                   IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                         Submitted on Briefs, June 19, 2007

   TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, v.
            UNITRAC RAILROAD MATERIALS, INC.

                    Direct Appeal from the Circuit Court for Knox County
                    No. 2-50-04     Hon. Harold Wimberly, Circuit Judge



                 No. E2006-02679-COA-R3-CV - FILED AUGUST 29, 2007



Plaintiff sought to recover payment of workers compensation benefits via subrogation against the
defendant. The Trial Court entered Judgment for defendant. We affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Joseph L. Broy, Germantown, Tennessee, for appellants.

Malcolm L. McCune, Nashville, Tennessee, for appellee.



                                            OPINION


               Plaintiff, Travelers Property Casualty Company of America (“Travelers”), brought
this action against Unitrac Railroad Materials, Inc. (“Unitrac”), asserting that it was entitled to
maintain a claim against Unitrac, since it had a contract of workers’ compensation insurance with
Labor Headquarters/Staffing Headquarters (“Labor”), and was thereby subrogated.

                Travelers asserted that on August 27, 2002, Calvin Jones, an employee of Labor, was
loading a railroad track on a flat bed rail car, when a track hoe being operated by defendant Unitrac
malfunctioned, causing the railroad track to fall on Jones, resulting in severe injuries. Travelers
asserted that Unitrac was negligent in the operation of the track hoe and use of the support chains,
and that such negligence was the proximate cause of Jones’ injuries. Further, that it had paid over
$199,255.90 in benefits to Jones on behalf of Labor, and had a continuing obligation.

               Travelers asserted that Labor and Unitrac had a Service Agreement, whereby Unitrac
agreed to use all due care in protecting Labor’s employees from exposure to hazardous
conditions/materials, and that under the terms of this agreement, Unitrac agreed to indemnify and
hold Labor harmless from any claims for bodily injuries arising out of the use of Unitrac machinery
or equipment by Labor’s employees. Further, that Unitrac had breached the agreement, that
Travelers had paid and continued to pay Jones’ medical expenses, and was subrogated to the rights
of Labor for full recovery of the payments.

                 Unitrac moved to dismiss under Tenn. R. Civ. P. 12.06, asserting that the Complaint
failed to state a claim upon which relief could be granted. Unitrac conceded that it had a service
agreement with Labor, whereby Labor was to provide temporary employees to Unitrac, and Unitrac
agreed to supervise and control the conduct of the employees, and that Labor agreed to maintain
workers’ compensation on all of such employees.

               Unitrac argued that it owed no duty of reasonable care to Travelers, and that Travelers
was not a party to the service agreement, and was not a third-party beneficiary. Also it was a co-
employer of Jones, such that he (and Travelers, derivatively) was barred from filing suit against
Unitrac under the exclusivity provision contained in Tenn. Code Ann. §50-6-108. The service
agreement was attached as an exhibit.

                Travelers filed a Memorandum in Opposition to the Motion, which asserted that
Travelers was subrogated to the rights of its insured, pursuant to Tenn. Code Ann. §50-6-112, as well
as the theory of “conventional subrogation”.

               On November 15, 2006, the Trial Court entered an Order finding that the Motion to
Dismiss was well-taken.1 Travelers has appealed, insisting that it has a right to maintain its action
against Unitrac.

                It is well settled that an injured employee subject to workers compensation law cannot
bring a tort action against his employer, as the workers compensation law provides his sole and
exclusive remedy. Tenn. Code Ann. §50-6-108. An employee whose injury “was caused under
circumstances creating a legal liability against some person other than the employer to pay damages”
can sue said non-employer for those damages, however, the employer who has paid workers’
compensation benefits will have a subrogation lien against the recovery. Tenn. Code Ann. §50-6-
102.

        1
        The Order recites in part: “Upon consideration of the motion, the memorandum submitted
in support and in opposition thereto, the exhibits, and the entire record in this cause, the court is of
the opinion that the motion is well-taken and should be granted.” By considering exhibits, the
Motion to Dismiss was converted to a summary judgment pursuant to Tenn. R. Civ. P. 56.

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                  Travelers argues that, pursuant to Tenn. Code Ann. §50-6-102, it is considered an
“employer” and can be subrogated to the right of recovery the injured worker, Jones, would have
against Unitrac. This argument ignores the fact, however, that Unitrac can also be considered an
employer of Jones, if it meets the co-employer test set forth in Winchester v. Seay, 409 S.W.2d 378
(Tenn. 1966). If Unitrac is Jones’ employer, pursuant to the statutory scheme, it cannot be held
liable in tort, as workers’ compensation law is the exclusive remedy for Jones and anyone seeking
to stand in his shoes.

             In Winchester, the Supreme Court held that a “special” employer would be liable for
workers’ compensation for an employee loaned from a “general” employer if:

               1)      the employee had made a contract of hire, express or implied, with the special
                       employer;

               2)      the work being done is essentially that of the special employer; and

               3)      the special employer has the right to control the details of the work.

409 S.W.2d at 382.2

                In this case, the work being done was that of Unitrac, and Unitrac had the right to
control the details of the work, as these facts are specified in the written agreement between Labor
and Unitrac. Regarding whether the employee made a contract with Unitrac, the Supreme Court has
held that an employee of a temporary staffing service (such as Labor) is aware that he will actually
be working for the clients of the staffing service, and that by entering into such an arrangement, the
employee consents to work for “special employers”, Bennett v. Mid-South Terminals Corp., 660
S.W.2d 799 (Tenn. 1983).

                In Bennett, the Court held that where the employee entered into an employment
arrangement with a temporary labor service, the employee consented to work for the customers by
his agreement with the labor service and by consenting to the specific work assignment given. Id.
Here, Jones worked for Labor who contracted out his services for its clients, including Unitrac, and
by working for Unitrac he consented to such arrangement by accepting that particular assignment.
On these facts, there was an implied contract with Unitrac. Id., see also Abbott v. Klote International
Corp., 1999 WL 172646 (Tenn. Ct. App. Mar. 24, 1999). On this record, Jones was employed by
both Unitrac and Labor, and Unitrac has tort immunity as an employer pursuant to Tenn. Code Ann.
§50-6-108. Accordingly, Travelers cannot maintain a cause of action against Unitrac in tort, since

       2
          The special and general employers can agree that the general employer will be responsible
for maintenance of worker’s comp insurance and payment of benefits by contract, and this does not
affect the special employer’s immunity. See, e.g., Bennett v. Mid-South Terminals Corp., 660
S.W.2d 799 (Tenn. 1983); Tedder v. Union Planters Corp., 2001 WL 589139 (Tenn. Ct. App. May
29, 2001); Tenn. Workers’ Comp. Prac & Proc. §3:2.

                                                 -3-
Jones has no such cause of action.

                 Finally, Travelers argues that it has a cause of action against Unitrac based on the
language in the agreement between Labor and Unitrac, whereby Unitrac agreed to use due care to
protect employees from exposure to hazardous conditions, and agreed to indemnify and hold Labor
harmless “from and against any and all claims, damages, costs, expenses, liabilities, suits at law or
in equity, fines, penalties or other damages arising from a breach of this provision.” Travelers argues
that when it made payment on Labor’s behalf of workers’ compensation benefits, it became a “real
party in interest” and stepped into the shoes of its insured, assuming its insured’s right to seek
recovery of benefits paid. See National Cordova Corporation v. City of Memphis, 380 S.W.2d 793
(Tenn. 1964). It also argues that the exclusivity provision contained in Tenn. Code Ann. §50-6-108
does not apply, since subsection (b) of that statute states: “This section shall not be construed to
preclude third party indemnity actions against an employer who has expressly contracted to
indemnify such third party.”

                 Tenn. Code Ann. §50-6-108 does not bar a third party indemnity action based on
express contract, as we have previously held. Easter v. Exxon, 699 S.W.2d 168 (Tenn. Ct. App.
1985). As Travelers points out, the statute was amended in 1985 to expressly provide for this. Tenn.
Code Ann. §50-6-108(b). The cases considering this issue have involved a contract between the
parties to the lawsuit, and did not discuss whether an insurance company could “step into the shoes”
of its insured and assume its insured’s position relative to said contract. See Easter, supra; Black
v. UPS, 797 F.2d 290 (6th Cir. 1986).

               Unitrac counters that Travelers is not a party to the agreement in question, and thus
cannot sue for a breach of that agreement. See Owner-Operator Independent Drivers Association,
Inc. v. Concord EFS, Inc., 59 S.W.3d 63 (Tenn. 2001). Unitrac claims that the only exception to this
rule is one who is an intended third party beneficiary of the contract, which Unitrac argues is not the
case here.

               As the Supreme Court explained in the above case:

               Generally, contracts are presumed to be "executed for the benefit of the parties
               thereto and not third persons." Oman Constr. Co. v. Tennessee Cent. Ry. Co., 212
               Tenn. 556, 370 S.W.2d 563, 572 (1963). Indeed, traditional privity rules provided
               that those who were not parties to a contract had no right to sue for its breach. See
               generally Richard A. Lord, Williston on Contracts § 37:1 (4th ed.2000); see also,
               e.g., Exchange Bank of St. Louis v. Rice, 107 Mass. 37 (1871) ("[A] person who is
               not a party to a simple contract ... cannot sue on the contract, and ... a promise made
               by one person to another, for the benefit of a third person who is a stranger to the
               consideration, will not support an action by the latter."). The inflexibility of that rule,
               however, has given way to an exception when the contracting parties express an
               intent that the benefits of the contract flow to a third party. As stated by one court,
               "The third-party beneficiary concept arises from the notion that 'it is just and practical


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               to permit the person for whose benefit the contract is made to enforce it against one
               whose duty is to pay' or perform." Fourth Ocean Putnam Corp. v. Interstate
               Wrecking Co., 66 N.Y.2d 38, 495 N.Y.S.2d 1, 485 N.E.2d 208, 211 (1985) (quoting
               Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639, 640 (1918)).

Id. at 68.

                 The facts in Owner-Operator were that plaintiffs were independent truck drivers who
purchased fuel from Flying J and Pilot, and used credit cards issued by EFS National Bank. EFS
National Bank had an agreement with Visa and Mastercard, and also had agreements with Flying J
and Pilot, all of which prohibited the imposition of surcharges on credit card purchases of fuel, but
the stations apparently imposed such surcharges anyway. Id. The plaintiffs thus sued to enforce the
agreements between the stations and EFS, and between EFS and Visa/Mastercard, asserting that they
were intended third-party beneficiaries of the agreements.

               The Supreme Court disagreed, and provided the proper framework for analyzing
when a party is an intended third party beneficiary of a contract, as follows:

               A third party is an intended third-party beneficiary of a contract, and thus is entitled
               to enforce the contract's terms, if

                       (1) The parties to the contract have not otherwise agreed;

                       (2) Recognition of a right to performance in the beneficiary is appropriate to
                       effectuate the intention of the parties; and

                       (3) The terms of the contract or the circumstances surrounding performance
                       indicate that either:

                       (a) the performance of the promise will satisfy an obligation or discharge a
                       duty owed by the promisee to the beneficiary; or

                       (b) the promisee intends to give the beneficiary the benefit of the promised
                       performance.

               In so holding, we reiterate that our primary focus is upon the intent of the contracting
               parties. Thus, part (1) of the test provides that courts should honor any expression
               of intent by the parties to reserve to themselves the benefits of the contract.
               Likewise, part (2) ensures that third-party beneficiaries will be allowed to enforce the
               contract only when enforcement would further the parties' objectives in making the
               agreement. In applying this part, courts should look to what the parties intended to
               accomplish by their agreement, and a third party should not be deemed an intended
               beneficiary if so doing would undermine the parties' purposes. Part (3) provides


                                                 -5-
                guidance for differentiating between intended and incidental beneficiaries.

                In part (3), we focus upon the promisee's intent, and not the promisor's, because "[i]n
                third party cases, the right of [the third] party does not depend upon the purpose,
                motive, or intent of the promisor. The motivating cause of [the promisor's] making
                the promise is usually his desire for the consideration given by the promisee."
                Subsection (a) of this part encompasses those beneficiaries which under the
                Restatement (First) would have been deemed "creditor beneficiaries." Though this
                section is based upon the Restatement (Second), our analysis is broader in that it
                focuses upon the promisee's intent to "discharge a duty" rather than upon obligations
                of the promisee to pay money to the beneficiary. We choose this analysis because of
                the foreseeable circumstances under which analysis of the promisee's intent would
                fit more comfortably within the analytical framework of subsection (a) even though
                the duty owed to the beneficiary is not easily convertible into money.

                Notably, the contracting parties in subsection (a) cases will not necessarily express
                a direct desire to confer a benefit upon the third party, for the promisee often may be
                motivated by a self-interested intent to discharge the duty owed to the third party. As
                noted in one California case, "in contracts of the creditor beneficiary type the main
                purpose of the promisee is not to confer a benefit on the third party beneficiary, but
                to secure the discharge of his debt or performance of his duty to the third party."
                Regardless of self-interest, however, a clear expression of intent to discharge a duty
                owed by the promisee to the third party will satisfy subsection (a).

                Under subsection (b), the analysis more directly centers upon whether the promisee
                actually intends to confer a benefit upon the third party. Part (b) analysis will
                encompass those beneficiaries who under the Restatement (First) were deemed
                "donee beneficiaries," and it will also encompass those beneficiaries who do not
                seem to fit clearly within either of the original Restatement categories of donee or
                creditor beneficiary, yet who clearly were intended by the parties to receive the
                primary benefit of the contract.

Id. at 70-71.

                In this case, the agreement is silent regarding whether the parties intended to “reserve
to themselves the benefits of the contract”, and part one of the test is not controlling. Regarding part
two, there has been no showing that allowing Travelers to act as a third-party beneficiary to this
contract would effectuate the parties’ intent in the contract. The indemnification language relied
upon in the contract deals with protecting Labor’s employees from exposure to hazardous
conditions/materials, and would be for the benefit of the employees and Labor only. Regarding part
three of the test, there is no indication that performance of the promise will satisfy an obligation
owed by Unitrac to Travelers, or that Unitrac intended to give Travelers the benefit of the promise.
In fact, the contract indicates otherwise, in that it recognizes that Labor will be responsible for the


                                                  -6-
maintenance of workers’ compensation insurance, thus implying that its workers’ compensation
insurer will be looked to for the payment of benefits if an employee is injured. Accordingly,
Travelers is unable to show that it is an intended third-party beneficiary of this contract, and has no
standing to file a claim based on the breach of the contract.

               We affirm the Trial Court’s Judgment dismissing Travelers claims, and impose the
cost of the appeal to Travelers Property Casualty Company of America.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




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