                                                                                             02/20/2020
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                November 7, 2019 Session

     MARC DOUGLAS SWINDLE ET AL. V. KAREN GOODLOW ET AL.

                  Appeal from the Circuit Court for Davidson County
                    No. 16C2918      Thomas W. Brothers, Judge


                             No. M2019-00529-COA-R3-CV


This appeal stems from a workplace injury on a construction site. On his first day on the
job, Marc Douglas Swindle (“Plaintiff”) fell from the roof of a building that was under
construction. It is undisputed that Plaintiff was authorized to work on the job site and that
he was working in the course and scope of his employment when injured. What is
disputed is the identity of his employer: whether he was in the employ of the general
contractor or one of the subcontractors. Plaintiff initially filed a claim with the Tennessee
Bureau of Workers’ Compensation, Court of Workers’ Compensation Claims, naming the
general contractor as his employer; however, Plaintiff voluntarily dismissed his workers’
compensation claim when the general contractor filed a response stating that Plaintiff was
not its employee. Thereafter, Plaintiff and his wife filed this tort action in circuit court to
recover damages from the general contractor, two of its subcontractors, and the owner of
the property for the injuries he sustained at the construction site. Finding it undisputed
that Plaintiff’s injuries were sustained in the course and scope of his employment, the
circuit court held that it was without jurisdiction to consider the tort claims because the
workers’ compensation exclusive remedy doctrine applied. For these reasons, the court
dismissed the complaint. Plaintiffs appeal. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD
R. DINKINS and W. NEAL MCBRAYER, JJ., joined.

W. H. Stephenson, II, Nashville, Tennessee, for the appellants, Marc Douglas Swindle
and Joetta Swindle.

Joseph Christian Johnsen and Warren Maxey Smith, Nashville, Tennessee, for appellee,
A&M Builders, Inc.
Charles Joseph Hubbard, Michael Anthony Johnson, and William Walter Franklin
Wilbert, for appellee, Jeffery A. Hudson.1

                                              OPINION

       On his first day on the job at a project identified as The Station, Marc Douglas
Swindle fell from the roof of a building that was under construction. Karen Goodlow was
the owner of the property, and A&M Builders, Inc. (“A&M”) was the general contractor.
A&M’s subcontractors were Central Construction, LLC, (“Central Construction”) and
Jeffrey Hudson, individually and d/b/a J&L Remodeling (“J&L”).

       A couple of days before Plaintiff’s accident, Raymond Legassie, the foreman for
A&M, informed Reid McDougald of Central Construction that Central Construction
and/or J&L, which was the prime subcontractor, needed additional workers to complete
their work in a timely fashion. Legassie conveyed the message to Jeffrey Hudson, who
was the primary contact for J&L. After Hudson told Legassie that J&L could not send
extra workers, McDougald informed Legassie that he knew someone who was available
to work, meaning Plaintiff. What was not discussed was which contractor would be
Plaintiff’s employer.

        The morning after McDougald informed Plaintiff of the opportunity, Plaintiff
reported to the construction site. Upon his arrival, McDougald introduced Plaintiff to
Legassie, and Legassie informed Plaintiff about the work and told Plaintiff he would be
paid at the end of the work week. Legassie then directed Plaintiff to begin working on top
of the roof. While it was clear that Plaintiff would be paid for his work, the identity of his
employer was not discussed, and no employment papers were signed.

       When he arrived on the roof, Plaintiff immediately went to work although no one
furnished Plaintiff with any precautionary ropes, harnesses, or other safety equipment.
Approximately two hours later, Plaintiff’s work glove became entangled on a nail in a
large plank as it was sliding off the building, causing him to fall to the concrete floor. It
was readily apparent that Plaintiff had sustained serious injuries for which he was
promptly taken to Skyline Medical Center for emergency medical treatment. Plaintiff


        1
          An appellee’s brief was filed on behalf of Jeffrey A. Hudson d/b/a J & L Remodeling. Plaintiffs
do not seek appellate relief from the trial court’s order summarily dismissing all claims against Mr.
Hudson. Moreover, Mr. Hudson does not seek affirmative relief in this appeal. Accordingly, the trial
court’s grant of summary judgment as to Jeffrey A. Hudson d/b/a J & L Remodeling is unaffected by this
appeal.



                                                  -2-
never returned to work on the jobsite and was not compensated for the two hours he
worked.

       Believing A&M was his employer, Plaintiff filed a claim with the Tennessee
Bureau of Workers’ Compensation, Court of Workers’ Compensation Claims. A&M filed
a response stating that Plaintiff was not its employee. Unable to establish the identity of
the employer, Plaintiff voluntarily dismissed his workers’ compensation claim.
Thereafter, Plaintiff and his wife, Joetta Swindle, (collectively “Plaintiffs”) filed this tort
action in circuit court against A&M and the property owner of The Station, Karen
Goodlow, asserting claims based on negligence, fraud, and intentional misrepresentation.

       In its Answer to the Complaint, A&M denied being at fault or liable for any of the
claims. Further, because it was undisputed that Plaintiff’s injuries arose in the scope and
course of his employment with someone, the exclusive remedy doctrine applied whether
Plaintiff was or was not its employee. A&M also asserted comparative fault against the
two subcontractors, J&L Remodeling and Central Construction, on the basis that Plaintiff
was an employee of one or the other at the time of the injury.

      Plaintiffs then filed an Amended Complaint adding Hudson and Central
Construction as defendants and asserting that either A&M, J&L, and/or Central
Construction, was his employer. Plaintiffs later voluntarily dismissed Central
Construction.

       In his deposition, Plaintiff stated that he only spoke with Legassie at the jobsite.
Although Plaintiff did not know the name of the company Legassie worked for, he
assumed it was his employer. In contrast, Legassie testified in his deposition that Plaintiff
was not an employee of A&M. Legassie also testified that he did not have the authority to
hire employees for A&M and that any employees hired by A&M were not allowed on the
jobsite without the proper documentation. Legassie stated that he believed Plaintiff had
been employed by J&L or Central Construction but admitted that he believed Hudson had
never talked to Plaintiff.

       In his deposition, Hudson testified that he was the sole owner of J&L, which was
the prime framing subcontractor on The Station project, and that J&L had subcontracted
its work out to Central Construction. He also stated that he never spoke to Plaintiff and
that Plaintiff was never his employee.

       Based on these and other facts, all three defendants moved for summary judgment.
As for the owner of the property, Karen Goodlow, the trial court summarily dismissed all
claims against her and Plaintiffs do not challenge that ruling in this appeal.


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        As for Jeffrey Hudson, individually and doing business as J&L Remodeling, the
court found that Hudson was not on the job site on the day at issue and had no
conversations with Plaintiff. Further, the court found that none of J&L’s employees were
on the roof on the day of the accident, and the three workers on the roof with Plaintiff
were employees of Central Construction. Thus, as for the claim of negligence, the trial
court found Hudson and J&L owed no duty to Plaintiff. Further, because Plaintiff never
spoke to nor overheard any statements made by Hudson, the trial court found Plaintiff
could not sustain a claim against Hudson for intentional misrepresentation. Finally,
because Plaintiff was working as an employee in the scope and course of his employment
at the time of his injury, the exclusive remedy doctrine under the Workers’ Compensation
Act applied.

      As for A&M Builders, the trial court’s order reads in pertinent part:

             After reviewing the party’s briefs and hearing oral arguments, the
      Court held: (1) there were no genuine issues of material fact; (2) the Court
      was without jurisdiction over Plaintiffs’ claims for personal injuries, as the
      Court of Worker’s Compensation Claims is Plaintiffs’ exclusive remedy;
      and (3) Plaintiffs’ claims of fraud and misrepresentation were solely related
      to Defendant’s maintenance of a legal defense, which did not constitute
      fraud or misrepresentation.

            Tennessee’s workers’ compensation law provides the exclusive
      remedy for an employee who is injured during the course and scope of his
      employment, meaning the employee is precluded from seeking tort
      damages for the injury. Tenn. Code Ann. § 50-6-108.

              The only exception to the exclusivity provision is for intentional
      torts committed by an employer against an employee. Valencia v. Freeland
      & Lemm Constr. Co., 108 S.W.3d 239, 242 (Tenn. 2003). This exception
      requires a showing of “actual intent” to injure. Id. at 240. Claims of
      intentional or fraudulent misrepresentation are insufficient to establish the
      intentional tort exception. Coltraine v. Fluor Daniel Facility Servs. Co.,
      [No. 01A01-9309-CV-00419,] 1994 WL 279964, at *3 (Tenn. Ct. App.
      June 22, 1994)

                                     .      .      .

             Plaintiffs have failed to demonstrate how their claims for the
      workplace injuries suffered by Plaintiff meet the intentional tort exception
      to the exclusive, remedy provision of the workers’ compensation statute.
      Whether Plaintiff is considered an “employee” under the Workers’

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       compensation statutes is a question for the Court of Workers’
       Compensation Claims. This Court makes no determination as to Plaintiff’s
       employment status with Defendant.

              Further, Plaintiffs’ claims suggest that Defendant’s denial of being
       Plaintiff’s employer constitutes fraud and misrepresentation. Plaintiffs have
       offered no legal basis for this claim, and the Court cannot hold that
       maintaining a legal defense pursuant to the Rules of Civil Procedure can be
       the basis for a future fraud or misrepresentation claim.

       This appeal followed.

                                          ISSUE

        The dispositive issue is whether the trial court erred by summarily dismissing the
Plaintiffs’ claims against A&M. To address this issue we must determine whether the
trial court erred in: (1) finding it was without jurisdiction over Plaintiffs’ claims for
personal injuries against A&M based on the exclusive remedies doctrine under the
workers’ compensation law, and (2) in dismissing Plaintiffs’ claims of fraud and
misrepresentation, which are based on A&M’s allegedly false assertion that Plaintiff was
not its employee.

                                 STANDARD OF REVIEW

       This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.
In so doing, we consider the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692,
695 (Tenn. 2002).

        Summary judgment should be granted 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. When the party moving for
summary judgment does not bear the burden of proof at trial, it 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.” Rye, 477 S.W.3d at 264 (emphasis in original).


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       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. at 265. Instead, the nonmoving party must respond with specific facts
showing there is a genuine issue for trial. Id. A fact is material “if it must be decided in
order to resolve the substantive claim or defense at which the motion is directed.” Byrd v.
Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury
could legitimately resolve that fact in favor of one side or the other.” Id.

                                                ANALYSIS

                             I.        EXCLUSIVE REMEDY DOCTRINE

        Plaintiffs contend the exclusive remedy doctrine under the workers’ compensation
law is not applicable because neither A&M nor the subcontractors claimed or presented
facts to establish that Plaintiff was their employee. Therefore, Plaintiffs insist the proof
demonstrates that there was no employer-employee relationship. Alternatively, Plaintiffs
submit there was no employment relationship because Plaintiff never received payment
for his services, a pay stub, a timesheet, a W-2, or any other documentation typically
generated by an employee-employer relationship.

       Conversely, A&M insists the trial court lacked subject matter jurisdiction over the
claims because the Amended Complaint alleged and Plaintiff’s deposition testimony
established that the injuries were sustained “within the course and scope of his
employment.” Moreover, A&M contends this material fact is not disputed. Claiming it is
undisputed that Plaintiff’s injuries were sustained within the course and scope of his
employment, A&M insists that Plaintiffs’ exclusive remedies are pursuant to the workers’
compensation law.

       Tennessee’s workers’ compensation law is the controlling law that applies when
there is a work place injury that arises out of an employment relationship.2 See Tenn.


       2
           The definition for an employee is as follows:

       “Employee” includes every person, including a minor, whether lawfully or unlawfully
       employed. . . in the service of an employer, as an employer is defined in subdivision (13),
       under any contract of hire or apprenticeship, written or implied. . . .

Tenn. Code Ann. § 50-6-102(12)(A) (emphasis added).

       The definition for an employer is as follows:

                                                                                         (continued…)

                                                    -6-
Code Ann. §§ 50-6-101 to 50-6-108. Employers and employees in Tennessee subject to
the Workers’ Compensation Law “shall, respectively, pay and accept compensation for
personal injury or death by accident arising out of and in the course of employment
without regard to fault as a cause of the injury or death[.]” Id. § 103(a). The remedies
provided by the workers’ compensation law are exclusive if the injury arose out of and in
the course of employment. Tenn. Code Ann. § 50-6-108(a). Accordingly, when a work-
related injury arises out of and in the course of employment, an employee’s only option is
to proceed under the provisions of this chapter. Frayser v. Dentsply Int’l, Inc., 78 S.W.3d
242, 249 (Tenn. Workers Comp. Panel 2002).

       The Amended Complaint alleged that Plaintiff was hired when he appeared for
work at The Station job site. Thus, Plaintiff contends the employer-employee
arrangement commenced at that time, and he was injured shortly thereafter while
working within the scope and course of his employment. On appeal, however, Plaintiffs
contend the general contractor led him to believe he had been employed, but that no
employment relationship ever existed. This contention is in direct conflict with Plaintiff’s
deposition testimony. When asked whether his injury happened on the job, he answered
affirmatively. Moreover, when asked whether “this is simply a case of figuring out who
your employer was and getting them to pay for your injuries?” Plaintiff responded
affirmatively.

        An injury arises out of employment when there is a causal connection between the
conditions under which the work is required to be performed and the resulting
injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005); Harman v.
Moore’s Quality Snack Foods, 815 S.W.2d 519, 524 (Tenn. Ct. App. 1991) (“Our
Workers’ Compensation Law generally is the sole tort remedy available to a worker who
is injured in a fashion that falls within the broad scope of the Workers’ Compensation
statute.”). Although the identity of Plaintiff’s employer remains unknown, it is apparent
that all of Plaintiffs’ claims in this tort action are based on the existence of an employee-
employer relationship and that Plaintiff’s injuries arose within the course and scope of his
employment. Moreover, Plaintiffs have presented no evidence for their claims to come
within an exception to the exclusivity provision. See, e.g., Valencia, 108 S.W.3d at 242.


       “Employer” includes any individual, firm, association or corporation, the receiver or
       trustee of the individual, firm, association or corporation, or the legal representative of a
       deceased employer, using the services of not less than five (5) persons for pay, except as
       provided in § 50-6-902 . . .

Tenn. Code Ann. § 50-6-102(13).



                                                  -7-
Accordingly, all of Plaintiffs’ rights and remedies are subject to the exclusive remedies
provided by the workers’ compensation law. See Tenn. Code Ann. § 50-6-108(a).

                 II.      CLAIMS OF FRAUD AND MISREPRESENTATION

       Although Plaintiffs state in their brief that the trial court erred by dismissing their
claims of fraud and misrepresentation, they identify no facts to support this contention.
Moreover, they cite no authority to support the contention. The Tennessee Rules of
Appellate Procedure Rule 27(a)(7) clearly state that an issue is waived by “the failure to
make appropriate references to the record and to cite relevant authority in the argument
section of the brief.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
Accordingly, this issue is waived.

                                      IN CONCLUSION

       For the foregoing reasons, we affirm the trial court’s decision to summarily
dismiss the complaint. The judgment of the trial court is affirmed, and this matter is
remanded for further proceedings consistent with this opinion. Costs of appeal are
assessed against the appellants, Marc Douglas Swindle and Joetta Swindle.


                                                   ________________________________
                                                   FRANK G. CLEMENT JR., P.J., M.S.




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