Adair v. Moretti-Harrah Marble Co., Inc.

• Decision Date: 07 March 1980
• Docket Number: MORETTI-HARRAH
• Citation: 381 So.2d 181
• Parties: Leroy ADAIR and wife, Dorothy Adair v.MARBLE COMPANY, INC. 78-405.
• Court: Alabama Supreme Court

Page 181

381 So.2d 181

Leroy ADAIR and wife, Dorothy Adair v. MORETTI-HARRAH MARBLE COMPANY, INC.

78-405.

Supreme Court of Alabama.

March 7, 1980.

John H. Lavette and Philip C. Henry, Birmingham, B. Greg Wood, of Love, Love, Lawrence & Burton, Talledega, for appellants.

Thomas Reuben Bell, of Bell, Lang & Bell, Sylacauga, for appellee.

PER CURIAM.

Leroy and Dorothy Adair appeal from a summary judgment granted Moretti-Harrah Marble Company, Inc. in a personal injury action. We affirm.

Leroy Adair suffered personal injuries in the performance of employment-related duties as an employee of Moretti-Harrah on February 27, 1975. He filed suit on May 23, 1975, seeking workmen's compensation benefits for his injuries. During discovery and the preparation for this trial it was learned that Moretti-Harrah was self-insured for the payment of workmen's compensation benefits and conducted its own safety program. Mr. and Mrs. Adair then filed a third party action against Moretti-Harrah in its capacity as insurer, alleging that the company had negligently, wantonly, recklessly or intentionally failed to maintain an adequate safety program.

The workmen's compensation case was tried and a final judgment was entered on October 6, 1977, awarding Mr. Adair benefits for 30% permanent partial disability. On September 14, 1978, Moretti-Harrah filed a motion for summary judgment based on §§ 25-5-52 and 25-5-53 of the Alabama Code and on the record in the workmen's compensation case. After a hearing, the trial court entered a summary judgment for Moretti-Harrah stating that a self-insured employer under the Workmen's Compensation Act did not have any independent relationship toward the employee other than that of employer-employee and had no additional liability. The Adairs appeal.

The Adairs assert on appeal that an injured employee may maintain a third party action against his self-insured employer in its separate capacity as an insurer, pursuant to Alabama Code, Tit. 26, § 312 (1973 Supp.), the applicable law at the time the case was filed. ¹ They ask that this Court adopt the dual capacity doctrine of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971). (See, also, United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 [Ala.1977].)

Beasley held that a private insurer under § 25-5-8(a) could be sued for negligence in performing safety inspections; the Workmen's Compensation Act had not abrogated the common law action against the workmen's compensation carrier. Liberty Mutual, the insurer in that case, argued that it was immune from suit under Tit. 26, § 312, because the employer, its insured, was not liable to the employee injured as a result of the negligent safety inspection. It contended that it was "standing in the shoes of the employer." Mr. Justice Simpson, speaking for the Court, rejected this argument, quoting Larson, Workmen's Compensation Insurer as Suable Third Party, 1969 Duke Law Journal, 1117, 1137:

" 'But it is not of the essence of the compensation process that the carrier should step out of its fundamental role as financial guarantor and payor and go into the safety inspection service or medical clinic business directly. There is a big difference. If the carrier merely puts up the money and the employee obtains medical services from an independent physician or clinic, the employee in case of malpractice has someone he can sue. But, if the carrier performs the service directly and if third-party liability is destroyed [by equating the carrier with the employer], the employee has no one to sue.' " Beasley, supra, at 197-198, 249 So.2d at 851; bracketed material added by the Beasley court.

He stated that the same reasoning applied to the performance of safety engineering services. There was a distinction between the carrier's function of payment for benefits and services and any function it assumed in the way of direct or physical performance of services related to the act. Justice Simpson characterized Liberty Mutual as "wearing two hats and performing two roles."

"In its role of supplying of the financial responsibility required of the employer under the act, it is entitled to all of the rights of its insured under the act. In its role of safety engineer it is entitled to no more protection than the law would give to any other in that role. It certainly would have a competitive advantage over other safety engineers if it would [could] claim immunity from common-law liability simply because it also writes the workmen's compensation coverage for the employer." Beasley, supra,...