under a theory of judicial or equitable estoppel, Williams is barred from bringing a
negligence claim against his co-worker.3 In response to Buraczynski’s Rule 56.03
3
  Buraczynski submitted, as part of his motion for summary judgment, the affidavit of Barbara Mitchell,
Progression’s payroll manager. Ms. Mitchell stated in part: “Pursuant to the Local Union’s protocol, both
the Plaintiff and the Defendant were paid for travel to and from the work site at which they were working
on January 12, 2015.”
                                                  -8-
statement of material of facts, Williams admitted that “[a]t the time of this accident, the
Defendant [Buraczynski] was an employee of Progression Electric, LLC, (hereinafter
“Progression”), and was in the course and scope of his employment with Progression and
was on the job, working for Progression.”

      Our Supreme Court has discussed and distinguished judicial and equitable
estoppel as follows:

              Although this Court agrees that a party may be estopped from
       contradicting a sworn statement previously made or from gaining an unfair
       advantage by taking inconsistent positions in a legal proceeding, we do not
       agree with the Court of Appeals’ conclusion that the doctrine of judicial
       estoppel should be applied in both instances. Instead, we take this
       opportunity to clarify that the doctrine of judicial estoppel is applicable
       only when a party has attempted to contradict by oath a sworn statement
       previously made. See Allen v. Neal, 217 Tenn. 181, 396 S.W.2d 344, 346
       (1965) (noting that “[j]udicial estoppels arise from sworn statements made
       in the course of judicial proceedings, generally in a former litigation, and
       are based on public policy upholding the sanctity of an oath and not on
       prejudice to adverse party by reason thereof, as in the case of equitable
       estoppel”). In those instances where no oath is involved but the party is
       attempting to gain an unfair advantage by maintaining inconsistent legal
       positions, the doctrine of equitable estoppel should be applied.

                                            ***



              The essential elements of an equitable estoppel as related to
              the party estopped are said to be[:] (1) Conduct which
              amounts to a false representation or concealment of material
              facts, or, at least, which is calculated to convey the
              impression that the facts are otherwise than, and inconsistent
              with, those which the party subsequently attempts to assert;
              (2) Intention, or at least expectation that such conduct shall be
              acted upon by the other party; [and] (3) Knowledge, actual or
              constructive[,] of the real facts.

       Werne, 954 S.W.2d at 745.

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 315-16 (Tenn.
2009) (emphasis in original).
                                             -9-
       Williams unabashedly argues that he is entitled to have the best of both worlds in
that for purposes of his workers’ compensation claim, he was in the scope and course of
his employment with Progression yet at the exact same time for purposes of his tort claim
against his co-worker Buraczynski, he was not in the scope and course of his employment
with Progression. Williams may not have it both ways. Having chosen to receive his
workers’ compensation benefits under the Tennessee Workers’ Compensation statutes,
Williams is subject to the restrictions placed on him under those same statutes. While it
very well may be that “[t]he life of the law has not been logic; it has been experience,”4
we are not required to turn a blind eye and accept the illogical argument that Williams
was both in the scope and course of his employment and not in the scope and course of
his employment at the exact same time.

       Whether barred by a species of estoppel, or under the exclusive remedy provision
of Tenn. Code Ann. § 50-6-108(a), Williams is limited exclusively to his recovery in
workers’ compensation. Williams may not bring this common law negligence claim
against his co-worker Buraczynski for the same incident. Buraczynski has negated an
essential element of Williams’ claim and has shown that Williams’ evidence “is
insufficient to establish the existence of a genuine issue of material fact for trial.” Rye,
477 S.W.3d at 265. We affirm the judgment of the Trial Court granting summary
judgment in favor of Buraczynski.

                                            Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Christopher Lea Williams, and his surety, if any.



                                               ____________________________________
                                               D. MICHAEL SWINEY, CHIEF JUDGE




4
    Holmes, Oliver Wendell, Jr. (1881), The Common Law: Little, Brown and Company.
                                                -10-
