Messner v. Briggs & Stratton Corp.

• Decision Date: 20 June 1984
• Docket Number: No. 83-2002,83-2002
• Court: Wisconsin Court of Appeals
• Parties: Diana L. MESSNER and John G. Messner, Plaintiffs-Appellants, v. BRIGGS & STRATTON CORP., Defendant-Respondent. d

Page 363

353 N.W.2d 363

120 Wis.2d 127

Diana L. MESSNER and John G. Messner, Plaintiffs-Appellants, v. BRIGGS & STRATTON CORP., Defendant-Respondent. ^d

No. 83-2002.

Court of Appeals of Wisconsin.

Submitted on Briefs May 16, 1984.

Opinion Released June 20, 1984.

Opinion Filed June 20, 1984.

[120 Wis.2d 129] Marjan R. Kmiec Law Offices, Milwaukee, for plaintiffs-appellants; with Richard A. Sachs, Jr., Milwaukee, of counsel.

Quarles & Brady, Milwaukee, for defendant-respondent; Peter W. Bunde, Thomas Armstrong, and John C. Cabaniss, Milwaukee, of counsel.

Before WEDEMEYER, P.J., MOSER, J. and MICHAEL T. SULLIVAN, Reserve Judge.

MICHAEL T. SULLIVAN, Reserve Judge.

Diana L. Messner (Diana) and John G. Messner (collectively, the Messners) appeal from an order for dismissal in favor of Briggs & Stratton Corporation (Briggs & Stratton). ¹ The Messners challenge the constitutionality of sec. 102.18(1)(bp), Stats. (part of the Worker's Compensation Act), which authorizes, as the exclusive remedy for insurer or employer bad faith, the award to an employee of a "penalty" against the insurer or employer, or both. The Messners contend that the section violates their constitutional rights. The Messners also argue that even if sec. 102.18(1)(bp) is constitutional, their alleged causes of action for bad faith by negligent conduct, malfeasance, intentional infliction of emotional distress, negligent infliction of emotional distress, economic duress, assault and battery, and conspiracy do not fall under sec. 102.18(1)(bp) and were allowable claims. Because the Worker's Compensation Act precludes an employee from bringing a tort action against his or her employer for a work-connected injury, we affirm the trial court's dismissal of the Messners' claims for lack of subject matter jurisdiction.

Diana suffered an injury to her right shoulder while working with an air gun at Briggs & Stratton on February 3, 1982. Soon afterward, she was examined by doctors at the Milwaukee Industrial Clinic who diagnosed the injury and released her for return to work with specified limitations. Upon her return to work, she was placed in Briggs & Stratton's rehabilitation department where employees with physical limitations are placed on light duty jobs compatible with their limitations.

Diana also sought treatment, beginning on February 18, 1982, from her own physician, Dr. Phillips, who initially concurred with the opinions of the physicians at the Industrial Clinic that Diana was able to work at light duty jobs. By February 25, 1982, Dr. Phillips determined that Diana's return to work had aggravated her condition, and he instructed her not to return to work. Several weeks later, Dr. Phillips told Diana that she should return to work. Based on the medical reports received from Milwaukee Industrial Clinic indicating that Diana could perform the light duty work available to her, Briggs & Stratton did not pay her temporary total disability benefits for the periods when she did not work. Briggs & Stratton did pay, however, for all of Diana's injury-related medical expenses plus $2,344.07 in temporary partial disability benefits and $1,606 in permanent partial disability benefits. In February, 1983, Dr. Phillips determined that the healing period for Diana's injury had ended, and he informed Briggs & Stratton that if Diana returned to factory work involving repetitive motion she would continue to suffer shoulder pain. The Wisconsin Department of Vocational Rehabilitation recommended a rehabilitation program for Diana, and Briggs & Stratton agreed to pay a portion of the costs of the program.

The instant controversy stems from Briggs & Stratton's refusal to pay Diana temporary total disability benefits for the periods when she did not work. Diana filed suit against Briggs & Stratton in circuit court alleging various physical and emotional injuries caused by the company's actions. The trial court granted Briggs & Stratton's motion for summary judgment on the ground that, because Diana's exclusive remedy was under the Worker's Compensation Act, the court lacked subject matter jurisdiction.

STANDARD OF REVIEW

On review of a summary judgment, an appellate court applies the same standards as the trial court. Wright v. Hasley, 86 Wis.2d 572, 579, 273 N.W.2d 319, 323 (1979). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Sec. 802.08, Stats.

WORKER'S COMPENSATION ACT

The constitutionality of the Worker's Compensation Act, including its exclusivity provision, has long been established, see Borgnis v. The Falk Company, 147 Wis. 327, 133 N.W. 209 (1911), and has been repeatedly upheld, see Mulder v. Acme-Cleveland Corporation, 95 Wis.2d 173, 290 N.W.2d 276 (1980).

Liability under the Act exists against an employer when the following conditions concur: (1) an employee sustains an injury; (2) at the time of the injury both the employer and employee are subject to the provisions of the Act; (3) at the time of the injury the employee is performing service growing out of and incidental to his or her employment; (4) the injury is not intentionally self-inflicted; (5) the accident or disease causing injury arises out of the employee's employment. See sec. 102.03, Stats. Where such conditions exist, the right to recovery of compensation under the Act is the employee's exclusive remedy against the employer, any other employee of the same employer, and the worker's compensation insurance carrier. Sec. 102.03(2), Stats.

For years, the Wisconsin Supreme Court consistently interpreted sec. 102.03(2), Stats., the exclusivity provision, as barring the maintenance of tort claims against employers. See, e.g., Beck v. Hamann, 263 Wis. 131, 56 N.W.2d 837 (1953); Guse v. A.O. Smith Corporation, 260 Wis. 403, 51 N.W.2d 24 (1952); Deluhery v. Sisters of St. Mary, 244 Wis. 254, 12 N.W.2d 49 (1943). In 1979, however, the court carved out an exception to the exclusivity principle by holding that sec. 102.03(2), did not bar the plaintiff from maintaining a tort action for bad faith denial of compensation benefits. ² See Coleman v. American Universal Insurance Company, 86 Wis.2d 615, 273 N.W.2d 220 (1979). The legislature's reaction to Coleman was manifested in sec. 102.18(1)(bp), Stats., effective November 28, 1981, which placed bad faith denial of compensation claims against an employer solidly under the Worker's Compensation Act. The section, as amended in 1983, ³ reads, in pertinent part, as follows:

The department may include a penalty in its final award to an employe if it determines that the employer's or insurance carrier's suspension of, termination of or failure to make payments or failure to report injury resulted from malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith.

Diana argues that sec. 102.18(1)(bp), Stats., is unconstitutional in that it denies her rights to a certain remedy under the law, a trial by jury, due process of law and equal protection under the law.

CERTAIN REMEDY

Article 1, § 9, of the Wisconsin Constitution provides that every person is entitled to a certain remedy in the law for wrongs or injuries received and, further, that such remedy is to be free, prompt and in conformity with the law. The certain remedy clause provides persons the right of access to the courts to obtain justice based on the law as it exists. Mulder, supra, 95 Wis.2d at 189, 290 N.W.2d at 284. The clause does not confer any legal rights. Id. Rather, it simply guarantees that individuals shall not have to "purchase justice from public officials as a prerequisite to having their claims adjudicated." Id. at 189-90, 290 N.W.2d at 284.

Thus, the certain remedy clause creates no right to maintain a civil action. Diana's right to free access to the courts under the law as it exists is not infringed upon by upholding a law which provides that an employee may not maintain a common law tort action against an employer for a bad faith denial of compensation benefits. That is the law in Wisconsin as it exists now. The certain remedy clause is not violated by enforcing sec. 102.18(1)(bp), Stats. See Oliver v. Travelers Insurance Co., 103 Wis.2d 644, 649-50, 309 N.W.2d 383, 386 (Ct.App.1981).

TRIAL BY JURY

The right to a trial by jury of common-law claims is protected by the 7th Amendment to the United States Constitution and by art. I, § 5, of the Wisconsin Constitution. Under our worker's compensation statutes, which are in abrogation of the common law, there no longer exists any common-law tort action against an employer for a work-related personal injury. See id. at 651, 309 N.W.2d at 386. Hence, the aforementioned constitutional provisions are not violated by worker's compensation exclusivity provisions. See id. at 651 n. 5 and accompanying text, 309 N.W.2d at 386-87 n. 5 and accompanying text.

DUE PROCESS

Diana's due process argument centers on the thesis that a bad faith denial of benefits is not an injury arising out of employment within the purview of sec. 102.03(1), Stats. Whatever the worth of this proposition or of the challenged legislation, the essential question is whether Diana has proven beyond a reasonable doubt that sec. 102.18(1)(bp), Stats., is unconstitutional:

Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts.

Id. at 647, 309 N.W.2d at 385 (quoting State ex rel. Hammermill Paper Co. v. La Plante, 58...