### FILED March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

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 SIS KIN, FEENEY & MURRAY, PLLC, Nashville, for

Defendant-Appellee.

O P I N I O N Franks, J.
This is an actio n by a wor ker a gain st an adju sting com pan y hire d by a workers’ compensa

tion carr ier t o manag e the

worker ’s claim. The complaint charges t hat the defendant i

mproperly st

opped paying temporary t

otal disabi

lity benefits which caused t he worker to suffer ser

ious 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 grant

ed defendant’s motion t o dismiss, hol

ding that T.C .A. § 50-6 -108 affo rded the e xclu sive rem edy.2 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 certai n compensation, tot

ally i ndependent of any faul

t on the part of the employ

er.” Perry v. Transamerica I ns. Group , 703 S.W.2d 151, 153 (Tenn.App. 1985). T.C.A. § 50- 6-108(a) addresse s this issue:

Right to co mpensa tion exclusiv e. - (a) The rig hts and rem edies herein granted to an employ

ee subject to t

he Workers’ Compensation Law on account of personal i

njury or deat

h by accident,

including a minor whether lawfully or un lawfully em ployed, shall ex clude all othe r rights and remedies of such employ ee, such employe

e’s personal representat

ive, dependents,

or next of kin, at

common law or otherwise, on account of such injur y or death. Addition ally, T.C.A. § 5 0-6-102(4 ) includes an employer’s ins urance ca rrier within the definiti

on of “employer” unl

ess otherwise provi

ded. The Trial Court based her holding on Perry . In Perry , an employee sued her em ploy er’s workers’ compensa

tion carr ier a lleging b ad fai

th in handl ing t he cl aim, negligence, and out

rageous conduct. Thi s Court held that the exclusivi

ty provision of T.C.A. § 50-6-108 barred he r claim. The Court not

ed that “under our statute the insurer is equated fully

and completely

with the employe

r.” 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 pur

poses of the stat

ute, they were committed by a r

epresentati

ve of the employer.” Id. Additionally, the Court noted t hat the Workers’ Compensati on 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 thei r claims. They

allege that defendant was an independent contractor of t he 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.3

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 liabili ty against some person other tha

n the employer t

o 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 direct ly addressing entiti

es such as defendant. In Malkiewicz v. R. R. Donne lle

y & 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 t

o the same immunity

from suit awarded insur ers and was not a third part

y subject t

o suit. In Spears v. Morris & Wall ace Elevator Co. , 684 S.W.2d 620 (Tenn.App. 1984), an employ ee injured while ope

rating an eleva

tor sued the elevator insp ector. The w orkers’ com pensation c arrier had hire d the inspec tor. This Court determined t

hat the clai

m was barred because the Workers’ Compensation Act equated the insur

er with the employ

er. The Court also stated that allowing the worker’s claim would create “a legal l iabilit y” 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 t

hat the defendant is an independent contr actor 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 bar

red 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 simply4

because it was due to t

he act of an independent contractor adj ustor, given the nondelegable natur

e of the duty t

o 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) (admini strator’ 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.