FILED

March 24, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RALPH E. DAVIS, JR., et ux ) C/A NO. 03A01-9811-CV-00373

CYNTHIA DAVIS, )

) HAMILTON CIRCUIT

Plaintiffs-Appellants, )

) HON. L. MARIE WILLIAMS,

v. ) JUDGE

)

ALEXSIS, INC., ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

SAM JONES, Chattanooga, for Plaintiffs-Appellants.

JOHN THOMAS FEENEY and M. KEITH SISKIN, FEENEY & MURRAY, PLLC,

Nashville, for Defendant-Appellee.

O P I N I O N

Franks, J.

This is an action by a worker against an adjusting company 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 mental injury by aggravating an unde rlying past trauma tic stress disorder. 

Defendant later resumed payments.

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

T.C.A. § 50-6-108 afforded the exclusive remedy.
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Workers’ compensation laws “involve a quid pro quo in that the

workers give up certain common law rights against their employers in return for 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 compensation exclusive. - (a) The rights and remedies 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 unlawfully employed, shall exclude 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.

Additionally, T.C.A. § 50-6-102(4) includes an employer’s insurance 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 complained of were committed by “a representative of the 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

provided penalties for insurers who failed to pay proper compensation. See T.C.A. §

50-6-205.

Plaintiffs argue 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’ compensation is the exclusive remedy, unless a third

party causes the injury. McAlsiter v. Methodist Hosp., 550 S.W.2d 240, 242 (Tenn.
3

1977). T.C.A. § 50-6-112 allows the injured worker to recover 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 (Tenn. App. 1983). 

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 Supreme Court held that a gua rantor of a self-insured employer’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 inspector. The workers’ compensation c arrier had hired 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

respondeat superior. 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 would not crea te liability for the worker’s compensation c arrier. This

argument may have merit for certain types of tortious conduct. In this case, however,

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

discharging a non-delegable duty of the carrier.

In Cooper v. National Union Fire Ins. Co., 921 P.2d 1297 (Okla. Ct.

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

compensation insurer’s liability for the actions of an independent adjustor. The Court

noted that “an insurer cannot avoid liability for ‘bad f aith’ failure to pay simply
4

because it was due to the act of an independent contractor adjustor, given the nondelegable nature of the duty to deal fairly and in good faith.” Cooper, 921 P.2d at

1300 (citation omitted). Also see Holt v . American Progressive Life Ins. Co., 731

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

insurance company). The foregoing reasoning is persua sive and the exclusivity

provision of the Worker’s Compensation Act therefore bars plaintiffs’ claims. 

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

cost.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Charles D. Susano, Jr., J.