                  IN THE COURT OF APPEALS OF TENNESSEE
                                                                                 FILED
                                     AT KNOXVILLE                               March 24, 1999

                                                                              Cecil Crowson, Jr.
                                                                              Appellate C ourt
                                                                                  Clerk



RALPH E. DA VIS, JR., et ux                   ) C/A NO. 03A01-9811-CV-00373
CYNTHIA DAV IS,                               )
                                              ) HAM ILTON CIRCU IT
       Plaintiffs-Appellants,                 )
                                              ) HON. L. MARIE WILLIAMS,
v.                                            ) JUDGE
                                              )
ALE XSIS , INC.,                              ) AFFIRMED
                                              ) AND
       Defendant-Appellee.                    ) REMANDED




SAM JO NES, Chattanooga, for Plaintiffs-Appellants.

JOHN THOMAS FEENEY and M. KEITH SISKIN, FEENEY & MURRAY, PLLC,
Nashville, for Defendant-Appellee.




                                        O P I N IO N


                                                             Franks, J.


               This is an actio n by a wor ker a gain st an adju sting com pany hired by a

workers’ compensation carrier to manage the worker’s claim.

               The complaint charges that the defendant improperly stopped paying

temporary total disability benefits which caused the worker to suffer serious emotional

and m ental inju ry by aggra vating a n unde rlying pas t trauma tic stress d isorder.

Defendant later resumed payments.

               The Trial Court granted defendant’s motion to dismiss, holding that

T.C .A. § 50-6 -108 affo rded the e xclu sive remedy.
              Workers’ compensation laws “involve a quid pro quo in that the

workers give up certain common law rights against their employers in return f or a

system providing more certain compensation, totally independent of any fault on the

part of the employer.” Perry v. Transamerica Ins. Group, 703 S.W.2d 151, 153

(Tenn.App. 1985). T.C.A. § 50-6-108(a) addresses this issue:

              Right to co mpensa tion exclusiv e. - (a) The rig hts and rem edies herein
              granted to an employee subject to the Workers’ Compensation Law on
              account of personal injury or death by accident, including a minor
              whether lawfully or un lawfully em ployed, shall ex clude all othe r rights
              and remedies of such employee, such employee’s personal
              representative, dependents, or next of kin, at common law or otherwise,
              on account of such injury or death.

Addition ally, T.C.A. § 5 0-6-102(4 ) includes an employer’s ins urance ca rrier within

the definition of “employer” unless otherwise provided.

              The Trial Court based her holding on Perry. In Perry, an employee sued

her employer’s workers’ compensation carrier alleging bad faith in handling the claim,

negligence, and outrageous conduct. This Court held that the exclusivity provision of

T.C.A. § 50-6-108 barred her claim. The Court noted that “under our statute the

insurer is equated fully and completely with the employer.” Id. at 154. Because the

acts comp lained of w ere comm itted by “a repres entative of th e insurer” the Court held

that, “for purposes of the statute, they were committed by a representative of the

employer.” Id. Additionally, the Court noted that the Workers’ Compensation Act

provid ed pen alties fo r insurer s who failed to pay prop er com pensat ion. See T.C.A . §

50-6-205.

               Plaintiffs arg ue that Perry does not bar their claims. They allege that

defendant was an independent contractor of the insurance company, and further

contend that T.C.A. § 50-6-112 allows their claims. Under the Workers’

Compensa tion Act, workers’ com pensation is the exclusive rem edy, unless a third

party cau ses the in jury. McA lsiter v. M ethodis t Hosp ., 550 S.W.2d 240, 242 (Tenn.


                                              2
1977). T.C .A. § 50-6 -112 allow s the injured w orker to reco ver against a third party

when the injury was caused “under circumstances creating a legal liability against

some person other than the employer to pay damages . . . ” The action provided by

T.C.A . § 50-6 -112 is in tort. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d

495 (T enn. A pp. 198 3).

               We have found no Tennessee cases directly addressing entities such as

defendant. In Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728 (Tenn.

1990), the Suprem e Court held that a gua rantor of a self-insured em ployer’s

obligations was entitled to the same immunity from suit awarded insurers and was not

a third party subject to suit. In Spears v. Morris & Wallace Elevator Co., 684 S.W.2d

620 (Tenn.App. 1984), an employee injured while operating an elevator sued the

elevator insp ector. The w orkers’ com pensation c arrier had hire d the inspec tor. This

Court determined that the claim was barred because the Workers’ Compensation Act

equated the insurer with the employer. The Court also stated that allowing the

worker’s claim would create “a legal liability” against the insurance company under

respon deat su perior. Spears, at 622. Thus, the action against the inspector could not

be maintained under T.C.A. § 50-6-112.

               Plaintiffs further argue that the defendant is an independent contractor

whose a ctions wo uld not crea te liability for the w orker’s com pensation c arrier. This

argument may hav e merit for certain types of tortious cond uct. In this case, however,

plaintiffs’ claim is barred whatever defendant’s status, since defendant was

discharging a non-d elegable duty of the carrier.

               In Coop er v. Na tional U nion F ire Ins. C o., 921 P.2d 1297 (O kla. Ct.

App. 1 996), cert. denied, July 10, 1996, the Court considered the issue of a workers’

compensation insu rer’s liability for the actions of an independen t adjustor. The Court

noted that “ an insurer c annot avo id liability for ‘bad f aith’ failure to p ay simply


                                               3
because it was due to the act of an independent contractor adjustor, given the non-

delegable nature of the duty to deal fairly and in good faith.” Cooper, 921 P.2d at

1300 ( citation o mitted). Also se e Holt v . Amer ican P rogres sive Life Ins. Co ., 731

S.W.2d 923 (Tenn. App. 1987) (administrator’s bad faith considered that of the

insurance c ompany). T he forego ing reason ing is persua sive and the exclusivity

provisio n of the Work er’s Co mpen sation A ct theref ore bar s plaintif fs’ claim s.

               We affirm the judgment of the Trial Court and remand at appellants’

cost.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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